JUDGMENT
Bellie, J.
1. The defendants 2 and 3 against whom the suit for declaring the plaintiffs entitlement to the suit property, for recovery of the same from them, and for mesne profits was decreed are the appellants. The plaintiff Sellani Ammal filed a suit alleging as follows:
The suit properties of wet lands of an extent of 6.61 acres described in the B Schedule of the plaint originally belonged to one Krishna Rao who by a deed dated 29.1.1984 endowed the properties for performance of pooja, neivedyam and other ubhayam to Lord Nataraja at Chidambaram. He also appointed Vrishabadwaja Dikshidhar to be the trustee of the properties to manage the same and do the said poojas etc., As per the deed, after the said trustee, his sons and grand-sons are to manage the properties and do the poojas etc. The trustee or his heirs will not have any power to alienate the properties. Accordingly, Vrishabadwaja Dikshidhar acting as trustee was in possession of the properties and he was doing poojas etc. After the death of Vrishabadwaja Dikshidhar, his brother’s son Kalyanasubramania Dikshidhar took the management of the properties and he was also doing poojas etc. The plaintiff is the widow of the said Kalyanasubramania Dikshidhar. It appears that he executed a Will on 17.4.1950 (Ex.A-3) giving the trusteeship right to the first defendant (who is now dead) and died on 19.4.1950. Kalyanasubramania Dikshidhar had no right to do so. He has no such power under the deed Ex.A-1 executed by Krishna Rao. The deed itself specifies as to who should be the successive trustee after Vrishabadwaja Dikshidhar. Therefore the Will is incompetent in so far as it relates to the trusteeship of the endowment. The plaintiff being the next of kin and only heir is entitled to the trusteeship. Therefore, the defendants 2 and 3 who are in possession of the properties have to surrender it to the plaintiff. She came to know about the existence of the trust regarding the suit properties only in 1973, and it was then she filed an amendment petition in a suit filed by her in O.S. No. 596 of 1972 for enhanced maintenance against the first defendant from out of her husband’s estate. In spite of several requests the defendants never tried to deliver possession to her and therefore the suit. The plaintiff has prayed for a decree declaring the plaintiffs entitlement to the suit properties as per the terms of the trust deed dated 29.1894 (Ex.A-1) and consequently directing the defendants to put the plaintiff in possession of the properties and further directing the defendants to pay mesne profits till date of delivery of possession and for costs.
2. The defendants 2 and 3 contested the suit contending, inter alia, that the plaintiff has no locus standi to file the suit, She has no right to be the trustee for the suit properties. Kalyanasubramania Dikshidhar was competent to execute the Will (Ex.A-3), dated 17.4.1950 in respect of the suit properties. Under the Will Natarajan alias Dhanarethina Dikshidhar, the first defendant got absolute right to the suit properties. There was a compromise entered into between the plaintiff and Natarajan in O.S. No. 52 of 1953 and as per the compromise decree, the said Natarajan got absolute right to the suit properties and as provided in that decree Natarajan alias Dhanarethina Dikshidhar had been maintaining the plaintiff. The present suit is barred by the principles of res judicata. As provided in the Will executed by Kalyanasubramania Dikshidhar the first defendant has been doing the poojas, etc., in the temple and after his death, the defendants 2 and 3 doing poojas, etc., On these contentions, the defendants 2 and 3 prayed for dismissal of the suit.
3. The trial court on considering the oral and documentary evidence held that the deed Ex.A-1 executed by Krishna Rao on 29.1.1894 is an endowment deed under which Vrishabadwaja Dikshidhar was trustee only and the suit properties have not been given to him absolutely. It further held that the Kalyanasubramania Dikshidhar had no right to execute a will in respect of the suit properties and therefore the Will Ex.A-3, dated 17.4.1950 in so far as it relates to the suit properties is incompetent. It further held that the suit is not barred by the principles of res judicata in view of the decree in O.S. No. 52 of 1953 as contended by the defendants. He then held that the suit is not barred by limitation. On these findings, the trial court decreed the suit declaring the plaintiffs entitlement to have separate possession of the suit properties. It further decreed that the plaintiff is entitled to future mesne profits, but it left it to be decided by a separate proceeding. The trial court decreed the suit in the above terms, but without costs. Aggrieved, the defendants 2 and 3 have come up with the present appeal. The plaintiff filed cross objections regarding disallowance of costs.
4.The points that arise for consideration in the second appeal are:
(1) Whether Ex.A-1, dated 29.1.1894 executed by Krishna Rao in favour of Vrishabadwaja Dikshidhar is an endowment, or under it the suit properties have been given to Vrishabadwaja Dikshidhar as his absolute properties?
(2) Whether the Will Ex.A-3, dated 17.4.1950 executed by Kalyanasubramania Dikshidhar is valid in so far as the suit properties are concerned?
(3) Whether the suit is barred by res judicata in view of the judgment and decree in O.S. No. 52 of 1953?
(4) Whether the suit is barred by limitation?
5. In Ex.A-1 deed, dated 29.1.1894 it is clearly mentioned that for the purpose of doing poojas, neivedyam and other ubayams etc., to Lord Nataraja at Chidambaram, the land of an extent of 6.61 acres in given to Vrishabadwaja Dikshidhar. It is provided in the document that the said Vrishabadwaja Dikshidhar and his descendants must be performing the said pooja, neivedyam and other ubayams and they have no right whatsoever the mortgage, lease or sell the properties. The document does not speak about any surplus income. From the reading of the document it would appear that the executant of the document intended that the income from the properties must be utilised for the purpose of the said poojas etc., (Kattalais). It does not say that Vrishabadwaja Dikshidhar or his descendants can take any surplus income for their use. The plaintiff had filed the suit O.S. No. 52 of 1953 for declaration that a will executed by Kalyanasubramania Dikshidhar is invalid and in the written statement filed by the present first defendant in that suit it has been clearly stated to the effect that the entire income from the suit properties must be spent for performances of the Kattalais. From these it is manifest that the predominant purpose of the document is to endow the properties for performing Kattalais. Of course, it is mentioned in the document that the properties are gifted to the family of Vrishabadwaja Dikshidhar, but considering all the recitals in the document it appears what the executant meant was to give possession of the properties to the family. This is apparent from the subsequent recitals that Vrishabadwaja Dikshidhar will not have any power to in any way mortgage or dispose of the property. It is therefore clear that under the document Vrishabadwaja Dikshidhar will have the right to possess and manage the properties and utilise the income for the performance of Kattalais. This is more apparent from the subsequent document Ex.A-2, dated 20.10.1894 (9 months after Ex.A-1) executed by Vrishabadwaja Dikshidhar and his brother in favour of Krishna Rao, as security. They have made it clear that they would perform the kattalai properly and permanently and they would not in any way mortgage or dispose of the properties and if they commit and default in the performance of the kattalai, Krishna Rao can take back the properties. This document appears to have been executed at the instance of Krishna Rao to make it more clear that Vrishabadwaja Dikshidhar and his descendants will not have absolute right to the property and they are only trustees for the performance of Kattalai. Ex. A-2 shows the conduct of the Vrishabadwaja Dikshidhar and his brothers which makes it beyond doubt that they took possession of the properties as trustees and not as absolute owners. Therefore, in my view under Ex.A-1 the properties have been endowed to the deity for the purpose of performing the kattalais naming Vrishabadwaja Dikshidhar and his family members as trustees and giving possession of the properties to them.
6. From the abovesaid findings on point No. 1, it follows that Kalyanasubramania Dikshidhar has no right to execute a Will in respect of the suit properties. The Will of course is valid as regards the other properties. Therefore, the defendants 2 and 3 cannot claim any right to the suit properties contending that they are the legatees under the Will Ex.A-3, dated 17.4.1950 executed in favour of the first defendant.
7. O.S. No. 52 of 1953 has been filed by the plaintiff herein against the first defendant herein for declaration that the will Ex.A-3 executed by Kalyanasubramania Dikshidhar in favour of the first defendant is not valid and binding on her and if it is found to be valid, then to grant maintenance to her from and out of the estate of her husband deceased Kalyanasubramania Dikshidhar. In that suit, a compromise was entered into as per the compromise the plaintiff would enjoy for her life time item No. 2 of the suit properties in that suit, and she will get maintenance at the rate of Rs. 17 per month from the first defendant as his heir. It is nowargued that this compromise would show that the plaintiff had accepted that the first defendant was entitled to the properties mentioned in Ex.A-3 and therefore utilise the income for the performance of Kattalais. This is more apparent from the subsequent document Ex.A-2, dated 20.10.1894 (9 months after Ex.A-1) executed by Vrishabadwaja Dikshidhar and his brothers in favour of Krishna Rao, as security. She cannot now in this suit say that Kalyanasubramania Dikshidhar had no right to bequeath the suit properties to the first defendant and therefore the present suit is barred by the principles of res judicata. That suit O.S. No. 52′ of 1953 has been filed by the plaintiff to declare the entire Will Ex.A-3 as invalid and if the Will is found to be valid, for maintenance of the plaintiff at the rate of Rs. 17 per month. There is no issue framed in that suit as regards the nature of the present suit properties, i.e., whether they are endowed to charity or it belonged absolutely to the first defendant. In that suit, ultimately the parties compromised and in terms of the compromise, a decree was passed. Therefore, the decree passed in that suit cannot operate as res judicata against the present suit.
8. Coming to the question of limitation, the finding of the trial court that the suit is not barred by limitation appears to be quite correct. According to the plaintiff only in 1973 she came to know about the suit properties and then she filed a petition for including these properties in O.S. No. 596 of 1972 for enhancement of maintenance. There is nothing to indicate that the plaintiff knew about the suit properties earlier. As the learned trial Judge has rightly stated the plaintiff was married to Kalyanasubramania Dikshidhar while she was about 15 to 16 years old and she lived with him just for 6 or 7 years. Therefore quite possibly she would not have known about the suit properties. As the trial judge has further stated if she has known it, she would have included it in O.S. No. 52 of 1953. The case of the first defendant is that in the written statement (Ex.B-6) filed by the first defendant in O.S. No. 52 of 1953 it is mentioned about the suit properties and therefore the plaintiff cannot say that she did not know about the suit properties earlier. But the perusal of the said written statement shows that no description of the properties has been given, and what is more, by Krishna Rao in 1894 and rather misleadingly it is just stated that for the performance of kattalai in the temple five khanies of land has been given by a worshipper. Therefore there is no merit in the contention that the plaintiff had knowledge about the suit properties from the said written statement filed in O.S. No. 52 of 1953.
9. For the abovesaid reasons, I find no merit in the appeal.
10. In the cross objections filed by the plaintiff, it is argued that no reason has been given for not allowing the costs. While decreeing the suit, the trial judge has stated in the peculiar circumstances of the case, the parties are directed to bear their own costs”. Therefore it cannot be said that no reason has been given. The question of awarding costs is a matter of discretion of the court. I do not think there is any compelling circumstances that warrants interference with the judgment of the trial court in disallowing costs Hence, the cross objection also has no merit.
11. In the result, the appeal is dismissed with costs. The cross objections is dismissed. No costs.