RAJAMMAL Vs. SELLANI AMMAL

JUDGEMENT

(1.) THE above appeal has been filed under Clause 15 of the Letters Patent against the judgment and decree of a learned single Judge of this Court dated 16.12.1992 in A.S. No.699 of 1982, whereunder the learned single Judge was pleased to confirm the judgment and decree of the learned Subordinate Judge, Mayuram, dated 10.8.1981 in O.S. No.210 of 1979, which was filed by the respondent herein in forma pauperis for declaring that the respondent/plaintiff was entitled to the suit properties as per the terms of the trust deed dated 29.1.1894 and for a consequential direction to the defendants to put the plaintiff in possession of the plaint "B" schedule properties with future profits. THE suit came to be decreed, except in respect of future profits, which were left open to be decided in a separate proceedings.

(2.) . The suit "B" schedule properties measuring an extent of 6.61 acres originally belonged to one Krishna Rao, who, executed a deed dated 29.1.1894, marked as Ex.A-1, in which the properties have been gives to the care and possession of one Vrushabadhwaja Dikshidhar, in order to perform certain kattalais in Arulmigu Sivakamasundari Samedha Shri Nataraja Temple of Chidambaram. It is unnecessary to advert to the details of the same at this point of time, except referring to the fact that the grantee under Ex.A-1 had no absolute rights to deal with the properties or to encumber the same in any manner he likes, but only to be in possession and enjoyment in order to perform the kattalais specified therein. So far as me extent of me grant is concerned, it has been stated, viz., This was followed by Ex.A-2 dated 20.10.1894 under which the said Vrushabadhwaja Dikshidhar alias Chellamanar Dikshidhar and four other Dikshidhars have assured the executed of Ex.A-1, T.Krishna Rao mat me kattalais and other poojas as specified shall be performed for ever managing the properties granted therefor, without encumbering them in any manner or alienating the same and also making it clear that in case of any violation, the heirs and successors-in-interest of the granter shall he at liberty to resume back the properties for the purpose of maintaining the kattalais and performing poojas, for which the properties have been dedicated and to be in possession of Vrushabadhwaja Dikshidhar, which has been also secured by other Dikshidhars, who were parties to Ex.A-2. The fact remains that after Vrushabadhwaja Dikshidhar, the husband of the plaintiff, Kalyanasubramania Dikshidhar, came into possession of the properties indisputably subject to the terms and conditions indisputably subject to the terms and conditions contained in Exs.A-1 and A-2 put together. The plaintiff claims to be the second wife of Kalyanasubramania Dikshidhar, the first wife having pre-deceased him and he also had no issues. In the light of the above, by a will dated 17.4.1950 registered as Document No.19 of 1950 marked as Ex.A-3, Kalyanasubramania Dikshidhar has be-queathed his properties and also his other rights in the trust properties in favour of Nataraja alias Dhanarathina Dikshidhar, son of Krishnaswami Dikshidhar, who happened to be also the sister's son of Kalyanasubramnaia Dikshidhar. So far as me terms of the will are concerned, it directs the beneficiary under the will to perform the funeral and obsequies of the testator, to look after and maintain the wife of his senior paternal uncle and also the second wife and enjoy the properties absolutely and hereditarily. A perusal of the will marked as Ex.A-3 would also go to show mat the trust properties in the possession of the testator are referred to as charged with and for the performance of the permanent charities So far as the trust properties are concerned, in paragraph 2 of the will they are kept specifically outside the purview of the clause granting absolute rights viz-a-viz some other properties personally belonging to the testator.

(3.) MRS.Chitra Sampath, learned Counsel appearing for the appellants vehemently contended that the properties were absolutely granted under Ex.A-1 to Vrushabadhwaja Dikshidhar with a stipulation that he shall perform all the Kattalais specified therein and there was no creation of any trust and Vrushabadhwaja Dikshidhar and his descendants were not appointed as trustees. Argued the learned counsel further that the findings recorded by the courts below on the question of merits and also the question of res judicata are not sustainable in law and the courts below ought to have held that Kalyanasubramania Dikshidhar had every right to nominate Nataraja alias Dhanarathina Dikshidhar to perform the kattalais by being in possession of the properties and from out of the income, which are subject matter of the grant under Ex.A-1 and, mat therefore, the plaintiff has no right to challenge the said right of Kalyanasubramania Dikshidhar to nominate a successor to perform the charities, particularly having regard to the right granted under Ex.A-1 as . Learned counsel for the appellant also submitted that the recitals in the document, Ex.A-1, do not postulate succession by the wife against the Will and stipulation of her husband and consequently, the Plaintiff ought not to have granted any relief in this proceedings.