P. Jyothimani, J.@mdashThe unsuccessful plaintiff in the court below is appellant. The plaintiff filed the suit for possession of the house property
bearing old door no.23 new door no.50 General Muthiah Mudali Street, Chennai-79. The relevant averments in the plaint are that the said
property originally belonged to one M.Devarajulu Naidu who executed a settlement deed on 10.06.1958, giving life estate to his only daughter
Loganayageammal with reference to the ground floor consisting of one Koodam and two rooms with right to her to let it out and after her life time
to be succeeded by her husband C.V.Balram Naidu who was also given life estate and after his death the property was directed to be vested with
the plaintiff temple if there was no issue through Loganayageammal. Under a said settlement deed the settlor has given right to the trustees of the
plaintiff to take possession on the death of Balram Naidu and Loganayageammal without issues. Under the said settlement deed the settlor has
given life estate in respect of one koodam and two rooms on the North side of the second yard of the upstairs to Kausalyaammal, his daughter in
law with a right of letting out to third parties and receiving rent and after her life time to be given to the plaintiff''s temple. The trustees of the plaintiff
temple are also empowered to take possession. In respect of the remaining portions, as per the settlement the same has to be let out to tenants and
out of the income,
A) Various amounts are to be paid in respect of taxes to the Corporation and local bodies apart from maintaining the same by effecting repairs
etc.,
B) Rs.100 was to be paid to the beneficiary Loganayagi Ammal for her maintenance and the amount is to be paid to her husband C.V.Balram
Naidu after her death.
On the death of both of them without issues the same has to be given to the plaintiff temple. Likewise, an amount of Rs.100/- was directed to be
given the other beneficiary Kausalyaammal for her maintenance and after her lifetime to the temple. In respect of the remaining rental income a half
of the amount to be utilized for conducting yearly uthasavam of the plaintiff temple in the presence of family trustees and the remaining to be given
to the Hindu Theological High School for midmeals cloths, etc.
2. According to the plaintiff, as per the deed of settlement there was no right of alienation to the beneficiaries. The settlor has appointed the trustees
of the plaintiff mutT apart from V.R.Pandurangan and C.V.Balrama Naidu as the trustees of his estate. The plaintiff on understanding that both the
beneficiaries under the settlement have died apart from the death of C.V.Balram Naidu who died on 12.04.1988 claimed, the suit property as
belonging to the temple. When a notice was issued to the tenants of the property on behalf of the manager of the plaintiff on 16.05.1989, the
tenants have replied denying the title of the plaintiff. The first defendant is said to be the wife of C.V.Balram Naidu. According to the plaintiff, if the
daughter of the settlor had no issues through C.V.Balram Naidu, after the death of the said Loganayageammal and C.V.Balram Naidu her
husband, the property should go to the temple as per the settlement deed.
3. The plaintiff would state that the first defendant is the second wife of C.V.Balram Naidu and the said marriage is void as per the Hindu Marriage
Act. The second defendant who is stated to have born to C.V.Balram Naidu through the first defendant cannot have any right in the property as
per the settlement deed. Defendants 3 to 16 are claiming tenancy right under defendants 1 and 2 who are liable to be evicted. In these
circumstances, the present suit for possession came to be filed. The first defendant filed the written statement, as adopted by second defendant.
That apart the defendants 3 to 11 have filed the written statement that they are in lawful possession inducted during the lifetime of C.V.Balram
Naidu and the said defendants have also denied the title of the plaintiff and in all other respects adopt the written statement filed by the first
defendant.
4. Likewise, the 14th defendant has also filed the written statement. According to the 14th defendant, the suit is not maintainable and the plaintiff
mutt cannot be represented by the manager. The suit filed without relief of declaration is not maintainable. According to the 14th defendant, the
intention of the settlor M.Devarajulu Naidu was to provide benefit to his daughter and widowed daughter in law and bequeathed the property by
way of absolute gift and the restrictions are only his pias desire and has no legal consequence. The settlement deed dated 10.06.1958 is a gift
confirming to Section 122 and 123 of Transfer of Property Act and therefore, it amounts to an absolute settlement. The restrictions are repugnant
to the absolute interest created in favour of Loganayagiammal and Kausalyaammal. Further, after the death of Loganayagiammal and C.V.Balram
Naidu who took possession the children of Balram Naidu are entitled to the portion absolutely as per the settlement deed. The property does not
vest with the plaintiff temple. The suit is barred for non-jointer of other children of C.V.Balram Naidu.
5. The parties went to trial based on the above said pleadings. The Trial Court has framed the various issues, as to whether the settlement deed
dated 10.06.1958 was acted upon, as to whether the suit property was not vested with the plaintiff, as to whether the suit was barred for non
joinder of necessary parties, as to whether the suit is barred by limitation, as to whether the manager of the plaintiff has no loco standi to file the suit
and as to whether the plaintiff is entitled to get relief for possession?
6. On the side of the plaintiff the Executive Officer of the plaintiff temple was examined as P.W.1 and eight documents were marked as Ex.A.1 to
A.8. Likewise, on the side of the defendants, the first defendant was examined as D.W.1 and 33 documents were marked as Ex.B.1 to B.33. An
analysis of the entire evidence and also pleadings and on appreciation of the fact that even though in the life time of the beneficiary, namely
Loganayageammal, daughter of the settlor Devarajulu Naidu, the said Balrama Naidu has married the first defendant as his second wife on
permission of the said Loganayageammal who is sickly person and unable to bear children and the first defendant has been living along with the
said Devarajulu Naidu and his first wife in the suit property in different portion collecting rents and the said Balrama Naidu through the first
defendant has begotten children including the first defendant being his son and also on analysis of Ex.A.1 settlement deed dated 10.06.1958, while
coming to the conclusion that the suit is not barred by limitation, not only because the suit was filed within three years from the date of death of
Balram Naidu but also due to the operation of Section 109 of the HR&C Act and also holding that the manager of the plaintiff or Executive Officer
is competent to file the suit, the court below has however, decided the case against the plaintiff in respect of issue no.2 holding that the property
has not vested with the plaintiff. The Trial Court has also held that the settlement deed Ex.A.1 has been acted upon since after the death of
Devarajulu Naidu his daughter and daughter in law took possession along with his son in law and arrived at a conclusion that the plaintiff is not
entitled for possession. It is as against the judgement and decree of the Trial Court the plaintiff has filed the present appeal.
7. According to the learned Counsel for the appellant, a reading of Ex.A.1 settlement deed shows that when the daughter of the settlor namely
Loganayageammal and her husband Balram Naidu died, admittedly Balram Naidu had no children through Loganayageammal and by giving effect
to intention of the settlor that in the absence of any children born to them, the property should vest with the plaintiff. The intention of the settlor was
not to give the property to the children of Balram Naidu born through some other person other than Loganayageammal the daughter of the settlor.
According to him when it is admitted that during the life time of the first wife Loganayageammal, Balram Naidu married the first defendant as his
second wife, the marriage becomes void. According to him, at the time when the settlor Devarajulu Naidu has executed Ex.A.1 settlement deed,
namely, on 10.06.1958 Balram Naidu has not married the first defendant and it was only after the death of Devarajulu Naidu, the settlor who died
on 07.10.1960, his son in law Balram Naidu has married the first defendant and therefore, the second defendant born through the first defendant
should be treated as illegitimate and the second defendant cannot be treated as a child of Loganayageammal who died in 1982.
8. The learned Counsel would submit that the learned Trial Judge having come to the conclusion that there was no question of adverse possession
and limitation has held that as per Ex.B.1 to B.33 after death of Devarajulu Naidu, Balram Naidu and Indirani were paying the public charges in
respect of the property and therefore the property has not vested with the plaintiff which according to the learned Counsel for the appellant is a
wrong appreciation of the facts. He would also contend that the Trial Court having decided that the suit is not affected by non-jointer, has wrongly
come to the conclusion that the property has not vested with the plaintiff.
9. On the other hand Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the respondents would submit that a reading of Ex.A.1
settlement deed shows that settlement was not executed in favour of the plaintiff temple who is not a party. The main idea of the settlor was to give
benefit to his daughter and the widowed daughter in law. The very recitals in the document Ex.A.1 shows that the property has been granted in
favour of the daughter and widowed daughter-in -law of the settlor. The condition that after life time the property should go to the temple is a
restrictive covenant, which is invalid. According to the learned Senior Counsel when once absolute grant has been given in favour of specified
individuals there was no question of putting any further restriction. The learned Senior Counsel would also submit that there is no settlement of
specific portion of the property and Balram Naidu was also given a right and therefore, the children born to him cannot be denied right and they
are also legitimate. According to the learned Senior Counsel, a reading of the settlement deed Ex.A.1 shows it is not for the purpose of granting the
property to the temple but doing charity and conferring certain rights and therefore, the beneficiaries had the power of alienation excepting an
obligation to give Rs.100/- to the temple and no portion of the property has been given to the temple.
10. According to the learned Senior Counsel even regarding life estate the same was given in favour of the daughter and daughter-in-law in respect
of two portions and there is nothing about the other portions of the suit property especially that the other portions have not been given to the
temple at all. He would also state that as per the specific clause of Ex.A.1 it never states that the right must be given to the children born to Balram
Naidu and Loganayageammal alone. He would refer to Section 16 of the Hindu Marriage Act to show that even illegitimate children born through
a void marriage are entitled for the right in the property of the father. He would submit that inasmuch as the plaintiff temple is aware of the grant
given in favour of the daughter and daughter-in-law and in the presence of such grant the condition given in favour of the plaintiff is only restrictive
in nature and void.
11. After hearing the learned Counsel for the appellant as well as the learned Senior Counsel for respondents and going through the judgement of
the Trial Court apart from the pleadings and documents, the points that arises for consideration in this appeal is as to whether Ex.A.1 dated
10.06.1958 confers any right on the plaintiff at all.
12. As I have narrated earlier, the Trial Court has come to a conclusion correctly that the suit is not barred for non-jointer of necessary parties or
hit by limitation nor not maintainable due to the want of the loco standi to the manager of the plaintiff to file the suit. But the Trial Court has arrived
at a conclusion that Ex.A.1 settlement deed has been acted upon inasmuch as after the death of the settlor Devarajulu Naidu, her daughter
Loganayageammal and the daughter in law Kausalya took possession of the portion of the properties mentioned and let it out by receiving rental
income and Balram Naidu was also in possession as appreciated by the learned Trial Judge based on the exhibits marked on the side of the
defendants, the said Balram Naidu along with the first defendant have been paying the various public charges in respect of the suit properties and
therefore, the settlement has been acted upon.
But the dispute which has culminated by the dismissal of the suit ultimately by the Trial Court revolves around the construction of Ex.A.1 settlement
deed. The Trial Court only in respect of issue no.2 namely:
Whether the suit property was not vested with the plaintiff,
has come to the conclusion that the suit property has not vested with the plaintiff at any point of time after the death of Devarajulu Naidu. On the
fact of it, it is clear that the issue involved in this case is not as to whether the suit property was vested with the plaintiff but as to whether the suit
property was granted absolutely in favour of the daughter and daughter in law of the settlor, of course with a right on the plaintiff to have the
charities performed from the funds of the suit property to a limited extent. The Trial Court instead of framing issues and considering the question as
to whether the plaintiff temple was having any right at all under Ex.A.1, has proceeded on the assumption that Devarajulu Naidu along with the first
defendant have been paying the various public charges in respect of the suit property and therefore, it should be treated that the property has not
vested with the plaintiff however has specifically come to the conclusion that there was no question of adverse possession in favour of defendants 1
and 2.
13. It is in this regard relevant to consider the terms of Ex.A.1 settlement deed which has been in fact lost sight of by the learned Trial Judge.
14. As rightly pointed out by the learned Senior Counsel for the respondents, a reading of Ex.A.1 settlement deed shows that there has been a
grant by the settlor Devarajulu Naidu in favour of his daughter Loganayageammal and daughter-in-law Kausalya specifically granting a portion on
the ground floor and a portion on the first floor, leaving the other portions of the suit property as such. It is clear from the settlement deed that no
portion of the properties have been given to the plaintiff temple and therefore, in that view of the matter the plaintiff temple was not vested with any
right to claim the suit property. In this regard it is relevant to point out that the Trial Court has clearly found with proper reasoning that the intention
of the settlor, namely, Devarajulu Naidu was to confer benefit to his daughter Loganayageammal and daughter-in-law Kausalya and his son-in-law
Balram Naidu to enjoy the property as beneficiaries and while giving effect to the intention of the settlor the Trial Court has taken into consideration
that Balram Naidu has in fact enjoyed the suit property as it is seen in the various documents Ex.B.1 to B.33 by paying property taxes, electricity
charges, water and sewerage taxes, etc., of course, along with the first defendant and in that view of the matter has arrived at a conclusion that
there was no vesting of right on the plaintiff. Even assuming that there is some irregularity in the judgement of the Trial Court in appreciating Ex.A.1
documents in its proper sense, there is no doubt that the reasoning arrived at by the learned Trial Judge in respect of Ex.A.1 and the consequent
conclusion are in accordance with law. In this regard, it is relevant to analyse some of the portions of Ex.A.1 settlement deed before going to the
other aspects. Admittedly, the suit property which is a house and premises consisting of one ground and 577 sq.ft. at General Muthaiya Muthalai
Street, George Town, Chennai, and the said settlor had a son by name M.Gopalakrishnan who predeceased him and a daughter Logayageammal
who was married to M.Devarajulu Naidu. The wife of his predeceased son is Kausalya Ammal. Under the settlement deed the settlor
M.Devarajulu Naidu has in fact made his daughter and widowed daughter in law as beneficiaries. The portion of the settlement deed states as
follows:
Whereas also his daughter Loganayageammal is sickly and whereas it is the desire of the settlor that she should be happy even after his life time by
looking to her comforts and medical expenses and whereas also the settlor wishes that his widowed daughter in law Kausalya Ammal who is
issueless should also be...alive want even after his life time and whereas therefore, the settlor wishes to grant to the beneficiaries as only dependants
of me and of this deed the said house no.23 General Muthaiya Muthalai Street, George Town, Madras so that after him there may be no disputes
with respect to the said house or its inheritance.
15. Therefore, it is clear as per the said recital, the intention of the settlor was to grant the entire suit property in favour of his daughter and
daughter-in-law. He would further state that the first beneficiary namely, the daughter Loganayageammal should live in a portion which is
specifically stated as
the front yard that portion of the ground floor consisting of one Kudam and two rooms
It is also further stated that she can live in the said place after the death of the settlor or she may live in any other place by letting out the said
portion and receiving the rent. It further states as follows:
She may live in the portion allotted to her or if she does not like to live in the said portion after her father the settlor, she may live anywhere outside
by letting out her portion in the house and receiving the rent there from herself provided also that after her lifetime her husband C.V.Balram Naidu
who is also now with the settlor attending on him shall have the same rights as his wife in the house in the matter of living and maintenance and
allowances after the wife till he lives.
The next clause which relates to C.V.Balram Naidu is important, which says:
B) After the said C.V.Balram Naidu so enjoying the property and after his death if there are no children, the same share shall go to the benefit of
the Bairahi Madam Thiruvengadam Udayan Sree Vengadeswara Devasthanam no.1 and 2 General Muthaiya Muthalai Street, G.T., Madras as the
trustee of the said temple shall in such an event take possession of the same.
16. Therefore, the said clause does not specifically stipulate the children born to Balram Naidu through his daughter Loganayageammal. This is
relevant because when Devarajulu Naidu executed the said Ex.A.1 settlement deed which was on 10.06.1958 and he died on 07.10.1960 as it is
seen under Ex.A.3 and on that day of execution of settlement deed there was no children born to Devarajulu Naidu through Loganayageammal
which was a known factor to the settlor himself and the settlor has specifically admitted that Loganayageammal was a sickly person. Therefore, it
cannot be said that the settlor intended only the children of C.V.Balram Naidu born through Loganayageammal.
17. Similarly, the settlor has given another portion to his daughter in law Kausalya Ammal namely
the koodam and two rooms in the Northern side of the second yard of the upstairs
stating that she can live there or let out the same as it is stated earlier in respect of the other beneficiary and after he life time to the plaintiff.
18. The next paragraph of the settlement deed is important which relates to the remaining portions other than those which were given for living of
his daughter and daughter-in-law, stating that in respect of the other portion the same shall be let out to tenants and income to be divided after
paying all the public charges and paying Rs.100/- as maintenance to his daughter Loganayageammal and after her to her husband C.V.Balrama
Naidu for his maintenance and after him if he dies issue less the same shall go to the benefit of the temple in the following words:
D) The rest of the house shall be let out to tenants and income so got shall be divided, after paying the taxes and rates payable to the Corporation
and other local bodies and for the cost of the repairs, etc., that may from time to time be required to maintain the said house, Rs.100/- shall be
used for paying the first beneficiary Logayanageammal for her maintenance and after her to her husband C.V.Balram Naidu for his maintenance as
noted in para above and after him if he dies issueless the same shall go to the benefit of Bairahi Madam Thiruvengadam Udayan Sree
Vengadeswara Devasthanam temple.
19. Likewise, the daughter in law is also given Rs.100/- on the same condition. That apart, it is stated by the settlor that the remaining rent received
from the other portions of the house, other than the portions allotted to the beneficiaries shall be used for conducting yearly uthsavam of the temple.
Therefore, a overall reading of the said Ex.A.1 shows that the basic intention of the settlor was to grant absolutely the portions as mentioned above
to and in favour of his daughter and daughter-in-law and apart from those portions there are other portions from which the rental income were
directed to be received and shared in proportion between them and that apart using a portion for running uthsavam in the temple. Nowhere in the
document Ex.A.1 any right has been vested on the plaintiff temple in respect of the remaining portions of the property which are admittedly
available as it is seen in the recitals of the document Ex.A.1 itself. In such circumstances as rightly pointed out by the learned Senior Counsel for
the respondents, the plaintiff temple has no right of possession since the settlor after granting to his daughter and daughter-in-law an absolute right
in respect of the specified portions cannot restrict their rights. Further, a reading of the various portions of Ex.A.1 shows that the rights are given to
the issues of Balram Naidu also. It is on the basis of this factual position, the property has vested with Balram Naidu along with the first defendant
after the death of Loganayageammal and Kausalya Ammal and the said Balram Naidu had been enjoying along with the first defendant and it is not
in dispute that the second defendant was born to Balram Naidu as his issue and in such circumstances, there is no question of possession to the
plaintiff since there is no specific bequeath in favour of the plaintiff temple except in the right for the purpose of receiving certain amount for the
conduct of some of the festival of the plaintiff temple.
20. In view of the same, I am of the considered view that even though this aspect of Ex.A.1 has not been appreciated in a proper sense and in that
view of the matter there is irregularity or defect in the judgement of the court below but the conclusion arrived at on the basis of evidence and
document Ex.A.1 that the suit property has not vested with the plaintiff temple is with proper reasoning and cannot be treated as either perverse or
wrong and there is no necessity for a fresh decision on the line discussed above since the contents of the document Ex.A.1 are not in dispute. It is
also further relevant to note that as per Section 16(3) of the Hindu Marriage Act even children born through void and voidable marriage are having
legitimate right to inherit the properties of their parents.
21. In view of the above said facts, the second defendant being the son of Balram Naidu cannot be said to be illegitimate. Further even assuming
that the portions which were granted to Devarajulu Naidu, namely, the Koodam given to both daughter as well as the daughter-in-law in respect of
which alone the right have been given to the plaintiff temple after their death the plaintiff cannot be placed in possession, for, in respect of the
portions in occupation of the other defendants who are all tenants, there is absolutely nothing to show that they have been given to the plaintiff
temple.
22. In view of the above said facts and circumstances of the case, I am of the considered view that the judgement and decree of the Trial Court
cannot be said to be wrong or perverse and the reasoning given is in accordance with the factual and legal position and in view of the same, the
judgement and decree of the Court below dated 23.04.2003 passed in O.S.No.15712 of 1996 is confirmed and the appeal stands dismissed.
However, considering the circumstances of the case, there will be no order as to cost.
