IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14/08/2002
Coram
The Honourable Mr. Justice P. SHANMUGAM
and
The Honourable Mr. Justice K. SAMPATH
A.S. No.681 of 1984 and A.S.No. 1146 of 1986
and connected C.M.Ps.
A.S. No.681 of 1984
Anuppanady Koodayee Ammal
Family Trust,
through its sole trustee
O. Meenakshia Pillai. .. Appellant
-Vs-
1. Koodayee Ammal
2. A.S. Veeramakali alias Mani
3. John Batcha Sahib
4. M.S. Loganathan
5. M.S. Krishnan
6. M.S. Sorna Iyer
7. Damayanti .. Respondents
(7th respondent brought on
record as L.R. of the deceased
4th respondent as per order of
the Court dated 17.7.2001 made in
C.M.P. Nos.8707 to 8709 of 2000)
A.S. No.1146 of 1986 :
O. Meenakshia Pillai .. Appellant
vs.
M. Koodayee Ammal .. Respondent
PRAYER : A.S. No.681 of 1984 against the Judgment and Decree dated 16
.3.1984 on the file of the Subordinate Judge, Madurai in O.S. No.469 of 1981.
A.S. No.1146 of 1986 against the Judgment and Decree dated 16.3.1984
on the file of the Principal Subordinate Judge, Madurai in O.S. No.2 35 of
1981.
!For Appellant : Mr. K.S. Ahmed
^For Respondents : Mr. K.R. Thiagarajan (For R-1)
Mr. M.V. Krishnan (For R-5)
:J U D G M E N T
P. SHANMUGAM, J.
The above two appeals have been preferred against a common
judgment, by the plaintiff in A.S. No.681 of 1984 and the first defendant in
A.S. No.1146 of 1986.
2. The first suit O.S. No.235 of 1981 for a partition was
decreed by the learned Subordinate Judge. The second suit O.S. No.469 of
1981 was for a declaration that the plaintiff is the sole trustee of the
family trust and for possession of the items of the suit property. The second
suit was dismissed and the appeal is against this common judgment.
3. The facts of the case are stated hereunder. The parties
are described as per their rankings in the partition suit. The
plaintiffKoodayee Ammal’s husband Muthukinglinatha Pillai and the first
defendant O.Meenakshia Pillai are brothers and sons of one Oorkavalan Pillai.
For better appreciation, the genealogy of the parties is given below :
T.V. MEENAKSHIA PILLAI
__________________|________________
| |
| |
Ponnammal (died) Koodayee Ammal (died)
1st wife 2nd wife
(Paternal Aunt of (No issues to Koodayee Ammal)
Koodayee Ammal)
|
|
Muthukaliammal
W/o. Ramalingam Pillai
(brother of Koodayee Ammal)
|
|
Poochendu @ Koodayee Ammal
W/o. Oorkavalan Pillai
Son of Muthupillai -
Brother of T.V. Meenakshi Pillai
|
|__________________________________
| |
O. Meenakshia Pillai Muthukinglinatha Pillai
Plaintiff in O.S. No.469/81 (died 31.1.80)
and 1st Defendant in Koodayee Ammal wife of
O.S. No.235/81 Muthukinglinatha Pillai
Rajalakshmi (died)
daughter of
Muthukinglinatha Pillai
Plaintiffs 1 & 2 in
O.S. No.235/81
1st Defendant in
O.S. No.469/81
The suit properties are claimed to be the self-acquired properties of Koodayee
Ammal, the second wife of T.V. Meenakshia Pillai. Koodayee Ammal executed a
trust-dharmam settlement under Ex.B.13 dated 20.8.1 943. As per this
settlement, Koodayee Ammal appointed herself as trustee for performing the
dharmam of poor feeding in the month of Margazhi on the Egadasi Day at the
Bajanai Madam and also to perform pooja of her family deity in Keelamuthu
Kinglinatha Swamy Kovil at Arukkanedi. Pongal was prepared everyday in the
month of Margazhi and was to be offered to the God and then, to the devotees.
She appointed herself as a trustee during her lifetime and thereafter, her
grandchildren namely O. Meenakshia Pillai and Muthu Kinglinatha Pillai to
continue the performance of poojas. Until they attain majority, their mother
Poochendu @ Koodayee Ammal was to look after and perform the poojas. The
trust deed prohibited alienation of the properties. There were seven items of
properties covered under the trust deed, including the house properties
referred as suit properties in these suits.
4. The case of the plaintiff in the partition suit, viz., the
wife of Koodayee Ammal’s grandson, i.e. Muthukinglinatha Pillai, was that the
settlement deed was not a trust deed and in any event, the trust has ceased to
exist and they did not e poojas as ordained in the trust; the properties were
partitioned by the two brothers after the demise of Koodayee Ammal as per the
partition deed dated 27.7.1971 and the brothers were in respective enjoyment
of the properties by making mutation of records, paying kists and effecting
alienations. Muthukinglinatha Pillai died on 31.1.1980, leaving behind his
wife Koodayee Ammal, the first plaintiff in the partition suit and her minor
daughter. The case of the plaintiff, Koodayee Ammal was that after the death
of her husband, O. Meenakshia Pillai tried to interfere with her possession
of the house property and had occupied the upstairs portion of the house of
the ‘B’ schedule property in the partition suit and that he had also leased
out the downstairs portion of the property to defendants 2 and 3, who are
running a hotel business therein. According to her, as O. Meenakshia Pillai
failed to give effect to the partition deed, the suit for partition came to be
filed.
5. The case of the defendant O. Meenakshia Pillai, in the
suit for a declaration that he is the sole trustee, is that late Koodayee
Ammal had created a trust by name Anuppanady Koodayee Ammal Trust dated 2
0.8.1943 and after her lifetime, the brothers namely O. Meenakshia Pillai and
Muthukinglinatha Pillai are the trustees, and after the demise of
Muthukinglinatha Pillai, O. Meenakshia Pillai has become the sole trustee;
the wife of Muthukinglinatha Pillai, who has filed the suit for partition, has
become disqualified to be the trustee since according to him, she had gone
astray and was living in adultery; besides, he has stated that she had set up
her separate claim over the trust property and in the above circumstances, he
had prayed for a declaration that he is the sole trustee and for recovery of
possession.
6. This claim of O. Meenakshia Pillai was opposed by the
plaintiff in the partition suit, inter alia, contending that there was no
trust and in any event, it has ceased to exist and that the parties have dealt
with their property as their own. Whereas, the case of O. Meenakshia Pillai
is that the trust continues and that there was a total prohibition of
alienation and that Koodayee Ammal had become disqualified to be in charge of
the trust and that therefore, the suit for declaration that O. Meenakshia
Pillai is the sole trustee is maintainable.
7. On these pleadings, the learned Subordinate Judge, after
allowing the marking of Exhibits A.1 to A.9 and B.1 to B.67 and upon
examination of P.W.1 as well as D.Ws.1 to 6, found that even though in Ex.B.13
it is stated that it is a trust deed, in effect, no dharmam was continued and
that both the plaintiff as well as the first defendant have alienated the
properties of the trust and that the brothers have partitioned the properties
by a family arrangement dated 27.7.1971 and have made further alienations by
virtue of the partition and that after the demise of Muthukinglinatha Pillai,
O. Meenakshia Pillai had unlawfully entered the suit properties not allotted
to his share and therefore, he was directed to hand back possession of the
suit property. In effect, the suit for partition and recovery of possession
was decreed and the suit for declaration that O. Meenakshia Pillai as the
sole trustee and for recovery of possession was dismissed. O. Meenakshia
Pillai is now the appellant in both these appeals.
8. We have heard the counsel elaborately and considered the
matter carefully.
9. Though initially Ex.B.13, settlement/trust deed contained
seven items of properties comprised in the trust namely 28 cents of land in
Patta No.351, S.No.37/6 at Anuppanady Village and 51 cents of land in Patta
No.1417 at Karupputhalai Village, these two items of properties did not form
part of the schedule of properties in either of these suits. The properties
admittedly available as on date for the performance of poojas under the
alleged trust for partition are only the following two items of properties :
(i) Building at Door Nos.83 & 84 at Nadutheru, Anuppanady in T.S.
No.783, valued at Rs.10,000/-
(ii) Building at Door Nos.81 & 82 at Nadutheru, Anuppanady in T.S.
No.78, measuring an extent of 25′ x 25′.
10. All the remaining items of properties were subject to alienations
by the parties. Ex.A.9 is a document of family arrangement, by which O.
Meenakshia Pillai and Muthukinglinatha Pillai have agreed to partition the
trust properties. In this deed, it is recited that they did not want to
continue in enjoyment of the trust properties in common and after a
negotiation with the mediators and as per their resolution, they have divided
the trust property between themselves absolutely as ‘A’ and ‘B’ schedule
properties. They have agreed to perform the poojas from the income of their
properties. It is also recited that the trust properties were already subject
matter of mortgage and that the same shall be discharged by the second party
namely Muthukinglinatha Pillai. The said family arrangement had been given
effect to, as evidenced by Exhibits B.1, B.2, B.6, B.8, B.15, B.63, B.64, B.6
6 and B.67, the sale deeds executed by Muthukinglinatha Pillai and later, by
his wife Koodayee Ammal. O. Meenakshia Pillai was also party to a mortgage
of the trust property, Ex.B.7 and the exchange, Ex.B.1 9. O. Meenakshia
Pillai, who is aware of all these alienations, did not choose to question the
same. On the other hand, in the family partition deed itself, it is mentioned
that they have mortgaged one item of the trust property. The appellant has
admitted that he had alienated Item 2 of ‘A’ schedule property in the
partition suit for the improvement of Item 1. It is admitted that excepting
some of the alienations, all the alienees are not parties before this court.
It is also not in dispute that these alienations were made by referring to the
family partition deed and it is also not in dispute that all the sales made
and the purchases effected were bonafide. The defendant alienees have all
pleaded that they were bonafide purchasers for value. Therefore, assuming
that there was a trust created, the last surviving trustees namely O.
Meenakshia Pillai and Muthukinglinatha Pillai have, on their own showing,
become disqualified to be the trustees on their partition of the trust
properties and the alienations and mortgages effected by them, which are
admittedly contrary to the trust deed.
11. In the above background, the findings of the court below
that the trust was not continued and that there was no evidence whatsoever to
prove that the dharmam as contemplated under the trust deed was performed
cannot be fully correct. Even though substantial properties were initially
endowed for the alleged dharmam namely to feed the poor on the Egadasi Day at
Bajanai Madam and to prepare Pongal in the month of Margazhi and distribute it
to the devotees at Keelamuthu Kinglinatha Swamy Kovil, they are the only
expenses to be incurred as the trust and it is not stated as to how the
remaining income of the properties of the trust had to be utilised.
Therefore, considering a small fraction of expenses that would be needed to
perform the above said dharmams and in the absence of any evidence to show
that the trustees performed the Kaingaryams and in the facts of the case that
most of the properties have been alienated, we have to say that the properties
were only burdened with trust and that there was no total or absolute
dedication. It was only a partial dedication and the trustees were continuing
to perform the charities from out of the income and hence, there was no bar
for alienation as long as the trust obligations were performed.
12. In the facts and circumstances of the case that all the
trust properties are not available now since the trustees themselves have
alienated the properties, it must be held that the purpose of the trust namely
to incur expenses for distribution of Pongal and to feed the poor on Egadasi
Day could be performed from out of the net residue of the rents, profits and
other income that can be derived from the trust properties which are now in
the hands of both the plaintiff and the defendants. In the light of our
finding that both the trustees have alienated the properties of the trust and
that they also contend that the dharmam is being performed by them as
ordained, it will not be possible for this court to declare O. Meenakshia
Pillai as the sole trustee and that Koodayee Ammal has become disqualified to
be the trustee of the properties. Therefore, they are entitled to perform the
dharmam with the income derived from the properties in their possession
without making further alienations. In other words, the partition deed
effected by the brothers is to be recognised for the convenient possession of
the properties and better performance of the trust. O. Meenakshia Pillai
shall hand over possession of the properties taken over by him contrary to the
terms of the partition deed. Koodayee Ammal shall not make any further
alienations and shall continue to perform the dharmam for alternative years.
O. Meenakshia Pillai will perform the dharmam for the period commencing from
1.1.2003 to 31.12.2 003 and Koodayee Ammal shall perform the dharmam from
1.1.2004 onwards and then, it shall be continued in turn every year
alternatively by both of them. Any further alienation of the trust properties
shall be construed as illegal.
13. For the above reasons, the judgment and decree of the
Subcourt in O.S. No.469 of 1981 is modified and A.S. No.681 of 1984 is
allowed in part. O. Meenakshia Pillai and Koodayee Ammal are hereby declared
to be the trustees in turn for alternative years and are directed to perform
the dharmam as stated above. The decree in O.S. No.235 of 1981 is hereby
confirmed and A.S. No.1146 of 1986 is dismissed. O. Meenakshia Pillai is
directed to hand over possession of the portion of properties bearing Door
Nos.81 and 82, Nadutheru, Anuppanedy Village, Madurai Town. However, there
will be no order as to costs. Consequently, the connected C.M.Ps. are
closed.
14..08..2002 Index : Yes (P.S.M.,J.) (K.S.,J.) Internet : Yes ab To 1. The Principal Subordinate Judge, Madurai (With Records). 2. The Record Keeper, V.R. Section, High Court, Chennai.