Rajammal and anr. Vs. Sellani Ammal - Court Judgment

SooperKanoon Citationsooperkanoon.com/828648
SubjectCivil;Property
CourtChennai High Court
Decided OnApr-21-1997
Reported in(1998)1MLJ251
AppellantRajammal and anr.
RespondentSellani Ammal
Cases ReferredSailendra Narayan v. State of Orissa A.I.R.
Excerpt:
- d. raju, j.1. the above appeal has been filed under clause 15 of the letters patent against the judgment and decree of a learned single judge of this court dated 16.12.1992 in a.s. no. 699 of 1982, whereunder the learned single judge was pleased to confirm the judgment and decree of the learned subordinate judge, mayuram, dated 10.8.1981 in o.s. no. 210 of 1979, which was filed by the respondent herein in forma pauperis for declaring that the respondent/plaintiff was entitled to the suit properties as per the terms of the trust deed dated 29.1.1894 and for a consequential direction to the defendants to put the plaintiff in possession of the plaint 'b' schedule properties with future profits. the suit came to be decreed, except in respect of future profits, which were left open to be decided in a separate proceedings.2. the suit 'b' schedule properties measuring an extent of 6.61 acres originally belonged to one krishna rao, who, executed a deed dated 29.1.1894, marked as ex. a-1, in which the properties have been gives to the care and possession of one vrushabadhwaja dikshidhar, in order to perform certain kattalais in arulmigu sivakamasundari samedha shri nataraja temple of chidambaram. it is unnecessary to advert to the details of the same at this point of time, except referring to the fact that the grantee under ex. a-1 had no absolute rights to deal with the properties or to encumber the same in any manner he likes, but only to be in possession and enjoyment in order to perform the kattalais specified therein. so far as the extent of the grant is concerned, it has been stated, viz.,this was followed by ex. a-2 dated 20.10.1894 under which the said vrushabadhwaja dikshidhar alias chellamanar dikshidhar and four other dikshidhars have assured the executed of ex. a-1, t. krishna rao that the kattalais and other poojas as specified shall be performed for ever managing the properties granted therefor, without encumbering them in any manner or alienating the same and also making it clear that in case of any violation, the heirs and successors-in-interest of the granter shall he at liberty to resume back the properties for the purpose of maintaining the kattalais and performing poojas, for which the properties have been dedicated and to be in possession of vrushabadhwaja dikshidhar, which has been also secured by other dikshidhars, who were parties to ex. a-2. the fact remains that after vrushabadhwaja dikshidhar, the husband of the plaintiff, kalyanasubramania dikshidhar, came into possession of the properties indisputably subject to the terms and conditions indisputably subject to the terms and conditions contained in exs. a-1 and a-2 put together. the plaintiff claims to be the second wife of kalyanasubramania dikshidhar, the first wife having predeceased him and he also had no issues. in the light of the above, by a will dated 17.4.1950 registered as document no. 19 of 1950 marked as ex. a-3, kalyanasubramania dikshidhar has bequeathed his properties and also his other rights in the trust properties in favour of natarajja alias dhanarathina dikshidhar, son of krishnaswami dikshidhar, who happened to be also the sister's son of kalyanasubramnaia dikshidhar. so far as the terms of the will are concerned, it directs the beneficiary under the will to perform the funeral and obsequies of the testator, to look after and maintain the wife of his senior paternal uncle and also the second wife and enjoy the properties absolutely and hereditarily. a perusal of the will marked as ex. a-3 would also go to show that the trust properties in the possession of the testator are referred to as charged with and for the performance of the permanent charities so far as the trust properties are concerned, in paragraph 2 of the will they are kept specifically outside the purview of the clause granting absolute rights viz-a-yiz some other properties personally belonging to the testator.3. the plaintiff, second wife of late kalyanasubramnaia dikshidhar, has filed the above suit challenging the will and the competent of her husband to execute the said will in favour of nataraja alias dhanarathina dikshidhar on the ground that the document, ex. a-1; provides for the properties being managed without any power of alienation and that, therefore, the testator had no right to grant the trusteeship to the first defendant. it was also her contention that the right of appointing a trustee can only be exercised by a per-son who made the endowment and not by the trustee himself and no power also has been conferred on the succeeding trustee to appoint his successor. consequently, according to the plaintiff, she being next in kin and only heir entitled to the trusteeship as the wife of kalyanasubramania dikshidhar, she is entitled to become the trustee of the endowment. after exchange of notices, the suit came to be filed, as noticed earlier, for the relief referred to supra.4. the defendants contested the claim of the plaintiff contending that she has no locus standi to file the suit, she having no title whatsoever, that the will dated 17.4.1950 was true and valid executed by kalyanasubramania dikshidhar, while he was in a sound disposing state of mind, that the recitals in the endowment deed dated 28.1.1894 restricting alienations are void and opposed to the provisions of the transfer of properly act, that in (xs. no. 52 of 1953 on the file of sub court, cuddalore, there was a compromise decree dated 29.3.1954 between the plaintiff and the first defendant, that the said decree con-fers absolute title on the first defendant to the properties bequeathed under the will, that the said decree became final and conclusive, that the present suit is barred by res judicata and that the plaintiff cannot question the absolute title of the first defendant. it was also contended that kalyanasubramania dikshidhar had no issues and for the proper conduct of the kattalais, he executed the will, under which he gave the properties including the rights in the suit properties to the first defendant and he nominated the first defendant, who is only the sister's son to conduct the dharmam, taking the income from the suit lands and after the death of kalyanasubramania dikshidhar, the first defendant alone has been per-forming the kattalais as mentioned in ex. a-1 and after the death of the first defendant, defendants 2 and 3 are conducting the same and the plaintiff cannot question the same.5. on the above claims and counter claims, the suit came to be tried and the parties on either side ad-duced oral and documentary evidence in respect of their respective stand. the learned subordinate judge, mayuram, by his judgment and decree dated 10.8.1981 held that the transaction created under ex. a-1 taken together with the recitals contained in ex. a-2 constituted a trust for the performance of the kattalais in question specified therein and that vrushabadhwaja dikshidhar named only as a trustee for the purpose of management of the properties in order to perform kattalais in shri sivakamasundari samedha nataraja temple at chidambaram and that the management had to be carried hereditarily without any power of alienation. to reinforce the said trust and the terms contained therein, the learned trial judge held that ex. a-2 came to be executed by vrusha-badhwaja dikshidhar and his brothers in the form of security bond in favour of krishna rao and therefore, the claim of the defendants that the properties have been given away in favour of the grantee abso-lutely subject to the performed of kattalais or that the restriction on alienation was invalid or void, could not be countenanced. so far as the other questions relating to the bar of limitation and bar on account of the principle of res judicata are concerned, the learned trial judge held against the defendants. as for the issue relating to the right and locus standi of the plaintiff, the wife of kalyanasubramania dikshidhar, the learned trial judge held that while the plaintiff is the legal heir entitled to be a trustee to manage the properties and perform the kattalais and poojas as contemplated in the document, the first defendant is only sister's son of kalyanasubramania dikshidhar and therefore, the plaintiff had the right and locus standi to maintain the suit. as for the plea of res judicata on the basis of the earlier consent decree marked as ex. b-1, it was held that the earlier suit was not in relation to the rights of the suit properties and enjoyment of the properties and therefore, did not constitute res judicata. consequently, the learned trial judge came to decree the suit as noticed earlier.6. aggrieved, the defendants filed a.s. no. 699 of 1982 before this court and the plaintiff has filed a memo of cross objections for disallowing costs by the learned trial judge. a learned single judge of this court, on a careful consideration of the submission of the learned counsel appearing on either side, con-curred with the findings of the learned trial judge relating to the nature of the grant and the rights derived by the grantee including the successor-in-inter-est under the grant and kalyanasubramania dikshidhar and categorically held that vrusha-badhwaja dikshidhar and his descendants will have no absolute right in the properties dealt with under ex. a-1 and described as 'b' schedule properties in the plaint and they are only trustees for the performance of kattalais from out of the income by managing the properties. the learned judge also held in unmistakable terms that under ex. a-1, the proper-ties have been endowed to the deity for the purpose of performing kattalais by vrushabadhwaja dikshidhar and his family members as trustees and giving possession alone to them. on the other issues relating to merits and also the question of res judicata, the learned single judge has concurred with the findings of the learned trial judge and consequently, dismissed the appeal as also the memo of cross objections. aggrieved, the defendants have filed the above appeal.7. mrs. chitra sampath, learned counsel appearing for the appellants vehemently contended that the properties were absolutely granted under ex. a-1 to vrushabadhwaja dikshidhar with a stipulation that he shall perform all the kattalais specified therein and there was no creation of any trust and vrushabadhwaja dikshidhar and his descendants were not appointed as trustees. argued the learned counsel further that the findings recorded by the courts below on the question of merits and also the question of res judicata are not sustainable in law and the courts below ought to have held that kalyanasubramania dikshidhar had every right to nominate nataraja alias dhanarathina dikshidhar to perform the kattalais by being in possession of the properties and from out of the income, which are subject matter of the grant under ex. a-1 and, that therefore, the plaintiff has no right to challenge the said right of kalyanasubramania dikshidhar to nomi-nate a successor to perform the charities, particularly having regard to the right granted under ex. a-1 as learned counsel for the appellant also submitted that the recitals in the document, ex. a-1, do not postu-late succession by the wife against the will and stipulation of her husband and consequently, the plaintiff ought not to have granted any relief in this proceedings.8. mr. r. srinivasan, learned counsel appearing for the respondent-plaintiff strenuously argued while adopting the reasons assigned by the learned trial judge as also by the learned single judge of this court, that it is not given to the defendants to contend that they or their predecessors-in-interest had been given absolute rights in the properties and that at best they were all constituted as trustees for the admitted purpose and object of maintaining and administering the properties and thereby perform the kattalais in the temple in question and that, therefore, as the successor-in-interest of kalyanasubramania dikshidhar, the plaintiff was entitled even under the terms of ex. a-1 to become the trustee in office to administer and manage the properties and perform the kattalais in the temple in question. argued the learned counsel further that the question of res judicata and the plea of bar of limitation had been rightly rejected by the learned trial judge as also by the learned single judge and they do not call for any interference. the learned counsel for the respondent repeatedly contended that under ex. a-1, the respondent is entitled to become the trustee to manage and administer the properties after the lifetime of kalyanasubramania dikshidhar and therefore, the will, ex. a-3, cannot be held to be valid.9. we have carefully considered the submissions of the learned counsel appearing on either side. the learned trial judge himself adverted to some of the decisions of this court as also the apex court with reference to the construction to be placed on the nature of the grant created under ex. a-1 taken together with ex. a-2 executed by vrushabadhwaja dikshidhar, the grantee under ex. a-1 and his brothers by way of security to ensure permanent performance of the kattalais in the temple in question. the relevant evidence, oral and documentary, as also the correct principles of law have been ad-verted to and applied by the learned trial judge in coming to the conclusion that the properties have been dedicated in favour of the deity and that vrushabadhwaja dikshidhar and his descendants were appointed only as trustees to be in possession of the properties and to administer the same in order to effectively perform the kattalais in the temple of shri sivakamasundari samedha nataraja at chidam-baram and that they were not given any absolute rights in respect of the properties, as such. this finding recorded by the learned trial judge and confirmed by the learned single judge is well merited and does not suffer any infirmity whatsoever to warrant our inter-ference. the learned counsel for appellants except inviting our attention to the recitals contained in ex. a-l indicating the right granted therein was to enjoy' could not at all dislodge successfully the well considered findings of the learned trial judge or the reasons assigned therefor which were also confirmed by the learned single judge of this court and we are also of the view that such rights as have been conferred to enjoy is only the right to be in possession to administer the properties and perform the kattalais in the temple in question and not become the absolute owners of the proper-ties granted under ex. a-1. consequently, we see no merit in the contention of the learned counsel for the appellants to the contrary. the judgment and decree of the learned trial judge in this regard as con-firmed by the learned single judge of this court, are hereby confirmed. the appeal to that extent cannot be countenanced.10. so far as the other issues relating to the plea of bar of limitation and also the question of res judicata are concerned, we cannot accept either of the contentions on behalf of the appellants. the reasons assigned by the learned single judge as also by the learned trial judge in this regard imputing knowledge of the dedication of the properties in question and the rights therein at a later stage only are well mer-ited and do not suffer any infirmity warranting our interference.11. so far as the plea questioning the right of the plaintiff to challenge the will and the plea of estoppel, taken before us that though ex. b-1, compromise decree does not constitute res judicata, would constitute estoppel against the appellants so as to preclude the plaintiff from claiming any right in the suit properties, is concerned, we are of the view that there is substance in claim of the appellants. on going through ex. a-1 as also ex. a-2, we are unable to countenance any independent right in the plaintiff, the second wife of kalyanasubramania dikshidhar, to be either the trustee or to be in possession of the proper-ties granted under ex. a-1 to administer the same and assert a claim in herself for performing the kattalais herself, de hors her husband and except through her husband. the terms of ex. a-1 would indicate that either the grantee or the descendants of the grantee including kalyanasubramania dikshidhar, could not alienate or encumber the properties in any man-ner. they have a right to nominate their successor in the absence of the document itself providing for any particular method or line of succession. the recital cannot by itself be said to be indicating of or prescription of any line of succession, except that hereditarily the right would follow to be enjoyed by the successors-in-interest. had there been no will in the form of ex. a-3 and if anyone is claiming to administer the properties or perform the kattalais on the ground that the plaintiff being a female heir, she has no right to be in possession of the properties or perform the kattalais in question in the public temple, we could not either appreciate or approve or accept such a claim. but at the sometime, in the teeth of the valid will executed by the last holder in office of the trustee, who had been performing the kattalais or getting the kattalais being performed on behalf of him, we are of the view that it is not given to the plaintiff to challenge the nomination in favour of the first defendant to be the trustee to administer the properties and get the kattalais performed after the life time of kalyanasubramania dikshidhar. the plaintiff neither had any such independent rights to claim nor could deny the right of her husband to nominate a successor. to this extent the consent decree obtained on compromise, marked as ex. b-1 though not will constitute res judicata would definitely operate to estop the plaintiff from projecting her claim once over again in her personal or individual capacity. it is by now well-settled that the judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercise its mind on a contested case. (vide: sailendra narayan v. state of orissa a.i.r. 1956 s.c. 346:1956s.c.j. 449:1956 s.c.r. 72 : 1956 s.c.a. 870. consequently, we are unable to agree with the learned single judge as also the learned trial judge in so far as they have held that the plaintiff being the wife and the first defendant being only the sister's son of kalyanasubramania dikshidhar, the wife would be entitled to preferential right to succeed to the rights in respect of 'b' sched-ule properties and to perform the kattalais. as noticed earlier, such a claim could be countenanced in favour of the plaintiff, had there been no will and the rights of parties have to determined treating it to be a matter intestate succession, and inasmuch as we have held that there was no impediment for kalyanasubramania dikshidhar to make such a will, which constituted only a nomination for the administration of the properties by being the trustee in respect of the trust created under ex. a-1 and there being no independent right in the plaintiff de hors her husband, we are unable to give any relief in favour of the plaintiff for recovery of possession of the properties. we make it clear, at the expense of repetition, that the first de-fendant as a beneficiary under ex. a-3 and his successors-in-interest, at any point of time could be in possession and enjoyment of the properties only in their capacity as trustee and administrators for the time being of the trust created under ex. a-1 taken together with ex. a-2 in respect of the kattalais to be performed in a public temple, namely sivakamasundari and nataraja temple at chidambaram and not by virtue of their any personal or individual and absolute rights and they and their successors-in-interest can hold the properties and administer the same without encumbering the same in any manner and only manage them for ever and perform the kattalais without fail. the letters patent appeal is allowed to the extent indicated above insofar as the relief of recovery of possession which is hereby denied to the plaintiff. the judgment and decrees of the court below granting the relief of recovery of possession in favour of the plaintiffs are hereby set aside.12. a copy of this judgment will be marked to the commissioner, hindu religious and charitable endowments (administration dept.) at madras, who shall also mark a copy of the same to the area assistant commissioner, hindu religious and charitable endowments, having jurisdiction over the area in which the public temple, namely, sivakamasundari samedha nataraja temple at chidambaram is situ-ate, to supervise and keep a watch about the regular performance of the charities, without direct interfer-ence as such in such performance as long as the kattalais are regularly performed and if the kattalais are not performed and if the properties are meddle with or encumbered or alienated, the commissioner, hindu religious and charitable endowments, shall take action against those concerned as provided under the provisions of the tamil nadu hindu religious and charitable endowments act, 1959 or any other law for the time being in force to resume the proper-ties to ensure the permanent and regular performance of the kattalais mentioned in ex. a-1. there will be no order as to costs.
Judgment:

D. Raju, J.

1. The above appeal has been filed under Clause 15 of the Letters Patent against the judgment and decree of a learned single Judge of this Court dated 16.12.1992 in A.S. No. 699 of 1982, whereunder the learned single Judge was pleased to confirm the judgment and decree of the learned Subordinate Judge, Mayuram, dated 10.8.1981 in O.S. No. 210 of 1979, which was filed by the respondent herein in forma pauperis for declaring that the respondent/plaintiff was entitled to the suit properties as per the terms of the trust deed dated 29.1.1894 and for a consequential direction to the defendants to put the plaintiff in possession of the plaint 'B' schedule properties with future profits. The suit came to be decreed, except in respect of future profits, which were left open to be decided in a separate proceedings.

2. The suit 'B' schedule properties measuring an extent of 6.61 acres originally belonged to one Krishna Rao, who, executed a deed dated 29.1.1894, marked as Ex. A-1, in which the properties have been gives to the care and possession of one Vrushabadhwaja Dikshidhar, in order to perform certain kattalais in Arulmigu Sivakamasundari Samedha Shri Nataraja Temple of Chidambaram. It is unnecessary to advert to the details of the same at this point of time, except referring to the fact that the grantee under Ex. A-1 had no absolute rights to deal with the properties or to encumber the same in any manner he likes, but only to be in possession and enjoyment in order to perform the kattalais specified therein. So far as the extent of the grant is concerned, it has been stated, viz.,

This was followed by Ex. A-2 dated 20.10.1894 under which the said Vrushabadhwaja Dikshidhar alias Chellamanar Dikshidhar and four other Dikshidhars have assured the executed of Ex. A-1, T. Krishna Rao that the kattalais and other poojas as specified shall be performed for ever managing the properties granted therefor, without encumbering them in any manner or alienating the same and also making it clear that in case of any violation, the heirs and successors-in-interest of the granter shall he at liberty to resume back the properties for the purpose of maintaining the kattalais and performing poojas, for which the properties have been dedicated and to be in possession of Vrushabadhwaja Dikshidhar, which has been also secured by other Dikshidhars, who were parties to Ex. A-2. The fact remains that after Vrushabadhwaja Dikshidhar, the husband of the plaintiff, Kalyanasubramania Dikshidhar, came into possession of the properties indisputably subject to the terms and conditions indisputably subject to the terms and conditions contained in Exs. A-1 and A-2 put together. The plaintiff claims to be the second wife of Kalyanasubramania Dikshidhar, the first wife having predeceased him and he also had no issues. In the light of the above, by a will dated 17.4.1950 registered as Document No. 19 of 1950 marked as Ex. A-3, Kalyanasubramania Dikshidhar has bequeathed his properties and also his other rights in the trust properties in favour of Natarajja alias Dhanarathina Dikshidhar, son of Krishnaswami Dikshidhar, who happened to be also the sister's son of Kalyanasubramnaia Dikshidhar. So far as the terms of the will are concerned, it directs the beneficiary under the will to perform the funeral and obsequies of the testator, to look after and maintain the wife of his senior paternal uncle and also the second wife and enjoy the properties absolutely and hereditarily. A perusal of the will marked as Ex. A-3 would also go to show that the trust properties in the possession of the testator are referred to as charged with and for the performance of the permanent charities So far as the trust properties are concerned, in paragraph 2 of the will they are kept specifically outside the purview of the clause granting absolute rights viz-a-yiz some other properties personally belonging to the testator.

3. The plaintiff, second wife of late Kalyanasubramnaia Dikshidhar, has filed the above suit challenging the will and the competent of her husband to execute the said will in favour of Nataraja alias Dhanarathina Dikshidhar on the ground that the document, Ex. A-1; provides for the properties being managed without any power of alienation and that, therefore, the testator had no right to grant the trusteeship to the first defendant. It was also her contention that the right of appointing a trustee can only be exercised by a per-son who made the endowment and not by the trustee himself and no power also has been conferred on the succeeding trustee to appoint his successor. Consequently, according to the plaintiff, she being next in kin and only heir entitled to the trusteeship as the wife of Kalyanasubramania Dikshidhar, she is entitled to become the trustee of the endowment. After exchange of notices, the suit came to be filed, as noticed earlier, for the relief referred to supra.

4. The defendants contested the claim of the plaintiff contending that she has no locus standi to file the suit, she having no title whatsoever, that the will dated 17.4.1950 was true and valid executed by Kalyanasubramania Dikshidhar, while he was in a sound disposing state of mind, that the recitals in the endowment deed dated 28.1.1894 restricting alienations are void and opposed to the provisions of the Transfer of Properly Act, that in (XS. No. 52 of 1953 on the file of Sub Court, Cuddalore, there was a Compromise decree dated 29.3.1954 between the plaintiff and the first defendant, that the said decree con-fers absolute title on the first defendant to the properties bequeathed under the will, that the said decree became final and conclusive, that the present suit is barred by res judicata and that the plaintiff cannot question the absolute title of the first defendant. It was also contended that Kalyanasubramania Dikshidhar had no issues and for the proper conduct of the kattalais, he executed the will, under which he gave the properties including the rights in the suit properties to the first defendant and he nominated the first defendant, who is only the sister's son to conduct the dharmam, taking the income from the suit lands and after the death of Kalyanasubramania Dikshidhar, the first defendant alone has been per-forming the kattalais as mentioned in Ex. A-1 and after the death of the first defendant, defendants 2 and 3 are conducting the same and the plaintiff cannot question the same.

5. On the above claims and counter claims, the suit came to be tried and the parties on either side ad-duced oral and documentary evidence in respect of their respective stand. The learned Subordinate Judge, Mayuram, by his judgment and decree dated 10.8.1981 held that the transaction created under Ex. A-1 taken together with the recitals contained in Ex. A-2 constituted a trust for the performance of the kattalais in question specified therein and that Vrushabadhwaja Dikshidhar named only as a trustee for the purpose of management of the properties in order to perform kattalais in Shri Sivakamasundari Samedha Nataraja temple at Chidambaram and that the management had to be carried hereditarily without any power of alienation. To reinforce the said trust and the terms contained therein, the learned trial Judge held that Ex. A-2 came to be executed by Vrusha-badhwaja Dikshidhar and his brothers in the form of security bond in favour of Krishna Rao and therefore, the claim of the defendants that the properties have been given away in favour of the grantee abso-lutely subject to the performed of kattalais or that the restriction on alienation was invalid or void, could not be countenanced. So far as the other questions relating to the bar of limitation and bar on account of the principle of res judicata are concerned, the learned trial Judge held against the defendants. As for the issue relating to the right and locus standi of the plaintiff, the wife of Kalyanasubramania Dikshidhar, the learned trial Judge held that while the plaintiff is the legal heir entitled to be a trustee to manage the properties and perform the kattalais and poojas as contemplated in the document, the first defendant is only sister's son of Kalyanasubramania Dikshidhar and therefore, the plaintiff had the right and locus standi to maintain the suit. As for the plea of res judicata on the basis of the earlier consent decree marked as Ex. B-1, it was held that the earlier suit was not in relation to the rights of the suit properties and enjoyment of the properties and therefore, did not constitute res judicata. Consequently, the learned trial Judge came to decree the suit as noticed earlier.

6. Aggrieved, the defendants filed A.S. No. 699 of 1982 before this Court and the plaintiff has filed a memo of cross objections for disallowing costs by the learned trial Judge. A learned single Judge of this Court, on a careful consideration of the submission of the learned Counsel appearing on either side, con-curred with the findings of the learned trial Judge relating to the nature of the grant and the rights derived by the grantee including the successor-in-inter-est under the grant and Kalyanasubramania Dikshidhar and categorically held that Vrusha-badhwaja Dikshidhar and his descendants will have no absolute right in the properties dealt with under Ex. A-1 and described as 'B' schedule properties in the plaint and they are only trustees for the performance of kattalais from out of the income by managing the properties. The learned Judge also held in unmistakable terms that under Ex. A-1, the proper-ties have been endowed to the deity for the purpose of performing kattalais by Vrushabadhwaja Dikshidhar and his family members as trustees and giving possession alone to them. On the other issues relating to merits and also the question of res judicata, the learned single Judge has concurred with the findings of the learned trial Judge and consequently, dismissed the appeal as also the memo of cross objections. Aggrieved, the defendants have filed the above appeal.

7. Mrs. Chitra Sampath, learned Counsel appearing for the appellants vehemently contended that the properties were absolutely granted under Ex. A-1 to Vrushabadhwaja Dikshidhar with a stipulation that he shall perform all the Kattalais specified therein and there was no creation of any trust and Vrushabadhwaja Dikshidhar and his descendants were not appointed as trustees. Argued the learned Counsel further that the findings recorded by the courts below on the question of merits and also the question of res judicata are not sustainable in law and the courts below ought to have held that Kalyanasubramania Dikshidhar had every right to nominate Nataraja alias Dhanarathina Dikshidhar to perform the kattalais by being in possession of the properties and from out of the income, which are subject matter of the grant under Ex. A-1 and, that therefore, the plaintiff has no right to challenge the said right of Kalyanasubramania Dikshidhar to nomi-nate a successor to perform the charities, particularly having regard to the right granted under Ex. A-1 as Learned Counsel for the appellant also submitted that the recitals in the document, Ex. A-1, do not postu-late succession by the wife against the Will and stipulation of her husband and consequently, the Plaintiff ought not to have granted any relief in this proceedings.

8. Mr. R. Srinivasan, learned Counsel appearing for the respondent-plaintiff strenuously argued while adopting the reasons assigned by the learned trial Judge as also by the learned single Judge of this Court, that it is not given to the defendants to contend that they or their predecessors-in-interest had been given absolute rights in the properties and that at best they were all constituted as trustees for the admitted purpose and object of maintaining and administering the properties and thereby perform the kattalais in the temple in question and that, therefore, as the successor-in-interest of Kalyanasubramania Dikshidhar, the plaintiff was entitled even under the terms of Ex. A-1 to become the trustee in office to administer and manage the properties and perform the kattalais in the temple in question. Argued the learned Counsel further that the question of res judicata and the plea of bar of limitation had been rightly rejected by the learned trial judge as also by the learned single Judge and they do not call for any interference. The learned Counsel for the respondent repeatedly contended that under Ex. A-1, the respondent is entitled to become the trustee to manage and administer the properties after the lifetime of Kalyanasubramania Dikshidhar and therefore, the Will, Ex. A-3, cannot be held to be valid.

9. We have carefully considered the submissions of the learned Counsel appearing on either side. The learned trial Judge himself adverted to some of the decisions of this Court as also the Apex Court with reference to the construction to be placed on the nature of the grant created under Ex. A-1 taken together with Ex. A-2 executed by Vrushabadhwaja Dikshidhar, the grantee under Ex. A-1 and his brothers by way of security to ensure permanent performance of the kattalais in the temple in question. The relevant evidence, oral and documentary, as also the correct principles of law have been ad-verted to and applied by the learned trial Judge in coming to the conclusion that the properties have been dedicated in favour of the deity and that Vrushabadhwaja Dikshidhar and his descendants were appointed only as trustees to be in possession of the properties and to administer the same in order to effectively perform the kattalais in the temple of Shri Sivakamasundari Samedha Nataraja at Chidam-baram and that they were not given any absolute rights in respect of the properties, as such. This finding recorded by the learned trial Judge and confirmed by the learned single judge is well merited and does not suffer any infirmity whatsoever to warrant our inter-ference. The learned Counsel for appellants except inviting our attention to the recitals contained in Ex. A-l indicating the right granted therein was to enjoy' could not at all dislodge successfully the well considered findings of the learned trial Judge or the reasons assigned therefor which were also confirmed by the learned single Judge of this Court and we are also of the view that such rights as have been conferred to enjoy is only the right to be in possession to administer the properties and perform the kattalais in the temple in question and not become the absolute owners of the proper-ties granted under Ex. A-1. Consequently, we see no merit in the contention of the learned Counsel for the appellants to the contrary. The judgment and decree of the learned trial Judge in this regard as con-firmed by the learned single Judge of this Court, are hereby confirmed. The appeal to that extent cannot be countenanced.

10. So far as the other issues relating to the plea of bar of limitation and also the question of res judicata are concerned, we cannot accept either of the contentions on behalf of the appellants. The reasons assigned by the learned single Judge as also by the learned trial Judge in this regard imputing knowledge of the dedication of the properties in question and the rights therein at a later stage only are well mer-ited and do not suffer any infirmity warranting our interference.

11. So far as the plea questioning the right of the plaintiff to challenge the Will and the plea of estoppel, taken before us that though Ex. B-1, compromise decree does not constitute res judicata, would constitute estoppel against the appellants so as to preclude the plaintiff from claiming any right in the suit properties, is concerned, we are of the view that there is substance in claim of the appellants. On going through Ex. A-1 as also Ex. A-2, we are unable to countenance any independent right in the plaintiff, the second wife of Kalyanasubramania Dikshidhar, to be either the trustee or to be in possession of the proper-ties granted under Ex. A-1 to administer the same and assert a claim in herself for performing the kattalais herself, de hors her husband and except through her husband. The terms of Ex. A-1 would indicate that either the grantee or the descendants of the grantee including Kalyanasubramania Dikshidhar, could not alienate or encumber the properties in any man-ner. They have a right to nominate their successor in the absence of the document itself providing for any particular method or line of succession. The recital cannot by itself be said to be indicating of or prescription of any line of succession, except that hereditarily the right would follow to be enjoyed by the successors-in-interest. Had there been no will in the Form of Ex. A-3 and if anyone is claiming to administer the properties or perform the kattalais on the ground that the plaintiff being a female heir, she has no right to be in possession of the properties or perform the kattalais in question in the public temple, we could not either appreciate or approve or accept such a claim. But at the sometime, in the teeth of the valid will executed by the last holder in office of the trustee, who had been performing the kattalais or getting the kattalais being performed on behalf of him, we are of the view that it is not given to the plaintiff to challenge the nomination in favour of the first defendant to be the trustee to administer the properties and get the kattalais performed after the life time of Kalyanasubramania Dikshidhar. The plaintiff neither had any such independent rights to claim nor could deny the right of her husband to nominate a successor. To this extent the consent decree obtained on compromise, marked as Ex. B-1 though not will constitute res judicata would definitely operate to estop the plaintiff from projecting her claim once over again in her personal or individual capacity. It is by now well-settled that the judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercise its mind on a contested case. (Vide: Sailendra Narayan v. State of Orissa A.I.R. 1956 S.C. 346:1956S.C.J. 449:1956 S.C.R. 72 : 1956 S.C.A. 870. Consequently, we are unable to agree with the learned single Judge as also the learned trial Judge in so far as they have held that the plaintiff being the wife and the first defendant being only the sister's son of Kalyanasubramania Dikshidhar, the wife would be entitled to preferential right to succeed to the rights in respect of 'B' sched-ule properties and to perform the kattalais. As noticed earlier, such a claim could be countenanced in favour of the plaintiff, had there been no will and the rights of parties have to determined treating it to be a matter intestate succession, and inasmuch as we have held that there was no impediment for Kalyanasubramania Dikshidhar to make such a will, which constituted only a nomination for the administration of the properties by being the trustee in respect of the trust created under Ex. A-1 and there being no independent right in the plaintiff de hors her husband, we are unable to give any relief in favour of the plaintiff for recovery of possession of the properties. We make it clear, at the expense of repetition, that the first de-fendant as a beneficiary under Ex. A-3 and his successors-in-interest, at any point of time could be in possession and enjoyment of the properties only in their capacity as trustee and administrators for the time being of the trust created under Ex. A-1 taken together with Ex. A-2 in respect of the kattalais to be performed in a public temple, namely Sivakamasundari and Nataraja temple at Chidambaram and not by virtue of their any personal or individual and absolute rights and they and their successors-in-interest can hold the properties and administer the same without encumbering the same in any manner and only manage them for ever and perform the kattalais without fail. The Letters Patent Appeal is allowed to the extent indicated above insofar as the relief of recovery of possession which is hereby denied to the plaintiff. The judgment and decrees of the Court below granting the relief of recovery of possession in favour of the plaintiffs are hereby set aside.

12. A copy of this judgment will be marked to the Commissioner, Hindu Religious and Charitable Endowments (Administration Dept.) at Madras, who shall also mark a copy of the same to the area Assistant Commissioner, Hindu Religious and Charitable Endowments, having jurisdiction over the area in which the public temple, namely, Sivakamasundari Samedha Nataraja Temple at Chidambaram is situ-ate, to supervise and keep a watch about the regular performance of the charities, without direct interfer-ence as such in such performance as long as the kattalais are regularly performed and if the kattalais are not performed and if the properties are meddle with or encumbered or alienated, the Commissioner, Hindu Religious and Charitable Endowments, shall take action against those concerned as provided under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 or any other law for the time being in force to resume the proper-ties to ensure the permanent and regular performance of the Kattalais mentioned in Ex. A-1. There will be no order as to costs.