V.K. Srinivasachariar vs K. Ramanujam and Others

Ratnam, J.

The plaintiff in O.S. No. 52 of 1977, Sub-Court of Ramnad at Madurai is the appellant in this appeal, which is confined to item No. 5 of the B

schedule properties. The appellant and the first respondent are brothers and are sons of one Kuppanna lyengar. The fifth respondent is the widow

of Kuppanna lyengar, while respondents 2 to 4 are the daughters of Kuppanna 1yengar and sisters of the appellant and the first respondent.

Having regard to the very narrow scope of the appeal, it would suffice to notice the facts necessary to resolve the controversy regarding item 5 of

the B schedule properties. This item or property comprises of two small extents of wet lands of 35 cents and 36 cents respectively totalling to 71

cents in Malli village, Srivilliputtur, Ramnad Dist. One Kothai Animal had purchased these two items under a sale deed dated 17-4-1950. Every

year on every day in the Tamil month of Margachi, she had been performing Thirupalliezhuchi service in Thiruvengadamudayan temple in South

Mada St. Srivilliputtur, and had been distributing cooked rice on those days early in the morning. On 25-8-1950, she executed a Will in respect

of-her properties. With reference to item 5 of the B schedule (first schedule in the Will), she made a provision as under -

. (Matter in vernacular omitted - Ed.)

According to the case of the appellant, his father Kuppana lyengar was managing the property bequeathed under the will of Kothai Animal and it

was trust property as well, that on the death of Kuppanna lyengar, he and the first respondent alone succeeded as trustees on account of the

peculiar religious duties and that respondents 2 to did not have any right in the B schedule properties including item 5 thereof. Even so, the

appellant prayed for partition and separate possession of his half share in the B schedule properties. This claim of the appellant was disputed by the

first respondent on the ground that item 5 of the B schedule properties belonged to the family absolutely and that the appellant and all the

respondents are entitled to get their due share in that item. This stand was also adopted by the third respondent herein.

Dealing with the question of the availability of item 5 of the B schedule properties, for partition, the Court below, on a construction of the terms

of the will of Kothai Ammal, held that that item was available for partition as it was not trust property in the strict sense of the term. Accordingly,

the appellant was granted a one sixth share in item 5 of the B schedule subject to the performance of the obligations imposed upon the property. It

is the correctness of this that is questioned by the appellant in this appeal..

The contention of the learned counsel for the appellant is that under the terms of the Will executed by Kothai Animal on 25-81950, she had

dedicated item 5 of the B schedule for purposes of a trust for the performance of certain services and charities and, therefore, that item cannot be

subjected to any division at all. In this connection, the learned counsel drew attention to the recitals in the Will of Kothai Animal. On the other

hand, the learned counsel for the first respondent pointed out that on a proper reading and construction of the terms of the Will of Kothai Ammal, it

was clear that though she wanted to secure an uninterrupted continuity in the performance of the service and charity in the temple, yet, she had

purported to create only a charge over the properties and, therefore, the property could be divided and disposed of subject to the performance of

the obligations imposed thereon.

In order to appreciate this contention, it would be necessary to refer to the terms of the Will of Kothai Animal under Ex. A.21 dated 25-8-1950

already extracted. After referring to her purchase of item 5 of the B schedule property under a document dated 17-4-1950, the testatrix

bequeathed the property as well as the income therefrom in favour of Kuppanna Iyengar. This. is made clear by the use of the expression..........

(Matter. in vernacular omitted - Ed.)

There is no doubt that the testatrix desired that Kuppana lyengar should take item 5 of the B schedule. Kuppanna Iyengar and his heirs were

intended to take the property and enjoy the same is further made explicit by the use of the expression. ........................(Matter in vernacular

omitted - Ed.)

The charity directed to be performed is the distribution of half a measure of cooked rice on all the days in the month of Margazhi at the time of

Thirupalliezhuchi. On a consideration of the language employed in the dispositive clause relating to item 5 of the B schedule, it is clearly made out

that the testatrix desired the property bequeathed to Kuppana Iyengar should be taken and enjoyed by him and his successors, subject to the

performance of the charity aforesaid. In other words, there is no dedication of the property either to the temple or to any trust for the performance

of the charity; but only the creation of a charge over the income of the property for the purpose of the charity. No doubt, there is also a recital in

the Will that Kuppanna Iyengar should not create any encumbrance over the property. That cannot be read either as a partial or a total restraint on

the alienation of the property. The expression. ...............(Matter in vernacular omitted - Ed.) ordinarily means only an encumbrance. In other

words, there is no prohibition against the alienation as such. It is not improbable that the testatrix used the expression ..............(Matter in

vernacular omitted - Ed.) with a view to secure a continuity in the performance of the services as well as charity without break. That cannot be

construed as indicating a dedication to the trust or to the temple for charity and services as to impress the property with the character of trust

properties and rendering it unavailable for partition. On a careful consideration of the relevant recitals in Ex. A.21, it is clearly established that the

testatrix was desirous of providing for the performance of the charity and services in the temple in the month of Margazhi without any break and

that she sought to achieve by creating a charge over the income from the properties. In other words, there was no creation of trust with reference

to item 5 of the B schedule under the Will of Kothai Ammal, but only a charge upon that property was created. That would mean the property was

capable of being divided or alienated, subject to the performance of the obligations imposed on the properties. Consequently, the court below was

right in having granted a decree with reference to this item in the manner done. No interference, therefore, with the judgment and decree of the

court below is called for. The appeal is, therefore, dismissed with costs of the first respondent.

Appeal dismissed.