CHEVENTHIPAUL NADAR Vs. SRINIVASA NADAR

JUDGEMENT

(1.) THIS second appeal was fully heard on 24th August, 1981, and judgment was reserved to this date. When the judgment was about to be pronounced, the learned counsel appearing for the appellant represents that his client has taken away the papers from him and has withdrawn his authority to appear in this case and as such he is retiring from this case. Whatever be the position, since the appeal has been heard and judgment has been reserved. I proceed to deliver the judgment.

(2.) THE plaintiff in O.S. No. 197 of 1972 on the file of the District Munsif, Srivaikuntam in the appellant herein. He filed the said suit for declaration of his title to items 1 to 10 of the plaint first schedule and for an injunction against the defendant restraining them from interfering with the plaintiff-s possession thereof. His case as set out in the, plaint was as follows: - He, the first defendant and one Rathinaswami Nadar, the husband of the second defendant, were brothers. THEy orally partitioned most of their common family properties in the year 1967 and in that partition, the plaint first schedule properties comprising 13 items were allotted to the plaintiff, the second schedule properties to Rathinaswami Nadar and the third schedule properties were allowed to the first defendant. From the date of the said partition, the parties have been in separate possession and enjoyment of the respective properties to the exclusion of others. THE plaintiff had already sold items 11 to 13 of the plaint first schedule for necessity. In respect of items 4 to 10 in the first schedule, the plaintiff applied to the Tahsildar for subdivision and separate patta on 7th May, 1972, but the matter was not pursued thereafter. Though patta has not been issued for items A to 10 and patta has been issued only to items 1 to 3 of the first schedule, all those items were being enjoyed by the plaintiff by paying kist. Defendants 1 to 5 are acting in derogation of the plaintiff-s title to items 1 to 10 from December, 1971, though they have no right, title or interest in the said items, and they have wrongly executed a gift deed on 20th August, 1964, in favour of the 6th defendant in respect of items 6 and 7 of the plaint first schedule. Since the defendants 1 to 5 have by their conduct cast a cloud on the plaintiff-s title to items 1 to 10, the plaintiff is constrained to file this suit for declaration of title and for the consequential relief of injunction as against defendants 1 to 5 as also the 6th defendant which is a temple represented by its huqdar and the 7th defendant who claims to be its hereditary trustee.

(3.) THE 6th defendant is an institution by name Kamattikottai Trivalagurusami Koil. Its case was that items 6 and 7 were allotted to the share of Manakavalamuthu, who is the plaintiff-s paternal uncle, in a partition as between himself and the plaintiff-s father, that Manakavalamuthu had made an oral gift of those items to the 6th defendant, that after- the death of Manakavalamuthu, the 6th defendant has regularised the transaction by taking a sale deed as also a gift deed from defendants 1 to 5, who are the heirs of Arumugam, the brother of Manakavalamuthu, that ever since the said oral gift deed from Manakavalamuthu, the 6th defendant has been in continuous possession of the said items, that it has been paying kist for those items ever since the death of Manakavalamuthu, that the 6th defendant had raised a nandavanam for the use of the temple in one of the items, that the patta for the said items has also been granted to the 6th defendant, that apart from the nandavanam, the buildings at a total cost of about Rs. 5 to 6 lakhs have been erected on the said items and that, therefore, the plaintiff, at this stage cannot claim any title to these items. THE 6th defendant, also contended that the 7th defendant is not a hereditary trustee and therefore he should not have been impleaded as a party defendant in the suit. As regards item 8, the sixth defendant-s case was that the same has been gifted to it by one Muthu......... in the year 1919, that ever since the said gift deed that item has been in its possession and enjoyment and that, therefore, the plaintiff cannot claim either title or possession as regards that item. THE plaintiff filed a reply statement wherein the plaintiff had reiterated his earlier position that items 6 to 8 and 9 have not been allotted to defendants 3 to 5, that the so-called temple for which items 6 and 7 had been said to have been alienated in only a Samadhi of one of the plaintiff-s relations by name Shri Velgurusami, that it is anly the members of the plaintiff-s family who perform pooja and worship in the Samadhi, that the buildings in the Samadhi were constructed by the members of the plaintiff-s family, that the 7th defendant has been appointed as a trustee by the members of the plaintiff-s family for the said Samadhi and the 6th defendant is not a huqdar of the, said Samadhi and therefore he came to represent the Samadhi in this suit. In that reply statement, the plaintiff has, however, admitted that Survey No. 2931 and 2941, which represent items 6 and 7 of the plaint first schedule originally belonged to two brothers, the plaintiff-s father and Manakavalamuthu Nadar, but that Manakavalamuthu Nadar did not give any portion of the property of the Samadhi as alleged by the 6th defendant, that Manakavalamuthu Nadar died issueless, that all his properties devolved on the plaintiff and his brothers, that in the partition between the plaintiff and his two brothers these items have been allotted to the plaintiff, and that therefore, the sale and the gift deed executed by defendants 1 to 5 in favour of the 6th defendant on 20th August, 1964, are not valid and binding on the plaintiff as the defendants 1 to 5 cannot transfer more rights than those they themselves had in these items.