1. The plaintiff is one of the executors of the will of one Ramanuja Mudaliar, a Hindu, who died on the 21st October, 1913. The defendants are the sons of Ramanuja Mudaliar. The plaint allegations are that the testator bequeathed the properties mentioned in the schedules to the plaint to charity, that the executors applied for probate of the will in T. O.S. No. 2 of 1914 and the defendants entered a caveat and contended that the will was brought about by undue, influence and was invalid, that they (defendants) filed C.S. No. 103 of 1914, for a declaration that the property was joint family property and that the testator Ramanuja Mudaliar, who was a member of the joint family, could not dispose of the property of the joint family by will, that both T. O.S. No. 2 of 1914 and C.S. No. 103 of 1914 were compromised and a razinamah was entered into between the executors and the defendants on 20th October, 1914, as a result of which two of the items were left for charity and the other items were taken by the defendants and that the said razinamah is not valid and binding on the charity, for various reasons alleged in para. 9 of the plaint. The plaintiff prays for a declaration that the razinamah, dated 20th October, 1914 in C.S. No. 103 of 1914, is void and of no effect and that the properties, mentioned in Schedules A to D of the plaint, belong to the charity, for recovery of the properties in Schedules A to C from the defendants and for incidental reliefs.
2. The first defendant pleads that his father had no right to dispose of, by will, the joint family property belonging to himself, his father and his brothers, that the compromise was a bona fide one in the interests of all concerned and is not void for any of the reasons mentioned in the plaint and that the plaintiff is not entitled to any relief. The 2nd defendant adopts the written statement of the 1st defendant and states that the suit is the result of ill-feeling between the plaintiff and the defendants.
3. The following issues have been framed:
(1) Is the razinamah decree in C.S. No. 103 of 1914 invalid and not binding on the charity for any of the reasons stated in para. 9 of the plaint and, if so, is the plaintiff not entitled to question it ?
(2) Is the suit res judicata by reason of the decrees in C.S. No. 103 of 1914 and C.S. No. 250 of 1919 ?
(3) Is the suit barred by limitation and
(4) To what relief are the parties entitled
Issue 1 The plaintiff's case is that the properties mentioned in the plaint schedules and other properties were acquired by Ramanuja Mudaliar and that the defendants had no right to them as they were the self-acquisition of Ramanuja Mudaliar. Ramanuja Mudaliar had no ancestral estate, worth mentioning, as evidenced by Ex. B, a partition deed, dated 10th June, 1880. He was a Sub-Assistant Surgeon and was attached to the General Hospital, and he seems to have acquired properties before 1902 (vide Exs. D, E, F, G, H and J.) After his retirement, he was employed in the State of Ghatwal and was paid Rs. 80 a month. He executed a will, Ex. K, on 8th September, 1910, and a codicil, Ex. L, on 8th March, 1911 wherein he bequeathed some properties to charity and gave some properties to his sons. He. executed another will, on 2nd April, 1912, whereby he gave the items, mentioned in the plaint, to charity, subject to certain rights, in favour of his son's widow and his sons. The plaintiff says that the defendants had no right to any of the properties, as they were the self-acquisition of Ramanuja Mudaliar and that their contention in C.S. No. 103 of 1914, that the properties were joint family properties was an unfounded one and that for the peace of the family, the vakils for the executors and the defendants settled the disputes, whereby the charity has lost a considerable portion of the property.
4. The plaintiff is one of the executors of the will and was a party to C.S. No. 103 of 1914, as well as to T. O.S. No. 2 of 1914. His present allegation that it was brought about by collusion is not supported by any evidence. In the witness-box, as P.W. 1, he stated that there was ill-feeling between the father and the sons and the father was anxious that some property should be dedicated to chanty and that he planted a stone in front of the house No. 1, in Ghitrakulam Eastward Street, Mylapore, with an inscription, a photographic copy of which is marked Ex. A. In cross-examination, he admitted having written post-cards, Exs. IX, X, XI and XII, to the testator. From the post-cards it is clear that he complained to the testator, his father-in-law, that the sons were not looking after the charity properly. A reading of the post-cards shows that he was trying to influence the father against the sons. The mother of the defendants was dead at the time and Ramanuja Mudaliar was living with a woman, whom P.W. 1 calls a servant. But from his own post-cards, it is clear that he wanted some provision to be made for the woman; and that lends colour to the suggestion of the defendants that the woman was kept by Ramanuja Mudaliar, who was a widower at the time. On this meagre evidence, no inference can be drawn, in favour of the plaintiff's contention. D. W. 2, Parthasarathy Mudaliar, who is the 1st defendant, has proved Exs. XIV, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXVI and XXVII. These are letters and post-cards by the testator to the witness and it is quite clear from them that the father and son were on friendly terms and that the father asked the son to give up his work in the mofussil and to go to Madras and look after the family and that he should not mind about the loss he had sustained by the failure of Messrs. Arbuthnots. Exs. XIII series are money-order receipts, which show that D. W. I sent his savings to the testator for family expenses. He also says that the houses in Mylapore were improved at a cost of about Rs. 3,000 and the money borrowed for such improvements was liquidated partly hy the savings of the 1st defendant. Ex. XXVIII, the accounts of the family from 1907 to 1913, show that the sums were received from time to time from the 1st defendant, when he was employed in the mofussil as an overseer. Exs. XV and XVII show that the 1st defendant paid the kist tor the lands. D. W. 3, the 2nd defendant, swears that he gave his earnings to his father. He does not produce any receipts : but he says that whenever he happened to come to Madras he brought with him his savings. He also says that they all lived as members of a joint family and that all the earnings were thrown into the common stock. That they were treated as members of a joint family is clear from the letters and postcards written by the testator to the 1st defendant. At that time evidently there was no intention on the part of the testator to treat the properties as self-acquisitions. He was only anxious that the family should get on and that the eldest son should look after the family. Ramanuja Mudaliar had five daughters and three sons. After his retirement in about 1902 or 1903, he was out of Madras and sent his savings to the family for its support.
5. It is urged by the plaintiff that Ex. K, the will of 1910, was executed, with the knowledge and consent of the 1st defendant and therefore it must be presumed that the 1st defendant was willing to treat the property as the self-acquisition of the father. The explanation given by the 1st defendant is that the third brother Veerasamy was getting into the hands of Sowcars and incurring debts and that the father, in order to save the property from the clutches of Sowcars and moneylenders, executed the will of 1910, Ex. K. This is the very reasonable explanation for the execution of the will of 1910. Taking all the circumstances into consideration, it can be contended with some show of reason that the properties were joint family properties.
6. That being so, the question is whether the razinamah decree, Ex. I, was a bona fide settlement of disputes, between the parties or was brought about, in fraud of the charity, to which the testator dedicated some of his properties. The main contention of Mr. Venkatarama Aiyar, who appears for the plaintiff, is that the trustee has no right to give up any of the trust properties and that the trust cannot be made to lose, by reason of the neglect or carelessness or the fraud of the trustee. No doubt, in the case of a properly constituted trust and an ordinary trustee, great care will have to be exercised in settling a doubtful claim and the Courts will view with disfavour any arrangement which is not a fair and a bona fide settlement of a dispute, with regard to trust property. He relied upon Ravi Varma Rajah v. Ramasubramania Pattar 31 MLJ 733 and Wiles v. Gresham 43 E R 1069 : 24 LJ Ch. 264. It is unnecessary to notice these cases in detail, for the circumstances of this case are different from those. Here a father bequeathed some property by will in favour of charity. The sons contended that the properties were joint family properties and that the father had no right to dispose of them by will. Under the Hindu Law, a member of a joint Hindu family cannot dispose of by will any portion of the joint family property. The question is whether the contention of the defendants was a bona fide one or not, or at least whether the parties and their vakils thought at the time, whether the contention was one which could be reasonably put forward in the circumstances of the case. Mr. Masilamony Pilial, who was till recently an acting Judge of the High Court, was vakil for the defendants in C.S. No. 103 of 1914 and T.O.S. No. 2 of 1914. He has been examined by the defendants as D. W. 1 and he says that taking into consideration all the evidence available at the time, documentary and otherwise, the parties came to a settlement and that the terms were settled in, his office, in the presence of the plaintiff, as well as the other executor and of the defendants. He prepared a ciraft, Ex. Vlll. It was given to the plaintiff and the other executor, who brought it back, after some time with alterations and Ex. VIII (a) was typed from that. He also says that Mr. Krishnier, vakil for the present plaintiff, as well as the other executor, had discovery of the documents in his possession and it was only after he was satisfied that the case was a fit one for compromise, that he and Mr. Masilamony Pillai settled the disputes between the parties. He also says that at that time, he thought the settlement, as evidenced by the razinamah, was a fair one, considering the disputes between the parties. He also says that the terms were settled after considerable discussion at more than one sitting in his office.
7. The defendants naturally complain that a good deal of evidence, which was available then, is not available now. The plaintiff, who was a party to the razinamah decree in 1914, has chosen to file a suit impeaching the razinamah in 1922. It may be that there is some reason for this complaint on the part of the defendants, but apart from that, what the Court has to see is whether in the circumstances, the arrangement was a fair and bona fide one, or whether it was brought about by collusion or fraud by reason of the carelessness of the trustees. The validity of the will was seriously contested. The power of disposition of the testator over the properties was very serious-ly attacked. The executors had to meet the case of the defendants with such materials as they had. That there is some ground for supposing that the properties were joint family properties is clear from the documents filed on the defendants' side to which I have already referred. Taking all these circumstances into consideration I have no hesitation in holding that the razinamah was a fair settlement of the disputes between the parties and the trust has not lost the properties, which it would have otherwise, by reason of negligence, carelessness, collusion or indifference on the part of the executors, or fraud, or undue influence on the part of the defendants, or their vakil, Mr. Masilamony Pillai.
8. Of the six items devised to charity under Ex. C, two items alone were given to charity absolutely by the testator, that is, properties acquired under Exs. E and J. The properties acquired under Exs. F and G were given to charity, subject to a charge, in favour of Veerasami's widow for maintenance. The properties acquired under Exs. D and H were given to charity, only on failure of heirs to defendants 1 and 2. That being the disposition in the will, the arrangement under the razinamah, by which the trust got two properties, cannot be said to be an unfair arrangement.
9. Mr. Venkatarama Aiyar contends that Ex. A shows that the property, described in Schedule D, had been dedicated to charity in the life-time of the testator and therefore the trustees had no right to go behind that. The 1st defendant does not admit that the stone was planted by his father, but he says that the plaintiff, who is his own brother-in-law, was bitterly opposed to him and his brother on account of the 2nd defendant, who has married his daughter having discarded his wife. The mere planting of a stone in front of the building does not show dedication to charity, unless there be some more evidence in regard to dedication. But, as I have already found in favour of the contention of the defendants, that the property was joint family property, it is not necessary to discuss this question any further.
10. The next contention of Mr. Venkatarama Aiyar is that the probate proceedings cannot be compromised and such a compromise is invalid in law; and he relies on Monmohini Gilha v. Bang a Chandra Das ILR (1903) C 357 and Sundarambal Ammal v. Yogavanagurukkal : AIR1915Mad561 . In this case we are not concerned with a compromise of the T. O.S. No. 2 of 1914 for the relief asked for is only in respect of C.S. No. 103 of 1914. It is, therefore, unnecessary to consider this question.
11. His next contention is that the executors, who were trustees, had no right to get behind the terms of the will whereby the 2nd defendant was excluded from management of the trust property, and, under the razinamah, he is allowed to come in and therefore the compromise is invalid. And he relies on Nataraja Thambiran v. Kailasam Pillai ILR (1920) M 283 : 39 MLJ 98. That case does not help him, because this is not a public office, in the sense that an Archaka office is a public office and neither the plaintiff nor the other executor has relinquished their rights in favour of the second defendant. Fn the case of a public charity, the Court has power to frame a scheme, and any two persons may apply under Section 92 of the Civil Procedure Code for the appointment of proper trustees and for framing a scheme of management. Granting for arguments' sake that the testator's wish that a person should be excluded from trusteeship is binding upon the trust, it does not take away the jurisdiction of the Court to appoint such men, as it thinks fit, to be trustees. Ex IV is the judgment in C.S. No. 250 of 1919, in which this matter was agitated and it was decided that the 2nd defendant should be appointed one of the trustees of the charity, and therefore there is nothing in this contention of the plaintiff.
12. I find Issue I against the plaintiff.
13. Issue 2--This is not seriously pressed. I find it against the defendants.
14. Issue 3--The defendants' contention is that the suit is barred by limitation. The plaintiff's answer is that there was fraud in bringing about the razinamah and therefore the suit is not barred by limitation. He also contends that inasmuch as the plaintiff seeks to recover trust property, there can be no limitation. The plaintiff himself was a party to C.S. No. 103 of 1914 and T. Q. S. No. 2 of 1914. No doubt, in the case of a trust, a trustee can recover property, which was improperly alienated by him to the prejudice of the trust. But in this case, the plaintiff was only one of the executors and unless probate was granted, upholding the validity of the will, he will not be an executor. In other words, his position as executor depended upon the validity of the will and the testamentary power of the testator. That question having been settled by a decree of Court, it is difficult to see how the plaintiff can come in, without setting aside that decree. His allegation that the compromise was brought about, by fraud, is not even set out in the plaint. He only sets out in para. 9 of the plaint that it was brought about by collusion. He has not proved that. Even if he was able to prove collusion, he should have come in, within 6 years. He has not done so. He does not allege that there was any fraud which was discovered only recently. I therefore hold that the suit is barred by limitation.
15. I cannot conclude this case, without observing that the plaintiff has been actuated, not by laudable motives, but by ill-feeling towards the defendants, on account of the 2nd defendant, who is his son-in-law, having discarded his wife and married another. The feelings between the parties are evidently bitter, on this account, and the plaintiff, in order to keep the defendants out of the management of the trust properties, has filed this suit. I therefore direct that the plaintiff should pay the costs of the defendants out of his pocket. The defendants will have costs of the suit.