PALANIANDI GRAMANI MANICKAMMAL Vs. VMURUGAPPA GRAMANANI

JUDGEMENT

(1.) The appellant is defendant 4 in the mortgage suit brought by the appellant in O.S. Appeal No. 87 of 1933. The mortgage was executed by-one Appadurai Gramarti, the father of defendants 1-4, and by defendants 1-3, and Appadurai also executed it on be-behalf of defendant 4 who was then a minor. The mortgage comprised a plot of land which Appadurai's father, Tanikachala, had dedicated to a private temple built by Thanikachala on the land. The first three defendants were ex parte. But defendant 4 defended the suit. In his written statement he raised the plea (inter alia) that the particular plot having been dedicated to charity could not be bound by the mortgage. The learned Chief Justice who tried the case permitted the plaintiff-mortgagee to file an additional statement wherein the plaintiff pleaded that Appadurai and his sons had acquired title to the plot by adverse possession and that they were therefore competent to mortgage it. The learned trial Judge found that a title by adverse possession had been acquired. The correctness of this finding is the subject of this appeal.

(2.) Tanikachalla made a - will a few years before his death. This attempt to dispose of his property was objected to by his sons, and led to the matter being submitted to a panchayat. The panchayatdars made their award (Ex. 4). The award recites that a garden of 6 cawnies had been dedicated to charity by Tanikachalla for the performance of puja at the temple which he had built there and at the samathi or tombs in the garden and for the feeding of 100 pandarams at Tirupporur, and that his sons had consented to the endowment. The award was given in March 1893. In May following Tanikachalla put up a stone in the garden with an inscription Ex. 3 (a) stating that he had built a temple and had made a private dharmam arrangement and that no member of his family had any right to alienate the property. In December 1893 he executed a registered deed of gift (Ex. 7). This deed recites: I have built a Kanniaka parameswara temple; and have been doing puja. To this temple I have made a gift.

(3.) And then it provides that he and his wife Manonmani were to have the conduct of the charity, viz. the puja at the temple and the feeding at Tirupparur, during their lifetime. It further recited: On our "death, we shall bo buried in tho abovesaid garden and tombs built arid puja shall be done to these tombs also, by Raju (xramani, the son by the third wife, whom we have appointed from among our sons in our last days, and if he happens to die without issue, such person as may be appointed by him from among the sons of my other sons shall conduct the abovesaid dharma Kainkaryams.