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PETITIONER: SRI MAHALIAMMAN TEMPLE &VIGNESWARAR KOIL REPRESENTED BYITS T

       Vs.

RESPONDENT: VIJAYAMMAL (DEAD) BY LRS.

DATE OF JUDGMENT:       01/03/1996

BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) PUNCHHI, M.M.

CITATION:  JT 1996 (3)   127        1996 SCALE  (2)617

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PARIPOORNAN,J.      The  first   defendant  in   O.S.  No.   344  of  1967, Subordinate Judge’s  court,  Coimbatore,  is  the  appellant herein. The  plaintiff in  the said  suit is the respondent. The suit  was laid for a declaration of plaintiff’s title to plaint A and B Schedule properties. There are seven items in A Schedule  and two  items in  B  Schedule  properties.  The litigation had a chequered career. This suit - OS No. 344/67 - was  tried along  with two  other suits  - O.S. No. 537 of 1967 and  538 of 1968, which are not relevant at this stage. Plaintiff claimed that she is absolutely entitled to A and B Schedule   properties.    The   first    defendant,   Temple (Mahaliamman Temple and Vigneswara Temple represented by its Trustees) claimed that the properties have been dedicated to the Temple  and the  plaintiff has only a life estate in ’B’ Schedule properties. 2. The short facts to understand the scope of controversy in the suit are as follows.      Plaint A and B schedule properties belonged to one C.S. Arumugham  Pillai.   He  had  a  son  Manickam  Pillai.  One Sadachiammal was the wife of Armugham Pillai. The plaintiff, Vijyammal, is  the wife  of Manickam  Pillai Armugham Pillai executed Ext. B-11, Will, dated 29.8.1932 regarding plaint A & B  schedule properties.  The Will, Ext. B-11, is available at pages  140-147 of the printed paper book. Under the Will, his wife  Sadachiammal  was  given  a  life  estate  over  A schedule properties and the reminder was bequeathed to first defendant temple.  The  direction  in  Ext.  B-11  was  that Sadachiammal was  to collect the entire income of A schedule properties and  enjoy the  same for  her life time and after her life  the entire  income  shall  be  spent  for  various vazhipadus (offerings)  like Annadanam,  Vilakku, Naivethyam and other charitable purposes of the first defendant Temple. Similarly B schedule properties were bequeathed to plaintiff (daughter-in-law) for  her life  and in  the absence  of any

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child to  her the  said properties  shall vest  in the first defendant  Temple  for  the  various  offerings  (charities) mentioned hereinabove  in the  Will. Manickam Pillai, son of the testator,  pre-deceased him.  He died  in 1934. Armugham Pillai died in 1946. His wife Sadachiammal died on 13.6.1957 after Hindu  Succession Act.  Armugham Pillai’s daughter-in- law  Vijayammal,   the  plaintiff,  filed  the  suit  for  a declaration  of   her  title  to  plaint  A  &  B,  schedule properties. According  to her,  the properties dealt with in Ext. B-11  Will by  Armugham Pillai dated 29.8.1932 were the joint  family   properties  and   so  Armugham   Pillai  was incompetent to  execute the  Will. Armugham  Pillai, being a coparcener in the family, was incompetent to execute Ext. B- 11, and  dedicate the properties to the temple by Will dated 29.8.1932, when  Manickam Pillai, his son, was alive. It was further  contended   that  the   life  estate   granted   to Sadachiammal (A  schedule properties)  and the  life  estate granted to  the plaintiff  (B schedule  properties) were  so given,  in   lieu  of  their  right  to  maintenance.  Since Sadachiammal died  after the Hindu Succession Act, 1956, her life estate enlarged into an absolute estate and on death of Sadachiammal on  13.6.1957, the  plaintiff became absolutely entitled to plaint A and B schedule properties. 3.   The first  defendant in  the suit pleaded that Armugham Pillai was  the sole  surviving coparcener  when he  died in 1946. Ext,  B-11 became  operative only  then; and  as  sole surviving coparcener  he was  entitled to  execute the Will, even  if  the  properties  dealt  with,  were  joint  family properties. According  to the first defendant the properties mentioned in  Ext. B-11 were the self acquired properties of Armugham Pillai,  in which  case he  was fully  competent to execute the document, Ext. B-11 as he did. Defendant pleaded that there is dedication of A & B schedule properties to the Temple in  Ext. B-11 and not a mere charge as pleaded by the plaintiff. Since Sadachiammal was given only a life interest in A  schedule properties,  on her  death on  13.6.1957, the properties vested in the Temple and plaintiff is incompetent to lay  claim to  A schedule  properties. Defendent  further contended that  even with  regard to  B schedule properties, plaintiff was  given only  a life estate under Ext. B-11 and after her  life, properties will vest in the first defendant Temple, for the charities mentioned in Ext. B-11. 4.   At the  outset, we  should state,  we are not concerned with the  connected suits  OS No.  537 of 1967 and OS 538 of 1968 which were tried along with the present suit OS No. 344 of 1967. Nor are we concerned with the claims put forward by certain other  persons on  the basis  of  alleged  Wills  of Armugham Pillai  dated 20.5.1946  and 29.8.1932  which  were found to  be fabricated. The trial court found that Armugham Pillai and his son Manickam Pillai were living as members of joint family;  they were  jointly doing  business; that  the suit properties  belonged to  the said  joint family and are not the  self-acquired properties  of  Armugham  Pillai,  In coming to  the aforesaid  conclusion, the trial court relied on  voluminous   oral  and   documentary  evidence  and,  in particular, Ext.  B-10, decree, dated 26.10.1938 (OS No. 191 of  1937)  whereby  the  plaintiff  obtained  a  decree  for maintenance  against   Armugham  Pillai   charged   on   the properties. On  the above  premises, and holding that at the time when  Armugham Pillai  wrote Ext. B-11 dated 29.8.1932, he was  not the  sole surviving  coparcener, the trial court found that Armugham Pillai was not competent to bequeath the suit properties  by Will.  The trial  court, however, opined that in Ext. B-11 the suit properties have been dedicated to the first  defendant Temple  and it  was not  a mere  charge

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created over  the suit  properties for  the purpose  of  the charities mentioned  in Ext.  B-11. Since  it was  held that Armugham Pillai was incompetent to execute Ext. B-11, it was also held  that the first defendant obtained no right in the suit properties. 5.   In the  appeal filed  by the first defendant before the High Court  of Madras,  AS 12 of 1977, the High Court made a slightly different  approach  and  did  not  adjudicate  the question as  to whether the properties dealt with in Ext. B- 11  were  the  joint  family  properties  or  self  acquired properties of  Armugham Pillai.  According to the High Court the life  estate given  to Sadachiammal  (wife  of  Armugham Pillai) enlarged  into an absolute estate in view of Section 14 of  Hindu Succession Act, as she had a pre-existing right to maintenance.  Similarly, it  was held that the B schedule properties were  bequeathed to  the plaintiff  for life,  in view of  her pre-existing  right of maintenance as evidenced by Ext.  B-10 maintenance  decree  passed  against  Armugham Pillai, charged  on the properties. So the properties, A & B schedule, bequeathed  to Sadachiammal  and plaintiff,  under the Will,  enlarged into  an absolute  estate, and the first defendant cannot  lay claim over the said properties. It was held that  the plaintiff  is entitled  to the declaration of her title over A and B schedule properties. Aggrieved by the said judgment,  in AS  12 of  1977 dated 17.1.1983 the first defendant has filed the above civil appeal. 6.   We should  state that it has come out in the case, that Sadachiammal died  leaving a Will dated 8.6.1957. During the pendency of  the appeal in this Court the plaintiff died and her legal representatives were impleaded as respondents 1 to 16 as per order of this Court dated 12.3.1991. It was on the ground that  plaintiff has also bequeathed her properties by Will and so her legal representatives aforesaid were brought on record. In this appeal, we are not called upon to decide the  validity or  nature of the bequests in the Wills executed by  Sadachiammal dated 8.6.1957 or of the plaintiff said to  have been  executed during  the  pendency  of  this appeal. The  nature and  validity  of  the  Wills,  if  any, executed by Sadachiammal and the plaintiff, will take effect on their  own terms  and according  to  law.  We  make  this position clear. We are not pronouncing upon the validity and the extent  and nature of the bequests made in the aforesaid two Wills.  We were  also informed  that  the  beneficiaries under the two Wills are substantially total strangers to the family. 7.   We heard Shri A.T.M. Sampath, counsel, who appeared for the appellants  and  Mr.  K.  Ram  Kumar,  counsel  for  the respondent. The arguments covered a wide range. In brief, it is the  plea of  the appellant’s  counsel that  in Ext. B-11 there was  a dedication  of  the  properties  to  the  first defendant  Temple   and  Sadachiammal   and  the  plaintiff, obtained only  life estates. Ext. B-11 came into effect only on the  demise of  Armugham Pillai  in 1946, and on that day since he was the sole surviving coparcener, the bequest made in Ext.  B-11 is  valid. It was also contended that the High Court  was   in  error  in  holding  that  Sadachiammal  and plaintiff were  given  life  estate  in  A  and  B  schedule properties in lieu of their antecedent right of maintenance. there is  no tangible material to hold so. In this view; the court should  have held  that the  suit for  declaration  of title of  A &  B schedule  properties by  the  plaintiff  is unsustainable. On the other hand, counsel for the respondent contended that  the properties  dealt with  in Ext. B-11 are admittedly joint  family properties; that the Will Ext. B-11 was executed  on 29.8.1932  when Armugham  was not  the sole

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surviving  coparcener;   that  the  life  estates  given  to Sadachiammal  and  the  plaintiff  over  A  and  B  schedule properties  were  in  lieu  of  their  antecedent  right  of maintenance; that since Sadachiammal died on 13.6.1957 after the Hindu  Succession Act,  the life  estate obtained by her over  A  schedule  properties,  enlarged  into  an  absolute estate. Similarly,  Ext. B-10,  maintenance decree, obtained by the  plaintiff in OS 191 of 1937 against Armugham Pillai, charged on  the plaint  properties is proof positive to show that she  was given  a life estate in lieu of her antecedent right of  maintenance and  the life  estate so  given to the plaintiff regarding  B schedule properties also got enlarged into an  absolute estate. So the bequests made regarding A & B schedule properties in favour of the first defendant could not and  did not  take place  at all.  The suit filed by the plaintiff was rightly decreed by both the courts below. 8.   The  finding   of  the  trial  court  that  the  plaint properties were  dedicated to  the first defendant Temple as per Ext.  B-11 and  it was  not a  case of  creation of mere charge over the suit properties, was not adjudicated but was left open by the High Court. The scope and effect of Ext. B- 11 document  called for  discussion of  alternate views. The further question  whether the  properties dealt with in Ext. B-11 were  joint family properties or separate properties of the testator  and whether  Armugham Pillai  was competent to deal with  the properties  by a  testamentary instrument was also a  moot question.  During the  course of hearing of the appeal, we  indicated to  counsel that  in view of the above and the fact that the properties have been given as per Ext. B-11 for a laudable purpose - the charities to ba carried on in the  Temple - the entire matter requires a second look in a broad  sense. Plaint  A schedule  contains seven  items of properties. Some  of them are very valuable prime properties in  Coimbatore   fetching  substantial  income.  During  the pendency of  the appeal in this Court an order was passed on 6.4.1987 requiring  the plaintiff  to deposit  Rs 2,500/- as contribution for  the maintenance of the Temple. Considering the very valuable properties dealt with in Ext. B-11, (A and B schedule)  we suggested to counsel, as to why the plaint A & S  schedule properties  should  not  be  made  liable  and charged to  that extent for the performance of the charities in the  first defendant  Temple. Counsel,  appearing on both sides, agreed to our suggestion. In all the circumstances of the case,  we are  of the view that it is only just and fair and for  doing complete justice in the matter, that a sum of Rs. 24,000/-  per year  should be  paid to the 1st defendant temple for  the performance  of the  charities specified  in Ext. B-11  Will and  a charge  created over  plaint  A  &  B schedule properties  to that  extent. Counsel  appearing for both the  parties graciously  agreed to  this suggestion. We hold that  a sum  of Rs.  24,000/- shall accordingly be paid every year  to the  first defendant temple, by the person or persons who are entitled to A and B schedule properties, and the said  properties shall  stand charged to that extent. As we stated  earlier, we  are not deciding in this appeal, the validity and nature of the interests, that have been created as per the Wills executed by Sadachiammal and the plaintiff. 9.   The appeal  is disposed  of as  above. There  shall  be order as to costs.