GOPU KOLANDAVELU CHETTY Vs. TSAMI ROYAR

JUDGEMENT

(1.) The suit out of which this appeal arises was institute.! by the respondent Sami Royar as a trustee entitled to act jointly with the appellant Kolandavelu Chetty in respect of charities and trusts created by the will of Gr. Appakutti Aiyar. The main question for decision is whether under the appointment relied on by Sami Royar, he was validly appointed as a trustee.

(2.) With reference to this question it was urged on his behalf by Sir Bhashyam Aiyangar, that his appointment was really made by the daughters and daughter's sons of Appakutty Aiyar, who were the heirs of the latter at the time. This contention is one suggested for the first time in this Court and is altogether unsupported by the record. Neither in this case, nor in the connected cases tried at the same time and to which Sami Royar is a party was any averment made that the appointment was made by these heirs. The compromise in O.S. No. 1 of 1897 (District Court Tanjore) does not amount to an appointment of Sami Royar by the other plaintiffs in that suit. The plaint as well as the compromise proceeded on the assumption of an anterior appointment by Kolandavelu Chetty, and the matter is put beyond all doubt by the frame of the 6 issue in O.S. No. 12 of 1900. We cannot, therefore, accept the respondent's contention and allow him to set up this new case. It was next urged that the question of the validity of the appointment is res judicata by the decision in O.S. No. 181 of 1898 (District, Munsif's Court Kumbakonam) brought by the respondent against one Kannu Pillai and the present appellant.

(3.) That suit was for the purpose of obtaining a declaration that the decree in S. C. No. 242 of 1896 (Subordinate Judge's Court, Kumbakonam) by Kannu Pillai was not capable of being executed by attachment of any of the property of Appakutti Aiyar's estate referred to in his will. KolandaveluChetty was made a defendant as the other trustee Sami Royar, obtained the declaration asked for. Mr. Krishnasami Aiyar on behalf of Kolandavelu Chetty argued that the decree in favour of Sami Royar was in favour of the estate which Kolandavelu Chetty represented, that the latter was therefore not entitled to appeal against such decree and as against him ho plea of res judicata could be founded on the adjudication referred to.