DURAI Vs. DURAISWAMI PILLAI

JUDGEMENT

(1.) Defendant 2 is the appellant. This second appeal arises out of a suit which relates to the management of certain religious and charitable trusts. The parties to the suit are Christians. The plaintiff's suit was mainly for a declaration that four persons viz., himself, defendants 5 and 6 and defendant 2 are entitled to manage the suit charity lands once in four years by force of a will executed by one Yaga Pillai ( Ex. B) in 1898. The contesting defendants viz., defendants 1 and 2 pleaded that the will did not bind them, that the suit was not maintainable without sanction under Section 92, Civil P. C., and that it was barred by limitation.

(2.) The undisputed facts of the case are these; the plaintiff and defendants 5 and 6, are brothers and are the sons of the deceased Yaga Pillai. Yaga Pillai had a brother called Anandam Pillai, who had an only son Sourinayagam Pillai whose son was Appavu who died leaving defendant 1 his widow, a few daughters and three sons, of whom defendant 2 is the only one now alive. The daughters, not having come on record as legal representatives on the death of their mother who died in the course of the suit may be left out of consideration. At the time of the partition of their properties between Yaga Pillai and Sourinayagam Pillai, son of Anandam Pillai they founded the suit trusts in 1886 but made no arrangement for the management of the trusts or the devolution of the trusteeship and did not appoint any trustees. Apparently they jointly or by turns administered the trust. Appavu died in 1901. Sourinayagam died on the 5 January 1905. Yaga Pillai died on the 11 March 1905. He had executed a will, dated the 2 November, 1898, making arrangement for the management of the suit trust properties, and, according to this will, after his death, his three sons, the plaintiff and defendants 5 and 6 and his brother's son Sourinayagam Pillai and their heirs after them should administer the trusts by rotation each managing for a year. After the death of Yaga Pillai confusion arose with regard to the management of the charities and, in consequence, the plaintiff instituted the present suit for the establishment of his joint right of trusteeship.

(3.) The District Munsif held that the plaintiff could not base his claim on the "will;" that it was inoperative, that on the death of Sourinayagam Pillai and Yaga Pillai, the trusteeship devolved on their sons, and that the plaintiff and his brothers on the one side and the defendant on the other had equal rights to administer the trusts. A decree was, therefore, passed to the effect that the plaintiff and his two brothers, viz, defendants 5 and 6, were entitled to manage the trusts each for one year in succession and that defendant 2 was entitled to manage for a continuous period of three years after them and so on in rotation: see para 4, Sub-Judge's judgment. The Subordinate Judge has upheld this decree. As regards the plea of limitation the Subordinate Judge held that in the view that the trusteeship has devolved on the plaintiff as one of the heir's of the joint founders, Art. 124 (and not Art. 120), Sch. 2, Limitation Act, applied and that the suit was within time. The plea that the suit is bad for want of sanction under Section 92, Civil P. C., does not seem to have been pressed before the Subordinate Judge: see paras. 3 and 13 of his judgment.