KANDASAMI IYER Vs. SIVACHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by three plaintiffs, under Section 92, Civil Procedure Code, after obtaining sanction of the Advocate General. It relates to certain kattalais in the temple of Sri Mulanadaswami of Poovalur within the Trichinopoly District. One Annavu Chetti was admittedly managing the kattalais till his death in December 1909. He left a Will (Exhibit X, dated 17 November 1893) by which he appointed the defendants to manage the kattalais besides leaving other directions. The present suit was instituted on the ground that the defendants ate not legally constituted trustees of the suit kattalais. The Subordinate Judge finding that the defendants are the hereditary trustees and that the charges of misconduct alleged against them have not been made out framed a scheme. The plaintiffs appeal. The first and most important point that arises in the appeal is the subject of the 8 issue. On this issue, the plaintiffs case is that the Vellan Chetti community were the founders of the kattalais and that they did not appoint Annavu as a trustee and that consequently neither Annavu nor defendants are lawful trustees. With the help of the oral evidence and Exhibit (1)(a partition deed) the following pedigree of the defendants family may be constructed.

(2.) (It is suggested for the respondents that Nallan and Nalla Vinayagam are the same, persons. The suggestion is likely but is opposed to the evidence of D.W. No. 1. The point is not material). The earliest item of evidence that is available is that Nallan (No. 1) purchased 4 acres of land in July 1816, and that the land was enjoyed by him on behalf of the Sayarakshai and ardhajama kattalais (see Exhibit IV). The next document is Exhibit II a patta issued in 1860 by the Collector of Trichnopoly to Jevanthalinga Chetty "of the sayarakshai and ardhajamam kattalais of Sri Moolanathswami." It is not clear to what kattalias Exhibit D series relate and, therefore, they do no help us in this case. We then find a series of documents connected with Annavu ranging from 1865 to 1908 in many of which Annavu (No. 3) was described as the Kariyam or agent of the sayakshai and ardhzjarnam kattalais of Sri Moolanathaswami (see Exhibit A dated 5 September 1877, A2 dated 28 November 1881, A3 and Vd, dated 26 January 1885, V2 dated 4 August, 1880, A4 dated 2 April, 1887, and A.5 dated 17 May 1904). Exhibit III is a patta issued "to Annavu Chetty for Sri Moolanathaswami" by the, Collector of Trichinopoly in 1878. It is a fair inference from these documents that members of the family of Annavu were the persons who took the greatest interest in the kattalais and they were successively the trustees of the kattalais from 1816 to 1909 and as there is nothing in the succession inconsistent with their being hereditary trustees, I think it is a proper inference to draw from these documents, that the members of the defendant family were, holding as hereditary trustees see Rama Das V/s. Hanumantha Row 12 Ind. Cas. 449 : 36 M. 364 : 21 M.L.J. 952 : 10 M.L.T. 356 : (1911) 2 M.W.N. 387. The recitals in Exhibit X also seem to support this inference, but as it is objected that they are not legal evidence; Bansi Singh V/s. Mir Amir Ali 11 C.W.N. 703; I prefer not to rely on them. Neither Exhibit VIII nor Exhibit D series nor the incident deposed to by P. Ws. Nos. 1, 2, 4, and 6 relating to an assembly of the Vellan Chetti's consequent on a misunderstanding between Annavu and the defendants (assuming the incident to be true) supports the appellant's argument that the whole of the Vellan Chettis community must be regarded as the founders of the trustees of the kattalais. The case in Appasami V/s. Nagappa 7 M. 499 : 2 Ind. Dec. (N.S.) 931 cannot help the appellants as the evidence in that case disclosed circumstances inconsistent with the hereditary right set up.

(3.) On this finding that the trusteeship of the suit kattalais was hereditary, it follows that first defendant who is the heir of Annavu on his death in 1909 is entitled to be the trustee of the kattalais. No doubt, the second defendant has no such right and it is urged for the appellant, relying on Narayanan Chettiar V/s. Lakshmanan Chettiar 29 Ind. Cas. 1 : 39 M. 456 at p. 461 : 28 M.L.J. 571 that we should give directions so as to prevent the second defendant from having anything to do with the suit kattalais. As the first defendant who is the lawful trustee is willing to associate the second defendant with himself, in carrying out the work of kattalais the facts of this case do not resemble those in Narayanan Chettiar V/s. Lakshmman Chettiar 29 Ind. Cas. 1 : 39 M. 456 at p. 461 : 28 M.L.J. 571 and it is unnecessary to give any directions relating to the second defendant.