1. This is a suit brought by the next reversioner of the deceased Subbaraya Chetty, who died in 1899, against his widow Mullangi Venkata Subbammah, who on his death became trustee for her life in succession to him of the charity which is the subject of his suit. On the 12th December 1900, finding, according to her evidence, that she was old and unable to manage the charity and that the reversioner Thumbu Chetty, was also old and infirm and left her to do what she liked with it, she alienated it to the 2nd and 3rd defendants who were maternal relations of her husband. The plaintiff's claim that they are the next reversioners and that this alienation of the trust was illegal, and they ask for a declaration that they are the present trustees of the endowment referred to and entitled to possession of the bazaars and to conduct the charities specified in the schedule, that the alienees may be declared to be the nearest reversioners and to have become entitled to the present enjoyment of the office by reason of the alienation and that, if necessary, the defendant may be removed from her office as trustee of the endowment.
2. Now it is not denied on the part of the defendants--it could not be denied, that the widow has no power to alienate the trusteeship; their main defence rests upon this that the plaintiffs are not the next reversioners of the 1st defendant's husband and have no rights in the matter. The plaintiffs are the sons--it has not been seriously disputed--of one Mullangi Venkanna who according to their case was the adopted son of Mullangi Venkatarangam, adopted by his wife Annapoornammal after his death. In the very deed of release Exhibit A, by the 1st defendant to the 2nd and 3rd defendants, it is recited that this Mullangi Venkatarangam was a close relation of the 1st defendant's husband, Mullangi Subbaraya Chetty, and for some years had managed the charity during his lifetime and that his widow, under his directions, had handed it over, after his death, to Subbaraya Chetty who had then become of age to manage it himself. In view of this and other evidence in the case, it is not now disputed by the defendants that this Venkatarangam was a dayadi of the 1st defendant's husband and the only question that remains as to the pedigree is whether it has been proved that the plaintiff's father Venkanna was the adopted son of Venkatarangam. Now the alleged adoption must have taken place, if it took place at all, a very long time ago, as Venkatarangam would appear to have died about the year 1862--at least it is so stated in a plaint filed by the defendant--and only one old lady has been called to speak to it and she gives, as might be expected, a very confused account, at any rate as to the date. But there is a strong body of documentary evidence and evidence of conduct going to establish the adoption. Though it is proved that there were in existence two dayadis of the deceased Venkatarangam one Thumbu Chetty and 1st defendant's husband Subbarayalu, yet it is most clearly proved that even after the death of Annapoorai the property of the deceased Venkatarangam were enjoyed by this man Venkanna who always described himself Mullangi Venkanna as his son; and that this enjoyment which was known to the reversioners was acquiesced in by them and no claim was ever put forward on their behalf. A rather weak suggestion was made by one of the witnesses that the 1st defendant's husband who was a Sub-Registrar was a man of too much dignity to assert any title to these properties, but I think that may be disregarded; and it certainly cannot apply to the other dayadi Thumbu Chetty. Now under Section 50 of the Evidence Act I think that the conduct of all parties is very strong evidence that there really was an adoption. Then there is important documentary evidence contained in sale deeds and mortgages by the deceased Venkanna and in his will in which he describes himself as the adopted son of Venkatarangam.
3. This evidence has been tendered and admitted under Sub-section 5 of Section 32 of the Evidence Act which says that ' when a statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the parson making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised, 'it is admissible. Mr. Kristnaswami thought to argue that though Venkanna must have had special means of knowledge whether he was adopted or not, his statement was inadmissible because it related to his own relationship. Therefore what his contention came to is this--that he wished to read the section thus : ' When a statement relates to the existence of any relationship by blood, marriage or adoption between persons other than the person making the statement. ' Not only are those words not there and therefore there is no justification for inserting them, but such a construction of the section would make illustration (k) wrong; because illustration (k) says ' where the question is whether A, who is dead, was father of B, a statement by A that B was his son is a relevant fact; and if a statement by the father that B was the son is a relevant fact, I cannot see why a statement by B that A was his father should not equally be a relevant fact; and I am not satisfied that there is any English authority to the contrary, if that were material. It seems to me that on the plain wording of the section this evidence is admissible. Then it comes to this, this man Venkanna not only inherited the property of Venkatarangam without objection but also disposed of it in these various documents which have been put in. And then we have his will in which he described himself as the adopted son of Venkataranganr; and as shewing his connection and his relations with the husband of the 1st defendant there is this very noteworthy circumstance that he made Subbarayalu his executor and provided that if Subbarayalu decided to adopt one of his sons no objection was to be raised to such adoption. There is absolutely no reason for supposing that that will was not made bonafide and did not represent the real state of the relations existing between the parties.
4. For the defence we have only had some exceedingly unsatisfactory and mostly interested evidence. The first witness, however, for the defence, who was called to speak to the granting, or non-granting of certain temple honours to the plaintiffs and their father, stated that Venkanna was the 1st defendant's husband's dayadi. And the second witness, the 1st defendant who made the alienation in favour of the 2nd and 3rd defendant and is interested in supporting it, in her examination-in-chief, only went so far as to say ' I am not aware whether Venkatarangam had adopted Venkanna ' and she had to admit that she knew, but said that she did not know if the plaintiffs were sons of Venkanna. This evidence seems to me exceedingly unreliable. Venkanna, she says, used to go to her house and there were disputes; he used to say we are dayadis '; My husband used to say ' you are not blood relations, you are not our dayadis '. ' I have no hesitation whatever in disbelieving this evidence. It appears further both from her evidence and that of the 3rd defendant that, when as Venkatarangam's widow she sold a house which formed part of her husband's estate, she and the purchasers considered it necessary to take a release from the plaintiffs in which their present claims are clearly stated by them, and to pay them Rs. 1,200 in consideration of their giving up all objection to her alienations. The plaintiffs appear to be now in poor circumstances owing to the alienations made by their father, but it certainly seems to me a very strong circumstance in support of their case that this release should have been taken. The evidence of the 3rd defendant did not impress me as satisfactory. He did not admit that he actually took the plaintiffs to Mr. Venkatasubba Row to give instructions for the preparation of the plaint, but he admits that he went there and that he gave instructions as to whole of the pedigree except the adoption. As against his evidence here I set his conduct in insisting on getting a release from the plaintiffs when he became one of the purchasers of the property I have mentioned. The only documentary evidence relied on on the other side is a plaint which was filed in 1873 by another dayadi against Subbarayalu the 1st defendant's husband and Annapoornammal. It complains that certain property belonging to that branch had been looked after by Annapoornam's husband Venkatarangam during his lifetime and had afterwards been looked after by the 1st defendant's husband Subbaraya Chetty during the lifetime of the widow of the last owner, and that, on her death, Subbaraya Chetty was appropriating the rents and profits to himself, and that he and Annapoornam--so it is alleged --were seeking to have the property registered in their own names. All that appears with regard to this suit is that five years afterwards in 1878 it was dismissed for want of prosecution. It does not even appear that any pleadings were ever filed on the other side, or even that the parties were served, except in so far a Vakil appeared for them on the occasion when the suit was dismissed. I do not think that any reliance whatever is to be placed upon what is asserted or omitted in a plaint of that character and it is of course possible that the plaintiff in that suit may have been interested in ignoring or denying the adoption now in question.
5. On the whole I have come to the conclusion that the plaintiffs have made out their case. It is true that there is no satisfactory evidence on which I should be prepared to act as witnesses who actually saw the adoption. Nor is there any such evidence that the adoption was made with the consent of the Sapindas? As to that, there is the indirect evidence of conduct, because I find that Venkanna was treated as the adopted son of Venkatarangam by the 1st defendant's husband for years, when it would have been for his interest to dispute his adoption if he could. According to the well-known cases which have been referred by Mr. Venkatasubba Rao in the case of adoptions which occured, at any rate forty years ago, one cannot expect actual evidence that all the proper formalities were observed, and it is quite sufficient to shew that the parties have always been treated as adopted and have enjoyed the rights of adopted sons. I find, therefore, that, in so far as the adoption is concerned, the plaintiffs) have established their claim. The next question is, to what reliefs are plaintiffs entitled. That the alienation was illegal is not disputed nor is it claimed that the suit is barred by limitation. A case in (Pydigantam Jagannadha Row v. Rama Doss Patnaik) I.L.R. (1904) M. 197 : 14 M.L.J. 67. was referred to as to the consequences of illegal alienation of this kind. As I read that case, all that was meant to be laid down was, not as was first contended for the plaintiffs that the effect of the alienation was to determine the estates of the trustee and let in the next reversioner to see for the removal of the trustee in a proper suit. The language of Mr. Justice Subramania Aiyar at pages 200 and 201 seems to me to be susceptible of that meaning and such a position also seems to me to be in accordance with good sense.
6. It is, however, contended that under Section 92 of the Code of Civil Procedure no suit lies to remove a trustee of a public charitable endowment without the sanction mentioned in the Section The new section no doubt provides, Sub-section (2), that no suit claiming any of the reliefs specified in Sub-section (1), one of which is removing any trustee, should be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section; and at first sight that would appear to be a bar to the present suit. Even so the scope of the section is to protect the rights of the public, and it is not aimed at the infringement of individual rights, and should not, if possible, be so construed as to deprive individuals whose rights have been infringed of their remedy. In Woodroffee and Ameer Ali's Edition of the Code, page 350 (first edition) the learned authors discuss the question and appear to be of opinion that such a case does not come within it and that, if a general administration of the trust which has included the removal of the trustee is necessary to provide an efficient remedy for the infringement of the individual right in question, such general administration may be granted without regard to the provisions of the Section Applying these principles to the present case, I hold that in view of what has happened it is necessary for the protection of the plaintiff's rights as reversioners that the 1st defendant should be removed from the office of trustee by reason of misconduct in alienating it to the 2nd and 3rd defendants, and I accordingly remove her and declare that the plaintiffs as next reversioners are entitled to succeed as trustees and give them a decree against the defendants for possession of the trust properties with costs.
7. The trustees to file an account of trust properties that came to their hands since 12th December 1900, and the case to be referred to Chambers for taking the necessary accounts, defendants 2 and 3 to file accounts within two months, and seven days for objections.