Pachaiyappan and ors. Vs. Sri Kamatchi Amman Koil Devasthanam Represented by Its President Gopal Pathar and ors. - Court Judgment

Excerpt:
- - according to the will dated 1.1.1913, the real intention of the testratrix was that if the descendants of vyapuri pathar failed to conduct the poosam festivals, the agana group would conduct and if they also failed, the temple committee would conduct the poosam festivals by collecting the rent from the suit property. since the plaintiff failed to establish her right to collect the rental income and to perform the festival as per the will dated 1.1.1913, the suit is liable to be dismissed.orderthanikkachalam, j.1. the legal representatives of the plaintiff are appellants herein. the plaintiff filed o.s. no. 254 of 1972 for declaration that the plaintiff is entitled to collect the rent and to perform thai poosam festivals as per the terms of the will dated 1.1.1913 executed by one sundarambal, wife of palani pathar. the case of the plaintiff is as under:the suit property originally belonged to one palani pathar, who died leaving behind him his wife sundarambal as his sole legal representative. they did not have any issues. sundarambal in turn executed a will dated 1.1.1913 in respect of the suit property stating that 1/4th of the rent accrued from the suit property shall be utilised for the payment of taxes and towards repairing charges. the remaining portion of 3/4th of the rent should be spent for subramanya deity of kamatchiamman temple during poosam festivals in the month of thai. it was also stated therein that the testator's brother-in-law pavadai pathar and vaiyapuri pathar and after them their descendants shall collect the income from the suit property and utilise the sae for the purposes as stated above. it was further submitted that after the death of pavadai pathar and his son vyapuri pathar, their descendants should celebrate the thai poosam festivals as stated above. the plaintiff is the wife of vyapuri pathar. according to her, after the death of her husband, she was celebrating the poosam festivals as stipulated in the abovesaid will. the second defendant is the lessee under the plaintiff and had been paying the rent to her. for the past 12 months the second defendant did not pay the rent representing that the first defendant is claiming the rent and the same has been paid to him. the first defendant is stated to be kamatchi amman koil devasthanam, represented by its president, gopal pathar. according to the plaintiff, the first and second defendants have colluded together in order to deprive the plaintiff of her rights of management as per the will dated 1.1.1913. the plaintiff issued a notice dated 9.2.1972 to the first and second defendants reiterating her rights. the first and second defendants sent their respective replies through their advocates, the third defendant is the lessee under the second defendant. hence, the suit.2. the case of the first defendant is as under:it is not correct to state that the plaintiff was performing the thai poosam festivals as alleged by her. the plaintiff is not a descendant of the said vyapuri pathar. therefore, she is not entitled to collect the rent from the suit property and perform the poosam festivals as per the will dated 1.1.1913. the plaintiff never conducted the poosam festivals as alleged by her. after the death of vyapuri pathar the second defendant was conducting the poosam festivals on behalf of agana group. the second defendant became one of the member in the temple committee and performed the festivals. since the public was dissatisfied with his performance of festivals, the temple committe took over the performance of the festival for the past ten years. the second defendant occupied the house as a lessee of the first defendant, and executed a registered lease deed to that effect. the second defendant was paying the rent to the first defendant. since the first defendant took steps to evict the second defendant, he colluded with the plaintiff in filing the present suit. according to the will dated 1.1.1913, the real intention of the testratrix was that if the descendants of vyapuri pathar failed to conduct the poosam festivals, the agana group would conduct and if they also failed, the temple committee would conduct the poosam festivals by collecting the rent from the suit property. it was therefore, pleaded that the suit as framed and filed by the plaintiff is not maintainable.3. the case of the second defendant is that he is a lessee under the first defendant. he executed a lease deed in favour of the first defendant and he was also paying the rent to the first defendant. as per the terms of the will, the plaintiff is not entitled to collect the rent from the second defendant. it is not correct to state that the plaintiff was repairing the suit property. it was, therefore, pleaded that the suit filed by the plaintiff is not maintainable.4. the case of the third defendant is that there is no cause of action to file the suit against this defendant. the second defendant represented to this defendant that he was the owner of the suit property. when this defendant came to know that the kamatchi amman koil devasthanam was the owner of the property, he started paying the rent to the first defendant. this defendant also denies the allegation that the plaintiff got the right to collect the rent. it is under the instigation of the second defendant, the plaintiff filed the present suit. this defendant is not a necessary party. therefore the suit is liable to be dismissed.5. on these pleadings, the trial court framed six issued. the plaintiff filed 4 documents, no document was filed on the side of the defendants. angammal examined herself as p.w. 1. one doraikannu and krishna pathar were examined as p.ws.2 and 3 respectively. gopal pathar examined himself as d.w.i. considering the facts arising in this case, the trial court decreed the suit as prayed for with costs. however, on appeal, the first appellate court considering the facts arising in this case, held that the plaintiff is not entitled to maintain the suit. accordingly, the first appellate court set aside the judgment and decree of the trial court allowed the appeal and dismissed the suit. it is against this judgment and decree, the legal representatives of the plaintiff are in appeal before this court.6. the learned counsel appearing for the appellants herein submitted as under:as per will dated 1.1.1913 executed by sundarambal, pavadai pathar and his son vyapuri pathar are directed to perform the poosam festivals from the rental collection of the suit property. after the life time of pavadai pathar and vyapuri pathar, their descandants are directed to perform the poosam festivals from and out of the rental income. the plaintiff is the wife of vyapuri pathar. therefore, she is entitled to perform the thai poosam festivals out of the rental collection from the suit property. in fact, for the past many years, she was collecting the rent from the suit properties and she was also performing the thai poosam festivals as directed under the above said will. latter on, the intervention of the first defendant she was unable to carry out the instruction as given in the abovesaid will. since vyapuri pathar and the plaintiff have no issues, the plaintiff, being the wife of vyapuri pathar should be considered as the descendant and permitted to carry out the obligations as given in the above said will. the first appellate court was not correct in stating that the plaintiff is not the descendant. further, the first appellate court was also not correct in stating that the first defendant is entitled to collect the rental income from the suit property and perform the poosam festivals. even according to the will dated 1.1.1913, if the plaintiff cannot be considered as a descendant of vyapuri pathar, the next line of descendant mentioned in the above said will would be the community people of agana group and at no stretch of imagination the first defendant could claim any right to perform the festival by collecting the rental income from the suit properties. it was, therefore pleaded that the judgment and decree of the first appellate court are liable to be set aside and that of the trial court restored.7. on the other hand, the learned counsel appearing from the first defendant/first respondent herein submitted as under:the plaintiff cannot call herself as descendant of her husband vyapuri pathar. as per the will dated 1.1.1913, it is only the descendants of vyapuri pathar alone can perform the thai poosam festivals from and out of the rental income from the suit property. it is not correct to state that the plaintiff was conducting the thai poosam festivals as alleged by her. the first defendant is collecting the rent from the second defendant since he is the tenant under the first defendant. in the absenee of any document to the said vyapuri pathar, the next line of descendant would be the first defendant. therefore, the first defendant is entitled to collect the rent from the suit property and perform the thai poosam festival. the term 'descendant' is explained in article 745 of french civil code. according to the said article, a wife is not considered as a descendant of her deceased husband. in order to support his contention, the learned counsel also relied upon a decision of this court rendered in sundaram iyer v. sarojini : (1984)1mlj255 . for all these reasons, the learned counsel submitted that the first appellate court was correct in holding that the plaintiff is not entitled to perform the thai poosam festivals. ultimately, it was pleaded that the first appellate court was correct in holding that the first defendant is entitled to collect the rental income from the suit property and perform thai poosam festival. it was, therefore, submitted that inasmuch as the conclusion arrived at by the first appellate court was in accordance with the abovesaid provisions of the french civil code and the decision of this court stated supra no interference is called for.8. i have heard the rival submissions.9. the only point that arises for my consideration in this second appeal is whether the plaintiff can call herself as the decendant of her husband vyapuri pathar. in order to decide this point, we have to depend upon the will executed by one sundarambal dated 1.1.1913. the plaintiff is the wife of one pavadai pathar. the suit property originally belonged to the said pavadai pathar. after his death, his wife sundarambal inherited the same and the said sundarambal excucted a will dated 1.1.1913 in the said will, she dedicated the suit property to subramanya deity at kamatchi amman temple. she also directed that 1/4th of the income from the suit property should be utilised for the payment of taxes and towards repairs. the remaining 3/4th of the income should be spent for subramanya deity at kamatchi amman temple during poosam festivals in the month of thai. in the said will, it was stipulated that the testator's brother-in-law pavadai pathar and his son vyapuri pathar should collect the income from the suit property without having any right to sell or donate' or gift and shall celebrate the poosam festival in the month of thai. it was further stipulated that after the death of pavadai pathar and his son vyapuri pathar, their descendant, should perform the poosam festival out of the income from the suit house. the plaintiff is the wife of vyapuri pathar. pavadai pathar and vyapuri pathar died subsequently. vyapuri pathar and his wife, the plaintiff in the suit, have no issues. now the plaintiff claims that as the descendant she is entitled to carry out the instructions as given in the aforesaid will. the point is whether the plaintiff can call herself as the descendant of her husband vyapuri pathar. the plaintiff was residing in the french territory at pondicherry. according to the french civil code, article 745 the term 'descendant' has been explained in the following manner:745. children or their descendants inherit the property of their father and mother, grandparents or other ancestors, without distinction of sex or right of primogeniture, even if they are the issues of different marriages. they inherit equally or per capita when they are all related in the first degree to the deceased and entitled in their own right; they succeed per stripes when all or some of them inherit by representation.therefore, according to the abovesaid definition of the term 'descendant' as contained in article 745 of the french civil code a wife cannot claim herself as the descendant of her deceased husband. further, this court while considering the meaning of the word 'descendant' in the decision reported in sundaram iyer v. sarojini : (1984)1mlj255 , wherein it has been held as under:from the aboyesaid decisions it is clear that 'hairs' (varsu) would mean both males and females who are entitled to the property of another under the law of inheritance. another term used in the trust deed which requires to be considered is the word 'santhathi'. in the tamil lexicon, published under the authority of the university of madras, vol.3 part i 1928 edition at page 1262 the word 'santhathi' is given the following meaning : 'santhathi' descendant, heir son, lineage pendigrsa'. it is clear from the decision of the orissa high court in indramani devi v. roghunath bhanja birbar jagadeb : air1961ori9 , that according to mistakshara of vignaneswara, the word 'santhathi' would mean only male issues. further even though the expression 'santhathi' according to the dictionary meaning cannotes all classes of issuess or heirs, whether male or female, yet in a particular context they may be restricted to male heirs only.in view of the abovesaid decision of this court and on a plain reading of article 745 of the french civil code, it remains to be seen that the plaintiff in the present suit cannot call herself as the descendant of her husband. if that is so, she would not have any right as contemplated under the will dated 1.1.1913 either to collect the rental income from the suit property or to perform the tahi poosam festival as claimed by her. in such circumstances, when the plaintiff has got no right to collect the rental income and to perform the poosam festival as per the will dated 1.1.1913, we need not delve into this matter any further. in fact, the suit was filed by the plaintiff for a declaration to declare her right to perform the festival and for collecting the rental income. since the plaintiff failed to establish her right to collect the rental income and to perform the festival as per the will dated 1.1.1913, the suit is liable to be dismissed. the first appellate court further went into the matter and observed that the first defendant is entitled to collect the rental income from the suit property and perform the festival. the observation made by the first appellate court is not only incorrect but also out of context. the question, viz. after vyapuri pathar who will perform the poosam festival and collect the rent is altogether a different matter which has got to be agitated in a separate forum. in the present proceedings, this court cannot give any direction in that regard. in that view of the matter, the conclusions arrived at by the first appellate court are confirmed and the second appeal is dismissed.10. in the result, the judgment and decree of the first appellate court are confirmed and this second appeal is dismissed. however, there will be no order as to costs.

Judgment:
ORDER

Thanikkachalam, J.

1. The legal representatives of the plaintiff are appellants herein. The plaintiff filed O.S. No. 254 of 1972 for declaration that the plaintiff is entitled to collect the rent and to perform Thai Poosam Festivals as per the terms of the will dated 1.1.1913 executed by one Sundarambal, wife of Palani Pathar. The case of the plaintiff is as under:

The suit property originally belonged to one Palani Pathar, who died leaving behind him his wife Sundarambal as his sole Legal Representative. They did not have any issues. Sundarambal in turn executed a will dated 1.1.1913 in respect of the suit property stating that 1/4th of the rent accrued from the suit property shall be utilised for the payment of taxes and towards repairing charges. The remaining portion of 3/4th of the rent should be spent for Subramanya deity of Kamatchiamman temple during Poosam Festivals in the month of Thai. It was also stated therein that the Testator's brother-in-law Pavadai Pathar and Vaiyapuri Pathar and after them their descendants shall collect the income from the suit property and utilise the sae for the purposes as stated above. It was further submitted that after the death of Pavadai Pathar and his son Vyapuri Pathar, their descendants should celebrate the Thai Poosam festivals as stated above. The plaintiff is the wife of Vyapuri Pathar. According to her, after the death of her husband, she was celebrating the Poosam festivals as stipulated in the abovesaid Will. The second defendant is the lessee under the plaintiff and had been paying the rent to her. For the past 12 months the second defendant did not pay the rent representing that the first defendant is claiming the rent and the same has been paid to him. The first defendant is stated to be Kamatchi Amman Koil Devasthanam, represented by its President, Gopal Pathar. According to the plaintiff, the first and second defendants have colluded together in order to deprive the plaintiff of her rights of management as per the will dated 1.1.1913. The plaintiff issued a notice dated 9.2.1972 to the first and second defendants reiterating her rights. The first and second defendants sent their respective replies through their Advocates, The third defendant is the lessee under the second defendant. Hence, the suit.

2. The case of the first defendant is as under:

It is not correct to state that the plaintiff was performing the Thai Poosam festivals as alleged by her. The plaintiff is not a descendant of the said Vyapuri Pathar. Therefore, she is not entitled to collect the rent from the suit property and perform the Poosam festivals as per the will dated 1.1.1913. The plaintiff never conducted the Poosam festivals as alleged by her. After the death of Vyapuri Pathar the second defendant was conducting the Poosam festivals on behalf of Agana Group. The second defendant became one of the member in the temple Committee and performed the festivals. Since the public was dissatisfied with his performance of festivals, the temple committe took over the performance of the festival for the past ten years. The second defendant occupied the house as a lessee of the first defendant, and executed a registered lease deed to that effect. The second defendant was paying the rent to the first defendant. Since the first defendant took steps to evict the second defendant, he colluded with the plaintiff in filing the present suit. According to the will dated 1.1.1913, the real intention of the testratrix was that if the descendants of Vyapuri Pathar failed to conduct the Poosam festivals, the Agana Group would conduct and if they also failed, the temple committee would conduct the Poosam festivals by collecting the rent from the suit property. It was therefore, pleaded that the suit as framed and filed by the plaintiff is not maintainable.

3. The case of the second defendant is that he is a lessee under the first defendant. He executed a lease deed in favour of the first defendant and he was also paying the rent to the first defendant. As per the terms of the will, the plaintiff is not entitled to collect the rent from the second defendant. It is not correct to state that the plaintiff was repairing the suit property. It was, therefore, pleaded that the suit filed by the plaintiff is not maintainable.

4. The case of the third defendant is that there is no cause of action to file the suit against this defendant. The second defendant represented to this defendant that he was the owner of the suit property. When this defendant came to know that the Kamatchi Amman Koil Devasthanam was the owner of the property, he started paying the rent to the first defendant. This defendant also denies the allegation that the plaintiff got the right to collect the rent. It is under the instigation of the second defendant, the plaintiff filed the present suit. This defendant is not a necessary party. Therefore the suit is liable to be dismissed.

5. On these pleadings, the trial court framed six issued. The plaintiff filed 4 documents, No document was filed on the side of the defendants. Angammal examined herself as P.W. 1. One Doraikannu and Krishna Pathar were examined as P.Ws.2 and 3 respectively. Gopal Pathar examined himself as D.W.I. Considering the facts arising in this case, the trial court decreed the suit as prayed for with costs. However, on appeal, the first appellate court considering the facts arising in this case, held that the plaintiff is not entitled to maintain the suit. Accordingly, the first appellate court set aside the judgment and decree of the trial court allowed the appeal and dismissed the suit. It is against this judgment and decree, the legal representatives of the plaintiff are in appeal before this Court.

6. The learned Counsel appearing for the appellants herein submitted as under:

As per Will dated 1.1.1913 executed by Sundarambal, Pavadai Pathar and his son Vyapuri Pathar are directed to perform the Poosam festivals from the rental collection of the suit property. After the life time of Pavadai Pathar and Vyapuri Pathar, their descandants are directed to perform the Poosam festivals from and out of the rental income. The plaintiff is the wife of Vyapuri Pathar. Therefore, she is entitled to perform the Thai Poosam festivals out of the rental collection from the suit property. In fact, for the past many years, she was collecting the rent from the suit properties and she was also performing the Thai Poosam festivals as directed under the above said Will. Latter on, the intervention of the first defendant she was unable to carry out the instruction as given in the abovesaid Will. Since Vyapuri Pathar and the plaintiff have no issues, the plaintiff, being the wife of Vyapuri Pathar should be considered as the descendant and permitted to carry out the obligations as given in the above said Will. The first appellate court was not correct in stating that the plaintiff is not the descendant. Further, the first appellate court was also not correct in stating that the first defendant is entitled to collect the rental income from the suit property and perform the Poosam festivals. Even according to the Will dated 1.1.1913, if the plaintiff cannot be considered as a descendant of Vyapuri Pathar, the next line of descendant mentioned in the above said will would be the community people of Agana Group and at no stretch of imagination the first defendant could claim any right to perform the festival by collecting the rental income from the suit properties. It was, therefore pleaded that the judgment and decree of the first appellate court are liable to be set aside and that of the trial court restored.

7. On the other hand, the learned Counsel appearing from the first defendant/first respondent herein submitted as under:

The plaintiff cannot call herself as descendant of her husband Vyapuri Pathar. As per the will dated 1.1.1913, it is only the descendants of Vyapuri Pathar alone can perform the Thai Poosam festivals from and out of the rental income from the suit property. It is not correct to state that the plaintiff was conducting the Thai Poosam festivals as alleged by her. The first defendant is collecting the rent from the second defendant since he is the tenant under the first defendant. In the absenee of any document to the said Vyapuri Pathar, the next line of descendant would be the first defendant. Therefore, the first defendant is entitled to collect the rent from the suit property and perform the Thai Poosam festival. The term 'Descendant' is explained in Article 745 of French Civil Code. According to the said Article, a wife is not considered as a descendant of her deceased husband. In order to support his contention, the learned Counsel also relied upon a decision of this Court rendered in Sundaram Iyer v. Sarojini : (1984)1MLJ255 . For all these reasons, the learned Counsel submitted that the first appellate court was correct in holding that the plaintiff is not entitled to perform the Thai Poosam festivals. Ultimately, it was pleaded that the first appellate court was correct in holding that the first defendant is entitled to collect the rental income from the suit property and perform Thai Poosam festival. It was, therefore, submitted that inasmuch as the conclusion arrived at by the first appellate court was in accordance with the abovesaid provisions of the French Civil Code and the decision of this Court stated supra no interference is called for.

8. I have heard the rival submissions.

9. The only point that arises for my consideration in this second appeal is whether the plaintiff can call herself as the decendant of her husband Vyapuri Pathar. In order to decide this point, we have to depend upon the Will executed by one Sundarambal dated 1.1.1913. The plaintiff is the wife of one Pavadai Pathar. The suit property originally belonged to the said Pavadai Pathar. After his death, his wife Sundarambal inherited the same and the said Sundarambal excucted a will dated 1.1.1913 in the said will, she dedicated the suit property to Subramanya Deity at Kamatchi Amman temple. She also directed that 1/4th of the income from the suit property should be utilised for the payment of taxes and towards repairs. The remaining 3/4th of the income should be spent for Subramanya deity at Kamatchi Amman temple during Poosam festivals in the month of Thai. In the said will, it was stipulated that the testator's brother-in-law Pavadai Pathar and his son Vyapuri Pathar should collect the income from the suit property without having any right to sell or donate' or gift and shall celebrate the Poosam festival in the month of Thai. It was further stipulated that after the death of Pavadai Pathar and his son Vyapuri Pathar, their descendant, should perform the Poosam festival out of the income from the suit house. The plaintiff is the wife of Vyapuri Pathar. Pavadai Pathar and Vyapuri Pathar died subsequently. Vyapuri Pathar and his wife, the plaintiff in the suit, have no issues. Now the plaintiff claims that as the descendant she is entitled to carry out the instructions as given in the aforesaid will. The point is whether the plaintiff can call herself as the descendant of her husband Vyapuri Pathar. The plaintiff was residing in the French territory at Pondicherry. According to the French Civil Code, Article 745 the term 'Descendant' has been explained in the following manner:

745. Children or their descendants inherit the property of their father and mother, grandparents or other ancestors, without distinction of sex or right of primogeniture, even if they are the issues of different marriages. They inherit equally or per capita when they are all related in the first degree to the deceased and entitled in their own right; they succeed per stripes when all or some of them inherit by representation.

Therefore, according to the abovesaid definition of the term 'descendant' as contained in Article 745 of the French Civil Code a wife cannot claim herself as the descendant of her deceased husband. Further, this Court while considering the meaning of the word 'Descendant' in the decision reported in Sundaram Iyer v. Sarojini : (1984)1MLJ255 , wherein it has been held as under:

From the aboyesaid decisions it is clear that 'Hairs' (Varsu) would mean both males and females who are entitled to the property of another under the law of inheritance. Another term used in the trust deed which requires to be considered is the word 'santhathi'. In the Tamil Lexicon, published under the authority of the University of Madras, Vol.3 Part I 1928 Edition at page 1262 the word 'santhathi' is given the following meaning : 'Santhathi' descendant, heir son, lineage pendigrsa'. It is clear from the decision of the Orissa High Court in Indramani Devi v. Roghunath Bhanja Birbar Jagadeb : AIR1961Ori9 , that according to Mistakshara of Vignaneswara, the word 'Santhathi' would mean only male issues. Further even though the expression 'Santhathi' according to the dictionary meaning cannotes all classes of issuess or heirs, whether male or female, yet in a particular context they may be restricted to male heirs only.

In view of the abovesaid decision of this Court and on a plain reading of Article 745 of the French Civil Code, it remains to be seen that the plaintiff in the present suit cannot call herself as the descendant of her husband. If that is so, she would not have any right as contemplated under the Will dated 1.1.1913 either to collect the rental income from the suit property or to perform the Tahi Poosam festival as claimed by her. In such circumstances, when the plaintiff has got no right to collect the rental income and to perform the Poosam festival as per the Will dated 1.1.1913, we need not delve into this matter any further. In fact, the suit was filed by the plaintiff for a declaration to declare her right to perform the festival and for collecting the rental income. Since the plaintiff failed to establish her right to collect the rental income and to perform the festival as per the Will dated 1.1.1913, the suit is liable to be dismissed. The first appellate court further went into the matter and observed that the first defendant is entitled to collect the rental income from the suit property and perform the festival. The observation made by the first appellate court is not only incorrect but also out of context. The question, viz. after Vyapuri Pathar who will perform the Poosam festival and collect the rent is altogether a different matter which has got to be agitated in a separate forum. In the present proceedings, this Court cannot give any direction in that regard. In that view of the matter, the conclusions arrived at by the first appellate court are confirmed and the second appeal is dismissed.

10. In the result, the judgment and decree of the first appellate court are confirmed and this second appeal is dismissed. However, there will be no order as to costs.