K MANATHUNAINATHA DESIKAR Vs. GOPALA CHETTIAR

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellant Manathunainatha Desikar for an injunction against the respondents restraining them from interfering with his possession of the suit properties jointly along with the respondents. He also prayed that he might be put in joint possession of the suit properties; if that course was found necessary. The properties in respect of which these reliefs were asked admittedly belong to a Siva temple situate in Jaffna in Ceylon founded by Vaithilinga, an ancestor of the parties in or about the year 1790. It would seem that this temple dedicated to Sri Viswalinga Vaitheeswaraswami owns extensive properties in Jaffna besides the properties in suit which are situate in the village of Meppalam in Mannargudi Taluk, Tanjore District. Before the year 1900 these lands were the property of one Thangathachi who held apparently a widow's estate. But in that year there was an agreement entered into between her on the one hand and Subbayya, the then trustee of the temple, on the other, by which it was arranged that the Meppalam lands should be made over to the temple in exchange for the temple lands in another village known as Raghunathapuram. This agreement is Ex. 14 dated 22 April, 1900 and was immediately given effect to, though a formal deed of exchange (Ex. g) was only executed on 16 October 1909. It may be mentioned that the lands in Raghunathapuram were gifted to the temple either by Gopala Chetti, a son of the founder Vaithilinga Chetti or by him and his wife some time before 1840. The deeds of gift are not available, but nothing turns upon their absence so far as the present case is concerned inasmuch as it is conceded the temple has an indisputable title to the Meppalam lands now in suit.

(2.) The appellant claimed to be entitled to joint possession of the lands in suit as a trustee of the temple along with defendants 1, 4 and 5. All of them are descendants of the original founder Vaithilinga, but while these defendants are in the direct male lineage, the plaintiff- appellant is the grandson of Mana-thunainatha who though born in the family of Vaithilinga had been adopted away into a different family. The adoptive mother however was a daughter born in the family. The geneological table annexed to this judgment shows the members of this family and their descent from the common ancestor Vaithilinga, who it was that originally founded the temple and endowed it with most of its properties. The appellant is No. 17 in this table and his grandfather Manathunainatha, No. 14, was adopted to Kandaswami Thevar, the husband of Kanakaratnam, No. 13. The appellant is accordingly the great grandson of Kanakaratnam who was a daughter of one of the founder's grandsons, namely, Subbayya.

(3.) Two main questions, and only two, appear to have been raised and considered in the trial Court. The first of them is whether the appellant is entitled to claim the office of trusteeship under the scheme laid down by the founder in Ex. A dated 20 April 1805. This instrument appears to be the last will and testament of (1) Vaithilinga, the father. The document is in old colloquial Tamil. Some of the words used are not literary and are in common use only among the illiterate. The syntax also is difficult to follow. In spite of these defects, it is not difficult to ascertain the intention of the testator. In the opening words of the document the testator directs that the temple and its properties and the charities connected therewith should be managed and supervised by his sons: (2) Gopala Chettiar and (3) Kandappa Chettiar, (and) the descendants in the female line from generation to generation so long as (any member of) the family should exist. There is no mention here of the descendants in the male line. But in the closing words, the testator makes his meaning plain by stating that his sons, his descendants in the male line and his descendants in the female line should manage the charities actively and diligently so as not to allow the spiritual benefit earned (for the family) to depart from them. According to the respondents, the effect of the document is this; that the testator gave a life trusteeship to his own sons, Gopala and Kandappa, and after them he directed the office to devolve upon his descendants in the male as well as in the female line. In so far as the will gave the trusteeship to the two sons during their lives, the provision is said to be valid, but the course of devolution of the trusteeship thereafter among his descendants as laid down in the will is attacked as bad in law under the principle of the well- known decision of the Judicial Committee in Jatindra Mohan Tagore V/s. Ganendra Mohan Tagore ( 72) 9 Beng. L.R. 377. The argument is that the will purports to create a line of succession opposed to the ordinary rules of Hindu law and involves a gift of the office of trusteeship to unborn persons. Before discussing this question which was pressed with considerable force and learning it is necessary to clear the ground by disposing of certain other contentions based upon the views expressed by the trial Judge.