1.The unsuccessful plaintiff in the lower Court is the appellant. He sued for declaration of his right to be the trustee of the plaint-mentioned charities and to direct to defendant to deliver possession of the suit properties to him and also to render a true and correct account of the income of the properties. Except plaint item 6, the rest of the plaint-mentioned properties originally belonged to one Narasimha Chettiar, the ancestor of the plaintiff and the defendants. On 22-6-1899, Narasimha Chettiar created a trust over those properties specifying what charities should be performed and providing for the mode of devolution of the office of trusteeship. He had four sons (1) Venkatarama Chettiar, (2) Subbarayalu Chettiar (3) Govindasawami Chettiar and (4) Ananthapadhmanabhan. Of these four persons, No. 1, Venkatarama Chettiar predeceased his father. Defendants 2 and 3 are the grandsons of Venkatarama Chettiar. Defendants 8, 9 and 10 are the male descendants of Ananthapadmanabhan. The plaintiff is the eldest son of Govindaswami Chettiar. Defendants 1, 4, 5, 6 and 7 are the male descendants of Subbarayalu Chettiar. On the death of Narasimha Chettiar, Subbarayalu Chettiar, the then eldest surviving son, became the trustee. He died in the year 1936. Thereupon his eldest son Nagamayya Chetti took charge of the management of the trust and continued to function as such till his death in 1962. Govindaswami predeceased Subbarayalu Chettiar. But Ananthapadhmanabhan, who survived Subbarayalu Chettiar, did not take any action to become the trustee till his death in 1955. The plaintiff laid this suit alleging inter alia that under the terms of the trust died, he, being the eldest male descendant of the original founder, was entitled to be the trustee and that the first defendant had no manner of right to be the trustee. It is in that view he prayed for the reliefs indicate above.
2. The suit was resisted mainly by the first defendant who contended that under the terms of the trust deed, the trusteeship devolved on Subbarayalu Chettiar on the death of Narasimha Chettiar and on the death of Subbarayalu Chettiar, the trusteeship developed on Nagamayya Chetti and on the death of Nagamayya Chetti, the office developed on the first defendant, the only son of Nagamayya Chetti. It was also contended that in any event Nagamayya Chetti had perfected title to the office of trusteeship by adverse possession for over the statutory period, that such title acquired by Nagamayya Chetti had devolved on the first defendant and that, as such, the plaintiff was not entitled to any relief. There was also a controversy as regards item 6 of the plaint schedule which had been purchased in the name of Subbarayalu Chettiar. The contention raised by the defendants was that it did not belong to the trust. But the lower Court has found that this item also belonged to the trust, though it was purchased in the name of Subbarayalu Chettiar. That part of the finding was not challenged before us on behalf of the defendants. The trial Court found that under the terms of the trust deed, the trusteeship is to devolve upon the eldest male member of the original founder, that the said mode of devolution was invalid by reason of creation of estates unknown to Hindu law as laid down by the Privy Council in the well-known Tagore case, that in any event Nagamayya Chettiar had perfected title to the office of trusteeship by adverse possession for over 12 years and that consequently the plaintiff was not entitled to any relief as against the first defendant, son of Nagamayya Chetti. In this view, the trial Judge dismissed the suit. Hence this appeal.
3. Mr. Sundaram Iyer, appearing for the contesting defendants conceded before us that he cannot support the conclusion of the lower Court based upon the principle enunciated in Tagore case, for, the office of trusteeship in the instant case does not carry any personal interest of a beneficial nature. Whoever be the trustee for the time being is bound to administer the trust in accordance with the terms of the trust deed without any personal benefit. This position he had to concede, in view of the decision of the Full Bench of this Court in Manathunatha Desikar v. Sundaralingam : (1970)2MLJ156 . The points argued before us were these:--
(i) Whether, under the terms of the trust deed, the founder made provision only for his immediate successor or whether provision is made permanently for the office to devolve on the eldest male member for the time being; and (ii) whether the first defendant has acquired title to the office of trusteeship by adverse possession.
4. Ex. A-1 dated 22-6-1899, the trust deed executed by the original founder is no doubt not explicit in regard to the mode of devolution of the office of trusteeship. That ambiguity has given room for this controversy. To find out the intention of the founder, it is necessary to note the relevant portion:
'dharmam sasuvadhamai nadathivaravendiyadhu. Nanavadhu ennida varisugalavadhu indha settilment rathu seyya pathiyam illai. Merpadi dharmathai nanirrukkum varaiyil nane nadathivaruvenagavum. Enakuppiragu ennudaiya varisugalil appodhu vayadhil jestanayirukkappattavan erpattu nadathivaravendiyadhu. Ennudaiy Varisugalal dharmam sarivara nadathappadamal kundhagam nerudum pakshathil indha karooril merpadi dharmathil sirathaiyulla engal vaisiya jadhi chettiar mudhalana patthu per uravin muraiyaga pravesithu merpadi dharmam paripalanam seydhu varuvadharkaga ennudaiya varisugaludan thagundha trusteegalai erpaduthavum adhigaram koduthirukkiren. Merpadi ilegiyil selavu poga meedhiyirukkum panatthai merpadi dharmam sothin virutthikke ubayogappadutthivaravendiyadhu. Merkanda pragaram en varisugaludan erpadum trusteegalukku merpadi dharmatthai merpadi nibandhanaigalinpadi nadathi kanakku vaithu varavendiyadhu. Merpadi dharmam ennalavadhu ennudaiya varisugalavadhu sariyaga nadatthapadamattadhenru enakke thonrumpakshathi adhai paripalanam seyya vendi yadharkaga veru trusteeglai niyamikka enakku adhigaram undu.'
From the above passage it would be seen that the founder intended the trust to be a permanent one. He provided that so long as he was alive, he should be the trustee. As to who should succeed him he provided to who should succeed him he provided to who should succeed him he provided 'enakku piragu ennudaiya varisugalil appodhu vayadhil jeshtanayirukkappattavan erpattu nadatthivaravendiyadhu.' It is this clause that has given room for the controversy. According to the plaintiff, this clause means that the office of trusteeship should devolve upon the seniromost male member in the family at the time when succession to the office opens. But the contention urged on behalf of the first defendant is that the said provision was applicable only to the succession to the office of trusteeship on the death of the founder of the trust and that the trust deed cannot be taken as providing for the devolution of the trusteeship for all time only upon the senior male member of the family for the time being when succession to the office opens. the trial Court rejected the contention of the defendants, and we think rightly. It should be borne in mind that the founder intended the trust to be conducted permanently. If the expression 'ennudaiya varisugalil appodhu vayadhil jesthanayirukkappattavan' the word 'appappodhu' had been used instead of the word 'appodhu', the matter would have been clear beyond any shadow of doubt. It is the absence of such a word that has given room for this controversy. But it is clear from the terms of the trust deed that the intention of the founder of the trust was that the office should devolve only upon the eldest male member for the time being when the office falls vacant. That is evident from the expression 'ennudaiya varisugalal dharmam sarivara nadatthapadamal'. That is also reiterated in the expression 'merkanda pargaram en varisugaludan' and also in the expression 'ennalavadhu ennida varisugalavadhu.' From these expressions it is clear that the founder contemplated the trustee who would not only immediately succeed him but also all succeeding trustees, all being his heirs. It could not have been the intention of the founder that the trust should be managed by somebody other than a member of his family after the lifetime of his immediate successor.
5. Mr. Sundaram Iyer, appearing for the first defendant, put forward inconsistent contentions. In one breath he argued that the mode of devolution contemplated in the trust deed would apply only to the trustee to follow immediately after the death of the founder. His another argument was that the founder intended that the line of devolution of the office of trusteeship should continue in the family of any one of his sons, who may happen to succeed him and that the said office should devolve only among the descendants of that son. We find no warrant for this argument from the language in the trust deed. having regard to the terms of the trust deed we are clearly of the opinion that the founder of the trust did intend that the office of trusteeship should devolve upon the eldest male member of the family for the time being as and when succession to the office opens. The trial Court was right in its conclusion upholding the contention of the plaintiff.
6. The only other question that survives for consideration is whether the first defendant has acquired title to the office of trusteeship by adverse possession. As we have already pointed out, the person competent to succeed on the death of Narasimha Chettiar was his second son Subbarayalu Chettiar, as the first son Venkatarama Chettiar an predeceased Narasimha Chettiar. Even during the lifetime of Subbarayalu Chettiar, his younger brother Govindaswami Chettiar died. But at the time when Subbarayalu Chettiar died in the year 1936, the youngest brother Ananthapadhmanabhan was alive. Therefore, on the death of Subbarayalu Chettiar, the office of trusteeship should have devolved on Ananthapadhmanabhan. But for some reason or other, which is not clear in evidence Ananthapadhmanabhan did not take any steps to become the trustee. In those circumstances, Nagamayya, the eldest son of Subbarayalu Chettiar, assumed charge of the trusteeship and continued to function as such till his death in 1962. On his death, his eldest son, the first defendant, has assumed management. Inasmuch as Subbarayalu Chettiar died in the year 1936 and inasmuch as Nagamayya continued to be the trustee for more than twelve year from 1936, the argument that is put forward on behalf of the first defendant is that the first defendant, son of Nagamayya Chetti, has become entitled to the office of trusteeship by adverse possession as against the plaintiff. The argument was that if the office of trusteeship should devolve on the seniormost male member for the time being, it should have devolved on Ananthapadhmanabhan in the year 1936 when Subbarayalu Chettiar died, that inasmuch as the office of trusteeship was taken over by Nagamayya Chettiar, the right of Ananthapadhmanabhan to claim the office was extinguished on the expiry of 12 years from 1936 and that consequently the right of the plaintiff also is extinguished. In support of this argument, reliance was placed upon a decision of this Court in Jagathambal Anni v. Periathambi, AIR 1936 Mad 188. The principle laid down in that case is seen from the following passage occurring in page 189-
'Whatever the differences may have been as to the time when the possession becomes adverse, there has latterly been no doubt whatever that once adverse possession starts, it operates not merely against the then trustee, but against his successors as well; and this can only be on the footing that each succeeding trustee claims under his predecessor.'
It would be seen from the foregoing passage that adverse possession against one to the office of trusteeship would not operate against another if the other person does not claim through the person whose right is lost by limitation. If the succeeding trustee claims title independently of the person whose right is lost by limitation, the aforesaid principle is not applicable. The decision in Muthukumarasami v. Subbaraya : AIR1931Mad505 on which reliance was next placed on behalf of the first defendant, has also laid down the same principle that were the predecessor trustee allowed his right to the hereditary office to get barred by limitation, those who were next in succession to him should also be deemed to have lost their rights.
7. To apply the principle laid down in the foregoing cases, the essential requisite is that the person who claims trusteeship and against whom the plea of bar of limitation is sought to be put forward, should claim as the successor of the person whose right is lost. If that prerequisite is wanting, the aforesaid principle cannot be applied. The misapprehension, upon which the counsel for the first defendant advanced the argument based upon the above decisions, was that the plaintiff was claiming as successor to Ananthapadhmanabhan. The assumption is wholly unwarranted. The plaintiff claims trusteeship by virtue of the terms of the trust deed as the eldest male descendant of the founder and not as the successor to Ananthapadmanabhan. If that important circumstance is borne in mind, it would be seen that there is no room at all to advance the plea of adverse possession. Unfortunately, the lower Court failed to keep this principle in view and erroneously assumed as if the plaintiff was the successor of Ananthapadhmanabhan. It might be that Nagamayya, father of the first defendant, had perfected title to the trusteeship by adverse possession for over 12 years from 1936, when Subbarayalu Chettiar died and the right of Ananthapadhmanabhan would have become barred on the expiry of 12 years from 1936. But the cause of action for the plaintiff to claim trusteeship arose on the death of Nagamayya, who was the seniormost male member after the death of Ananthapadmanabhan and, therefore, on the death of nagamayya, the plaintiff, who is admittedly the seniormost male member among the descendants of Narasimhalu Chettiar, became entitled to claim the office. The suit was instituted in the year 1963, and, therefore, the plaintiff's right is not barred.
8. On the death of Nagamayya, the first defendant claimed to have become the trustee. From the facts stated above, it would be seen that the first defendant was the usurper of the office as against the rights of the plaintiff. Under the terms of the trust deed, the plaintiff was entitled to be in possession and management of the trust properties. Inasmuch as the possession of the first defendant was unlawful, he is liable to render accounts to the plaintiff for the period of his possession, that is from the time when his father died.
9. In the result, the appeal is allowed, the decree of the trial Court is set aside and there will be a decree in favour of the plaintiff in the terms prayed for with costs in both the courts. The suit was filed in forma pauperis and as such, we direct the first defendant to pay the court-fee payable on the plaint.
10. Appeal allowed.