G. Ramanujam, J.
1. Since some of the issues involved in both the suits are the same, there has been a joint trial by consent of all the parties and they are being disposed of by a common judgment.
2. C.S. No. 126 of 1972 : This Suit has been filed by four plaintiffs, viz., (1) the deity, Sri Sai Baba, (2) Sri Sathya Sai Mandali, represented by its trustees, (3) M. L. Sampathkumar, and (4) ML. Ramakrishnan, for : (i) delivery of vacant possession of certain portions of premises No. 13. Veeraraghava Mudali Street, alias Big Street, Triplicane, Madras-5, hereinafter referred to as the suit house, from defendants 1 to 6 and defendants 7 to 10 or their tenants; (ii) for payment of mesne profits in a sum of Rs. 18,000 for a period of three years prior to the suit; and (iii) for payment of future mesne profits at the same rate from the date of suit till date of delivery of possession.
3. Plaintiffs 3 and 4 and defendants 1 and 2 are the sons of one, M. J Loganatha Mudaliar. The 7th defendant is the son of the 1st defendant, 8th defendant is the son of the 7th defendant. Defendants 9 and 10 are the sons of the 2nd defendant. The 3rd defendant is the maternal uncle of defendants 1 and 2 and plaintiffs 3 and 4. Defendants 4 to 6 are tenants in possession of some of the portions in the suit house.
4. The plaintiff's case is that the 1st plaintiff is the family deity of M. J. Loganatha Mudaliar and his children, the same having been consecrated and dedicated on 3rd February, 1949 in Sat Baba Temple at Guindy maintained by a trust called 'Sri Sathya Sai Mandali' created under a document, dated 3rd February, 1949 executed by Loganatha. Sri Sathya Sai Baba, Nagarathna Mudaliar, T. A. Ramakrishna Reddiar, M. L Leela and M. L. Ramakrishnan were some of the trustees of the said trust on the date of the suit. Though defendants 2 and 3 are also trustees, as they have acted against the interests of the trust, they have been shown as defendants in the suit. The suit house bearing door No. 13, Big Street, Triplicane, Madras was the self-acquisition of the said Loganatha. The said house was gifted by him to his daughter, M L. Leela on 4th December, 1946. The said M L. Leela has executed a trust deed, dated 30th June, 1958, endowing the said house property for certain religious purposes, and providing that her father, Loganatha, will be the sole trustee and after his death, his sons M.L. Ramakrishnan and M.L. Sampathkumar, 3rd and 4th plaintiffs herein, will be joint trustees.
5. The plaintiffs state that the trust deed, dated 3rd February, 1949, executed by Loganatha and the trust deed, dated 30th June, 1958, executed by his daughter, M. L. Leela enjoin the maintenance of Sri Sai Baba temple at Guindy and the performance of poojas, anniversary celebration to the deity therein. In view of the interest so created in favour of the 2nd plaintiff under the said two trust deeds, the second plaintiff is entitled to claim the reliefs sought for in this suit. By way of caution plaintiffs 3 and 4 who are the present trustees of the trust created by M. L, Leela have also joined as co-plaintiffs along with plaintiffs 1 and 2.
6. According to the plaintiffs, defendants 1 and 2 and 7 to 10 have no right, title or interest in the suit property. They had continued to be in possession of a portion of the suit house merely as licensees, that the said licence having been withdrawn by Loganatha as a trustee constituted under the trust deed, dated 30th June, 1958, executed by M.L. Leela they are no longer entitled to continue in possession of the said house, that since defendants 1 and 2 were in exclusive possession of one room each they were asked to vacate the same even in the year 1960, but as they failed to vacate, Loganatha as a trustee filed two suits, O.S. No. 2728 of 1960 and O.S. No. 2729 of 1960 for the recovery of the possession of the two rooms in their occupation. The said suits were contested by defendants 1 and 2 on the ground that the said house was joint family property and that they were in occupation of the rooms in question in their own right as joint family members. After the institution of the said two suits, Loganatha died and after his death, the plaintiffs herein were brought on record in those suits. The suit, O.S. No. 2728 of 1960, was decreed after con est on 11th February, 1969, holding that the suit house was the absolute property of Loganatha, that his gift of the same in favour of his daughter M. L. Leela on 4th December, 1946 was valid, that the subsequent trust deed, executed by M. L. Leela on 30th June, 1958, was also true and valid, that the defendants 1 and 2 herein hold no manner of right, title and interest in the said house and that therefore, they are bound to deliver possession of the rooms in their occupation to the plaintiffs. The said decree in O.S. No. 2728 of 1960 was affirmed in A.S. No. 373 of 1969 on 3rd October, 1970. Thereafter, the matter was taken in S.A. No. 743 of 1971, which also failed. The suit, O.S. No. 2729 of 1960 was decreed ex parte against M.L. Gajapathy, the second defendant herein directing him to deliver possession of one room in his occupation.
7. The plaintiffs' complaint is that after the death of Loganatha during the pendency of the said two suits, the first defendant forcibly took possession of the rest of the suit house from the tenants with the active connivance of the second defendant and that the 1st defendant has, thereafter, been in wrongful possession of the entire house and therefore, it has become necessary for them to institute this suit for the recovery of the rest of the portions in the suit house in addition to the decrees already obtained against defendants 1 and 2 for delivery of rooms earlier occupied by each of them. The plaintiffs' further case is that as the defendants 1 and 2 are bound by the principle of res judicata as a result of the said decisions in the earlier two suits, it is no longer open to the defendants 1 and 2 to claim the suit house as the self-acquired property of M. J. Loganatha Mudaliar and that they were not mere licensees in possession of the portions of the property. It is also their case that the decision in the earlier suits will also operate as res judicata against defendants 7 to 10. who constitute members of the joint family of the defendants 1 and 2, that defendants 1 and 2 should be deemed to have been sued in a representative capacity in the earlier suits and therefore the decree obtained against them will bind the members of their respective joint families. The plaintiffs also state that they are entitled to claim mesne profits from defendants 1 and 2 for their unauthorised and wrongful occupation of the entire suit house at the rate of Rs. 500 per month for three years prior to the date of suit. They also claim future mesne profits at the same rate from the date of plaint to the date of delivery at the same rate.
8. Defendants 1, 2 and 7 have alone filed written statements. In his written statement, the first defendant states that Sri Sai Baba was not the family deity of M. J. Loganatha, that the suit house belonged the joint family of M. J. Loganatha and his sons, that the said Loganatha had no right to settle the same on his daughter, M. L Leela by the deed of settlement, dated 4th December, 1946, that therefore, the subsequent trust deed, dated 30th June, 1958, executed by her was invalid and that in any event the said trust deed is sham and nominal and as such it cannot confer any right or title on the plaintiffs. As regards the decision rendered in the two earlier suits for the recovery of two rooms against defendants 1 and 2, his defence is that as be has taken possession of the entire house after the death of Loganatha and therefore, this suit for the recovery of the rest of the portions in the suit house is barred by provisions of Order 2, Rule 2 of the Code of Civil Procedure. He has also pleaded that the principle of res judicata invoked by the plaintiffs will not apply to this case and that therefore, he is entitled to question the settlement deed executed by Loganatha in favour of his daughter, M, L. Leela and the subsequent trust deed executed by M. L Leela on the ground that the property covered by these two deeds are the joint family property. It is also contended that the judgment in O.S. No. 2728 of 1960, on the file of the City Civil Court, Madras, as confirmed in appeal is a nullity as the trial Court had no jurisdiction to try the said suit after the death of Loganatha in 1962, there being no subsisting cause of action for the suit. As regards the rate of mesne profits claimed by the plaintiffs, the first defendant's case is that the rate claimed was excessive and for disproportionate to the actual rent of Rs. 120 received by him from the tenants.
9. The second defendant has taken in his written statement practically the same defence. However, he has added that he and the 1st defendant are inimically disposed, that the first defendant had taken forcible possession of the entirety of the house including the room which was originally occupied by him, that he has ceased to be in possession of any portion of the house, that as such he is not liable for any mesne profits and that the liability to pay mesne profits, if any, both past and future will be only on the first defendant who is in actual possession of the entire house and collecting rents from the various tenants As regards the plea of res judicata this defendant states that the ex parte decree passed against him in O.S. No. 2729 of 1960 cannot be taken to be a decision on merits and therefore, there is no question of any res judicata so far as he is concerned.
10. The 7th defendant states in his written statement that the suit house was ancestral in the hands of his grand-father, Loganatha, that he had no right to part with the same by way of settlement, dated 4th December, 1946, that notwithstanding the said settlement the suit house continues to be a joint family property and that he along with the other members of the joint family are, therefore, entitled to be in possession of the same. It is also his case that the decision in the earlier suit in O.S. No. 2728 of 1960 holding the suit house as the self-acquisition of Loganatha cannot bind defendants 7 to 10, as the said suit was not properly and effectively defended by defendants 1 and 2. The 7th defendant has also pleaded that Loganatha himself has claimed the suit house as ancestral in his written statement in an earlier suit, O.S. No. 2728 of 1960 that he was, therefore, estopped from claiming the same as self-acquisition in O.S. No. 2728 of 1960 and that therefore, the decision in that suit will not be binding on him. The 7th defendant also raised the plea that the establishment of Sri Sai Baba Temple at Guindy and of the installation of Sri Sai Baba deity therein by Loganatha and endowing the suit house for the performance of pooja therein violated the fundamental duties as set out in the Forty-second amendment to the Constitution of India, being opposed to rational belief and scientific truth and that therefore, the creation of the temple and the endowment of the properties for its maintenance are all unconstitutional. It is also claimed by him that as the creation of such a temple is against public policy the trust itself is illegal and that in any event the objects set out in the trust deed, dated 3rd February, 1949, executed by Loganatha are void for uncertainty as one of the purposes of the trust is the promotion of ''His faith' and 'His Desire' without any detailed specifications of the same,
11. In the face of these rival pleadings, the following issues had been framed : [Issues are omitted- Ed,]
12. C.S No. 82 of 1975 : -The plaintiffs herein are defendants 7 and 8 in C.S. No. 126 of 1972. They have filed this suit for partition and separate possession of their alleged 1/10th share in the properties set oat in A, B and C schedules to the plaint.
13. 1st defendant in the suit is the father of the 1st plaintiff and the grandfather of the 2nd plaintiff. Defendants 2, 5 and 6 are brothers of the 1st defendant and 7th defendant is their sister. Defendants 3 and 4 are the sons of the 2nd defendant. 8th defendant is the maternal uncle of defendants 1, 2 and 5 to 7. Defendants 9 to 11 are said to be the alienees of some of the properties alleged to belong to the joint family. Defendants 12 and 13 are two of the trustees of the trust called 'Sri Sathya Sai Mandali' created by M. J. Loganatha Mudaliar, father of defendants 1, 2 and 5 to 7. 14th defendant is the son of the 6 th defendant. Defendants 15 and 16 are minor sons of the 5th defendant.
14. The plaintiffs' case is that they and defendants 1 to 6 and 9 to 11 constitute joint family, that they are residing ever since their birth in the family house bearing door No. 13, Big Street, Triplicane, Madras which is 'B' schedule property in the plaint, that the said house was an ancestral one, that there has been no division of the house as yet between the coparceners, that in additional to the house property, the family also owned large extent of lands in Guindy set out in schedule 'A' and also houses and lands in Meppor village, Poonamallee taluk, set out in schedule 'C', that these properties have to be divided by metes and bounds between the members of the family and that the plaintiffs are entitled to 1/10th share in those properties.
15. Defendants 1 to 5 did not file any written statement. In the joint written statement filed by defendants 6, 7 and 14, they have averred that the causes of action against each of the defendants have not been specifically set out in the plaint, that in the absence of specific allegations and the cause of action against each of the defendants, the suit is liable to be dismissed, that the suit is speculative, frivolous and vexatious in nature that the properties set out in schedules 'A'. 'B' and 'C' to the plaint are not joint family or coparcenary properties in which the plaintiffs can claim a right by birth, that the properties in schedules A and B are self-acquisitions of M. J. Loganatha Mudaliar while the properties set out in Schedule C never belonged to the family, that even during his lifetime, Loganatha had disposed of substantial properties under various transactions and that the plaintiffs not having specifically asked for setting aside those transactions, entered into by Loganatha they cannot seek a decree for partition of the alienated items and separate possession of their shares therein. These defendants have also stated that the plaintiffs happen to be in occupation of the 'B' schedule property as members of the joint family headed by the 1st defendant, that the plaintiffs cannot claim any independent right apart from the first defendant, that as the first defendant is bound by the decision in the earlier suit in O.S. No. 2728 of 1960, the plaintiffs will also be bound by that decision, and that in view of the said decision it is no longer open to them to claim 'B' schedule property as joint family property of Loganatha and his sons. as regards 'C' schedule property it has been claimed by these defendants that the same has been endowed for charitable purposes and it does not belong to the joint family. It is also contended by these defendants that the suit is barred by limitation, that the first plaintiff being 29 years of age, he is not entitled to challenge the alienations made by Loganatha to third parties after they nave been in possession of the property for well over the statutory period and that the second plaintiff cannot also challenge the alienations as he was not born on the dates of the alienations. These defendants have also specifically alleged in their written statement that the plaintiffs have come forward with this suit mala fide only to delay or defeat the execution of the decree obtained against the first defendant in O.S. No. 2728 of 1960.
16. 10th defendant who is an alienee of a portion of the property set out in 'A' schedule has stated in his written statement that the sale in his favour by Loganatha was valid as he had a valid title to convey the same, that he was a bona fide purchaser for value without notice of any defect in title and of the alleged claims of the plaintiff, that the sons of Loganatha not having challenged the sale deed executed by their father at any time till now, it is not open to the first plaintiff, grandson and the second plaintiff, great grandson, to challenge the alienations made by Loganatha on the ground that the properties alienated were joint family properties and that the alienations were not for legal necessity.
17. 11th defendant is also an alienee of a portion of 'A' schedule property and he has also taken a similar defence as the 10th defendant. On these pleadings, the following issues came to be framed:
[Issues are omitted--Ed.]
18. C.S. No. 126 of 1972 -The subject-matter of the above suit is door No. 13, Big Street, Triplicane, Madras. According to the plaintiffs the said property is the self-acquisition of Loganatha and, therefore, he had executed a valid settlement deed, Exhibit P-4 dated 4th December, 1946 in favour of his daughter, M. L. Leela and thereafter, M. L. Leela had executed a trust deed, Exhibit P-9, dated 30th June, 1958 in favour of Sri Satya Sai Mandali and the defendants who are in unauthorised occupation of a portion of the property should hand over possession either to the trustees of Satya Sai Mandali or to the trustees nominated by the said Leela in her trust deed. The defence taken is that the said property was ancestral and, therefore, Loganatha was incompetent to execute the settlement deed in relation thereto in favour of his daughter, that the trust deed, Exhibit, P 9, executed by Leela is also equally void as she did not acquire any valid title to the property and had no competency to create a trust in relation to that property and that the contesting defendants being members of the joint family are entitled to continue in occupation of the property so long as there is no partition in the family. Thus the basic controversy between the parties is as to the character of the said property, whether it is ancestral or self-acquired in the bands of Loganatha.
19. The question whether the suit property is an ancestral or, self-acquired property of Loganatha came up for consideration before this Court in Second Appeal No. 743 of 1971 and this Court held that it is the self-acquisition of Loganatha. That second appeal arose out of a suit filed by Loganatha himself against the first defendant herein for delivery of possession of a portion of the suit property on the ground that the first defendant has been in occupation of the portion of the property sought to be recovered from him as a licensee and that the licence having been terminated after the execution of the trust deed by M L. Leela, the first defendant has to surrender possession of the property to Loganatha who is a trustee nominated by M. L. Leela under the trust deed, Exhibit P-9. The first defendant resisted the suit contending that the suit property being ancestral belonged to the joint family of which he is a member and that, therefore, no decree for possession could be passed as against him. He also questioned the validity of the settlement deed, Exhibit P-4 executed by Loganatha in favour of his daughter, M. L. Leela as also the trust deed, Exhibit P-9 executed by Leela. Having regard to the nature of the pleadings in that suit, the main question at issue between the parties was as to whether the suit property was ancestral or the self-acquisition of Loganatha. The parties adduced evidence in that regard on that question and on a due consideration of the evidence, the trial Court held the suit property to be a self acquisition of Loganatha. The said decision of the trial Court was affirmed in appeal. The first defendant then took the matter in Second Appeal No. 743 of 1971. This Court, after analysing the entire evidence, both oral and documentary, agreed with the finding of the Courts below that the suit property continued to be the self-acquired property of Loganatha till he executed the settlement deed, Exhibit P-4 in favour of Leela, that the settlement deed in favour of Leela was true and valid and not sham and nominal as alleged by the first defendant, and that the trust deed executed by Leela was also real and not illusory as alleged by the first defendant. The said judgment in the Second Appeal has been marked as Exhibit P-114 in this suit. (M.L. Hanumantha Rao v. Sri Sai Baba, represented by its Trustees : (1980)2MLJ507 .
20. In view of the existence of a prior decision of this Court on the questions as to the character of the suit property, as to the validity of the settlement deed. Exhibit P-4 and as to the truth and genuineness of the trust deed, Exhibit P-9 executed by Leela, issue No. 3 as to whether the judgments rendered in O.S. No. 2728 of 1960 and O.S. No. 2729 of 1960 on the file of the City Civil Court, Madras did not operate as res judicata as against the first and second defendants in the suit and the additional issue as to whether defendants 7 to 10 are bound by the judgment and decree in OS. No 2728 of 1960 on the file of the City Civil Court, Madras, hare been framed. If, as a matter of fact the judgment in the earlier suits including the judgment of this Court in second appeal operate as res judicata--against the plea taken by defendants 1 and 2 and 7 to 10 that the suit property is a joint family property and that, therefore, the settlement deed executed by Loganatha in favour of Leela and the subsequent trust deed executed by Leela are void, then no fresh decision could be rendered in this case on the materials produced by the parties in this suit and the decision rendered in the earlier suits should be token to have become final and binding on defendants I and 2 and 7 to 10 It is, therefore, necessary to consider first the said issue No. 3 and the additional issue.
21. There cannot be any dispute that in the earlier suit, O.S. No. 2748 of 1960 the question whether the suit property is ancestral or self-acquired property of Loganatha was directly and substantially in issue between the trustees nominated under the trust deed of Leela and the first defendant and that question was decided against the first defendant. In the other suit, O.S. No. 2729 of 1960 the same question arose between the trustees and the second defendant and that suit was decreed ex parte against the second defendant. The question is whether the decree in the earlier suits will operate as res judicata as against defendants 1 and 2 herein who were the defendants in the earlier two suits. Defendants 1 and 2 have not disputed that there was a conclusive decision in the earlier suit that the suit property was the self-acquired property of Loganatha and that the settlement deed in favour of Leela and the trust deed executed by her are true and valid. They have however, contended that the present suit could not have been filed in the City Civil Court where the earlier suits have been filed and that Section 11 of the Code of Civil Procedure cannot come into operation as the City Civil Court could not have tried the present suit. Defendants 7 to 10 have contended that the decision rendered in the earlier two suits against defendants 1 and 2 will not bind them as they are claiming right in the property as members of the joint family and not through defendants 1 and 2. The further question is how far the decision in the said earlier suits will operate as res judicata against defendants 7 to 10.
22. At the time of the earlier suits defendants 1 and 2 were the heads of their respective families. The first defendant is the father of the 7th defendant and the grandfather of the 8th defendant. Admittedly all of them were living together and till this date there has been no partition between them. The second defendant who is the father of defendants 9 and 10 is living with defendants 9 and 10 and all of them are living as members of a joint family and even till today there has' been no division as between them and second defendant. The question is whether the decision rendered in the earlier suits against defendants 1 and 2 will bind their sons and grandsons.
23. It is, true, the earlier suits have not been filed against defendants 1 and 2 in their representative capacity. But having regard to the fact that they are admittedly the heads of their families, the decision rendered again them should be taken to bind all those who could be represented by them. In Sankaralingam v. Mani : AIR1975Mad206 , a Division Bench of this Court has taken the view that even though the plaint has not described the defendant as the manager of a Hindu joint family and did not purport to sue him in his representative capacity, still, if having regard to the circumstances of the case the suit must be deemed to have been brought against him as manager in his representative character, the other members of the family must be held to be substantial parties to the suit through the manager of the joint family though they were not represented as such, and a decree obtained against such a manager will be binding on the undivided coparceners In that case a decree was obtained personally against the manager of a Hindu undivided family. In execution of that decree the joint family properties of which the judgment-debtor was the manager were proceeded against. The other members of the family resisted the execution on the ground that they were not parties to the suit and that the manager not having been sued in his representative capacity, the other coparceners are not bound by that decree. Rejecting this contention, the Division Bench pointed out that the managing member could effectively represent the entire family and the decree passed against him would be binding on all the members, and that it is not necessary to state in the pleadings in express terms that the managing member is sued or is being sued as such manager and that the suit can be taken to have been brought against him in his representative character if the circumstances of the case show that he is the manager of the family and the property involved is the joint family property. The Division Bench purported to follow a decision of the Privy Council in Doulat Ram v. Mehr Chand (1886) 14 I.A. 187 : I.L.R. 15 Cal. 70(P.C.), and the decision of a Full Bench of this Court in Vadlamanati Venkatanarayana Rao v. Gottumukkula Venkata Samaraju : (1937)2MLJ251 . The fact that defendants 7 to 10 are not eo nomine parties in the earlier suits will not render the decrees in those suits any-the-less binding on them as the decrees obtained as against defendants 1 and 2 who are the karthas of their respective families will be binding on the undivided coparceners.
24. Defendants 1 and 2 in order to avoid the applicability of the principle of res judicata on the ground that the present suit could not be tried by the City Civil Court which disposed of the earlier suits relied on Section 11 of the Civil Procedure Code. To appreciate the above contention it is necessary to have a look at Section 11 of the Civil Procedure Code. That section is as follows.
No Court shall try any suit or issue in which the matter directly and substatially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
As per the said section the decision of a Court competent to try the subsequent suit alone operates as res judicata. It is, therefore, contended by the defendants that as the present suit cannot be tried by the City Civil Court, the decision of that Court cannot operate as res judicata. As already stated, the earlier suit related to only a portion of the suit property and the present suit covers the other portions of door No. 13, Big Street. This suit has been valued at Rs. 60,000 which is outside the pecuniary jurisdiction of the City Civil Court. There cannot be any doubt that this suit cannot be tried by the City Civil Court as its pecuniary jurisdiction is limited to Rs. 50,000. Therefore Section 11 cannot strictly be applied here.
25. Even though Section 11 cannot be applied strictly, the general principle of res judicata squarely applies in this case. Apart from the fact that the earlier decision of this Court in the second appeal will be a binding precedent even though it may not come under Section 11, the general principle of res judicata cannot be avoided on the facts of this case. ft is well established that Section 11 is not exhaustive of the general doctrine of res judicata and that the doctrine of res judicata is much wider in terms than Section 11. Therefore, the general doctrine of res judicata will operate even if the case does not fall within the terms of Section 11. Since the plea of res judicata is not confined to section II, one has to see whether the general principle of res judicata operates in this case. The general principle of res judicata is based on the doctrine that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry and trial should not be permitted to be reagitated. A portion of the suit property was the subject-matter of the earlier suits and for deciding those suits the question of title to the entire property was gone into and the Court ultimately held that the entirety of the suit property is the self-acquisition of Loganatha and not the ancestral property. That finding will be conclusive in this suit so far as the title to the suit property is concerned. Therefore, even though Section 11 will not operate as a bar to the question of title raised here. the bar based on the general principle of res judicata will operate here to prevent the first and second defendants in this suit from reagitating that question. Therefore defendants 1 and 2 should be taken to be bound by the decision given in the earlier suit that the suit property is the self-acquisition of Loganatha.
26. The further question is whether defendants 7 to 10 who were not parties to the earlier decision, are also barred by the same principle of res judicata from claiming the suit property as the joint family property. It is contended on behalf of defendants 7 to 10, that as their claim to the suit property is based on the theory of right by birth under the Hindu law, they cannot be taken to claim under their parents and therefore, the earlier decision cannot be a bar for their defence that the suit property is the joint family property. According to them the principle of res judicata will apply to parties claiming under parties in the earlier suit and as they are not claiming under their parents who were parties to the earlier suits, they are free to canvass the decision in the earlier suits. In support of this plea reference has been made to Maha Deo v. Rambir Singh I.L.R. (1945) Lah. 67, wherein it was held that a Hindu son does not claim through his father in respect of ancestral property. As already stated, the earlier suits have been filed against defendants 1 and 2 and at that stage they were representing their sons' interests also even through they have not been shown as representing their respective families. It has, therefore, to be held that defendants 1 and 2 and 7 to 10 are bound by the decision in the earlier suit by the general principle of res judicata. The other defendants are said to be tenants of the first defendant and as they are claiming under the first defendant, they are also bound by the principle of res judicata. Hence issue No. 3 and the additional issue are answered in favour of the plaintiff and against the defendants.
27. Even assuming that the bar of res judicata does not apply, on the materials produced and on the evidence recorded in this suit it is not possible to say that the suit property has been established to be joint family property. The documents filed in this case to indicate the character of the suit property are substantially the same as those filed in the earlier suits, except a few which have been filed in this suit at a late stage after the examination of the witnesses on the plaintiffs' side.
[The discussion of the evidence is omitted -Ed]
Therefore the defence case that the suit property has been purchased with the joint family nucleus cannot at all be accepted.
28. The further question is whether the suit house which has been found to have been purchased by Loganatha out of his own funds was thrown into the joint family hotchpot so as to impress it with the character of a joint family property as alleged by the defendants. Though the plea of blending has not been specifically pleaded in the written statement, the defendants would contend that the suit property after its purchase had been improved to a considerable extent by utilising the joint family funds, that the entire family has been living in the house ever since the date of its purchase, and that therefore the suit property should be treated as a joint family property.
[The discussion of the evidence is omitted -Ed]
All these clearly establish that the suit property was never treated by Loganatha as joint family property.
29. In the light of the above discussion, the suit property has to be held to be the self-acquisition of Loganatha and not the joint family property of Loganatha and his sons.
30. Issue No. 5 :--[omitted--Ed.]
31. Issue No. 6 :--The defendants have raised a plea that the trust created by Leela under Exhibit P-9 is a public trust and therefore the suit is liable to be dismissed for non-compliance with the requirements of Section 92 of the Civil Procedure Code. The plaintiffs' stand is that the trust is a private trust and therefore the requirements of Section 92, Civil Procedure Code need not be complied with. In this case the suit is one for recovery of possession of the property belonging to the trust by the trustees constituted under the trust deed executed by Leela and the trustees of Satya Sai Mandali who are administering the Sai Baba temple which is a beneficiary under the trust. In a suit for recovery of possession by the trustees of the trust properties from strangers, the question whether the trust is public or private does not arise. Section 92 does not apply to a suit for possession by trustees to recover possession of the trust properties from third parties who are not in lawful possession of the same. So long as the plaintiffs do not claim any of the reliefs referred to in Section 92, the requirements of Section 92 need not be complied with. It is well established that a suit for recovery of possession or ejectment cannot be decreed against third parties of trust properties in a suit under Section 92. The relief claimed by the plaintiffs which is one for possession by the trustee as against third parties can be granted even if the trust executed by Leela is held to be a public trust. Therefore the suit has to be held not barred under Section 92, Civil Procedure Code.
32. Issue No. 4 :--One of the defences raised by the defendants is that the suit is barred under Order 2, Rule 2, Civil Procedure Code. According to them the earlier suits O.S. Nos 2728 and 2729 of 1960 were filed for recovery of possession of two rooms in the suit property, and Loganatha who filed the suit as a trustee having died during the pendency of the suit and the first defendant having forcibly taken possession of the entirety of the property from the tenants, the plaint in the said suit should have been amended to include the claim for recovery of the entire suit property and this not having been done, the present suit is barred by the principle contained in Order 2, Rule 2 of the Civil procedure Code. As already stated, the plaint in this case proceeds on the basis that at the time of the earlier suit defendants I and 2 ware each in possession of one room in the suit property and those suits were decreed against them. The fact that the first defendant had taken possession of the suit property doing the pendency of the suit which is a subsequent event will not prevent the plaintiffs from claiming possession of the other portions forcibly entered upon by the first defendant, in the subsequent suit. It is not necessary for the plaintiffs to have amended the earlier plaint seeking plaint a larger relief than the one claimed at the first instance and it is open to them to do so or to file a separate suit for recovery of the rest of the portions in the suit property. The cause of action for this suit has arisen after the filing of the earlier suit when the first defendant entered upon the other portions of the property which was not the subject-matter of the earlier suit. I do not therefore see how the present suit could be defeated by raising the plea of Order 2, Rule 2. This issue is found against the defendants.
33. Issues 1, 2 and 7 :--In view of my findings on issue No. 3 and the additional issue the plaintiffs are entitled to a decree for possession of toe property mentioned in the schedule to the plaint against the defendants. The plaintiffs are also entitled to past mesne profits for a period of three years prior to the suit as also for future mesne profits. The plaintiffs have claimed past mesne profits at the rate of Rs. 500 per month for three years prior to the date of suit. They also claim future mesne profits from the date of the plaint till the date of delivery of possession at the same rate. The defendants state that the quantum of mesne profits claimed by the plaintiffs is excessive. In the counter-affidavit tiled by the first defendant he states that he has been receiving a rent of Rs 120 per month from the tenants and that the claim at Rs. 500 per month towards mesne profits is disproportionate, to the rent receive by him. Even in his evidence the first defendant as D. W. I has stated that the rent received by him from the property in question is only a sum of Rs. 120. He has not however stated as to what will be the rent that will be payable in respect of the portion of the house in his occupation. Though P W. I would say that if the entire portion is let out it will fetch a rent of Rs. 350 to Rs. 500 per month, having regard to the nature of the evidence, I consider that the question of mesne profits, both past and future, should be left for an enquiry under Order 20, rule, 12, Civil Procedure Code Hence there will be a decree directing an enquiry into mesne profits both past and future in respect of the suit house payable by the first defendant to the plaintiffs, under Order 20, Rule 12, Civil Procedure Code. Since the second defendant has ceased to occupy any portion of the suit property even at the time of the filing of the suit and the first defendant has deposed that he has taken possession of the entirety of the house and that the second defendant! is not in possession of any portion of the same, the second defendant cannot be made liable for any portion of the mesne profits, either past or future. In these circumstances, C.S. No. 26 of 1972 will stand decreed accordingly. The plaintiffs will be entitled to their casts from the first defendant. The first defendant will pay the Court-fee due to the Government.
34. C.S. No 82 of 1975 : -The plaintiffs herein are the son and grandson of the first defendant in C.S. No. 126 of 1972. They have prayed for a decree for partition of the three items of properties referred as Schedules A to C in the plaint. Schedule A is the Guindy property measuring about 61/2 acres comprised in plot No. 34, Adayar Zamin Village As already discussed this property originally belonged to Jayarama, the father of Loganatha, the paternal grand-father of the first plaintiff and great grandfather of the second plaintiff. After the death of Jayarama the entire Guindy property has been sold by his father to a third party. To set aside the sale Loganatha filed a suit and ultimately obtained a decree for recovery of possession of the Guindy property and took possession of the property except an extent measuring 100 X 100'. It has been held in A. S No. 171 of 1972 as between some of the members of the family that the property recovered by Loganatha in the said suit is a joint family property Therefore in view of that decision which will bind the parties the properties taken possession of by Loganatha in pursuance of the decree for possession in the said suit will have to be held joint family properties,
35. Issues 4 to 7 :--Even during the lifetime of Loganatha considerable portions of the property have been alienated by sales to third parties and some of the alienees have been made parties to this suit. Defendants 9 to 11 are some of the alienees. Though the alienees have been made parties, plaintiffs have not prayed for for setting aside the alienations. In paragraph 5 of the plaint the plaintiffs merely allege that 'he (Loganatha) had no right to alienate the joint family estate nor was there any legal necessity for alienation, but he had however made certain alienations, which are not binding on the plaintiffs.' But the plaintiffs have not specifically asked for setting aside the alienations Even though the plaintiffs have not specifically referred to the various alienations in favour of defendants 9 to 11 and asked for setting aside those sales, those defendants have chosen to substantiate their defence by filing the necessary documents to show that they are bona fide purchasers for value, that Loganatha's sons were aware of the alienations, that some of the sons have actually given their consent for the sale and that in any event the sale having taken place more than 12 years before the filing of the suit, the suit will be barred by limitation as against them.
36. It is well-established that where the family properties have been alienated by the managing member of the family and those are in the possession of third parties, the plaintiff who seeks a partition of the joint family properties has to canvass the sales to third parties and seek a prayer for setting aside those sales. In this suit not only the plaintiffs have not made any specific prayer but they have not also given the details of the sales and as to how those sales are not binding on them In the absence of specific pleadings regarding the alienations in favour of defendants 9 to 11, the plaintiffs' claim for partition in relation to the items alienated has to fail. However, having regard to the defence taken by defendants 9 to 11 that the suit is barred by limitation, I propose to deal with the question of limitation covered by issue 13.
37. The alienation in favour of the 9th and 10th defendants are under Exhibit D-25 dated 19th August, 1960, and D-43 dated 10th July, 1961, and it is the case of the defendant that he has been in possession of the properties purchased by him under the two sale deeds ever since the date of the respective purchases On the date of the sale the first plaintiff was a minor and the second plaintiff was not born. The first defendant who is the father of the first plaintiff was a major on the dates of the said sales, and he had not challenged the alienations. Admittedly, the alienees have been in possession for well over 12 years from the date of the suit. The first defendant who is the father of the first plaintiff and the grandfather of the second plaintiff did not challenge the alienations even though he was fully aware of the alienations. The first plaintiff was, of course, a minor on the date of the alienations but he has not chosen to file a suit to set aside the alienations within 3 years of his attaining majority. In the plaint his age is given as 29 on the date of the plaint and, therefore, he cannot challenge the alienations after such a long time. The second plaintiff is said to have been born in the year 1973 It is well-established that the subsequent birth of a co-parcener does not create a fresh cause of action or a new starting point from which limitation could be reckoned In Lallubhai Motiram v. Laxmishankar : AIR1945Bom63 , it has been held that where a person entering into possession is under no duty to the minor and has entered into possession for his own benefit and in assertion of his title hostile to that of the minor, limitation begins to run from the date when he takes possession and his adverse possession against the minor commences from the date on which he takes possession, though the minor would be entitled to file a suit within three years from the date of his attaining majority and that the benefit of Section 6 of the Limitation Act of 1908 extending the period of three years after majority can be claimed only by a person entitled to institute a suit at the time from which the period of limitation is to be reckoned and that a person who was not in existence at the time is not entitled to the extension of three years. As already stated, the first plaintiff was a minor on the date of the sale by Loganatha in favour of defendants 10 and 11 But he did not file a suit within three years of his attaining majority. Therefore, he cannot seek for recovery of possession from the alienees even if he establishes that the alienation is not binding on him. The second plaintiff who was not born on the date of the sale cannot claim recovery of possession from (he alienees as he has no cause of action against the alienations made by Loganatha. Though the first plaintiff was a minor on the date of the sale, his father the first defendant could have challenged the alienations by filing the suit within 12 years from the date of sale. Therefore the limitation having begun to run from the date of the sale as against the first defendant, the first plaintiff, who is the son and the second plaintiff who is his grandson, it will also run against the plaintiffs. This is clear from the decision of a Division Bench in Kunjipokkarukutty v. A. Reyunny : AIR1973Ker192 . In that case it has been held that the right to file a suit within three years of attaining majority is available to a coparcener only if he has a separate right to file a suit, that when one of several persons jointly entitled to institute a suit is under any disability, if there is any other member who can give a valid discharge without the concurrence of the person under disability, the time will begin to run from the date when the member competent to give a discharge can institute a suit. The first defendant being the father of the first plaintiff and the grandfather of the second plaintiff can file a suit challenging the alienation within 12 years from the date of possession by the alienee. He not having done so. the plaintiffs cannot now file a suit to challenge the alienation based on the same cause of action which was available to the first defendant. It cannot be disputed that the several members of a joint family are joint owners of the family property and their title in respect thereof is joint and not several. Therefore, they are jointly entitled to institute a suit in respect of the joint family property. If the first defendant against whom the limitation has begun to run has kept quiet without seeking to set aside the alienations, limitation will also begin to run as against the defendants (sic) as well as the plaintiffs. In this view the suit as against defendants 9, 10 and 11 should be held to be barred by limitation. Even otherwise I have to hold that the sales are valid and binding on the members of the family accepting the evidence of D. W. 4 and D. W. 5 that the consideration for the sales went towards the discharge of the family debts of Logaoatha.
38. Issue Nos. 8 to 12 and Additional Issue No. 1. [Omitted--Ed]
39. Additional Issues Nos. 2 and 3 :--As regards the validity of the trust deed dated 3rd February, 1949, executed by Loganatha, it is true the trust deed Exhibit P-8, relates to a portion of the Guindy property which has been found to be the joint family property. But it is clear from the oral evidence of P. W. 1 D. W. 1 and D.W. 2 that defendants 1 and 2 were willing parties to the transaction and they have also put in their signature to the trust deed as witnesses in token of their knowledge of the transaction. Therefore defendants ' and 2 who could have challenged the trust deed on the ground that it comprised of joint family properties have kept quiet all these years. In fact, the second defendant has acted as a trustee of that trust for sometime. The plaintiffs who are members of the family of the first defendant who was a willing party to the transaction and who attended the dedication ceremony at the temple cannot now seek to challenge that trust deed on the ground that Loganatha had no power to alienate the joint family property by way of a trust. In any event the claim for partition in respect of the property will be barred as the properties are in possession of the trustees for well over twelve years. Though the plaintiffs have alleged that the trust deed was not given effect to and the trust created under the trust deed never took effect, the oral evidence adduced in the case clearly establishes that immediately after the execution of the trust deed, it was given effect to and it continues to function right through. Therefore. this issue has to be held against the plaintiffs.
40. I shall now proceed to consider the legal contentions advanced on behalf of the plaintiffs in C.S. No. 82 of 1975 and defendants 7 and 8 therein. One of the legal contentions is that the 42nd Amendment the Constitution has introduced Part IV (a) setting out fundamental duties of every citizen and that one of the fundamental duties is to develop scientific temper and a spirit of enquiry. According to them the dedication of a pordon (11 grounds) of the Guindy property to late Sri Sai Baba is unconstitutional, being opposed to rational belief and scientific truth and as the scientists have not accepted the existence or survival of a soul after the dissolution of the body by death, the dedication of the property to the temple where the statue of late Sri Sai Baba is installed is not in accord with the spirit of enquiry contemplated by the fundamental duties. I do not see how the dedication will be violative of the fundamental duties. In this case the dedication was in the year 1949 and the amendment to the Constitution came into force with effect from 3rd January, 1977. Even assuming that the amendment to the Constitution is retrospective and is applicable to dedications made earlier, there is no justification for holding that the dedication is against any of the fundamental duties set out in part IV (a). It is well-established that to determins whether a certain place is a temple or not, the test is not whether it conforms to any particular school of Agama Sastras, that the question must be decided with reference to the view of the class of people who take part in the worship, that if they believe in its religious efficacy in the sense chat by such worship they are making themselves the object of the bounty of some super human power, it must be regarded as 'religious worship', n H R. E. Board v Narasimham : AIR1939Mad134 , it was held that the [building where 66 tones were placed along the three walls of the building as representing the 66 heroes who had bean killed in a war between two neighbouring kingdoms of the locality and where Nitya Neivedya Diparadhana was performed, animal sacrifices were offered and these offerings distributed among the assembled audience was a temple as the institution was not a mere hero worship but was public religious worship. In Ramaswami Servai v. Board of Commissioners, H.R.E. Madras : AIR1951Mad473 , it has been held that if the public or a section of the public who offer worship consider that there is Divine presence in a particular place and by offering worship at that place they are likely to be the recipients of the bounty or blessings of God, then there were all the essential features of a temple as defined in Section 9(12) of the Madras Hindu Religious Endowments Act, 1927, and that the presence of an idol, though an invariable feature of Hindu temples is not a legal requisite under the the definition of a temple in Section 9(12) of the Act. Viswanatha Sastri, J. in his judgment expressed:
Consecration according to the ceremonial rites prescribed by the Agama Sasras is not a legal requisite, though it is a sacredotal necessity according to the views of the orthodox. The test is not whether the installation of an idol and the mode of its worship conform to any particular school of Agama Sastra. If the public or that section of the public who go for worship consider that there is a Divine presence in a particular place and by offering worship at that place, they are likely to be the recipients of the aounty or blessings of God, then, you have got the essential features of a temple as defined in Section 9 Clause (12) of the Act. The presence of an idol though an invariable feature of Hindu temples, is not a legal requisite under the definition of a temple in Section 9, Clause (12) of the Act The word ' institution' which is used in Section 84(1) of the Act is a term of very wide import, capable of different meanings, according to the context in which it is used. It means, among other things a foundation, a system, a constitution, an establishment, or organisation, a place designed for the promotion of some religious, charitable or other object of public utility and so on.
Therefore, so long as the statue of late Sri Sai Baba which has been installed and worshipped as an idol and so long as the place is used for religious worship, by public or a section of the puolie, the idol becomes a deity and the place becomes a temple Thus ultimately, it is a question of spiritual belief and such a belief cannot be decided with reference to the fundamental duties set out in Part IV (a) of the Constitution.
41. The next contention urged is that the dedication of properties to the temple where the statue of late Sri Sai Baba has been installed is against public policy and therefore, the dedication should be held to be illegal. Here again I do not see how the dedication is against public policy. So long as the right to religious freedom is recognised under the Constitution, the dedication of a property to an institution which the donor considers to be sacred cannot be invalidated. Article 25 of the Constitution provides that subject to public order, morality and health, all persons are equally entitled to freedom of conscience and to the right freely to profess, practise and propagate religion. Article '26 says that subject to public order, morality and health every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes. In this case it is not alleged that the dedication made in favour of the temple where the statue of late Sri Sai Baba has been installed is in any way against public order, morality and health. I do not, therefore, see an) substance in this contention. Hindu Law, as pointed our by West, J. in M. Ganesh Tamboker v. Lakshmiram Govindam I.L.R. (1888) 12 Bom 247.
Like the Roman Law and those derived from it, recognises, not only corporate bodies with right of property vested in the Corporation apart from its individual members, but also the juridical persons or subjects called foundations.
The Privy Council in Gossami Sri Girdhariji v. Ramam Lalji Gossami I.L.R. (1890) Cal. 3 : 16 I.A. 137, had treated a consecrated portrait of a sadhu which was worshipped by his disciples to be a legal person to whom property could be gifted. In Senthilvel Pillai v. Kulandaivel Pillai (1970) 83 L.W. 472, Srinivasan, J. speaking for the Bench expressed the view that where an idol has been installed, even if it happens to be a private family idol and the family endows property for the upkeep of the idol and for the performance of poojas and the like, the idol as a distinct entity becomes the owner of the property and, thereafter, the donors, the members of the family have no surviving power to take away the properties from the idol.
42. Next, it is contended that the objects of the trust created by Loganatha under the trust deed, dated 3rd February, 1949, are uncertain and therefore the trust deed is void for uncertainty. One of the objects set out in the trust deed is for the promotion of 'His faith' by bajhanas, etc. It is contended that the term 'His faith' is so vague and that so long as it is not said as to what is 'His faith' the object is indefinite. I am unable to accept this contention as the objects of the trust are in my view clear and certain. The trust deed clearly states that the objects of the trust are to make contribution towards the maintenance of Sri Sai Baba temple, Guindy fund for the performance of anniversary pooja for Sai Baba falling on the 3rd of February every year. Thus the main object of the trust is the maintenance of the Sri Sai Baba temple and the performance of the anniversary pooja for Sri Sai Baba in the said temple. These two objects cannot, in any sense be said to be vague or uncertain. I have to, therefore, reject the above contention as well.
43. Issues 2, 3 and 14 :--I have to hold that the Guindy property set out in schedule A to the plaint in C.S. Mo. 82 of 1 75 except an extent of '100 X 100' abutting the road was the joint family property, that the trust deed Exhibit P-8, dated 3rd February, 1949 executed by Loganatha dedicating a portion of the said property to the temple of Sri Sai Baba and the alienations in favour of defendants 9, .0 and 11 ate valid and binding on the plaintiffs as well and that in any event the plaintiffs' claim for partition of the alienated items is baired by limitation. Since it has not been shown that there is any property left by Lcganatha out of the Guindy property alter the said alienations had been effected, there cannot be any decree for partition. As regards the B schedule property set out in the plaint, I hold, that the said property is the self-acquisition of Loganatha and therefore the settlement deed, Exhibit P.4, dated 14th December, 1956, executed by him in favour of Leela and the subsequent trust deed, Exhibit P-9 dated 30th June, 1958 executed by Leela are all true and valid and as such the plaintiffs in C.S. No. 126 of 1972 are entitled to a decree for possession of the suit property against defendant 1, 7 and 8. As regards C schedule property sat out in C. S No. 82 of 1975 as it has not been shown to belong to the joint family at any time, it is not possible to hold that these properties are ancestral and that they are now available for partition. In this view the suit C.S. No. 126 of 1972 is decreed as prayed for with costs payable by the first defendant and C.S. No. 12 of 1975 is dismissed with costs of defendant 6, 7 and 10 to 12.