SIVASWAMY IYER Vs. THIRUMUDI CHETTIAR

JUDGEMENT

(1.) This appeal is preferred against the judgment of Mr. Justice Odgers dismissing with costs Second Appeal No. 401 of 1922. The plaintiff is the appellant before us and the main question involved in this appeal is whether the suit properties which originally belonged to one Panchanathier were by his Will dated 8 January, 1928, (Ex. A in the case) dedicated absolutely for the performance of a charity styled by him as Dwadeshi Dharmam and the persons expressly nominated by him in the Will for the conduct of the said charity, viz., his nephews Venkataramaiyer and Sivaswami were constituted as mere trustees for the performance of the said charity or whether under the said Will Panchanathier bequeathed the suit properties to Venkataramier personally subject to a trust in favour of the said charity which was to be conducted by him, and after his death by his younger brother Sivaswami Iyer and after the latter's death by their heirs in perpetuity.

(2.) The plaintiff's case is that the properties are absolutely dedicated to the charity and that Venkataramaiyer had no beneficial interest therein but was constituted only as a trustee for the performance of the charity with a wide discretion as to the manner of performing it and that after Venkataramaiyer's death, he, the plaintiff is the trustee for conducting the said charity. Venkataramaiyer, however, in breach of the trust mortgaged the suit properties to Sadayappa Chetti the father of defendants Nos. 1 to 3 under Ex. B. After the death of Sadayappa Chetti and Venkataramaiyer, defendants Nos. 1 to 3 brought a suit against Venkataramaiyer's widow to enforce the said mortgage and obtained a decree for the sale of the said properties. The present suit was instituted by the plaintiff before the properties were sold in execution of the mortgage- decree, the reliefs sought by the plaintiff being a declaration in his favour so trustee of the charity that the mortgage of the suit properties by Venkataramaiyer and the decree obtained thereon are not binding on the trust and for an injunction to restrain the defendants from interfering with the possession of the property. While the suit was pending in the trial Court, defendants Nos. 1 to 3 purchased the suit properties in the sale held in execution of their decree and got into possession thereof. The defendant No. 4 is the widow of Venkataramaiyer, She has been ex parte throughout.

(3.) The main pleas of defendants Nos. 1 to 3 are (1) denial of the genuineness of Panchanathier's Will (2) suit barred by limitation as it was not brought within 12 years from the date of the mortgage to their father. No plea was raised by them in the alternative that even if the Will is found to be genuine, the devise of the suit property therein is not to the charity absolutely; but to Venkataramaiyer burdened with a trust in favour of the charity. The trial Court held that the Will is genuine and that under it the suit properties are dedicated in trust for the charity. It overruled the plea of limitation. At the trial a further point was raised by the defendants that as they themselves had then got into possession of the properties, the suit for a bare declaration and injunction was not maintainable. With reference to that objection the plaintiff prayed for an amendment of the plaint by adding a prayer for possession but the District Munsif rejected that application. He, however, held that the suit was maintainable in the form in which it was brought as on the date of the plaint the defendants were not in possession. In that view he gave a decree for plaintiff for the declaration and injunction prayed for.