Decided on January 30,1970



- (1.) THE appellant is the defendant in O. S. No. 3 of 1961, on the file of the Court of the Subordinate Judge, Nagapattinam. The respondent-plaintiff in the suit is the thillayadi Pillayar Temple Charity by its Interim trustee, M. S. Pandian. The plaintiff filed the suit to recover possession of the plaint schedule properties with rs. 4000 as past profits, and future mesne profits. The plaint-allegations are these. The suit properties originally belonged to one Rethinam Pillai. He executed a registered Will on 21-11-1918. bequeathing his properties to a charity and to various legatees and appointing his widow Sundarambal Achi as executor and trustee. Shortly after his death, Velusami Pillai, claiming to be his undivided brother, challenged the Will in the suit O. S. 70 of 1919 Sub-Court, Nagapattinam (which was subsequently numbered as O. S. 103 of 1921, after transfer and retransfer again to Sub-Court, Nagapattinam ). There was a compromise in this suit and a decree was passed therein on 8-12-1921. This compromise decree is ex. A-1. Clauses 5, 7 and 8 of this compromise decree are important and they are these: "5. We have settled that such of the moveables that are in the possession of the respective parties shall be taken by themselves respectively, that the immoveable property mentioned in the C Schedule shall be set apart for charity, and that both shall recover the outstanding amounts and shall take the same between themselves in equal shares. 7. We are agreed that the D Schedule village shall be sold and that (the sale proceeds) shall be taken in equal shares. Out of the sale proceeds realised as aforesaid the plaintiff shall spend a sum of Rs. 2000 and build a Pilliar temple at Thillayadi. 8. The income derived from the C Schedule property is set apart for the daily pooja, the feeding of Brahmins and the Ekadasi and Krithikai ubhayams in the Pilliar temple. Veluswami Pillai and his santhathis shall manage the aforesaid charities" .
(2.) VELUSWAMI Pillai executed a will Ex. A-2 in favour of his wife Rajammal on 31-81927. The crucial recitals in that will can now be referred to:-" my wife, Rajammal, shall succeed with all absolute rights to the moveable and immoveable properties that I had got under the decree in o. S. 103 of 1921, on the file of the Sub-Court, Nagapattinam. with powers of alienation such as gift, exchange, sale etc. . . . . . The management of the charity mentioned in the decree in O. S. 103 of 1921 aforesaid and being conducted permanently, shall be done by my wife, rajammal, after my lifetime, from out of the income derived from the property set apart by me for that purpose. "
(3.) THE next stage in the transactions is the sale deed Ex. A-3 executed by rajammal in favour of the defendant conveying to him the property mentioned in the C Schedule in the compromise decree. The relevant part of the sale-deed is this. "you withheld out of the sale consideration Rs. 2000 for the dharmam, according to the compromise decree in O. S. 103 of 1921. It is agreed that I should purchase property for the said Rs. 2000 and offer it as security and then receive from you the said Rs. 2000. In the matter of my having received cash from you for performing the remaining charitable acts for family expenses and to return the advance received from the tenants in the building, the amount paid to me is Rs. 1555. Since in all for the aforesaid 8 items, I have received the total amount of rs. 8000 (Rs. eight thousand only) from this day you shall be in enjoyment of the aforesaid building etc. . . . . . . with powers of alienation such as gift, exchange, sale etc. . . . . . . ";

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.