GOSWAMI - (1.) IN this appeal we have to go back to a period close upon a passing century to divine what a Hindu Joint Family that had separated at that distant date, thought, contemplated, did and above all intended not only then but also for the future. It was the year 1882 and precisely on 13th May of that year an instrument of partition was executed and registered amongst five brothers, namely, Sivaramakrishna Pillai, Kailasam Pillai, Venkatachalam Pillai. Chidambaram Pillai and Navasivayam Pillai, sons of Subramania Pillai. The family appears to be religiously disposed and was keen to perpetuate the pious ancestral ideology. A genealogy given in the statement of case by the appellants gives the appropriate picture for the purpose of this appeal. JUDGEMENT_615_1_1974Image1.jpg
(2.) TO start with the deed of partition, it appears, the properties of the family were ancestral and were partitioned amongst the five brothers reserving some to be enjoyed in common and allotting certain properties to charities to be administered by one of their brothers, Kailasam Pillai. Reading the entire document it appears that even after the partition Kailasam Pillai and Venkatachalam Pillai desired to enjoy their shares of the property jointly and were in great cordiality while the other three brothers lived and enjoyed their properties separately. It also appears that the second and the third brothers, Kailasam and Venkatachalam were given to piety or, at any rate, were perhaps considered as responsible and solvent persons, who could be entrusted to administer the charities indicated in the deed. There is also reference to family debts and other amicable adjustments amongst the brothers and also to voluntary relinquishment of a share by Sivaramakrishna Pillai. With this brief synopsis we may now extract some material provisions of the partition deed (Ex. A-1) which was written in Tamil and has been officially translated : Clause 1 : "Out of the entire properties worth Rs. 28,000.00 belonging to our family and mentioned in the schedules herein, excluding the properties situate in Rasavallipuram held in common as detailed in para 6 and mentioned in the sixth schedule here, excluding the charity properties as detailed in para 8 and mentioned in the eighth schedule excluding the other wet, dry (lands) gardens and all the properties situate in Kattampuliamanapadayur excluding the property, kept in common from October 1880 as detailed in para 7 and mentioned in the seventh schedule herein, situate in one crop cultivation village Gananthanparou, in the other properties, settled in favour of us in one month of September 1881, dry and wet lands, palmyra trees, etc. in Kilakadu situate in Alangulam Village attached to. Naranamalpuram Jamabandi area, whereas Sivaramakrishna Pillai has relinquished his share in favour of the other four persons as detailed in para 4 out of the aforesaid properties, excepting the properties held in common as detailed in para 11 and mentioned in the 10th schedule the other properties were divided among the other four persons with reference to good and bad by casting chits in the month of January 1882." Clause 2 refers to family houses which need not be quoted. Clause 3 : "As division was effected as detailed in paras 1 and 2, the first schedule properties fell to the share of Sivaramakrishna Pillai amongst us the second and third schedule properties to two persons Kailasam Pillai and Venkatachalam Pillai, the fourth schedule properties to Chidambaram Pillai and the fifth schedule properties to Namasivayam Pillai. Ever since the properties were allotted as aforesaid Kailasam Pillai and Venkatachalam Pillai were enjoying the two shares of their properties in common and the other three persons were enjoying all the other shares of properties separately. That is the second item of Kattampuli land mentioned in fourth schedule which fell to the share of Chidambaram Pillai and the second item of Kattampuli land mentioned in the fifth schedule which fell to the share of Namasivayam Pillai were enjoyed by Kailasam Pillai under usufructuary mortgage rights." Clause 6 : "As the Kulukuthurai Inam Palmyrah trees situate in Rasavallipuram mentioned in the sixth schedule here and one-third share belonging to us five persons could not be conveniently enjoyed by division, it was to be enjoyed in common and the income derived therefrom should be given to the early morning pooja of the seventh day festival in the month of "Thai" of Sabhapati Naicker deity in the Siva Temple situate in Rasavallipuram for expenses for Archana on the 4th Thai Friday every year." Clause 7 : "The dry lands, palmyrah trees, gardens and other buildings situate in Gangathanparia mentioned in the 7th schedule herein should be enjoyed in common. The income from the said dry lands and Palmyrah grovers should be divided into five shares and two such shares should be enjoyed in common by Kailasam Pillai and Venkatachalam Pillai and the other three shares by the other three persons independently." Clause 8 : "The properties mentioned in the 8th schedule herein and allotted for charity shall be administered in person by Kailsam Pillai and from out of the income of the first item property shall be given to mid-day offering of Thirumenjanam expenses in the Siva Temple in Rasavallipuram. From the second item properties the expenses for the evening pooja of the said temple shall be met, from the third item property the expenses for pooja of Lord Shiva at sepparai on "Ani" Uttiram day should be met and from the 4th item of the property. They shall feed four brahmins in the Siva Temple Sapparai during Dwadashi days." The next clause No. 9 which is the bone of contention between the parties may now be quoted : Clause 9 : "In the Sepparia Siva Temple established by our parents, for meeting expenses of lamp burning forever and one measure of rise for daily offering to God and Archana expenses, a sum of Rs. 45.00 is spent annually. Out of this a sum of Rs. 5 per year which shall be paid by Sivaramakrishna Pillai, Namasivayam Pillai and a sum of Rs. 3 per year by Chidambaram Pillai to Kailasam Pillai and excluding the sum of Rs. 13.00 as given in the three items aforesaid for the balance of Rs. 32 the dry land mentioned in the 9th schedule shall be administered in person by Kailasam Pillai and spent from out of the income of the said properties and from out of their own funds Kailasam Pillai and Venkatachalam Pillai shall perform the aforesaid charity without fail." Clause 12 : "Kailasam Pillai and Venkatachalam Pillai shall in respect of their properties in common and the other three in respect of their respective properties separately and absolutely enjoy with powers of alienation by way of gift, exchange, sale etc. In the share of properties allotted to Kailasam Pillai and Venkatachalam Pillai the other sharers have no right and similarly in the shares of properties of the other shares the aforesaid two persons have no right. Likewise in the property held by the other three persons, in the property of which one of them the other have no manner of right." Then the schedules are given showing the properties that have fallen to the shares of different brothers. The ninth schedule property, which is the suit property, is described in Ext. A-1 as follows : The 9th schedule situate within the jurisdiction of the aforesaid Sub-District Naranathanapuram Jamabandi attached to Alangulam village and Chilakadu Wet irrigated by well, tamarind trees, and dry and the particulars of these are as follows : JUDGEMENT_615_1_1974Html1.htm This ninth schedule property is the suit property.
(3.) IT appears that Kailasam Pillai in the meantime died as is apparent from the partition deed (Ext. A-3] executed between Venkatachalam Pillai and Thirumalai Vadvammal widow of Kailasam Pillai on 21-1-87. Clause 19 of this deed may be quoted : Sivaramakrishna Pillai. Chidambram Pillai, Venkatachalam Pillai, son of Namasivaya Pillai, these persons were contributing a sum of Rs. 13.00 every year to the said Kailasam Pillai for perpetual burning of lamp at Chepparaiswami Nataraja Sannathi. Hence forth the said Venkatachalam Pillai shall receive the said amount and perform the charity". In this partition deed, the properties of Kailasam Pillai and Venkatachalam Pillai were divided and Venkatachalam Pillai took the responsibility of performing the charities entrusted to Kailasam Pillai under clause 9 of the first partition deed of 1882. IT appears from Ext B-1 dated 8-9-1937, which is a sale deed in favour of S.Srinivasa Iyengar, that on 8/11/1921, the suit properties had been "usufructuarily mortgaged for Rs. 1100.00 in favour of one Maragathammal by Gomathi Ammal for the purpose of discharging the family debts for a period of five years". The period was extended by a further usufructuary mortgage of the properties for a sum of Rs. 7350.00 on 26/04/1923. IT also appears that the rights under the two usufructuary mortgage deeds were assigned to S. Srinivasa Iyengar by a deed of assignment in November, 1962, executed by the said Maragathammal for a consideration of Rupees 18350/- Since S. Srinivasa Iyengar made repeated demands for clearing up the debts due under the unufructuary mortagages the said properties along with some other land were sold to him by Kailasam Pillai (Jr.), Venkatachalam Pillai (Jr.) Gopalakrishna Pillai (defendant 6. briefly D-6- and Prianayagam Pillai (defendant 7, briefly D-7) for a consideration of Rupees 18350/-. So this sale in favour of Srinivasa Iyengar was in "discharge of the said othi (unufructuary mortgage) debts" and the properties which had already been in possession of Srinivasa Iyengar continued to remain in his possession now as owner of the properties with "power of alienation by way of gift, exchanges sales etc. absolutely". 5. A third partition deed (Ext. A-10) had been executed on 19/10/1936, amongst Kailasam Pillai (Jr.) Venkatachalam Pillai (Jr.), Gopalakrishna Pillai (D-6) and Prianayagam Pillai (D-7) in order to later facilitate absolute sale of the properties in favour of S. Srinivasa Iyengar in 1937. IT was stated in this deed (Ext. A-10) that "from the property endowed to the temple of Sepparai Algiakootna we shall keep the eternal lamps burning, collect the sums which our grandfather endowned for our family and use special efforts to perform the charities". In clause 14 (1) of this deed it was stated as follows : "In as much as sharer No. 1, Kalasam Pillai (reference to Kailasam Junior) has voluntarily relinquished in favour of the other 3 sharers the right to perform and administer the family charities and the properties endowed for the same; sharer No. 1 shall not have at any time any right to said charities or endowments..." Thus on 8/09/1937, a sale deed for the suit property and other lands (Ext. B-1) was executed in favour of S. Srinivasa Iyengar Avergal by Kailasam Pillai (Jr.) Venkatachalam Pillai, (Jr.), Gopalakrishna Pillai (D-6) and Prianayagam Pillai (D-7) for a consideration of Rupees 18350/-. Srinivasa Iyengar also got his name recorded in the patta. On 10/06/1943. S Srinivasa Iyengar sold by Ext. B-2 the suit property, etc. to Sappani Ahmed Mohideen, father of the two appellants herein, for a consideration of Rs. 22600.00. Sappani Ahmed Mohideen got his name recorded in the patta in due course. The second appellant, who is the brother of the first appellant, sold some portion of the suit property to Defendants 3 to 5 on 7/04/1960. This appears to be the history and background of the litigation. The plaintiffs (the first two respondents) herein are the great grandsons of Venkatachalam Pillai son of Subramania Pillai. They instituted a suit in the court of Munsif Tirunelveli on 5/09/1960, impleading the purchasers of the suit property as Defendants 1 to 5 and Gopalakrishna Pillai, uncle of the plaintiffs and Prianayagam Pillai, father of the 2nd plaintiff, as the defendants 6 and 7 respectively, praying for declaration that the suit properties belong to the trust and that all alienations in respect of them are not binding on the trust and for possession of the suit properties from defendants 1 to 5 to "the lawful trustees". One written statement was submitted on behalf of the defendants 1 to 5 and the suit proceeded ex parte against defendants 6 and 7, who were not even examined as witnesses in the trial.;