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Subramania Aiyar (Died) and ors. Vs. Srila Sri Vaithilinga Pandara Sannadhi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad641; (1931)60MLJ590
AppellantSubramania Aiyar (Died) and ors.
RespondentSrila Sri Vaithilinga Pandara Sannadhi
Cases ReferredDada Sahib v. Gajaraj Singh
Excerpt:
- - gajaraj singh air1925mad204 may well be applied to the facts of the present case and i would therefore hold that the decision in o......for the recovery and possession of the plaint property with mesne profits. the 2nd plaintiff, the present trustee of the temple, was originally the 3rd defendant but was transposed by an, order of. the court as the 2nd plaintiff. the: contesting defendant was the 1st, defendant. various issues were framed in the case but the only issue arising for consideration in this second appeal is issue no. 4, namely, whether, the suit is barred by res judicata by reason of the decision in o.s. no. ,550 of 1920 of the district munsif's court, tiruvalur. the lower courts found this issue in favour of the plaintiffs and passed a decree for possession and mesne profits in favour of the plaint temple represented by the 2nd plaintiff.3. in o.s. no. 550 of 1920 the present 1st. defendant instituted the.....
Judgment:

Madhavan Nair, J.

1. The legal representatives of the 1st defendant are the appellants. The suit properties originally belonged to one Ramaswami Aiyar. After his death, his widow Anantammal became entitled to the properties. She had three daughters, Muthammal, Chinnammal and Narayani Ammal, one of whom, Narayani Ammal, the mother of the 2nd defendant, predeceased Anantammal. As a result of a family settlement the two surviving daughters surrendered their life-estate to defendants 1 and 2 and to Ramaswami Aiyar, the deceased brother of the 1st defendant. Ramaswami Aiyar and Subramania Aiyar are the children of Chinnammal. In 1891 the two daughters of the propositus Ramaswami Aiyar and the 2nd defendant and Ramaswami Aiyar for himself and as guardian of his brother, the present 1st defendant, executed Ex. C in favour of the plaint temple in respect of the suit property. The temple had been enjoying the property from that date till it was dispossessed in 1921 as a result of a decree obtained by the present 1st defendant in O.S. No. 550 of 1920.

2. The suit out of which this Second Appeal arises, was instituted for the recovery and possession of the plaint property with mesne profits. The 2nd plaintiff, the present trustee of the temple, was originally the 3rd defendant but was transposed by an, order of. the Court as the 2nd plaintiff. The: contesting defendant was the 1st, defendant. Various issues were framed in the case but the only issue arising for consideration in this second appeal is issue No. 4, namely, whether, the suit is barred by res judicata by reason of the decision in O.S. No. ,550 of 1920 of the District Munsif's Court, Tiruvalur. The Lower Courts found this issue in favour of the plaintiffs and passed a decree for possession and mesne profits in favour of the plaint temple represented by the 2nd plaintiff.

3. In O.S. No. 550 of 1920 the present 1st. defendant instituted the suit to recover possession of the plaint property. The then trustee of the plaint temple was impleaded as a defendant in that suit. He allowed an ex parte. decree to be passed in favour of the 1st defendant and the plaintiff in that suit. The question for consideration is whether that ex parte decree would operate as res judicata against the plaintiffs in this suit.,. It. is clear from the evidence in the case that the plaint property belonged to the temple at the time of that suit. Under Ex. C the property was gifted to the temple by all the persons who had title to it. So far as the present 1st defendant was concerned he was represented by his brother. O.S., No, .550 of 1920 was instituted by the present 1st defendant long after he had attained majority and after his claim had become barred, by limitation under Article 44. The temple had also perfected its title by adverse possession before the date of that suit From these circumstances it is. clear that the temple had a very valid defence in that suit but the then trustee did not file any written statement nor did he conduct the suit. After the ex parte decree he put in an application to set it aside. That was dismissed and the appeal filed against that order was also dismissed. From these circumstances both the Lower Courts have come to the conclusion that the conduct of the trustee in not defending the suit amounted to gross negligence. This finding of the Lower Courts which is amply justified by the circumstances of the case has not been questioned before me.

4. The question is whether a decree allowed to be passed against a temple on account of the gross negligence on the part of the then trustee in not putting forward a valid defence which he could have put forward, is binding on the succeeding trustee. No authority directly bearing on the question has been brought to my notice. In Dada Sahib v. Gajaraj Singh : AIR1925Mad204 it was held by Devadoss, J., that if a guardian of a minor is guilty of gross negligence in conducting the suit on behalf of the minor the decree passed in that suit will not be binding on the minor. The learned Judge says:

It is not every kind of negligence that would be a sufficient ground for setting aside a decree or for declaring that the proceedings in Court are null and void; but where the guardian omits to do his plain duty and where by reason of such negligence a suit is decided against a minor, which would not have been otherwise decreed against him, it must be held that the guardian's negligence contributed to the Court proceeding in the manner it did.

5. As already stated, it is clear that if the then trustee had defended O.S. No. 550 of 1920, no decree would have been passed in it against the temple. On principle I do not see any reason why an idol of a temple should not be treated in the same manner as a minor with respect to the gross negligence on the part of the trustee in not defending the suit, the trustee representing its interests just in the same way as the guardian represents the interests of the minor. An idol can act only through the trustee of the temple. As, Mr. Muthukrishna Aiyar has pointed out, it is possible in certain respects to distinguish the position of a trustee representing an idol from the position of a guardian of a minor but on broad principle I cannot find any satisfactory ground for treating the case of a trustee representing an idol in, a suit differently from the case of a guardian representing a minor. In Vadlamudi Sastrulu v. Thalluri Venkataseshayya : AIR1928Mad614 the learned Judges assumed without deciding the question that the idol is in the position of a minor but held that there was no negligence in the course of the previous litigation in that case. In the absence of specific authority on the point I am inclined to hold that the principle underlying the decision in Dada Sahib v. Gajaraj Singh : AIR1925Mad204 may well be applied to the facts of the present case and I would therefore hold that the decision in O.S. No. 550 of 1920 would not operate as res judicata in the present suit.

6. In the result, the second appeal fails. In the circumstances each party will bear its own costs in the second appeal.


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