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1969 (7) TMI 126
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.... Before we go more fully into the points in controversy, it is necessary to refer to the anterior history of the family to whom the suit properties originally belonged and of how the members of the family death with the suit properties. One Chidambara Reddiar of Varagupadi in the Tiruchirapalli Dist. went to Rangoon in or about the year 1872 and amassed considerable wealth. Visalakshi Ammal was his senior wife and Bangaru Ammal was his junior wife. In Rangoon one Devi Ammal, a lady alleged to be of a Reddi family from Hyderabad, jointed him and lived as his concubine. She had already a son born to a former husband. This son was named Ramanatha Reddiar (also referred to as Ramanarayana Reddiar). Chidambara Reddiar is said to have adopted Ramanatha Reddiar in or about 1879. It is now common ground that this adoption is not legally valid, though in several documents Chidambara continued to refer to Ramanatha Reddiar as his adopted son. Chidambara Reddiar had a daughter, Sundarammal, born to his senior wife, Visalakshi Ammal. She had a son Krishnaswami Reddiar. In one of his visits to India, Chidambara Reddiar adopted Krishnaswami Reddiar. There was a formal adoption ceremony, includin....
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....further succession in the case of the death of Krishnaswami Reddiar or Ramanarayana Reddiar, issueless. This part of the Will will be considered in some more detail later in this judgment. 6. There is evidence to show that even in the lifetime of Chidambara Reddiar, the bequest to charity was implemented in a concrete form. There is evidence to show that he built an Annadhana Chatram at Thiruvanaikoil near Srirangam. The counterpart of a lease deed, Ex. B-132, executed on 19-11-1909 by Ramanatha Reddiar and minor Krishnaswami Reddiar to a lessee shows that even in the lifetime of Chidambara Reddiar the Annadhana Chatram had been built and certain sums of money which could be presumed to represent the income form one-fourth of the property dedicated in trust by Chidambara Reddiar was being utilised for poor feeding therein. But what is important to note at this stage is that in his Will Chidambara Reddiar while setting apart a specified share of his property for the trust and also settling the object of the trust, in his lifetime, did not provide for a line of trustees. 7. It was Ramanatha Reddiar, as executor of the will of Chidambara Reddiar, who made arrangements for the de....
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....r properties for his share granted under the will. The decree also provided that the management of the Tiruvanaikoil charity should be by Ramanatha Reddiar and Sellammal as the widow of Krishnaswami Reddiar in turns of three years' duration each. One of the principal points in controversy between the parties in this case is the manner in which the trusteeship and management of C schedule properties endowed for the Annadhanam trust would devolve after the compromise contained in Ex. A-78 and how far the compromise modifies the trust deed of Ramanatha Reddiar contained in Ex. A-54. These questions have a great deal of relevancy in the context of certain nominations to the trusteeship made by Sellammal and Ramanatha Reddiar in their lifetime. 8. On 14-3-1946, Sellammal executed a trusteeship nomination deed Ex.B-150. In this document, Sellammal referred to the fact that though as the heir of Chidambara Reddiar, her father-in-law by adoption. She was entitled to the sole management of the trust, in pursuance of the advice of the Panchayatdars, she was acting in accordance with the settlement in the compromise decree by having a joint management along with Ramanatha Reddiar. But ....
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....y Sellammal shortly before her death on 7-1-1951 and 9-1-1951. it is urged that she could not have executed the will on 7-1-1951, while in a sound disposing state of mind that the body of the will was interpolated on a blank paper to which Sellammal had affixed her signature much earlier, and that the trusteeship nomination deed executed on 9-1-1951 did not contain her thumb impression, but was a rank piece of forgery. 9. On his part, Ramanatha Reddiar executed a will Ex. A-148 on 7-3-1932. This will refers to his adopted son Venugopala Reddiar, the first plaintiff then a minor and his wife Papammal defendant 212. he directs Papammal to act as the guardian of his minor adopted son. He directs that she could manage among other properties the endowments made by him under the registered trust deed dated 9-11-1914. In the will, Ramanatha proceeds to say that even if there is any doubt about the validity of the adoption of Venugopala Reddiar, he should take the properties granted to him under the will as a persona designata irrespective of the factum and validity of the adoption. He specifically nominates the first plaintiff, Venugopala Reddiar, as his successor to manage the endowme....
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....imed on the ground that Sellammal's nomination in 1946 by will of D. 1 is not valid as that will has not been proved and her nomination made in 1951 of D. 1 is also not valid because the documents are forgeries. The crucial links to prove this line of reversion, are the position of Visalakshi Ammal as the adopting mother of Krishnaswami Reddiar and the position of Kamakshi Ammal, the grandmother of Paradesa Reddiar, as the uterine sister of Visalakshi Ammal. Both these two vital links in this chain were attacked by the contesting first defendant for disputing the first plaintiff's claim to the reversionary right in the properties of Sellammal. 12. In the alternative, the first plaintiff claimed that if the aforesaid line of descent is treated as not established, plaintiffs 4 to 6 would be the nearest reversioners ex parte paterna of Krishnaswami Reddiar. By way of abundant caution the first plaintiff took an assignment also from them of the reversionary interest in the B schedule properties as well as a nomination of the trusteeship of the C schedule properties. By way of a further piece of abundant caution, the first plaintiff obtained an assignment of the reversionary ....
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....suit was dismissed with costs. The Appeal A. S. 390 of 1961 is filed by the first plaintiff from the above decision. As mentioned earlier, the main points in controversy in the appeal, A. S. 390 of 1961, are the points mentioned above. Therefore, we will at the outset set them down as points for decision and proceed to consider them. These points are- 1. Who is the founder of he Annadhana trust at Thiruvanaikoil and what is the provision for the devolution of the trusteeship? 2. Is the first plaintiff entitled to the trusteeship of the C schedule properties whether to the whole or to a moiety? 3. (I) In regard to the items in the B schedule properties, in which Sellammal had a widow's interest, who is the last male owner of those properties? (ii) who are the proper heirs of the last male owner of the aforesaid properties? Has the first plaintiff established his title to the aforesaid items in the B schedule by valid assignment from heirs of the last male owner, as well as of Sellammal? Point No. 1: We will briefly refer to the will, Ex. A-185, of Chidambara Reddiar executed on 10-10-1898. The will contains the following recital regar....
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..... Ganapathi Iyer, 2nd Edn. page 92). We are therefore of the opinion, agreeing with the learned Subordinate Judge's finding that the trust was constituted by Chidambara Reddiar himself in his lifetime. He had indicated that one-fourth share in his properties should be set apart for the trust. He had indicated also the object of the trust as poor feeding. He had also commenced building the Chatram where the charity had to be performed. But he died before a formal deed could be written. In the above circumstances, we are of opinion that the founder of the Annadhanam trust at Thiruvanaikoil was Chidambara Reddiar. We confirm the learned Sub-ordinate Judge's finding given in paragraph 361 of his judgment. 15. The next question is regarding the provisions for the devolution of the trusteeship. Three things are said to be indispensable to constitute a valid trust; the first is sufficient words to raise it; the second is a definite subject, and the third is certain or ascertained object (vide the Law relating to Hindu and Mohammadan endowments-P. R. Ganapathi Iyer, 2nd Edn. page 92). It is not essential therefore that the founder should provide a line of devolution of trusteesh....
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.... trustees is concerned. Whatever might be the limited nature of the power of Sellammal so far as the power of disposal of Immovable properties which devolved on her is concerned so far as the right to nominate the trustees is concerned, there was no fetter on her right. 17. It was in such circumstances that she appears to have participated along with Ramanatha Reddiar in 1914 after her husband's death in a series of documents. ... (His Lordship discussed facts and proceeded)- It is also urged by Mr. M. S. Venkatarama Aiyar that Sellammal as the heir of the founder had no right to constitute a joint trustee along with her, as that would imply an alienation of a part of the trusteeship right, which she is not entitled to do. 18. It appears to us on a perusal of the terms of the compromise, Ex. A-54 had no validity whatever so far as the devolution of trusteeship is concerned. The trust properties also formed part of the properties of Chidambara Reddiar. When paragraph 12 of the compromise recites that thereafter neither of the parties would have any interest in the property allotted to the other and each person should enjoy the property allotted to him as wel....
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.... to enjoy this property by turns must be deemed to be one which would succeed to their respective heirs." 19. It will be clear from the above that Papammal in the above execution proceedings pressed the right to only a moiety of the trusteeship to be enjoyed by a three-year turn. She also claimed that it is a heritable right which the first plaintiff had acquired in the absence of an heir to Papammal, by nomination (Ex. A-148) from Ramanatha. The claim put forward by Papammal the first plaintiff's predecessor-in-title only to moiety of the trusteeship cannot be enlarged by the first plaintiff so as to exclude the half right in Sellammal as well as her heirs, and set up for himself the right to the entirety of the trusteeship by reliance upon paragraph 18 of the trust deed of Ramanatha. It appears to us that the reference in clause 8 of the compromise "subject to the conditions of the trust deed" must mean only "subject to the conditions in the trust deed about the nature of the trust, the object of the trust and also the properties endowed to the trust". The arrangement made therein for the devolution of the trusteeship, was expressly given up and substituted by a different ....
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....arrying out his intentions in the will. In such circumstances, his widow seems to have been persuaded in the beginning to give her consent to the devolution of trusteeship of very valuable properties in favour of Ramanatha Reddiar, postponing her right to the contingency of her adopting a son. Even that right was reserved for the adopted son and not for her. In such circumstances, she decided to file a suit in 1917 to revoke the arrangement in Ex. A-54 and get her rights declared as against Ramanatha Reddiar, Ramanatha Reddiar as found by the learned Subordinate Judge, was not a member of Chidambara Reddiar's will wherein Chidambara treated him as his adopted son and by his subsequent conduct, and the acquiescence of Chidambara's heirs Ramanatha Reddiar, when she entered into the compromise with Ramanatha Reddiar in that suit. There is therefore no question in such circumstances of Sellammal having made an improper alienation of a moiety of the trusteeship to Ramanatha Reddiar and his heirs or successor-in-interest, by submitting to the compromise decree. We have also referred to the observations AIR 1952 Pat 438, that the nomination of the trustee by the heirs of the found....
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....t an order of abatement is a judgment and should be followed up by a decree, that it operates as a judgment and should be followed up by a decree, that it operates as a judgment in favour of the defendant that the only course open to legal representative of the deceased plaintiff to escape the effect of an abatement order is to apply to set aside the abatement, and that if he does not succeed in vacating the judgment and so long as the defendant continues in possession, the order of abatement is conclusive of the defendant's right to the property. 25. The short answer to this contention is that Sellammal in O. S. 88 of 1949, was putting forward an exclusive right in herself to the trusteeship and denying the right of Papammal and the first defendant altogether. On her death the cause to action did not survive. Therefore, the abatement on her death cannot affect the right of the subsequent trustee. Further, the effect of the abatement in the light of the above decision, may be viewed as conclusive sop far as the exclusive right which Sellammal claimed in O. S. 88 of 1949 is concerned, but it cannot be used as a ground for negativing the right top a moiety of the trusteeship w....
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....signment from the second plaintiff on the footing that he is the reversioner ex parte materna of Krishnaswami Reddiar through his adoptive mother Visalakshi Ammal, the senior wife of Chidambara Reddiar. In the alternative, the first plaintiff claims through assignments taken from plaintiffs 4 to 6 on the footing that they are descended from Krishnaswami Reddiar's natural father's brother, that is, they are the heirs of Krishnaswami Reddiar through his natural father. By way of another approach to the reversion, the they are descended from Rangachi Reddiar, the brother of Rajachidambara Reddiar. It is unnecessary to consider the position of plaintiffs 7 to 14 for the purpose of tracing the reversion in consequence of the findings above that it was Krishnaswami Reddiar and not Chidambara Reddiar who was the last male owner of the properties. 30. We will take first the reversion ex parte materna claimed form Krishnaswami Reddiar. It starts with the adoption ceremony for adopting Krishnaswami Reddiar by Chidambara senior Visalakshi Ammal and the junior wife Bangaru Ammal, were present at the ceremony, if the adoptive mother is held to be Visalakshi Ammal's heirs will be ....
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....es can be referred to briefly. Many on Hindu Law, 11th Edn., 1950, at page 245 says:- "Where a man has two wives and associates one of them in the adoption of a son, that wife is the adoptive mother, the other being only the step-mother... Where a man makes an adoption independently of both his wives, though the Madras High Court refused to consider the question as not likely to happen, there can be little doubt that the senior wife would be the person whom the law would name as the adoptive mother, whether the succession is to ordinary property or an impartible estate. Where a man adopts a son in conjunction with both his wives, the senior wife would be in law the adoptive mother." The raison d'etre of this principle of the senior wife being treated as adoptive mother is traceable to the special status which the Hindu law and custom give to the senior wife where a Hindu has a plurality of wives. The senior wife is designated as the dharmapathni. She alone has the prerogative to participate along with her husband in the performance of homam and other religious rites and duties. In Kodali Tiruvengalaratnam v. Kodali Butchayya, 55 MLJ 757 = AIR 1929 Mad 11 the followi....
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.... is actually present and given over from one parent to the other......" The ancient texts Dattaka Mimamsa and Dattaka Chandrika have referred to "pratigrahitri ya matha" the adopting (the mother who receives) mother in the context of the adoption ceremony. Dattaka Mimamsa, Section II, placitum, 22 contains the crucial observation about the importance of the husband's part in an adoption ceremony. * * * It translated, means "on account of the husband's superior importance by the very fact of his receiving the boy in adoption, sonship in him is achieved by the wife also just as in any other thing taken by the husband, ownership is acquired by the wife too". it is in the context of the performance of the oblations to the ancestors in the maternal line, and of a possible devolution of succession on the maternal line that the question of who they adoptive mother is arises. It is for this purpose, that in another portion of Dattaka Mimamsa, it is stated "Maternal ancestors of the adopted son mean only the father, grandfather and so on of the adoptive mother, because of the applicability of the rule about ancestors to the line of the mother also." 36. A Full Bench of t....
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....wami Reddiar's properties from Paradesa Reddiar. The learned Subordinate Judge found that Paradesa Reddiar has not been satisfactorily shown to be the grandson through the daughter of Visalakshi Ammal's uterine sister. 39. We have carefully considered the evidence both oral and documentary, in this respect. The documentary evidence includes Ex. A-71, dated 13-6-1915, a settlement deed by Visalakshi Ammal and her daughter, Soundarammal, in favour of Rangaswami Reddiar and minor Paradesa Reddiar, son of Muthu Reddiar. ... There is documentary evidence to show that Paradesa Reddiar's father was Muthu Reddiar and mother Periammal. But the oral evidence is very confusing as to who the mother of Periammal was and whether she was the uterine sister of Visalakshi Ammal. Most of the evidence is hearsay. It is bound to be so with witnesses summoned orally to speak out the relationship of people long since dead. No doubt the Evidence Act permits persons who by relationship or by special means of knowledge know about the relationship of the parties to speak to the relationship (Section 32(5) and Section 50 of the Evidence Act). But such evidence given long after the event ....
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....ished. 42. Regarding the heirs of Krishnaswami Reddiar through his natural father, which need be considered only if his adoption is not true, the evidence is discussed in paragraph 349 and the succeeding paragraphs of the learned Subordinate Judge's judgment. what appears from this evidence is that if a certain Muthu Reddiar was alive, on the date of Sellammal's death in 1951, he would be a nearer reversioner than plaintiffs 4 to 6. ... (evidence discussed). The lower court has found that in the absence of satisfactory evidence as to whether Muthu Reddiar was alive or not when Sellammal died and succession opened, it cannot be held that the plaintiffs 4 to 6 have been shown as the nearest reversioners to Krishnaswami Reddiar through his natural father entitling the transfer of reversionary right by plaintiffs 4 to 6 to the plaintiff. But this is unnecessary to consider the aspect of the case as Krishnaswami was validity adopted by Chidambara. 43. Regarding plaintiffs 7 to 14, we have already held that at best they are claiming to be only descendants of Rajachidambara Reddiar. But the issue here is who are the legal representatives of Krishnaswami Reddiar, the....