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U. Muthukrishnan Vs. Sri Palani and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1969)1MLJ129
AppellantU. Muthukrishnan
RespondentSri Palani and anr.
Cases ReferredSrinivas Krishnarao Kango v. Narayanan Devji Kongo
Excerpt:
- .....j.1. the defendant is the appellant. the plaintiffs laid the suit for recovery of the suit properties or in the alternative for joint possession along with the defendant. the properties belonged originally to one swarnathammal who created a trust on 30th july, 1925, under exhibit a-l by which she appointed srinivasa pillai and his, heirs as trustees. srinivasa pillai died in july, 1930. he had three sons, sabarathnam, who died on 16th november, 1949, manickavachagam and the present defendant. the plaintiffs are the sons of sabarathnam; the defendant was adopted to his aunt's husband vasudeva, on 20th february, 1950, under exhibit b-2, the other brother of the defendant, i.e., manickavachagam, became adopted to his paternal grand-uncle even in 1936 during the lifetime of.....
Judgment:

A. Alagiriswami, J.

1. The defendant is the appellant. The plaintiffs laid the suit for recovery of the suit properties or in the alternative for joint possession along with the defendant. The properties belonged originally to one Swarnathammal who created a trust on 30th July, 1925, under Exhibit A-l by which she appointed Srinivasa Pillai and his, heirs as trustees. Srinivasa Pillai died in July, 1930. He had three sons, Sabarathnam, who died on 16th November, 1949, Manickavachagam and the present defendant. The plaintiffs are the sons of Sabarathnam; The defendant was adopted to his aunt's husband Vasudeva, on 20th February, 1950, under Exhibit B-2, The other brother of the defendant, i.e., Manickavachagam, became adopted to his paternal grand-uncle even in 1936 during the lifetime of Srinivasa Pillai. Defendant filed a suit for partition in O.S. No. 13 of 1942 of the properties and in it included the suit properties. Exhibit B-19 is the plaint in that suit and Exhibit B-21 is the preliminary decree. Against the preliminary decree in O.S. No. 13 of 1942, there was an appeal in A.S.' No. 56 of 1943 and Exhibit A-30 is the appellate judgment. In the appeal, the suit properties were excluded by consent of parties with liberty to the present defendant to file a fresh suit. Exhibit A-31 is the judgment of the High Court in A.S. No. 512 of 1944 in the same suit against the final decree and this was disposed of on 27th March, 1946.

2. The defendant put forward a plea of family arrangement in pursuance of which he alleged, he was made the trustee in respect of the suit properties, as his brother Sabarathnam continued to be the trustee of the other properties, and for this purpose he depended upon Exhibit A-2, the will dated 12th November, 1949 executed by Sabarathnam in which it is mentioned that the present defendant was to conduct the charities from out of the suit properties. Sabarathnam died on 16th November 1949. It was thereafter that the defendant was adopted on 20th February 1950, by his aunt's husband, Vasudeva. The plaintiffs filed the suit claiming that as the defendant had been adopted into another family, he ceased to be entitled to be a trustee in respect of the suit properties. The suit was dismissed by the trial Court. But the appellate Court allowed the appeal and decreed the plaintiff's suit.

3. As far as the other family properties are concerned, the defendant had became a divided member even before he was adopted and therefore there is no doubt that in respect of these properties, he would not become divested as a result of his having been adopted by the other family. That is the effect of the decision of this Court in Sri Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao and Ors. : (1906)16MLJ178 . Though the Bombay High Court has taken a different view in Dattatraya Sakharam v. Govind Sambaji I.L.R. (1916) Bom. 429, that need not deter us because as far as this Court is concerned, the decision of the Bench of this Court Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao and Ors. : (1906)16MLJ178 is binding. Even the Bombay High Court has subsequently taken a view in Mahabaleswara Narayan v. Subramania Shivaram I.L.R. (1923) Bom. 542, a view which is in consonance with the view taken by this Court in Sri Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao and Ors. : (1906)16MLJ178 . The Calcutta High Court has always taken the same view though the Calcutta decisions are based on the Dayabagha system of law (See the decisions in Beharilal Laha v. Kailas Chander Laha (1903) 7 C.W.N. 121). In fact the Calcutta High Court in the decision reported in Shyamcharan Chattopadhyaya v. Sricharan Chattopadhyaya I.L.R. (1929) Cal. 1135, has referred to the decision of the Bombay High Court in Dattatraya Sakharam v. Govind Sambaji I.L.R. (1916) Bom. 429, and has dealt with the contention raised before it on the decisions of the Privy Council in T. Raghuraj Chandra v. Rani Subhadra Kunwar (1928) L.R. 55 IndAp 139 : 1928 55 M.L.J. 778 and Dattatraya Sakharam Devi v. Govind Sambaji Kulkami I.L.R. (1916) Bom. 429. It has been explained there that the decision of the Privy Council above referred to cannot be said to have approved of the decision of the Bombay High Court in Dattatraya Sakharam Devi v. Govind Sambaji Kulkarni I.L.R. (1916) Bom. 429. The Calcutta High Court also referred to the decision in Moneram Kolita v. Kori Kolitar I.L.R. (1880) Cal. 776, and came to the conclusion that an estate once vested under the Hindu Law cannot be divested and therefore an heir, who has inherited any property from the family of his birth, is not subsequently divested of it on his being adopted by another person. The Supreme Court in its decision in Srinivas Krishnarao Kango v. Narayanan Devji Kongo : [1955]1SCR1 , has pointed out that the principle of an adopted son divesting an estate already vested in a widow is based on special considerations and that it could not be extended so as to divest collaterals who have succeeded to an estate. The discussion there would show that the Supreme Court is disposed to take the view taken by this Court rather than the view taken by the Bombay High Court. It is therefore clear that in respect of the family properties which the defendant got under the partition, he cannot be divested of them.

4. The only question that arises for decision is whether the suit properties which are trust properties vested in the defendant and he was divested of them or whether the suit properties vested in him at all. The Court below has come to the conclusion that the family arrangement pleaded by the defendant under which he was allowed to be in possession of the suit properties and to perform the charities has not been proved. So the defendant can succeed only on the basis that he is entitled to continue in possession of the suit properties on the ground that the properties were vested with him and so he cannot be divested of them, or at least that he is entitled to be a joint trustee along with the plaintiffs. Under the settlement executed by Swarnathachi, it was Srinivasa Pillai, and his heirs that were to conduct the charities. It is not property which the defendant has got either as the sole survivor in the joint family or in partition among the members of the joint family. It cannot therefore be said that the defendant cannot be divested of those properties even if they can be said to have vested in him. Such vesting can, if at all, only be along with the plaintiffs, on the basis that they continued to be joint family properties and that therefore he is also entitled to continue as joint trustee along with the plaintiffs. Now after his adoption to his uncle, the defendant has ceased to be a member of Srinivasa Pillai's family. That is a position which is beyond dispute. Therefore, unless it could be said that even before he was adopted by his uncle, the property had vested in the defendant as a member of a joint family and therefore he could not be divested of it, the defendant cannot succeed. It is well established that in a joint Hindu family no member can say that it is enlarged by the birth of new members or become smaller as a result of death of any of the members or as a result of one of the members being given in adoption. Though a person would have a right in the properties of the joint Hindu family, his right in respect of any particular property does not arise until there is a division in status by that member expressing an unequivocal intention to separate from the rest of the members of the family. Of course the defendant in this case has become separated from the rest of the members of the family; but so far as the suit properties are concerned, they have not been divided and after the defendant was adopted to his uncle, he had ceased to be a member of Srinivasa Pillai's family. Therefore, even if the suit properties are termed to be joint family properties, the defendant lost his right on his being adopted to his uncle. So, unless the defendant is a member of Srinivasa Pillai's family at the time when the question as to who is to be the trustee in respect of the suit properties is raised, he cannot succeed in establishing his claim to be a trustee in respect of the suit properties. On his adoption, the defendant lost his right to joint trusteeship along with the rest of the members of Srinivasa Pillai's family. The trusteeship is not divisible property and therefore there can be no question of the defendant being entitled to a turn in management. Under Hindu Law, when the office of trustee has become vested by descent in more than one person, it is lawful for the parties interested to arrange among themselves for the due execution of the functions belonging to the office in turn or in some settled order and sequence. If the parties do not agree, then, if the right to worship carries with it the right to receive offerings, any one of them may sue for a division of the right just as he may sue for partition of the joint family properties and to have periods fixed during which he may exercise the right. Such a right is 'property ' liable to partition, and the joint owners are entitled to perform the worship in turn. But if the right to worship does not carry with it the right to receive offerings, a suit for a division of the right does not lie. In such a case, the parties are bare managers or trustees, and the debutter property must be managed by them jointly. In this case, there can be no question of the defendant being entitled to manage jointly along with the plaintiffs because he has ceased to be a member of Srinivasa Pillai's family on his adoption by his aunt's husband. No other question arises. The second appeal is therefore dismissed. The parties will bear their own cost. Leave granted.


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