{"id":260242,"date":"2002-08-14T00:00:00","date_gmt":"2002-08-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anuppanady-koodayee-ammal-vs-koodayee-ammal-on-14-august-2002"},"modified":"2014-12-19T11:56:25","modified_gmt":"2014-12-19T06:26:25","slug":"anuppanady-koodayee-ammal-vs-koodayee-ammal-on-14-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anuppanady-koodayee-ammal-vs-koodayee-ammal-on-14-august-2002","title":{"rendered":"Anuppanady Koodayee Ammal vs Koodayee Ammal on 14 August, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Anuppanady Koodayee Ammal vs Koodayee Ammal on 14 August, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 14\/08\/2002\n\nCoram\n\nThe Honourable Mr. Justice P. SHANMUGAM\nand\nThe Honourable Mr. Justice K. SAMPATH\n\nA.S. No.681 of 1984 and A.S.No. 1146 of 1986\nand connected C.M.Ps.\n\n\nA.S. No.681 of 1984\n\nAnuppanady Koodayee Ammal\nFamily Trust,\nthrough its sole trustee\nO. Meenakshia Pillai.                           ..  Appellant\n\n-Vs-\n\n1. Koodayee Ammal\n2. A.S. Veeramakali alias Mani\n3. John Batcha Sahib\n4. M.S. Loganathan\n5. M.S. Krishnan\n6. M.S. Sorna Iyer\n7. Damayanti                                            ..  Respondents\n\n   (7th respondent brought on\n    record as L.R. of the deceased\n    4th respondent as per order of\n    the Court dated 17.7.2001 made in\n    C.M.P. Nos.8707 to 8709 of 2000)\n\nA.S. No.1146 of 1986 :\n\nO. Meenakshia Pillai                            ..  Appellant\n\n                vs.\n\nM. Koodayee Ammal                                       ..  Respondent\n\nPRAYER :        A.S.  No.681 of 1984 against the Judgment and Decree dated  16\n.3.1984 on the file of the Subordinate Judge, Madurai in O.S.  No.469 of 1981.\n\n        A.S.   No.1146 of 1986 against the Judgment and Decree dated 16.3.1984\non the file of the Principal Subordinate Judge, Madurai in O.S.   No.2  35  of\n1981.\n\n!For Appellant :  Mr.  K.S.  Ahmed\n\n^For Respondents :  Mr.  K.R.  Thiagarajan (For R-1)\n                   Mr.  M.V.  Krishnan (For R-5)\n\n\n:J U D G M E N T\n<\/pre>\n
P.  SHANMUGAM, J.\n<\/p>\n
                The  above  two  appeals  have been preferred against a common
\njudgment, by the plaintiff in A.S.  No.681 of 1984 and the first defendant  in
\nA.S.  No.1146 of 1986.\n<\/p>\n
                2.  The  first  suit  O.S.  No.235 of 1981 for a partition was
\ndecreed by the learned Subordinate Judge.  The second suit  O.S.    No.469  of
\n1981  was  for  a  declaration  that  the plaintiff is the sole trustee of the
\nfamily trust and for possession of the items of the suit property.  The second
\nsuit was dismissed and the appeal is against this common judgment.\n<\/p>\n
                3.  The facts of the case are stated hereunder.   The  parties
\nare described   as   per   their   rankings   in  the  partition  suit.    The
\nplaintiffKoodayee  Ammal’s  husband  Muthukinglinatha  Pillai  and  the  first
\ndefendant  O.Meenakshia Pillai are brothers and sons of one Oorkavalan Pillai.
\nFor better appreciation, the genealogy of the parties is given below :<\/p>\n
\nT.V.  MEENAKSHIA PILLAI\n__________________|________________\n|                               |\n                |                                                       |\nPonnammal (died)                Koodayee Ammal (died)\n1st wife                        2nd wife\n(Paternal Aunt of       (No issues to Koodayee Ammal)\nKoodayee Ammal)\n        |\n                |\nMuthukaliammal\nW\/o.  Ramalingam Pillai\n(brother of Koodayee Ammal)\n                |\n                |\nPoochendu @ Koodayee Ammal\nW\/o.  Oorkavalan Pillai\nSon of Muthupillai -\nBrother of T.V.  Meenakshi Pillai\n                |\n        |__________________________________\n        |                                                       |\n<\/pre>\n
O.  Meenakshia Pillai   Muthukinglinatha Pillai
\nPlaintiff in O.S.  No.469\/81            (died 31.1.80)
\nand 1st Defendant in            Koodayee Ammal wife of
\nO.S.  No.235\/81                 Muthukinglinatha Pillai
\n                                                Rajalakshmi (died)
\n                                        daughter of
\nMuthukinglinatha Pillai
\n                                                Plaintiffs 1 & 2 in
\n                                                        O.S.  No.235\/81
\n                                                        1st Defendant in
\n                                                        O.S.  No.469\/81<\/p>\n
The suit properties are claimed to be the self-acquired properties of Koodayee
\nAmmal, the second wife of T.V.  Meenakshia Pillai.  Koodayee Ammal executed  a
\ntrust-dharmam settlement  under  Ex.B.13  dated  20.8.1  943.    As  per  this
\nsettlement, Koodayee Ammal appointed herself as  trustee  for  performing  the
\ndharmam  of  poor  feeding  in the month of Margazhi on the Egadasi Day at the
\nBajanai Madam and also to perform pooja of  her  family  deity  in  Keelamuthu
\nKinglinatha Swamy  Kovil  at  Arukkanedi.  Pongal was prepared everyday in the
\nmonth of Margazhi and was to be offered to the God and then, to the  devotees.
\nShe  appointed  herself  as  a trustee during her lifetime and thereafter, her
\ngrandchildren namely O.  Meenakshia Pillai and  Muthu  Kinglinatha  Pillai  to
\ncontinue the  performance of poojas.  Until they attain majority, their mother
\nPoochendu @ Koodayee Ammal was to look after and  perform  the  poojas.    The
\ntrust deed prohibited alienation of the properties.  There were seven items of
\nproperties  covered  under  the  trust  deed,  including  the house properties
\nreferred as suit properties in these suits.\n<\/p>\n
                4.  The case of the plaintiff in the partition suit, viz., the
\nwife of Koodayee Ammal’s grandson, i.e.  Muthukinglinatha Pillai, was that the
\nsettlement deed was not a trust deed and in any event, the trust has ceased to
\nexist and they did not e poojas as ordained in the trust; the properties  were
\npartitioned  by the two brothers after the demise of Koodayee Ammal as per the
\npartition deed dated 27.7.1971 and the brothers were in  respective  enjoyment
\nof  the  properties  by making mutation of records, paying kists and effecting
\nalienations.  Muthukinglinatha Pillai died on 31.1.1980,  leaving  behind  his
\nwife  Koodayee  Ammal, the first plaintiff in the partition suit and her minor
\ndaughter.  The case of the plaintiff, Koodayee Ammal was that after the  death
\nof her  husband,  O.  Meenakshia Pillai tried to interfere with her possession
\nof the house property and had occupied the upstairs portion of  the  house  of
\nthe  ‘B’  schedule  property in the partition suit and that he had also leased
\nout the downstairs portion of the property to defendants  2  and  3,  who  are
\nrunning a hotel  business therein.  According to her, as O.  Meenakshia Pillai
\nfailed to give effect to the partition deed, the suit for partition came to be
\nfiled.\n<\/p>\n
                5.  The case of the defendant O.  Meenakshia  Pillai,  in  the
\nsuit  for  a  declaration  that  he is the sole trustee, is that late Koodayee
\nAmmal had created a trust by name Anuppanady  Koodayee  Ammal  Trust  dated  2
\n0.8.1943 and after her lifetime, the brothers namely O.  Meenakshia Pillai and
\nMuthukinglinatha   Pillai   are   the   trustees,  and  after  the  demise  of
\nMuthukinglinatha Pillai, O.  Meenakshia Pillai has become  the  sole  trustee;
\nthe wife of Muthukinglinatha Pillai, who has filed the suit for partition, has
\nbecome  disqualified  to  be  the trustee since according to him, she had gone
\nastray and was living in adultery; besides, he has stated that she had set  up
\nher  separate claim over the trust property and in the above circumstances, he
\nhad prayed for a declaration that he is the sole trustee and for  recovery  of
\npossession.\n<\/p>\n
                6.  This  claim  of  O.   Meenakshia Pillai was opposed by the
\nplaintiff in the partition suit, inter alia,  contending  that  there  was  no
\ntrust and in any event, it has ceased to exist and that the parties have dealt
\nwith their property  as their own.  Whereas, the case of O.  Meenakshia Pillai
\nis that the trust  continues  and  that  there  was  a  total  prohibition  of
\nalienation  and that Koodayee Ammal had become disqualified to be in charge of
\nthe trust and that therefore, the suit for declaration  that  O.    Meenakshia
\nPillai is the sole trustee is maintainable.\n<\/p>\n
                7.   On  these pleadings, the learned Subordinate Judge, after
\nallowing the marking of  Exhibits  A.1  to  A.9  and  B.1  to  B.67  and  upon
\nexamination of P.W.1 as well as D.Ws.1 to 6, found that even though in Ex.B.13
\nit  is stated that it is a trust deed, in effect, no dharmam was continued and
\nthat both the plaintiff as well as the  first  defendant  have  alienated  the
\nproperties  of the trust and that the brothers have partitioned the properties
\nby a family arrangement dated 27.7.1971 and have made further  alienations  by
\nvirtue  of the partition and that after the demise of Muthukinglinatha Pillai,
\nO.  Meenakshia Pillai had unlawfully entered the suit properties not  allotted
\nto  his  share  and  therefore, he was directed to hand back possession of the
\nsuit property.  In effect, the suit for partition and recovery  of  possession
\nwas decreed  and  the  suit  for declaration that O.  Meenakshia Pillai as the
\nsole trustee and for recovery of possession was dismissed.    O.    Meenakshia
\nPillai is now the appellant in both these appeals.\n<\/p>\n
                8.   We  have heard the counsel elaborately and considered the
\nmatter carefully.\n<\/p>\n
                9.  Though initially Ex.B.13, settlement\/trust deed  contained
\nseven  items  of  properties comprised in the trust namely 28 cents of land in
\nPatta No.351, S.No.37\/6 at Anuppanady Village and 51 cents of  land  in  Patta
\nNo.1417  at  Karupputhalai Village, these two items of properties did not form
\npart of the schedule of properties in either of these suits.   The  properties
\nadmittedly  available  as  on  date  for  the  performance of poojas under the
\nalleged trust for partition are only the following two items of properties :\n<\/p>\n
        (i) Building at Door Nos.83 & 84  at  Nadutheru,  Anuppanady  in  T.S.
\nNo.783, valued at Rs.10,000\/-\n<\/p>\n
        (ii)  Building  at  Door  Nos.81 & 82 at Nadutheru, Anuppanady in T.S.
\nNo.78, measuring an extent of 25′ x 25′.\n<\/p>\n
        10.  All the remaining items of properties were subject to alienations
\nby the parties.  Ex.A.9 is a document  of  family  arrangement,  by  which  O.
\nMeenakshia  Pillai  and  Muthukinglinatha  Pillai have agreed to partition the
\ntrust properties.  In this deed, it is recited  that  they  did  not  want  to
\ncontinue  in  enjoyment  of  the  trust  properties  in  common  and  after  a
\nnegotiation with the mediators and as per their resolution, they have  divided
\nthe  trust  property  between  themselves  absolutely  as ‘A’ and ‘B’ schedule
\nproperties.  They have agreed to perform the poojas from the income  of  their
\nproperties.  It is also recited that the trust properties were already subject
\nmatter  of  mortgage and that the same shall be discharged by the second party
\nnamely Muthukinglinatha Pillai.  The said family arrangement  had  been  given
\neffect  to, as evidenced by Exhibits B.1, B.2, B.6, B.8, B.15, B.63, B.64, B.6
\n6 and B.67, the sale deeds executed by Muthukinglinatha Pillai and  later,  by
\nhis wife Koodayee  Ammal.   O.  Meenakshia Pillai was also party to a mortgage
\nof the trust property, Ex.B.7 and the exchange, Ex.B.1  9.    O.    Meenakshia
\nPillai,  who is aware of all these alienations, did not choose to question the
\nsame.  On the other hand, in the family partition deed itself, it is mentioned
\nthat they have mortgaged one item of the trust property.   The  appellant  has
\nadmitted  that  he  had  alienated  Item  2  of  ‘A’  schedule property in the
\npartition suit for the improvement of Item 1.  It is admitted  that  excepting
\nsome  of  the alienations, all the alienees are not parties before this court.
\nIt is also not in dispute that these alienations were made by referring to the
\nfamily partition deed and it is also not in dispute that all  the  sales  made
\nand the  purchases  effected  were  bonafide.  The defendant alienees have all
\npleaded that they were bonafide purchasers for  value.    Therefore,  assuming
\nthat  there  was  a  trust  created,  the  last  surviving  trustees namely O.
\nMeenakshia Pillai and Muthukinglinatha Pillai  have,  on  their  own  showing,
\nbecome  disqualified  to  be  the  trustees  on  their  partition of the trust
\nproperties and the alienations and  mortgages  effected  by  them,  which  are
\nadmittedly contrary to the trust deed.\n<\/p>\n
                11.   In the above background, the findings of the court below
\nthat the trust was not continued and that there was no evidence whatsoever  to
\nprove  that  the  dharmam  as  contemplated under the trust deed was performed
\ncannot be fully correct.  Even though substantial  properties  were  initially
\nendowed  for the alleged dharmam namely to feed the poor on the Egadasi Day at
\nBajanai Madam and to prepare Pongal in the month of Margazhi and distribute it
\nto the devotees at Keelamuthu Kinglinatha  Swamy  Kovil,  they  are  the  only
\nexpenses  to  be  incurred  as  the  trust  and it is not stated as to how the
\nremaining  income  of  the  properties  of  the  trust  had  to  be  utilised.
\nTherefore,  considering  a  small fraction of expenses that would be needed to
\nperform the above said dharmams and in the absence of  any  evidence  to  show
\nthat  the trustees performed the Kaingaryams and in the facts of the case that
\nmost of the properties have been alienated, we have to say that the properties
\nwere only burdened with  trust  and  that  there  was  no  total  or  absolute
\ndedication.  It was only a partial dedication and the trustees were continuing
\nto  perform  the  charities from out of the income and hence, there was no bar
\nfor alienation as long as the trust obligations were performed.\n<\/p>\n
                12.  In the facts and circumstances of the case that  all  the
\ntrust  properties  are  not  available  now since the trustees themselves have
\nalienated the properties, it must be held that the purpose of the trust namely
\nto incur expenses for distribution of Pongal and to feed the poor  on  Egadasi
\nDay  could  be performed from out of the net residue of the rents, profits and
\nother income that can be derived from the trust properties which  are  now  in
\nthe hands  of  both  the  plaintiff  and  the defendants.  In the light of our
\nfinding that both the trustees have alienated the properties of the trust  and
\nthat  they  also  contend  that  the  dharmam  is  being  performed by them as
\nordained, it will not be possible for this court to  declare  O.    Meenakshia
\nPillai  as the sole trustee and that Koodayee Ammal has become disqualified to
\nbe the trustee of the properties.  Therefore, they are entitled to perform the
\ndharmam with the income  derived  from  the  properties  in  their  possession
\nwithout making  further  alienations.    In  other  words,  the partition deed
\neffected by the brothers is to be recognised for the convenient possession  of
\nthe properties and  better  performance  of  the trust.  O.  Meenakshia Pillai
\nshall hand over possession of the properties taken over by him contrary to the
\nterms of the partition deed.   Koodayee  Ammal  shall  not  make  any  further
\nalienations  and  shall continue to perform the dharmam for alternative years.
\nO.  Meenakshia Pillai will perform the dharmam for the period commencing  from
\n1.1.2003  to  31.12.2  003  and  Koodayee Ammal shall perform the dharmam from
\n1.1.2004  onwards  and  then,  it  shall  be  continued  in  turn  every  year
\nalternatively by both of them.  Any further alienation of the trust properties
\nshall be construed as illegal.\n<\/p>\n
                13.   For  the  above  reasons, the judgment and decree of the
\nSubcourt in O.S.  No.469 of 1981 is modified and  A.S.    No.681  of  1984  is
\nallowed in part.  O.  Meenakshia Pillai and Koodayee Ammal are hereby declared
\nto  be  the trustees in turn for alternative years and are directed to perform
\nthe dharmam as stated above.  The decree in O.S.  No.235  of  1981  is  hereby
\nconfirmed and A.S.   No.1146  of  1986 is dismissed.  O.  Meenakshia Pillai is
\ndirected to hand over possession of the portion  of  properties  bearing  Door
\nNos.81 and  82,  Nadutheru,  Anuppanedy Village, Madurai Town.  However, there
\nwill be no order as to costs.    Consequently,  the  connected  C.M.Ps.    are
\nclosed.<\/p>\n
\n\n14..08..2002\n\nIndex :  Yes                                    (P.S.M.,J.) (K.S.,J.)\nInternet :  Yes\n\nab\n\nTo\n\n1.  The Principal Subordinate Judge,\nMadurai (With Records).\n\n2.  The Record Keeper,\nV.R.  Section,\nHigh Court,\nChennai.\n\n\n\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Anuppanady Koodayee Ammal vs Koodayee Ammal on 14 August, 2002 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-260242","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAnuppanady Koodayee Ammal vs Koodayee Ammal on 14 August, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anuppanady-koodayee-ammal-vs-koodayee-ammal-on-14-august-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anuppanady Koodayee Ammal vs Koodayee Ammal on 14 August, 2002 - 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