GANAPATHY AND ANR. Vs. AMBEKAI AND ORS.

JUDGEMENT

(1.) Plaintiffs who have failed in the Courts below in their suit for recovery of possession of lands of the extent of 5 acres 27 cents in Vadasanganthi Village, Tiruthuraipundi Taluk, Nagapattinam Registration District, with future profits have filed this second appeal. Their claim to possession of the suit lands was rested on a registered settlement deed dated 18th April 1911, of which Ex. A -1 is the registration copy. The suit lands are not directly covered by the settlement deed but were obtained by the settlor subsequent to the settlement under a deed of exchange for some of the lands covered by the settlement and this is the principal ground on which the plaintiffs failed. The trial court whose decision was affirmed by the Appellate Court remarked that if the plaintiffs had filed the suit for recovery of the properties covered by the settlement deed, they could have succeeded. In this second appeal the plaintiffs challenge the view of the Courts below and the defendants seek to maintain the decree in their favour here on other grounds also. The plaintiffs and 7th defendant who are divided brothers are the sons of one Rathnasabapathy Thevar. The settlement in question was made by Nagammal Achi, widow of one Saminatha Thevar, brother of Rathnasabapathy Thevar's father, Aonappa Thevar. The 1st defendant in the suit is the widow of Ramiah Thevar, natural brother of Ratnasabhapathy Thevar who had gone out of the family in adoption to one Kanakappa Thevar. The 2nd defendant in the suit is the daughter and the 3rd defendant, daughter's sons of the said Ramiah Thevar. Defendants 8 to 11 are other heirs of the deceased 1st defendant. By the settlement deed Nagammal settled her properties described in Schedules A, B and C of the deed of settlement, Ex. A -1, with the object of providing for the due performance of worship at Sri Thirugnanamurthi Vinayagar Temple at Manapadugai which she constructed and for the necessary thirupanies to the temple. A total extent of 21 acres 80 cents of land and also house property and trees and plants were the subject of the settlement. The settlement deed provided that during her life time she would enjoy the settled properties paying circar kist carrying on the trusts provided for in the document, namely, daily pooja, daily lighting, temple repairs, Vinayaka Chathurtbi ubayam, niramani ubayam and Thiru Karthigai ubayam After her death, Rathnasabapathy Thevar was to take charge of the properties mentioned in Sch. A and B of the settlement deed, enjoy the same and give 37 kalams of paddy and Rs. 20/ - for the daily pooja and lighting and see to their performannce. He was also to carry on the charity of performing Vinayaka Chathurthi ubayam and niramani ubayam. Ramiah Thevar aforesaid was to take charge of the properties mentioned in the C Sch. to the settlement deed, of the extent of 9 acres and 78 cents, and enjoy the same paying kist thereon and give towards daily pooja and daily lighting 29 kalams of paddy and Rs. 13. He had to conduct the Thiru Karthigai ubayam. Rathnasabapathy Thevar and Ramiah Thevar bad to pay for the thiruppani to the temple in pre -portion to the lands taken by them. If there was default by any of the parties in carrying on the trusts, the party carrying on the trust should take over possession of the entire property and carry on the trusts provided in the settlement As regards further devolution, the settlement deed provided that if any of them had no male heirs, the male heirs of the other should take the property end perform the charities. There was prohibition against any alienation of the properties by the settlor, Rathnasabapathy Thevar, Ramiah Thevar and their heirs. This document was attested by Rathnasabapathy Thevar's father Annappa Thevar and Ramiah Thevar's adoptive father Kanakappa Thevar. At the time this document was executed neither Rathnasapapathy Thevar nor Ramiah Thevar had any issue.

(2.) Subsequent to this settlement deed, the settlor Nagammal exchanged the suit properties of the extent of 5 acres 27 cents for an extent of 6 acres and 70 cents out of 9 acres 78 cents comprised in Sch. C of the settlement deed Ex. A -1. The exchange was under a registered deed dated 10th August, 1924 with one Rangaswami Pillai. The deed of exchange (Ex. A -2 is a registration copy of the deed) specifically referred to the fact that the lands given by her in exchange were covered by C Sch. in the deed of settlement made by her providing for the performance of the daily pooja, neivadhya etc., for Sri Thirugnanamurthy Vinayakar to be enjoyed by her for her life time carrying on the trusts and after her to be enjoyed by Ramiah Thevar carrying on the trusts. Nagammal died in 1928 and Ramiah Thevar who under the deed of settlement Ex. A -1 had to succeed to the enjoyment of the properties mentioned in Sch. C of the settlement deed subject to the performance of the trusts assumed possession of the available C Sch. properties and the suit properties that had been taken in exchange by Nagammal Achl. During his life time Ramiah Thevar (sic) alienated some of the suit properties under exchange, sale and settlement. He tad no male issue and died in December, 1952. Before (sic) death, he settled item 1 of the suit properties and another property in favour of his grandson, the 3rd defendant in the suit under a settlement deed Ex. B -5 dated 9th December, 1952. Item, 2, he conveyed in exchange for other properties under Ex.B -1 dated 28th May, 1942. He sold away under Ex. B -4 dated 16th May, 1951 item 3 to one Samiappa Thevar whose son sold that item to the present 5th defendant The 1st defendant purported to settle items 4 and 5 in favour of her grandson, the 3rd defendant under a registered settlement deed Ex. B -6 dated 31st December, 1960. The plaint proceeds on the basis that under the settlement deed Ex. A -1 Rathnasabapathy Thevar and Ramiah Thevar had life estates with a charge for contribution for the specified charities and that on the death of Ramiah Thevar leaving no male issue, the plaintiffs and 7th defendant as the male heirs of Rathnasabapathy Thevar have became entitled to possession of the suit properties. The plaintiffs also state that they and the 7th defendant, besides being entitled to possession of the properties under the settlement deed, under the very terms of the settlement deed are also the nearest reversioners and heirs -at -law of Nagammal Achi entitled to possession of the properties after the life estate of Ramiah Thevar.

(3.) Several defences were raised .It was inter alia contended that the original settlement of Nagammal was a nominal document, and was not intended to be given effect to. It was pleaded that under the settlement deed Ramiah Thevar bad an absolute estate in the C. Schedule properties. The courts below find that the original settlement was not a sham or nominal document and that there was evidence of poojas to the deity being carried on. The claim to an absolute estate in favour of Ramiah Thevar under the settlement deed was found against and the Courts below have held that Ramiah Thevar got only a limited interest for his life. Both sides proceeded to argue the case on the assumption that under the settlement deed the properties were only charged for pooja and other kuinkaryams in the temple and that the dedication was not an absolute one, but partial. There has been no serious dispute that the plaintiffs and the 7th defendant are the nearest and immediate reversioners of Nagammal Achi and entitled to succeed to the properties as her heirs. The decision of the Courts, below has proceeded in the view that the suit properties have not taken the character of the properties covered by Ex. A -1 and that the plaintiffs cannot lay any claim to the suit properties upon the terms of Ex A -1 The courts below would hold that Ramiah Thevar by enjoyment of the suit properties from 1928 bad prescribed title to the properties in himself. While the trial court has taken the view that Ex. A -1 conferred only a limited interest on Ramiah Thevar, the appellate Court considers it unnecessary to give a finding on that question.