KARTHIAN KONE, CO-TRUSTEE OF AVAN PAPAKUDI CHOULTRY CHARITY Vs. BAGHYATHAMMAL CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY

JUDGEMENT

(1.) In order to understand the point that arises for consideration in this appeal, a few facts relating to a prior litigation between the same parties have to be set out. One Gnanambal and certain others executed a settlement deed dated 4th July, 1927 endowing certain properties for the Annadhanam Charity of Ayyan Papakudi Choultry. The validity of this trust is no longer in Issue. One Ramaswami Konar was appointed as the trustee by the settlor and be and after him his heirs were directed to manage the properties and perform the charity. This Ramaswami Konar had two wives. By the first wife, Kartik Kone, the present defendant, was his son. The second wife is the plaintiff in the suit and she has a daughter, one Chinna Ponnu. For reasons that are not germane Bhagyathammal, the second wife, was allowed to be in possession of half the trust estate after the death of her husband, Ramaswami Konar, in 1942. In 1955, Kartik Kone, the present defendant, filed a suit O S. No. 248 of 1955, District Munsif's Court, Madurai Taluk, seeking to recover possession of the trust properties from Bhagyathammal and her daughter. Now, it appears that Bhagyathammal had purported to execute a settlement deed in favour of her daughter, Chinna Ponnu. It was claimed in that suit that Bhagyathammal took possession on behalf of the plaintiff Kartik Kone under an arrangement to manage the properties on his behalf and to render an account thereof. The suit was accordingly laid for recovery of possession and for accounts. That suit was dismissed by the trial Court. But, on appeal, however, Kartik Kone succeeded and a decree was granted in his favour for recovery of possession and for mesne profits. The matter came before this Court in S. A. No. 905 of 1959. Kailasam, J, who heard the second appeal, confirmed the finding that the trust created by Gnanambal was genuine and had been acted upon. He rejected the contention that the properties were not affected by any trust and held that after the death of Kamaswamy Kone his heirs inherited the trust estate. It was also contended before the learned Judge that even if there was a dedication of the properties, on the death of Ramaswami Kone. Bhagyathammal, his widow would also be entitled to the management of the properties along with Kartik Kone, the son of Kamaswami Kone. The learned Judge dealt with this contention and came to the conclusion that the right of trusteeship is property within the meaning of that expression under the Hindu Women's Rights to Property Act and that the widow of Ramaswamy Kone was entitled to inherit this property, that is to say, to be a co -trustee along with her stepson, Kartik Kone (Son of Ramaswamy Kone by the first wife). The decree of the lower appellate court was accordingly modified granting a declaration in favour of Bhagyathammal that she was also entitled to joint management along with Kartik Kone of the trust properties. But Bhagyathammal was directed to take appropriate steps by separate proceedings to work out her rights to joint management.

(2.) It was in pursuance of the right recognized by the above decree that Bhagyathammal filed the present suit, praying for a decree for joint possession of the trust properties along with the defendant Kartik Kone and for a direction to him to render accounts in respect of the trust properties. Her claim were resisted by the defendant, firstly, on the ground that the decision of this Court in S. A. 905 of 1959 did not confer any rights upon her, for the reason that in that earlier suit Bhagyathammal in fact repudiated the trust and there was no issue which went into the question of her rights to co -trusteeship. This contention was negatived. The defendant's contention that Bhagyathammal lost through adverse possession any rights in relation to trusteeship was also rejected by the trial court. The further contention that since the Hindu Women's Rights to Property Act of 1937 was amended only in 1946 bringing within its scope agricultural lands, and as the trust properties consist of agricultural lands, Bhagyathammal could not benefit under the Act as amended, for succession opened in 1942 prior to the amendment, was also negatived by the trial Court, holding that the decision of this Court in S. A. 905 of 1959 denied such a plea being available to the defendant. Though the trial court found in favour of Bhagyathammal on almost all the issues, it yet refused (sic) grant a decrees for joint possession. This was based on the ground that she being in possession of part of the trust properties had not surrendered possession as directed in S A No. 905 of 1959, and that for this reason the suit as framed seeking joint possession only of the rest of the properties was not maintainable.

(3.) Both sides appealed. The learned Subordinate Judge accepted the appeal of Bhagyathammal and dismissed that of the defendant. The defendant prefers this Second appeal.