in this partition deed the properties of kailasam pillai and venkatachalam pillai were divided and venkatachalam pillai took the responsibility of performing the charities entrusted to kailasam pillai under clause 9 of the first partition deed of 1882.
venkatachalam pillai jr.
henceforth the said venkatachalam pillai shall receive the said amount and perform the charity.
22600/ .
since s. srinivasa iyengar made repeated demands for clearing up the debts due under the usufructuary mortgages the said properties along with some other land were sold to him by kailasam pillai jr.
32 the dry land mentioned in the 9th schedule shall be administered in person by kailasam pillai and spent from out of the income of the said properties and from out of their own funds kailasam pillai and venkatachalam pillai shall perform the aforesaid charity without fail.
b 1 dated 8 9 1937 which is a sale deed in favour of s. srinivasa iyengar that on 8th numberember 1921 the suit properties had been usufructually mortgaged for rs.
11000/ in favour of one maragathammal by gomathi ammal for the purpose of discharging the family debts for a period of five years.
thus on 8th september 1937 a sale deed for the suit property and other lands ext.
the period was extended by a further usufructuary mortgage of the properties for a sum of rs.
451 is spent annually.
a 1 as follows the 9th schedule situate within the jurisdiction of the aforesaid sub district naranathanapuram jamabandi attached to alangulam village and cilakadu wet irrigated by well tamarind trees and dry and the particulars of these are as follows extent dry wet survey letter acres de.
srinivasa iyengar also got his name recorded in the patta.
gopalakrishna pillai d 6 and perianayagam pillai d 7 for a companysideration of rs.
they shall feed four brahmins in the siva temple sepparai during dwadashi days the next clause number 9 which is the bone of contention between the parties may number be quoted clause 9 in the sepparai siva temple established by our parents for meeting expenses of lamp burning for ever and one measure of rice for daily offering to god and archana expenses a sum of rs.
then nine schedules are given showing the properties that have fallen to the shares of different brothers.
the judgment of the companyrt was delivered by goswami j. in this.
it was stated in this deed ext.
they instituted a suit in the companyrt of munsif tirunelveli on 5th september 1960 impleading the purchasers of the suit property as defendants 1 to 5 and gopalakrishna pillai uncle of the plaintiffs and perianayagam pillai father of the 2nd plaintiff as the defendants 6 and 7 respectively praying for declaration that the suit properties belong to the trust and that all alienations in respect of them are number binding on the trust and for possession of the suit properties from defendants 1 to 5 to the lawful trustees.
it also appears that the rights under the two usufructuary mortgage deeds were assigned to s. srinivasa iyengar by a deed of assignment in numberember 1962 executed by the said maragathammal for a companysideration of rs.
number wet 866 a 2 0 47 the number of tama dry 890 c 2 1 00 rind trees stand 343 c 0 30 ing near the tank 360 d 0 83 bund of the afore 376 a 2 1 22 said village 72 dry 377 a 0 68 428 9 37 845 b 6 1 21 901 c 2 0 35 902 a 2 0 40 903 c 0 20 in all wet and dry 16 05 this ninth schedule property is the suit property.
3 per year by chidmbaram pillai to kailasam pillai and excluding the sum of rs.
absolutely.
gopalakrishna pillai defendant 6 briefly d 6 and perianyagam pillai defendant 7.
when the matter was taken to the madras high companyrt in second appeal the high companyrt held that the family had divested itself of the ownership of the suit property and that the deed of partition created an absolute endowment of the suit property for the purpose of performing the charities mentioned therein.
the second appellant who is the brother of the first appellant sold some portion of the suit property to defendants 3 to 5 on 7th april 1960.
to sappani ahmad mohideen father of the two appellants herein for a companysideration of rs.
it further held that the suit property was number allotted to kailasam pillais share and he was only made a trustee of the properties.
it was the year 1882 and precisely on 13th may of at year an instrument of partition was executed and registered amongst five brothers namely sivarama krishna pillai kailasam pillai venkatachalam pillai chidambaram pillai and namasivayam pillai sons of subramania pillai.
likewise in the property held by the other three persons in the property of which one of them the others have numbermanner of right.
from the second item properties the expenses for the evening pooja of the said temple shall be met from the third item property the expenses for pooja of lord siva at sepparai on ani uttiram day should be met and from the 4th item of the property.
out of this a sum of rs.
by kailasam pillai and vankatachalam pillai and the other three shares by the other three persons independently.
a 10 that from the property endowed to the temple of sepparai algiakootha we shall keep the eternal lamps burning companylect the sums which our grandfather endowed for our family and use special efforts to perform the charities.
the defendants examined only the first defendant.
the trial companyrt answered both the above issues in favour of the plaintiffs and decreed the suit.
appeal by special leave from the judgment and decree dated the 5th january 1967 of the madras high companyrt in second appeal number 82 of 1963.
civil appellate jurisdiction civil appeal number 1555 of 1967.
gopalakrishna pillai d 6 and prianayagam pillai d 7 in order to later facilitate absolute sale of the properties in favour of s. srinivasa iyengar in 1937.
18350/ .
the plaintiffs the first two respondents herein are the great grandsons of venkatachalam pillai son of subramania pillai.
18350/ .
venkatachalam pillai jr.
the ninth schedule property which is the suit property is described in ext.
13/ as given in the three items aforesaid for the balance of rs.
the family appears to be religiously disposed and was keen to perpetuate the pious ancestral ideology a genealogy given in the statement of case by the appellants gives the appropriate picture for the purpose of this appeal subramenia pillai shiverama kailasam venkatachalam chidambaram navasiva krishna pillai pillai pillai yam pillai pillai sethusubramanya pillai kailasam pillai venkatachalam gopalakrishan prianayagam junior pillai jr.
this appears to be the history and background of the litigation.
b 1 was executed in favour of s. srinivasa iyengar avergal by kailasam pillai jr.
sappani ahmed mohideen got his name recorded in the patta in due companyrse.
venkatachalam pillai jr.
it appears that kailasam pillai in the meantime died as is apparent from the partition deed ext.
it appears from ext.
he held that the entire income of the suit property was number sufficient even to meet a minute fraction of the expenses and therefore the question of absolute dedication of the property did number arise.
hence this appeal with special leave.
a 3 executed between venkatachalam pillai and thirumalai vadvammal widow of kailasam pillai on 21 1 87.
briefly d 7 for a companysideration of rs.
the 1st plaintiff who was a young man of 28 years on the date of his giving evidence examined himself and two other witnesses.
two points were in dispute during the trial namely whether the suit was barred by limitation issue number 2 and whether the deed dated 13th may 1882 creates an absolute dedication of the suit property or only a charge on the income of the said property issue number 3 .
5 per year which shall be paid by sivaramakrishna pillai namasivayam pillai and a sum of rs.
clause 12 kailasam pillai and venkatachalam pillai shall in respect of their properties in common and the other three in respect of their respective properties separately and absolutely enjoy with powers of alienation by way of gift exchange sale etc.
clause 19 of this deed may be quoted sivaramakrishna pillai chidamabram pillai venkatachalam pillai son of namasivaya pillai these persons were companytributing a sum of rs.
so this sale in favour of srinivasa iyengar was in discharge of the said othi usufructuary mortgage debts and the properties which had already been in possession of srinivasa iyengar companytinued to remain in his possession number as owner of the properties with power of alienation by way of gift exchanges sales etc.
13/ every year to the said kailasam pillai for perpetual burning of lamp at chepparaiswami nataraja sannathi.
in the share of properties allotted to kailasam pillai and venkatachalam pillai the other sharers have no right and similarly in the share of properties of the other sharers the aforesaid two persons have numberright.
ever since the properties were allotted as aforesaid kailasam pillai and venkatachalam pillai were enjoying the two shares of their properties in companymon and the other three persons were enjoying all the other shares of properties separately.
a third partition deed ext.
in clause 14 1 of this deed it was stated as follows in as such as sharer number 1 kailasam pillai reference to kailasam junior has voluntarily relinquished in favour of the other 3 sharers the right to perform and administer the family charities and the properties endowed for the same sharer number 1 shall number have at any time any right to said charities or endowments.
one written statement was submitted on behalf of the defendants 1 to 5 and the suit proceeded ex parte against defendants 6 and 7 who were number even examined as witnesses in the trial.
the value of the suit land in 1882 was found by the subordinate judge to be only 40/ after elaborate discussion of the value of the neighboring properties which were subject matters of different sales at the relevant time.
7350/ on 26th april 1923.
18350/ .
b 2 the suit property etc.
clause 8 the properties mentioned in the 8th schedule herein and allotted for charity shall be administered in person by kailsam pillai and from out of the income of the first item property shall be given to mid day offering of thirumanjanam expenses in the siva temple in rasavallipuram.
on 10th june 1943 s. srinivasa iyengar sold by ext.
in the view the high companyrt took the second appeal was allowed and the trial companyrts decree was restored.
appeal we have to go back to a period close upon a passing century to divine what a hindu joint family that had separated at that distant date thought contemplated did and above all intended number only then but also for the future.
s. ramamurthi and b. r. agrawala for the appellants k. ramamurti and j. ramamurti for the respondents.
a 10 had been executed on 19th october 1936 amongst kaliasam pillai jr.
