VAGESA MUDALIAR Vs. DAKSHINAMURTHY MUDALIAR

JUDGEMENT

(1.) THE plaintiff in O. S. No. 84/82 on the file of the Subordinate Judge's Court, Nagapattinam, filed the appeal before this Court and pending appeal, he died and his legal representatives have come on record as appellants 2 to 4.

(2.) FOR easier appreciation of the facts of the case, it would be necessary to have the genealogy extracted. <FRM>JUDGEMENT_724_TLMAD0_2002Html1.htm</FRM>

(3.) THE case in the plaint is as follows: the ancestors of the plaintiff and defendants 1 to 14 belonged to a very affluent family. They had a lot of wet and dry lands, buildings and sites in various villages in Nagapattinam Taluk. The original ancestor was one Thiruvenkata Mudaliar. He had two sons Vaithilinga Mudaliar and Velu Mudaliar. Vaithilinga Mudaliar in his turn had two sons Thiruvenkata Mudaliar and Sankaramurthy Mudaliar. Thiruvenkata Mudaliar had five sons Ramalingam, Shanmugham, Vaithilingam, Gopalakrishnan and Santhanam. Ramalingam died leaving behind three sons, Subramaniam, Rajappa and Thiruvenkatam. Sankaramurthy's sons were Natesa Mudaliar, Vagesa Mudaliar, the plaintiff in the suit, and Kalyanasundara Mudaliar. Natesa Mudaliar died on 26-9-1981. His son is Dakshinamurthy. Dakshinamurthy is the first defendant while Kalyanasundara Mudaliar is the second defendant. Thiruvenkata Mudaliar's sons Shanmugham, Vaithilingam, Gopalakrishnan and Santhanam are respectively D-3, D-4, D-5 and D-6. Ramalinga Mudaliar's sons Subramanian, Rajappa and Thiruvenkatam are defendants 7 to 9. Velu Mudaliar had two sons Subba Mudaliar and Ramalingam Mudaliar. Subba Mudaliar's son was Ramiah. His wife is Neelathanni, the 10th defendant, and her daughter Baskarathanni is D-11. Velu Mudaliar's other son Ramalingam Mudaliar's sons were Singaravel and Krishnasamy. Singaravel's son was Kunjithapatham. His wife Ranganayagi is D-12. Singaravel's other son Jayaraman is D-13. Krishnasamy's son Balakrishnan is D-14. Defendants 15 to 22 are the alienees and defendants 23 to 45 are the lessees. Senganni Sankaramurthy set apart properties for family charities. After Thiruvenkata Mudaliar, his sons Velu Mudaliar and Vaithilinga Mudaliar were managing the choultry and the properties set apart for charity. After them, the heirs of Vaithilinga Mudaliar, viz. Thiruvenkata Mudaliar and Sankaramurhty Mudaliar on the one hand and Velu Mudaliar's heirs on the other were managing the Trust for 6 faslis each alternatively. In suit item 2, Thiruvenkata Mudaliar had constructed a Vinayagar Temple and was performing pooja, neivedyam, etc. and on the Anniversary days of Senganni Sankaramurthy and on other days they were performing annadhanam. The right to manage the Trust was being shared alternatively by the two branches for 6 faslis each. Thiruvengada Mudaliar and his brother Sankaramurthy Mudaliar had a partition deed executed on 28-2-1916, as per the terms of which, it was agreed that Thiruvengada Mudaliar as along as he was alive, would manage for 6 faslis and after him, Sankaramurthy Mudaliar and after the lifetime of both of them, the eldest male member in their families would have to manage for 6 faslis. In accordance with that arrangement, Thiruvenkata Mudaliar and after him Sankaramurthy Mudaliar were trustees managing the Trust. On 2-10-1933 there was a partition entered into between Sankaramurthy Mudaliar and his sons, in that the earlier arrangement dated 28-1-1916 was referred to and it was affirmed that after the lifetime of Thiruvenkata Mudaliar and Sankaramurthy Mudaliar, the eldest male member in the two families would have to manage the Trust. As per that arrangement, the eldest male member of Sankaramurthy Mudaliar, Natesa Mudaliar was the trustee managing the Trust till he died on 26-9-1981. After his death, the plaintiff being the eldest male member in the two families, became entitled to manage the Trust. After the death of Natesa Mudaliar, the plaintiff caused a notice to be issued to his son Dhakshinamurthy, the first defendant in the suit on 22. 5. 1982, in that reference was made to a partition dated 2-1-1974, as per the terms of which Natesa Mudaliar and others partitioned the Trust properties and the items allotted to Natesa Mudaliar were partitioned between D-1 Dakshinamurthy and D-2 Kalyanasundara Mudaliar on 15-4-1982 and in that partition, certain items were allotted to the plaintiff and the plaintiff should take possession of those properties. The plaintiff objected to the arrangement by first notice dated 21-6-1982. The first defendant sent a reply on 23-6-1982 stating that he did not know about the partitions in the years 1916 and 1933 and that the plaintiff could not ask for right to manage the Trust on the basis of those documents. This contention was wrong. The Trust was family Trust and that had to be run for ever. Only for that purpose, a lot of properties had been endowed; choultry had been put up and it was also being maintained. A brahmin was housed in the choultry and for pilgrims and travellers facilities were given. Later on, the choultry was not managed properly; some portions of the choultry also fell down. The heirs of Velu Mudaliar, viz. defendants 11 and 12 and the second defendant had alienated the Trust properties and appropriated the proceeds with them. Those alienations were invalid and would not bind the Trust. The alienees, viz. defendants 15 to 22 had been included for a complete adjudication and defendants 1 to 14 had been made parties as they could claim right in the Trust properties. Defendants 22 to 45, who are lessees of the trust properties, had also been made parties. Defendants 3 to 9 were the heirs of Thiruvenkata Mudaliar. The plaintiff and defendants 1 and 2 were the heirs of Sankaramurthy Mudaliar. The partition between Thiruvenkata Mudaliar and Sankaramurthy Mudaliar would bind them, as also the partition of the year 1933 in which all the three sons of Sankaramurthy Mudaliar had signed and they would get rights only as heirs and as per the partition deed. Though the heirs of Velu Mudaliar were entitled to be in management for 6 faslis, still in view of the fact that they had alienated the trust properties, they had forfeited their rights. Only the plaintiff had the right to be in management. The rights of Velu Mudaliar branch for 6 faslis ended in fasli 1388. After that, Natesa Mudaliar as the eldest male member of the other branch got right for 6 faslis and after his death, the plaintiff as the eldest male member, had become entitled to be in management. It was enough if the leasehold rights of the trust properties with defendants 23 to 45 were declared. Defendants 1 to 16 were in possession and enjoyment of the trust properties. The lands were fertile lands and they had to account from 26-9-1981. The prayers in the plaint are: (1) for declaration that the plaintiff is the trustee of the plaint family chatra trust, (2) for recovery of possession of the suit properties, (3) for an account of income from 26-9-1981, and (4) for future income.