Excepting myself numberother person has any interest or right whatever in the said properties.
The hundi dated August 15, 1927, for Rs.
164 of the Subordinate Judge, Devakottai in Original Suit No.
The plaintiffs case as set out in the plaint is that by the terms of the companypromise in O.S. No.
As regards the trust suit the companytentions raised were 1 that under the Rajinama both Periakaruppa and Chockalingam became trustees in respect of the sum of Rs.
14,000 for the mother, Muthayi Achi, on Nattukottai Chetti bankers of Periakaruppa in Burma.
Alagappa Chetti of A. Muthupattanam Debit to AL.
GOVINDA MENON J. I am in perfect agreement with the reasoning and companyclusions companytained in the judgment of my learned brother B. Jagannadhadas J. in Civil Appeal No.
The second suit O.S. No.
The third defendant, son of Chockalingam, also filed a written statement denying that there was any trusteeship or acceptance thereof by his father, that the relations between the minor represented by his mother and father on one side, and Chockalingam on the other side, with whom the moneys were kept was solely one of creditor and debtor and that the minors money was properly invested with Chockalingam and that by then he was in a flourishing companydition, that the hypothecation of May 3, 1930, was more than sufficient to companyer the debt due and that the Properties companyered by the mortgage were brought to sale in companyrt auction subject to the mortgage and were purchased by the plaintiffs father acting in his interest, that one of the properties so purchased has been resold and the sale proceeds realised by the plaintiff, that the other property is still in possession and enjoyment of the plaintiff and that therefore there was numberloan outstanding.
Appeal by special leave from the judgment and decree dated November 13, 1950, of the Madras High Court in A. S. No.
243 of 1947 arising out of the judgment and decree dated December 21, in Original Suit No.
It was also one of the specific terms of the Rajinama that the plaintiffs should remove themselves from the family house with all their belongings and that the possession of the aforesaid house be delivered to Periakaruppa.
1,00,000 of which Rs.
mother of the second plaintiff, and the second plaintiffs amount of Rs.
50,000 for Alagappa, Rs.
Chidambaram Chettiar of Athangudi, 3 M.T.A.M. Muthiah Chettiar of Kottaiyur, and 4 RM.
There were five defendants in the suit.
114 of 1926 filed by Alagappa and his minor son, junior Periakaruppa, was therefore filed as against Periakaruppa and his second adopted son Ranganatha, who at the time was also a minor.
He says further in the plaint that he learned after attaining majority that the entire amount was appropriated by Chockalingam for discharging his own personal debts and that he made it appear as if he had credited the trust amount in his own firm, that eventually when his firm became involved financially he Chockalingam appears to have executed of his own accord a simple mortgage dated May 3, 1930, i.e., during the minority of junior Periakaruppa of his house at Athangudi in South India together with a small item of property in Burma in favour of the plaintiff and another creditor for a sum of Rs.
The genuineness and due execution thereof are number in question.
4 relating to limitation, the two companyrts came to different companyclusions with the result that the trial companyrt dismissed the suit as barred by limitation, while the High Court reversed it and granted a decree for the half share of Periakaruppas properties in favour of junior Periakaruppa holding that in respect of the other half share the rights of Alagappa were barred and that Ranganatha acquired the same by his adverse possession.
Some of the questions that arise in the present appeals centre round the proper companystruction of some of the terms of this.
The trial companyrt accordingly took evidence in regard thereto and returned a finding that on the evidence, both the father and the minor son were living as members of a joint family and that the father was in fact the de facto guardian.
In that view they found s. 7 of the limitation Act had numberapplication to the case and same to the companyclusion that the succession suit by junior Periakaruppa was number barred by limitation in so far as it related to his own share though barred in respect of Alagappas share.
This companypromise was certified to be for the benefit of the minor plaintiff companycerned, as also of the minor defendant Ranganatha and was accepted by the Subordinate Judge before whom the companypromise petition was filed.
When the matter was rehear by the same Bench of the High Court on the return of the finding, the Bench did number go into the companyrectness or otherwise of this finding, on the view that this finding was of numberconsequence, if it is found that by virtue of the Rajinama both the father and the minor son became divided inter se.
The suit was decreed in the trial companyrt by ordering defendants 1 to 3 to pay a sum of Rs.
75,000 out of the aforesaid amount of Rs.
My body shall number be cremated according to our caste custom, and a samadhi tomb shall be erected for me, and a lamp shall be lit therein daily and a person shall be appointed to perform Neivedhiyam by preparing food with 1/4 measure of rice by the big measure daily.
It was also expressly stipulated that the petition then pending for leave to appeal to the Privy Council against the judgment reported in Periakaruppan Arunachalam 1 was to be withdrawn.
For a proper appreciation of this companytention on both sides, it is necessary to set out the relevant clauses in the will.
75,000 to the first plaintiff and 75,000 to the second plaintiff with instructions to separately pay to the aforesaid plaintiffs and accordingly the plaintiffs have, at any time hereafter, numberright and future companynection whatever either in the properties mentioned in the plaint in this suit, or in any other property in the possession of the first defendant, or in any property that the first defendant shall hereafter acquire.
The judgment of the High Court was dated November 19, 1926, and is reported in Periakarappan Arunachalam 1 .
So far as the adoption of Ranganatha was companycerned both the companyrts below, while holding that the adoption as a fact was proved, have found against existence of the custom pleaded as to its validity and hence companycurrently found the adoption to be invalid.
15,000 rupees fifteen thousand shall be sent for and obtained from the Saigon firm from out of my own funds for the aforesaid Tirupani service in the temple and my wife shall companyduct the aforesaid Tirupani.
164 of 1944 was a suit to recover the entire properties of Periakaruppa in the possession of Ranganatha for himself and his father Alagappa who was made the first defendant in the suit, on the ground that Ranganathas adoption was invalid, that the will of Periakaruppa was ineffective and that the properties devolved on himself and his father Alagappa.
75,000 to be invested in Chetti firms as provided in the Rajinama 2 that as a fact the amount was invested with Chockalingam, one of the trustees themselves, companytrary to the law 3 that such investment itself companystituted breach of trust for which Periakaruppa was also responsible.
The daily expenses of the Samadhi aforesaid and Guru pooja etc.,
3 shall be paid within the 30th Panguni of the year Prabhava 11th April 1928 .
As settled by the four Panchayatdars, viz 1 N. AR.
The principal of Rs.
V. Vishwanatha Sastri and U. S. K. Sastri, for the appellants in C.A. No.
As regards question No.
In order to determine whether this companytention is companyrect, it is necessary to numberice the terms of the relevant hundi of the same date as the Rajinama.
S. Krishnaswamy Iyengar and R. Ganapathy Iyer, for respondent No.
104 of 1954 is before us by virtue of special leave granted by this Court under Art.
The first defendant therein, Periakaruppa, filed a written statement companytesting both these matters and claiming that all the suit properties in their entirety were his self acquisition and that the plaintiffs had absolutely numberrights therein and also asserting that the second adoption was valid.
Ranganathan Chettiar hereinafter referred to as Ranganatha on the footing that such an adoption was permitted by special custom in Nattukottai Chetti families.
75,000 each and Alagappas wife Muthayi Achi, the mother of the minor son and his next friend in the suit, was to get a sum of Rs.
75,000 for the benefit of junior Periakaruppa dated August 15, 1927, was, according to para 2 of the Rajinama, payable by April 11, 1928.
The hundi for Rs.
Details of the hundis.
1,50,000, i.e., Rs.
shall be met from the Patasala charity funds and companyducted.
75,000 and interest within Purattasi of this Prabhava year 16th October 1927 .
1 and 2 out of the 3 hundis for Rs.
The third defendant is the son of Chockalingam.
b whether in case the devolution was on both together as members of a joint family, s. 7 had application to the factual situation in the family.
Hence the succession suit ended in favour of junior Periakaruppa in respect of a half share of the properties left by Periakaruppa.
75,000 payable to him under the companypromise dated August 15, 1927, is one that is founded on the terms of the companypromise.
4 , there appears to have been numberserious question raised in the trial companyrt by the defendant as to the exclusion of junior Periakaruppa by Alagappa in the matter of succession to Periakaruppas properties, or any serious questions raised by the plaintiff as to the Rajinama bringing about a partition inter se between the father Alagappa and his minor son junior Periakarpppa and of Alagappa number being the de facto manager of the family.
Alagappas son junior Periakaruppa attained majority in December, 1943, and filed two suits on November 11, 1944, in the Subordinate Judges Court of Devakottai, one numbered as S. 156 of 1944 and the other as O.S. 160 of 1944.
His case was that Periakaruppa as a company trustee with Chockalingam was equally responsible for breach of the trust and that therefore he was entitled to have the moneys found due on account, paid out of the estate of Periakaruppa in the hands of Ranganatha as well as from the estate of Chockalingam in the hands of his son.
The hundi for Rs.
He alleges that the said trustees were, therefore, bound to see to the proper investment of the said moneys in reliable and sound Chetti firms and for their accumulation with accrued interest during the plaintiffs minority and to pay the accumulation to the plaintiff on his demand on his attaining majority.
169 of 1956.
Civil Appeal No.
75,000 issued on the 29th Ani of the year Prabhava 13th July, 1927 directing Rangoon RM.
But the effect of that will is also one of the main points in dispute.
One of Alagappas creditors obtained a decree against him and attached Alagappas half share in the family residential house including the site on which it was situated.
Periakaruppa died about three months later i.e. on July 14, 1929, and his wife Lakshmi Achi died within a year thereof on March 11, 1930.
The first defendant alone shall, as he pleases, enjoy as usual the aforesaid entire properties, as hisself acquired properties with all Swatantrani and right and powers of alienation such as gift, exchange, sale, etc.
The first defendant shall for the hundis Nos.
Alagappa Chettiar of A. Muthupattanam directing the first defendant to pay to the plaintiffs separately in respect of the right claimed by the plaintiffs in the suit filed by the plaintiffs herein for partition on the ground that they are also entitled to a share in the properties mentioned in the plaint in this suit, the first defendant has executed 3 hundis mentioned hereunder and issued on the 29th Ani, Prabhava 13th July 1927 in the names of the plaintiffs for Rs.
As regards question No.
numberright and companynection whatsoever in any of them or in the charities founded by Periakaruppa and in the properties belonging thereto or their management, either in the lifetime of Periakaruppa or subsequent thereto.
3 and the subordinate questions a and b of question No.
By the will, broadly speaking, Periakaruppa made arrangements for certain religious gifts and 1 1926 I.L.R. 50 Mad.
That companyclusion is numberlonger in dispute in this Court.
25,000 issued on the 29th Ani of the year Prabhava 13th July, 1927 directing Rangoon M. A. M. Meiyappa Chettiar to pay money with Rangoon nadappu interest, Hundi for Rs.
It is sufficient to state at this stage that by that Rajinama the two plaintiffs, Alagappa and his 1 1926 I.L.R. 50 Mad.
This led to criminal companyplaints between them, each against the other, in 1926.
It was one of the express terms of the Rajinama that all the properties mentioned in the plaint in that suit and other properties belonging to the first defendant, Periakaruppa, were admitted to be his self acquisitions and that the plaintiffs therein had.
This and other hundis issued by reason of the Rajinama must be taken to be part of the Rajinama inasmuch as they were referred to therein by description under the heading Details of the hundis.
In Appeal No.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
75,000 which was given to him under the above mentioned Rajinama of the year 1927, was, under the terms thereof companystituted a trust for his benefit during his minority under the trusteeship of Periakaruppa himself and another person A. P. S. Chockalingam Chettiar of Athangudi, hereinafter referred to as Chockalingam the junior paternal uncle of the minors mother, Muthayi Achi, and that the money was wrongly appropriated by Chockalingam owing to his straightened circumstances.
76,274 1 9 being the principal and interest of the two hundies, and recites also some other matters.
This involved the further questions a whether by and under the Rajinama Alagappa and his son became divided in status inter se so as to make s. 7 inapplicable.
It was found that the site was ancestral Periakaruppa maintained that the super structure which was substantial in value companypared with the site was built out of his self acquired funds and was number joint family property, while Alagappa and the attaching creditor companytended to the companytrary.
25,000 respectively, belonging to Alagappa under the companypromise.
It ends with the following significant narration We shall obtain money for the hundi for Rs.
250 Rupees two hundred and fifty every year by inviting my relations.
104 of 1954.
Rajinama, which will be numbericed later.
As a result, the companypromise was accepted by the companyrt on August 15, 1927, and the suit was dismissed in terms thereof on the same date.
75,000 under the remaining hundi No.
During the pendency of this litigation in the High Court the adopted son Alagappa filed a suit on September 9, 1926, on behalf of himself and his minor son by name AL.
The suit O.S. No.
169 of 1956, and I agree that the appeal be allowed with companyts.
P 5 and D 12 .
The Sridhanam amount of Rs.
104 of 1954, 1 have companysiderable doubts regarding the companystruction of cl.
The learned Judges while realising that the finding was called for on the undisputed assumption that the father and the son were undivided in status, were of the opinion that there was numberhing to prevent them from reopening the same and held on a companystruction of the Rajinama that it brought about divided status inter se between the father Alagappa and his minor son junior Periakaruppa.
The parties to the litigation are Nattukottai Chetties, a wealthy banking companymunity in South India who, at the time, were having large banking transactions in Burma and other places in South East Asia.
4 to 9 As A.P.S. Chockalingam Chettiar is liable for the discharge of the encumbrances that have been created by the first plaintiff as mentioned in paragraph 4 herein, the first plaintiff Alagappa Chettiar has endorsed on the undermentioned first and second hundis that they are payable to the order of the aforesaid Chockalingam Chettiar and they have been delivered to the aforesaid Chockalingam Chettiar.
He further says that the remedy, if any, of the plaintiff was against his father and mother and number against himself.
First and second defendants are Ranganatha and his minor son.
charities and made arrangements for the management thereof and gave the residue of the property to his wife Lakshmi Achi for her life and thereafter to his second adopted son Ranganatha.
1,50,000 under the hundis, shall be invested in Chetti houses in the name of the second plaintiff to the order of Periakaruppan Chettiar, the first defendant, and to the order of A.P.S. Chockalingam Chettiar of Athangudi, the junior paternal uncle of the aforesaid Muthayi Achi, and the aforesaid two persons shall be in management.
there arose acute differences between them from about the year 1924 owing to the alleged wasteful habits of Alagappa who ran into debts.
Before the suit proceeded to the stage of issues and trial, the dispute between the parties was companypromised by a Rajinama brought about by four Panchayatdars, who were all respectable members of the Nattukottai Chetti companymunity.
14,000 as her Stridhan, These amounts were paid by means of four hundis, Rs.
75,000 for junior Periakaruppa and Rs.
It was for delivery of a half share of the properties of the family on the footing that all the properties were joint family properties and for a declaration that the second adoption was invalid.
25,000 and Rs.
It is urged that, therefore, both of them were companystituted thereby as the legal owners of the amount, the beneficial ownership remaining with the minor and that to this legal ownership was attached the obligation of seeing to the proper investment of the money and the augmentation of fund by the addition of substantial interest obtainable from reliable Chetti firms.
The first defendant has the right also to alienate the aforesaid entire properties either by a will or otherwise.
Ranganatha, who, some time in or about the date of Lakshmi Achis death in 1930, appears to have attained majority, has been in undisputed possession and enjoyment of Periakaruppas properties ever since till late in 1944.
Periakaruppan Chettiar hereinafter, for distinction, referred to as junior Periakaruppa represented by his mother and next friend by name Mutbayi Act.
He adopted one AL.
Periakaruppan Chettiar hereinafter referred to as Periakaruppa owned and possessed companysiderable properties.
The signature letters and accounts pertaining to the aforesaid amounts shall be with the aforesaid Chockalingam Chettiar.
As regards the will both the companyrts held that the will was ineffective to vest any title in Ranganatha though on slightly different grounds.
The hundi for Rs.
104 of 1954 and 169 of 1956.
It is therefore prayed that the Court may be pleased to record the razinamah in the suit and to dismiss this suit.
75,000 issued by Periakaruppa for the benefit of junior Periakaruppa as part of the Rajinama is as follows Credit to minor Periakaruppa Chetti, son of AL.
It was accordingly found by the trial companyrt that both of them succeeded as members of the joint family and that therefore the minor, junior Periakaruppa, was barred by virtue of s. 7 of the Limitation Act.
1 in both the appeals .
136 1 of the Constitution.
Both the Judges allowed this point to be raised and called upon the trial companyrt to take evidence and submit a finding in respect of that companytention.
May 24.
Civil Appeal No.
About a year and a half later Periakaruppa executed a will on April 4, 1929.
582, minor son, junior Periakaruppa, obtained Rs.
The fourth and fifth defendants are the father, Alagappa and Muthayi Achi, mother of junior Periakaruppa.
114 of 1926 on the file of the Subordinate Judge of Devakottai Periakaruppa and Chockalingam were companystituted joint trustees for himself who was then a minor and that they were enjoined the duty of having the amount invested from time to time in Cheyenne firms, that the above terms were accepted by all the parties companycerned including Periakaruppa and that companysequently both Periakaruppa and Chockalingam accepted the position of joint trustees for the plaintiff for duly safeguarding and improving his moneys.
This Rajinama was on August 15, 1927, and the will was executed on April 4, 1929, i.e., a year and eight months thereafter.
JAGANNADHADAS J. These two are appeals against two separate decrees of the High Court of Madras arising, out of two suits as between the same companytesting parties with reference to a companynected set of facts.
156 of 1944 and Appeal from the judgment and decree dated September 17, 1952 and October 24, 1952, of the Madras High Court in A.S. No.
One AL.
The plaintiff in the trust suit also is junior Periakaruppa.
It may be numbericed that so far as the father Alagappa is companycerned the suit would prima facie be time barred since it has been filed about 15 years after the death of Periakaruppa.
The judgment of Jagannadhadas and B. P. Sinha JJ.
169 of 1956 has companye up by reason of certificate granted by the High Court under Art.
was delivered by Jagannadhadas J. Govinda Menon J. delivered a separate judgment.
133 1 a of the Constitution.
See Exs.
A sum of Rs.
70,000 was intended to be the plaintiffs money and the other Rs.
14,000 of Muthayi Achi.,
Apart from the properties which have been set apart for the abovementioned charities and the properties which have to be newly purchased hereafter for the same, as my adopted son Ranganathan and his male heirs have to take all the immovable and movable properties belonging to me and as the aforesaid adopted son namely Ranganathan is number a minor the said Ranganathan shall after he attains majority and if he is of good behaviour take in his possession the aforesaid properties after my lifetime and after the lifetime of my wife Lakshmi Achi and enjoy them.
Alaska Chettiar hereinafter, referred to as Alaska in or about the year 1914.
If Periakaruppa and Chockalingam were entrusted with the duty of investment, there can be numberdoubt whatever that they are companystituted trustees.
484 of 1947 arising out of the judgment and decree dated December 21, 1946, of the Court of the Subordinate Judge, Devakottai in Original Suit No.
When the matter came up on appeal to the High Court, a question was raised that s. 7 would number be applicable in this case unless it was further made out that the father Alagappa was the de facto manager of the family companysisting of himself and his minor son of which it is alleged there was numberproof or finding.
50,000 and Rs.
50,000 issued on the 29th Ani of the year Prabhava 13th July, 1927 directing Rangoon Thamappan PL.
1,50,000 mentioned in paragraph I herein, pay the principal of Rs.
This resulted in a regular suit in which the question at issue was whether the site was ancestral site and whether the super structure was companystructed out of the ancestral funds.
75,000 companylected in respect of the two hundies for the amounts of Rs.
3 of Exhibit P. 1.
30,000/ was invested in the purchase of a house at Athangudi in South India the place of Chocklingam and that Alagappa and his minor son, the junior Periakaruppa, and his family have been since that purchase on July 23,1928, living in that house.
V. Vishwanatha Sastri and M. S. K. Aiyangar, for the appellants in C.A. No.
Arunachalam Chettiar of A. Muthupattanam, 2 SP.
The litigation went up to the High Court and the High Court accepted the companytention of Periakaruppa and made a declaration that the site was ancestral and that the super structure was the self acquisition of Periakaruppa.
75,000 of minor Periakaruppan Chettiar and for the hundi for Rs.
All the immovable and movable properties entirely, which belong to me as my own and which are in my possession are my self acquired properties.
I am number 68 years of age, taking into companysideration the fact that I have been in indifferent health for sometime past I have decided to make an arrangement after my lifetime in regard to my properties and in regard to the charities established by me and accordingly I have executed this will wholeheartedly.
30,000 of the other creditor.
