R SIVARAMAKRISHNAIER Vs. SIVAKAMI ACHI

JUDGEMENT

(1.) The plaintiff is the appellant. One Sivaraman Chetti, the son of the defendant, executed a trust deed appointing the defendant his mother as trustee and empowering her to manage his properties for a period of 15 years. Under the provisions of the deed, the defendant was to collect the income from the properties, pay maintenance to persons mentioned in the trust deed and hand over the balance to her son. The deed also provided that at the end of the term mentioned in it the defendant was to place Sivaraman Chetty in possession of the properties covered by it. On 14-9-1909, this trust dead was revoked by Sivaraman Chetty by a registered document and four days thereafter, the properties covered by the deed about 5 Velis of land were sold by him to the plaintiff. O. S. No. 366 of 1909 was instituted by the plaintiff to recover possession of the properties on the strength of the sale deed executed to him. In that suit the present defendant contended amongst other things that Sivaraman Chetty had no power to revoke the trust and the plaintiff was not entitled to possession of the properties. The District Munsif overruled the contentions of the defendant and gave the plaintiff a decree for possession. This decree was set aside on appeal by the Subordinate Judge who decided that the trust was not capable of revocation. In second appeal the decree of the Subordinate Judge was confirmed. After the decision by the High Court the plaintiff instituted the suit out of which this second appeal arises for a declaration of his right to the properties sold to him under Ex. A after the expiry of the period mentioned in the trust deed and also for the taking of an account according to the terms of the trust deed. To this suit only the trustee was made a party. Amongst the various issues raised in the suit, issues 1 to 3 related to the validity of the sale deed under which the plaintiff claims. The 4 issue is to this effect. Whether the plaintiff is entitled by virtue of his sale deed to claim the net income from the suit properties till the period fixed in the trust deed or to recover possession thereof at the end of that period.

(2.) After the decision by the High Court that this suit was not barred by res judicata by reason of the decision in the prior Suit the District Munsif heard the case and without taking any oral evidence decided it in favour of the plaintiff, mainly on the ground that the sale deed was admitted by the defendant. Holding that there was no such admission, the Subordinate Judge on appeal directed the District Munsif to decide the issues 1 to 3 after taking evidence and to submit his findings. The District Munsif found on an exhaustive examination of the evidence that the sale deed was not supported by proper consideration (see para. 41). Accepting the findings, the Subordinate Judge set aside the decree of the District Munsif and dismissed the plaintiff's suit. Against this decree the plaintiff has preferred this second appeal.

(3.) Mr. Ramachandra Aiyar on behalf of the appellant argued that in the circumstances of the case it was not open to the appellate Court to call for a finding on issues 1 to 3, that it was not open to raise quesisons of undue influence and consideration as regards the sale deed and that therefore the appellate decree should be set aside. It appeared to us that even if we accept Mr. Ramachandra Aiyar's view regarding the decision by the appellate Court on issues 1 to 3, still the plaintiff's suit will have to be dismissed if the defendant's plea raised in the 4th issue is found in her favour. The 4 issue as already pointed out raised the question whether the plaintiff is entitled by virtue of his sale deed to claim the not income from the suit properties till the period fixed in the trust deed or to recover possession thereof at the end of that period. In passing, it may be pointed out that the plaintiff confines his relief in his second appeal to get the income from the properties till the period fixed in the trust deed is over. When the suit was instituted, the 15 years period provided for in the deed had not run and neither Sivaraman Chettiar nor his reversioners had been made parties to the suit. Sivaraman Chetty is now dead. The question as regards the possession of the properties at the end of the 15 years namely, the latter part of issue 4, cannot therefore now be decided. The first part of the issue is mainly a question of law. The respondent in her memorandum of appeal to the lower Court had pointed out that the District Munsif had erred in law in not deciding this issue in her favour. In the view that the Subordinate Judge took of the case as regards issues 1 to 3 he also did not consider it necessary to decide the 4 issue. We came to the conclusion that arguments should be heard on this issue before considering the Subordinate Judge's judgment on the other issues; for as already observed if the defendant succeeds on the question raised in this issue, the plaintiff's suit will have to be dismissed, irrespective of other considerations. This course was accepted by the learned vakil appearing for the plaintiff as well as the defendant.