S K VENKATASUBRAMANIA AYYAR Vs. SSIVAGURUNATHA CHETTIAR

JUDGEMENT

(1.) The facts on which the suit (out of which this appeal arises) is based are as follows: One Kalayana Rama Ayyar of Kumbakonam established a choultry as a rest house and for feeding Brahmins and endowed certain properties for its maintenance and upkeep. It became known as Kalyana Rama Ayyar Chatram He died in about 1855 leaving five sons. On 22nd August 1864, there was a partition between the sons by Ex. A which provided that the eldest son Sivasubramania Ayyar should conduct the charity during his lifetime and after him the other brothers in order of seniority. In the year 1871 Sivasubramania Ayyar surrendered the management of the choultry in favour of the next two brothers Venkataranga Ayyar and Suri Ayyar. The fourth son Swaminatha Ayyar died in 1881 after disposing of his property by his will dated 7 November 1881 (Ex. B). Under this will two thirds of the income of his properties were devised to his wife Chellathammal for her life, and the remaining one third was to be utilized for the purpose of feeding Brahmins in the family choultry. After the death of his widow, two thirds of the two third share given to the wife, should be utilized for (the) charity? and the remaining one third was to be taken by his brothers Venkataranga Ayyar and Suri Ayyar who were also appointed executors under the will. On 30 July 1882 Sivasnbramania Ayyar executed a formal deed of surrender in favour of Vankataranga Ayyar. Venkataranga Ayyar managed the charity until his death in 1884. Afterwards Chellathammal died about July or August 1892. Sivasubramania Ayyar died in 1910 and the fifth brother died before 1884. Suri Ayyar was conducting the charity and carrying out the directions of Swaminatha Ayyar's will till his death on 29 December 1913. Prior to his death he executed a will on 29 June 1913. Some of the descendants of Suri Ayyar took possession of the charities. Thereupon, certain daughter's sons of Kalayana Rama Ayyar, the founder of the Chatram, instituted O.S. No. 90 of 1916 of the Sub-Court, Kumbakonam for the settlement of a scheme in respect of the Chatram. The Subordinate Judge of Kumbakonam by his judgment directed the framing of a scheme (Exs. H and H.1). There was an appeal to the High Court. The appeal was dismissed subject to some slight modification (Exs. H-2, H-3 and H-4). There was a further appeal to the Privy Council. This was disposed of in June 1924 (Ex. H-5). The decision of the Judicial Committee is reported in Vaidyanatha Ayyar V/s. Swaminatha Ayyar (1924) 11 A.I.R. P.C. 221. One of the points raised in the course of that litigation was that the gift of two thirds of two third under the will of Swaminatha Ayyar after the death of Chellathammal for (the) charity was void for uncertainty. All the three Courts held in the course of that litigation that these words plainly referred to the Chatram charity which had immediately before been indicated and the gift was not void for uncertainty.

(2.) The present suit was filed on 26 April 1920 by the trustees appointed under the scheme to recover the properties which, according to the decision in the former litigation, belonged to the trust but which were in the unlawful possession of the various defendants under alienations made by Suri Ayyar. Under Ex. 1 dated 9 May 1898 Suri Ayyar sold the items described in Schedule C of the plaint to the father of defendant 5. The properties in Schedule C have been acquired by Government under the Land Acquisition Act and are now represented by a sum of Rs. 48,122-14-7 deposited in the Treasury by the receiver appointed by the Court pending litigation between defendants 5 to 13 inter se in O.S. No. 67 of 1919 on the file of the Kumbakonam Sub-Court. This alienation recognized that one third of the income of the properties was to be devoted for the Chatram, but proceeded on the footing that the whole of the remaining two third was the property of Suri Ayyar, i.e. Suri Ayyar acted on the footing that the gift under the will of Swaminatha Ayyar of two thirds of two third for (the) charity was void and therefore instead of being content to claim only two ninth of the property he claimed two third of the property. He recognized the right of the trust only to the extent of one third instead of recognizing it to the extent of seven, ninth. Defendants 5 to 13 now represent the alienees under Ex. 1. In 1910 Suri Ayyar executed another sale dead (Ex. IP) in favour of defendant 4 of the properties in Schedule B. The dispute regarding these properties has been compromised in the Court below and is not before us in this appeal. By Ex. 3 dated 2nd June 1912 there was another alienation by Suri Ayyar of the properties in Schedule A in favour of defendant 1 who is an Advocate of Kumbakonam. These alienees were not parties to the former litigation and they accordingly raised the plea that the gift under Swaminatha Ayyar's will of two thirds of two third of the property was void for uncertainty and contended naturally that the judgments in the former litigation did not bind them. This was one of the points to be decided in the case. There was also a question of limitation raised by the contesting defendants. This is the other point arising in the case and is the subject of issue 11.

(3.) The Subordinate Judge found the first point in favour of the defendants. On the question of limitation he found that so far as defendant 1's alienation under Ex. 3 is concerned, it was not barred, but as to defendants 5 to 13 he held that the suit was barred by limitation even as to the one third share recognized to belong to the charity. The plaintiffs have filed this appeal. (On the question of construction of the will, his Lordship found that the construction put upon it by the Judicial Committee in the previous litigation was the proper one and held accordingly differing from the Subordinate Judge). The next question is that of limitation. On this matter I agree with my learned brother in thinking that the suit is barred by limitation so far as the property in Schedule C is concerned. (His Lordship then discussed the evidence regarding the points covered by the memorandum of objections and found in favour of the defendants- respondents.) Stone J.