BARKI VENKATA RAO CHATRAM CHARITY Vs. SVRAMASWAMI AYYAR

JUDGEMENT

(1.) This appeal arises out of a suit brought on behalf of a charity, to set aside an order passed in claim proceedings in the course of the execution of a decree obtained against the trustee in his personal capacity. The plaint proceeds on the footing that the suit properties were dedicated to a charity and, being trust properties, are not liable to be attached in execution of a decree obtained against the trustee in his personal capacity. The contesting defendants, who are the decree-holder and the auction purchaser in the money suit, claim that the properties have all along been the private properties of the judgment debtors and their ancestors or at any rate have become so after certain resumption proceedings and the issue of an ayan patta in 1901. On these contentions the first issue was framed in the following words: Whether the plaint properties belong to the plaint charity or to the plaintiffs as their private properties.

(2.) In paragraph 16 of the lower Court's judgment it is observed that, the grant in question must have been a personal grant made to the ancestor of first plaintiff for the maintenance of himself and his family burdened with the obligation of performing also a feeding charity....As ayan patta was issued to plaintiff and as full assessment was also levied from him in respect of the suit properties, it has to be held that they are his private properties.

(3.) We do not think it necessary for the purposes of this appeal to determine the question whether the suit properties are absolutely the private property of the judgment debtors either according to the original tenure on which they were held or even as a result of the resumption and the issue of the ayan patta. We wish to make this reservation, because, there is some basis in the evidence for the view taken by the learned Subordinate Judge in the first sentence above extracted, that the properties were at least subject to a burden of feeding certain persons and we have not heard arguments on the question whether such burden will be defeated merely by reason of the resumption proceedings brought about by a breach of trust on the part of the very person who had to perform the feeding and the issue of an ayan patta to such person. We accordingly propose to rest our decision on the narrow ground that the suit properties have not been shown to be so completely or absolutely dedicated to the trust as to make them inalienable or unattachable. The nature and extent of the interest that will pass to the auction purchaser and the obligation subject to which he may take, such interest, are matters which are not strittly relevant to the present litigation and must be left open.