Sri Mahaliamman Temple & Anr Vs. Vijayammal  INSC
359 (1 March 1996)
K.S.(J) Paripoornan, K.S.(J) Punchhi, M.M. Paripoornan,J.
JT 1996 (3) 127 1996 SCALE (2)617
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.
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.
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.
short facts to understand the scope of controversy in the suit are as follows.
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.
B schedule properties were bequeathed to plaintiff (daughter-in-law) for her
life and in the absence of any 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.
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.
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 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.
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.
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.
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
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 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
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.
appeal is disposed of as above. There shall be order as to costs.
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