Krishnaswamy Reddy, J.
1. The appellant who claims to be the eldest male heir to the founder of a trust, filed the suit for a declaration that he is entitled to-administer the trust created by his forefathers and for possession of the suit properties from the defendants to administer the trust as trustee. The suit was. dismissed by the learned Subordinate Judge, Chingleput. Hence the appeal.
2. To appreciate the facts and the contentions raised by the parties in this appeal, it is necessary to note the following pedigree:
Thylamma : Muniappa (d. 1858) : Perundevi| | || ______________________________________________Ponnambala1 Subbaraya Arunachala (d. 1898)Adopted Natesa:KalyanasundarammalMurugesa (d.) Annamalai Muniappa(No sons) (No sons)Subbaraya : Natesan (d. 1937) (d. 1958)Andalammal (d. 8)____________________________________________________________________| | | |Raraaswami (d.) Lakshmana Murugesa (d.) Muniappa (d.)(No issues) | |Kuppuswami Doraiswami (d.)_________________________________________________________________| | | | | Vadivelu Lakshmana Narasimha Muniappa Gopala(Plaintiff)
3. Subbaraya and Arunachala were the sons of Muniappa by his second wife, Perundevi and Ponnambala was the son of Muniappa by his first wife Thylamma. Muniappa and Ponnambala were employed as Kolathu maistries, Subbaraya as road maistry and Arunachala as Overseer in Public Works Department. The family owned two houses in Kancheepuram and some lands in Vedal village near Kancheepuram. In 1855, there was a partition between the father Muniappa and his sons, Ponnambala, Subbaraya and Arunachab. Ponnambala got a house at Kancheepuram in the partition which he subsequently sold to Subbaraya and Arunachala Muniappa died in 1858. Subbaraya and Arunachala continued to live as members of a joint family. Arunachala acquired considerable properties from and out of his own earnings. Though married, Arunachala had no issues. He retired in 1879. He filed a suit for partition against his brother Subbaraya and obtained a decree under which each of them was entitled to a half share in the family properties. In 1887, Arunachala purchased the half share of his brother, Subbaraya and thus he became the owner of the entire property belonging to the family.
4. Arunachala was a pious and charitably minded man. During his life time, he built a choultry in Tiruttani and a Vinayagar temple and choultry ia Greanspet, Ghittoor. He was also performing several charities. He constructed a house in Arkonam, the income from which was meant to be utilised for the performance of the charities and religious rites. As he was issueless, he proposed to adopt a boy from the family. He executed a will on 1st May, 189& (Exhibit A-1) bequeathing certain properties absolutely to the boy proposed to be adopted by him and creating a trust in respect of the charities performed by him by setting apart certain specific properties for the performance of such charities. He also appointed executors 10 administer the properties after his death. He died in 1898.
5. Subbaraya, brother of Arunachala had three sons, namely, Murugesa, Annamalai and Muniappa. Annamalai and Muniappa had no issues. Murugesa had two sons, Subbaraya and Natesa. Natesa was adopted to the deceased Arunachala six or seven days after the death of Arunachala. Natesa was then four or five years old. Murugesa was managing the properties of Natesa including the trust properties mentioned in the will of Arunachala as Natesa was a minor. Murugesa died in 1918. After the death of Murugesa, though Natesa was a major at that time, his elder brother Subbaraya was managing the trust properties. Subbaraya died in 1938. After his death, his wife, Andalammal (8th defendant) was in possession of the trust properties. From her, Natesa got possession of four items of trust properties under Exhibit B-n dated 16th January 1939.
6. Natesa executed a trust deed Exhibit A-2 on 23rd December, 1938, in respect of the charities performed by Arunachala as mentioned in Exhibit Ai and appointed himself as a trustee along with two others for the purpose of the administration of the trust. It was provided in Exhibit A-2 that, the. eldest male member of his family in the line of succession should be a permanent trustee. Natesa had no issues. He executed will Exhibit A-8 on 14th May, 1940, bequeathing the 'A' schedule properties therein in favour his wife Kalyanasundarammal and appointing Kalyanasundarammal, her brother Singaravelu Mudaliar, the second defendant and two others as executors to perform the charities and to administer the trust mentioned in B schedule of Exhibit A-3. The first and second defendants are brothers of Kalyanasundarammal. The first defendant came to live with Natesa in or about 1944. Natesa in supersession of Exhibit A-3 executed a settlement deed (Exhibit B-1) on 26th April, 1944, in favour of his wife Kalyanasundarammal. Besides settling the properties belonging to him absolutely, he directed her under Exhibit B-1 to perform the charities mentioned in C schedule therein with the income of B schedule properties therein. He also nominated five persons including the second defendant to assist her in performing the charities mentioned in G schedule. He also gave authority to his wife to nominate any person she liked to perform the charities after her death. On 11th November, 1953, Natesa executed a will Exhibit B-2 giving absolute rights in respect of certain properties mentioned 'in/the will with a direction that she should perform the pooja, Neivedyam and other things to Varasidhi Vinayakar Temple in Chittoor from the income of the properties mentioned in A schedule. On 17th November, 1957, Katyanasunda-ramma executed a will (Exhibit B-3) in favour of her two brothers (defendants 1 and 2) bequeathing all her properties including the trust properties with absolute rights. Defendants 1 and 2 were directed under the will to perform those charities mentioned in Exhibit B-1 dated 26th April, 1944, the settlement deed executed by Natesa in her favour. Natesa died in 1958. Kalyanasundarammal placed items 11 to 14 of plaint schedule (Chittoor properties) in the management of the sixth defendant and items 9 and 10 of the plaint schedule (Tiruttani properties), in the management of the seventh defendant for collecting the income and performing certain charities. She executed a codicil Exhibit B-4 dated 12th April, 1959, in respect of certain properties-omitted to be mentioned in Exhibit B-3. Kalyanasundarammal died in 1961. After the death of Kayanayundarammal, the plaintiff issued a notice Exhibit B-5 through his Advocate on 26th August, 1962 to defendants 1 and 2 on -his behalf and on behalf of four oth3rs claiming themselves to be reversioners of Natesa in respect of the properties which were in the possession of Kalyanasundarammal, the widow of Natesa and asking the defendants to hand over those properties which they came to possess unlawfully. Defendants 1 and 2 sent a reply to Exhibit B-351 dated 7th September, 1962 stating that they got the properties by a will executed by Kalyanasundarammal who got the properties by settlement deed from her husband, Natesa. Subsequent to the notice, on 27th September, 1962 defendants 1 and 2 sold the property in Kancheepuram (item 4 in the plaint schedule) to the third defendant for a sum of Rs. 3,000. On 24th December, 1962 defendants 1 and 2 made a gift to the fifth defendant of 50 cents in item No. 7 to the plaint schedule (Exhibit B-354). On nth February, 1963 defendants 1 and 2 sold item 8 to the plaint schedule (Arkonam property) for Rs. 31,500 to the fourth defendant. It is statedthat this amount was invested by defendants 1 and 2 in National Defence Bonds. ; Defendants % and 2 divided their properties by registered partition deed dated 24th November, 1964 (Exhibit A-6). Defendants 3 to 7 have been impleaded asalienees of trust proper tiesi Defendant 8 Andalammal has been impleaded as she is alleged to have been in possession of one of the trust properties (item 5 of the plaint schedule).
7. Defendants 1 and 2 contended in their written statement that Arunachala, the original founder of the trust had not divested himself of any of the trust properties during his lifetime and that even after his death, the properties did not vest as trust properties in the hands of the executors or anyone else, that though Natesa, a boy aged about 4 or 5 was adopted to Arunachala by his widow, the suit property or any other property bequeathed by Arunachala to his adopted son never came into the hands of the executors named by Arunachala in the will, that the widow of Arunachala managed the properties as guardian of the minor for sometime and later, Murugesa, the natural father and Subbaraya, the brother of Natesa managed the suit properties and other properties as his defacto guardians during his minority and that the executors named in the will Exhibit A-1 never chose to accept the trust imposed upon them but instead, allowed those properties and the income to be dealt with and enjoyed by the guardian of Natesa during his minority and afterwards by Natesa himself as his own private properties. It was further contended by them that even after Natesa came of age and took charge of all the properties including the suit properties, he never chose to deal with those suit properties or their income in a separate or distinct manner or vest them in the hands of the executors but dealt with them all as his own private properties and alienating some of them, contrary to and in derogation of the terms of the will Exhibit A-1. Thus, the main contention is that there was no dedication of the suit properties for a trust or vesting of the same with the executors and since the executors themselves had refused to become the trustees, the trust itself never came into effect. The defendant while admitting that Natesa executed a trust deed Exhibit A-2 dated 23rd December, 1938 specifying the suit properties and their income for the use of certain religious charities and services and appointing executors for the same,, asserted that the said trust did not take effect as the executors named by him declined to accept the trust and act as trustees and as they relinquished all their rights as trustees. Thus, it was contended that the trust deed fell through and Natesa continued to own and enjoy the suit properties and their income as his own though he of course continued to do some of the charities mentioned by his father according to his pleasure and discretion. The defendants while admiting the alienations, contended that the suit properties were private properties of Natesa belonging to him solely and absolutely in his own right, he having acquired a prescriptive title in himself, that the settlement deed in favour of Kalyanasundarammal and the will and codicil executed by Kalyanasundarammal in favour of these defendants bequeathing the suit properties absolutely is valid and that, therefore, the alienations were also valid. It was further contended that the plaintiff had no locus standi to maintain the suit as he was not a member of the family of Natesa. It was also contended that as per the terms of Exhibit A-1, the will of Arunachala, the suit properties were only subjected to a charge over a portion of the income, that there was only a partial dedication and that, therefore, the plaintiff is not entitled to recover possession of any of the suit properties.
8. The contentions of the other defendants will be discussed later while dealing with the case of each of them.
9. The learned Subordinate Judge found that there was an absolute dedication of the suit properties for the charities by Arunachala and not a partial dedication as contended by the defendants. But he, however, held that Exhibits A-1 and A-2 were not acted upon and the trust mentioned in Exhibit A-1 did not come into effect as the properties allotted for charities by Arunachala were not taken charge of by the executors and that they did not administer the same as per the terms of the will and similarly, Exhibit A-2 also did not come into effect as the executors mentioned therein either did not take possession of the trust properties or perform the charities and relinquished their trusteeship. The learned Judge also held that since the trust was not given effect to, Natesa and his successors-in-title had acquired a prescriptive title to them having been in possession of those properties for over the statutory period.
10. It may be necessary to note the will Exhibit A-1 executed by Arunachala in more deatail for the purpose of considering whether he created a trust during his lifetime and whether the trust failed for the reasons mentioned by the defendants. Arunachala was aged about 65 at the time of execution of Exhibit A-1. He was religious minded and a pious man. In the will, he gave the details as to how he acquired properties mentioned therein and became the absolute owner thereof. In paragraph 10 of Exhibit A-1, he mentioned 36 items of properties as the properties belonging to him. In paragraph 11, it was stated that item 35 which is item 7 in the plaint schedule, namely, the bungalow garden in Subbaraya Mudali Street, Kancheepuram was put in his possession by the decision of panchayatdars, that he had constructed a Vasantha Mandapam at a cost of Rs. 2,500 for the Vasanthotsavam (summer festival) of Kumarakottam Subramaniaswami, that he had constructed three separate Madapallis (kitchens) for the purpose of preparing prasadams and that he had also planted coconut trees at a cost of Rs. 500 and made improvements in the said garden. It was further stated that item 17 in Exhibit A-1 which is item 8 in the plaint schedule (the house at Robinsonpet, Arkonam) was set apart for the performance of Vasanthotsavam of Subramaniaswami and for the performance of other charities from the income of the said property and that Arunachala spent Rs. 3,000 and made it a storeyed house and also made further improvements by putting up several rooms both in the ground floor and the first floor, thereby augmenting the income by letting the house for shops and residential purposes. Arunachala had constructed a choultry in Tiruttani (item 21 in Exhibit A-1 - plaint item 9). Besides these items, Arunachala set apart items Nos. 1, 3, 4, 6, 24, 25, 26 and 27 and shrotrium shares in items 30, 32 and 33 for the performance of charities which he had been already doing as enumerated j in paragraph 12 of Exhibit A-1 making a provision that the income from these properties after paying kist, tax and effecting repairs should be utilised for the performance of such charities after his lifetime. Arunachala has given the particulars of the charities performed by him during his lifetime and which he desired that they should be continued to be performed after his lifetime, in paragraph 12 of the will. They are as follows:
1. To perform an abhishegam to Sappani Pillaiar of Kancheepuram during the Kathiri season (summer season) every year at a cost of Rs. 2.
2. There is a globe light burning in fron of Saraswathi Amman Sannadhi a Kamatchi Amman Temple. For that a sum of Rs. 7 shall be paid per year for burning the same. Every year during the month of Purattasi on the day of Saraswathi Pooja, an abhishegam shall be performed to the aforesaid Amman at a cost of Rs. 2.
3. For performing Kunguma Ashtothra Archanai to Sri Kamatchi Amman on all Fridays, a sum of Rs. 4 per year shall be paid and the same is performed.
4. For performing the Utsavam on 3rd Friday every month to Sri Ulaga-lantha Perumal Aranavalli Thayar, a sum of Rs. 2 per month shall be paid and performed. To burn a light daily at Anjaneya Swami Sannadhi situate in the Sannadhi Street of the aforesaid temple, 3/4th viss of oil shall be supplied every month and the same shall be performed. For the aforesaid Anjaneya Swami, Thirumanjanam shall be performed at a cost of Rs. 2 during Kathiri (summer) season.
5. For burning one light at the Nava-graham Sannadhi at Sri Ekambaranathar Temple, 3/4th viss of oil shall be supplied per month and the same shall be performed. For the performance of Ashtothra Saga-Vilvarchanai during every Monday to the aforesaid Ekam-baranatha Swami a sum of Rs. 4 shall be paid per year and the same shall be performed. To the aforesaid Swami (deity), every year in the month of Cihittrai, during 'Arudhra' festival, on the day when 'Thirukkan' was given to Sundaramurthi Swami, abhishegam shall be performed at a cost of Rs. 5.
?. To Sri Subramania Swami of Kumara Kottam every year during the month of Vaikasi during Suklapaksha period on the day when Mirugesrisha star being my birth star falls, from the aforesaid bungalow mandapam at 7 A.M. the said deity shall be taken in possession on the four streets and the said utsavam shall be performed and at the Madapalli buildings attached to the aforesaid garden Mandapam constructed by me, Audhi Saiva Brahmins and Smartha Brahmins shall be fed. To the aforesaid Swami, Thirupavadai shall be adorned and Neivethiyam performed and evening Mandagapadi, Kelikkai and other Upacharams as per utsava practice shall be performed and after 7 P;M. the aforesaid deity shall be taken in procession from the Mandapam through the Kachapeswarar Swami Temple, Raja Street in all pomp and splendour and for the performance of the aforesaid charity, a sum of Rs. 150 shall be paid every year. For the aforesaid Swami, for performing Ashtothra Vilvarchanai on every Tuesday (Mangalavaram), a sum of Rs. 4 shall be paid and the same shall be performed. For burning one light daily at the Navagraham Sannadhi, 3/4th viss of oil shall be supplied and the same shall be performed. For the aforesaid Swami and Navagrahams, during Sivarathri day of every year, abishegam at a cost of Rs. 5 during the first pooja hour shall be performed. For the aforesaid Swami, during the midday pooja hour, every day, curd rice of the quantity of not less than one measure shall be prepared and offered as Neivethiyam and the same shall be distributed to not less than 4 Paradesi Brahmins. This charity shall be performed every year within Rs. 95. For offering the neivethiyam of milk mixed with sugar to the aforesaid deity at the 'Arthajama Palliarai' (retiring hall) a sum of Rs. 12 per year shall be spent and the same shall be performed.
7. At the choultry built by me at the Sannadhi Street, Tiruttani to the pilgrims, water shall be supplied for quenching their thirst and for the wayfarers for cooking their food and taking their beds, accommodation shall be provided without any objection to those who intend resting there. A brahmin on a salary of Rs. 2 1/2 per month has been appointed for this purpose. On every Krithigai day, for feeding 10 paradesis, as per the custom, a sum of Re. 1 shall be paid to the aforesaid Brahmin and the same shall be performed. To the sweeper of the aforesaid choultry, a sum of Re. 1 per month by way of salary and a sum of Rs. 1-4-0 per month towards broom-stick, winnow, thambu kayir (rope) and for white washing and painting with red sand the choultry on Adi Krithigai and Sankaranthi festival days shall be paid. In the aforesaid choultry to the person for lighting the lamp and providing accommodation to the visitors therein and looking after their belongings with care till their departure, a sum of Rs. 12 per year shall be paid. Either the Brahmin of the said choultry or the lamp lighter or the sweeper should not let out any space on rental basis to anyone. Should it come to light that the same was let out as such, that person shall be punished appropriately.
8. To the Varasidhi Vinayagar installed at the temple constructed by me at the foot of of the hill at Gireempettai, Ghittoor Taluk, for offering daily neivethiyam, towards I/4th measure of rice, a sum of Rs. 18 shall be paid every year and for Dhoopa Deepam and every Sukravara abhishegam, a sum of Rs. 24 per year shall be paid and the same shall be performed. For lighting deepam every day 374th viss of oil per month shall be supplied. During the Brahma Utsavam of Sivasubramania Swami enshrined at the aforesaid hill and when the aforesaid deity comes and stays at the aforesaid Mandapam for offering 'Karpoora Arathi' and offering 'Patha pooja' to the said deity when the aforesaid deity is brought from the car and placed in the said Mandapam during the car festival, a sum of Rs. 6 shall be spent per year for performing the same. Abhishegam to the aforesaid Swami shall be performed every year at a cost of Rs. 2. Abhishegam shall be performed to the Varasidhi Vinayagar during the month of Avani every year on the Vinayaga Chathurthi day and during the month of Masi on Sivarathri day at a cost of Re. 1.
9. To Sri Kamakshi Amman, during the month of Vaikasi, on 'Poosa Nakshatra (star) day', in my big garden at the Vasantha Mandapam bungalow, a day's utsavam shall be performed by spending Rs. 35.
10. Every year during the month of Vaikasi on 'Sukla Patcha (fullmoon period) Thuvathesi Thithi' on which the annual ceremony day of my father falls, 20 paradesis shall be fed by spending Rs. 2J.
11. Every year during the month of Masi on 'Krishna Patcha' (new moon period) ' Ghathurthasi Sivarathri day' on which the annual ceremony of my father falls, 20 paradesis shall be fed by spending Rs. 2 1/2.
11. Arunachala appointed seven persons_, as executors, namely, (1) Vamathesa Desikar, the then trustee of Sri Siva-subramania Swami, Kumara Kottam, Kancheepuram; (2) Ekambara Mudaliar, (3) Murugesa Mudaliar; (4) Velappa Ghettiar;(5)Thiruvengadasamy Mudaliar; the co-brother of Arunachala; (6) Ramaswamy Mudaliar, son of Ponnam-bala Mudaliar, elder brother of Arunachala; and (7) Raghavalu Naidu of Kancheepuram, to take possession of the properties set apart for the charities mentioned in paragraphs 11 and 12 and to perform the aforesaid charities out of the income derived from the properties excluding the expenses incurred towards the payment of taxes for the said properties and the amount spent towards effecting repairs etc., to the said properties. It was also provided that if the income derived from the aforesaid properties were found to be in surplus after performing the aforesaid charities, the surplus amount shall be added to the capital and augmented and in case there was deficiency in the income, the expenses for the charities shall be reduced to that extent. Arunachala proposed to adopt a son from his family. He provided that the same executors shall take possession of the other properties belonging to him mentioned in detail in the will itself and allotted to the proposed adopted son and manage the said properties after the lifetime of Arunachala and during the minority of the said person and hand over possession of the same to the proposed adopted son on his attaining majority. In respect of the charities to be performed and the properties set apart for such charities, the executors were given authority to co-opt the son to be adopted by Arunachala as one of the executors if he happened to be religious minded and conducted himself properly and they Were also given the authority to co-opt Murugesa Mudaliar and Annamalai Mudaliar, sons of Subbaraya Mudaliar as executors of the trust properties provided they co-operated with him during his lifetime itself. It was provided in the will that if any one of the executors is removed by act of State or God the others shall substitute in his place a proper person. Arunachala himself in his will appointed Vamatheva Desikar, one of the executors as the Secretary and mentioned that he shall maintain the records, accounts, cash book and cash etc., that a meeting of the executors shall be convened once in a month or as and when they deem it necessary at No.2, Subbaraya Mudali Street, allotted for charity, that the proceedings and other documents and cash shall be kept at the said premises and that they shall be allowed to be perused by the persons who were interested in the charities without raising any objection whatever and give proper explanations whenever required by the persons so interested in the charities.
12. In respect of the said will the following points were raised by Sri R. Gopala swami Iyengar, the learned Counsel, appearing for the respondents: (1) the bequest of the properties for trust by a Will, will be invalid in view of the adoption ; (2) even if the bequest is valid, there was no dedication of properties for the trust during the lifetime of Arunachala as the terms of the will had to take effect only after the death of Arunachala;; (3) after the death of Arunachala, the terms of the Will were not given effect to as none of the executors had taken charge of the properties set apart for the trust and performed the charities and, therefore, the trust failed; and (4) if at all there was any dedication, it was only a. partial dedication and, therefore, the plaintiff cannot ask for possession of the properties set apart for the trust.
13. There is no substance in the first point. The law on the point is that, if the adoption of Natesa, who was a minor, took place during the life-time of Arunachala, the dispositions to charities would not be valid, because the rights of the adopted son Would prevail. This is clear from the decision of the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar . The same decision shows that, if the boy was adopted by Arunachala's Widow after his death, the bequest under the will to the charities would take effect immediately on the death of the testator and would not be affected by the subsequent adoption. This is how their Lordships put it (at page 525);
When a disposition is made inter vivos by one who has full power over property, under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a Widow Who has been given a power to adopt ; for the will speaks as at the death of the testator, and the property is carried away before the adoption takes place. It is also obvious that the consent or non-consent of the natural father cannot in such cases affect the question. But it is quite different when the adoption is antecedent to the date at which the disposition is meant to take effect. The rights Which flow from adoption are immediate, and the disposition, if given effect to, is inconsistent with these rights and cannot of itself vi propria affect them.
14. This decision is followed by the Bombay High Gourt in Narayanan v. Padmanabh : AIR1950Bom319 . There the last male-holder of a joint Hindu family made a will under which he gave a life estate to his wife with a vested remainder to the plaintirf. Subsequently after the death of the testator the widow adopted a son (third defendant in the suit). It was held that the adoption did not divest the prior interest granted to the plaintiff. The decision of the Privy Council is referred to and the reasoning is expressed thus:
The alienation is made when the will is executed; the alienation takes effect when the testator dies and the will begins to speak. The mere possibility that an adoption would take place cannot affect the right of the-testator which he had to make the will and make such dispositions as he liked of his property. Therefore the point of time at which the question has to be asked as to Whether the dispositions made under the will should take effect or not is undoubtedly when the will begins to speak, and the question that has got to be asked is whether the testator had the right to make the will at the time when he made it, and in this case undoubtedly Vishweshwar had the right to make the will as he was the sole surviving coparcener of the family. Although the point did not directly arise for decision the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar , have expressed a clear opinion on this very question. Their Lordships feel that no distinction-could be drawn between an alienation inter vivos and an alienation by a testamentary disposition and this is what they say': (They quote the passage which we have already quoted, and-proceed to observe)
Therefore at the death of the testator there is no estate left to which the adopted son can lay a legal claim. The property has already been carried away by the disposition made by the testator,, which disposition was made at a time when he had the right to make that disposition.
15. The same statement of law finds place in Mulla's Hindu Law, Thirteenth Edition, page 511, in paragraph 498(3).
16. This being the law on the point, if the defendants wanted to invalidate the will on the ground that the adoption took place during the life-time of Arunachala, if was incumbent on them to raise a plea to that effect and also raise an issue. As it is, we find that they did not raise any such point: indeed, their written statement proceeds on the footing, that the adoption took place after the death of Arunachala. No doubt, the plaint states in paragraph 4 that Arunachala himself adopted Natesa Mudaliar, but we find in paragraph 5 of the written statement the following statement:
The widow of Arunachcla after his death though they have chosen to adopt the boy Natesa, a minor, they never chose to vest the suit or any of the other properties bequeathed by him into the hands of the executors named by him in the will but took possession of them all...etc.
Thus the written statement proceeds on the footing that the adoption took after the death of Arunachala. We also find that this is also what has been elicited ;by the defendants in the cross-examination of P.W. 2, that Natesa was adopted seven or eight days after the death of Arunachala, and that Natesa was then aged four or five years.
17. Apart from the point being not open, we accept the evidence of P.W. 2 and find that the dispositions made by Arunachala were valid as he was the sole surviving coparcener.
18. In respect of the second point that there was no dedication of the properties for the trust during the life-time of Arunachala, the learned Counsel for the respondents submitted that there was no immediate divesting of the properties set apart for the trust by Arunachala either by transfer of the properties to the trust or by mutation of names. The recitals in the will clearly show that Arunachala had been performing charities even before he executed the will and that certain properties like item No. 17 (plaint item No. 8), item No. 21 (plaint item No. 9), item No. 33 (plaint item No. 6), item No. 35, (plaint item No. 7) and item No. 23 (plaint item No. 11) were dedicated to the trust for the purpose of the charities.
19. It is stated in the will that item No. 35 has been delivered to Arunachala according to the decision of the pan-chayatdars at the time of the partition for the purpose of conducting Vasanthot-savam festival of Kumarakottam Subramaniaswami, that he spent about Rs. 2,500 and constructed a Vasantha Mandapam on it, that he had also constructed three kitchens for the purpose of cooking food for samaradhanai and neivedyam for the deity and that he had also planted cocoanut plants at a cost of Rs. 500.
20. Item No. 17 is a substantial building at Arkonam. In respect of this property, it is stated in paragraph 11 that this was dedicated in common for the purpose of performing Vasanthotsavam festival of Subramaniaswami of Kumarakottam and for the performance of other charities from the income of the said property and that he had made improvements to the building of the value of Rs. 3,000
21. Item N0.21 is a choultry in Tiruttani and this was constructed by Arunachala for the benefit of the pilgrims before the execution of the will.
22. It is clearly stated in respect of item No. 33 that Annamalai delivered a Vacant site in No. 7, Thalayari Street, Kanchee-puram, that he had constructed a gate for the Vasantha Mandapam in item No. 35 and that he had dedicated this property for charity
23. Item No. 23 is a temple constructed by Arunachala in Greanspet, Ghittoor, dedicated to Varasiddhi Vinayagar.
24. It is clear that so far as these items are concerned, they were dedicated to the trust and that Arunachala himself had been treating these properties as trust properties even before the execution of the will. In the will, he set apart some other properties for the purpose of performance of charities after his life-time from the income of those properties. In respect of these properties, there was no clear indication that Arunachala himself during his life-time had utilised the income either exclusively or even partially for the performance of the charities.
25. But, however, the probability is that Arunachala, pious and religiousminded as he was, even during his lifetime should have divested himself even of all those properties which were set apart separately for performing charities from the income of those properties. It appears from the recitals in the will and the history he had given about the acquisition of the properties and the way in which he was attending to the family affairs meticulously that he was so much disciplined that once he had set apart the properties for the trust, he should have strictly adhered to the terms mentioned therein and should have treated them as trust properties even during his life-time and dedicated even those properties set apart for the trust to be administered by the executors after his life-time. We have already noted that some of the substantial properties had been dedicated to the trust even before the execution of the will. Even assuming that some o the properties were not dedicated to the trust during his life-time, this does not affect in any way the creation of trust by Arunachala to be administered by the executors after his life-time as per the terms of the will. There cannot be any doubt that a trust was created by Arunachala in respect of which he made provisions in the will as to how the trust should be administered.
26. The next important point for consideration in whether the terms of the will were not given effect to and on that account the trust failed.
27. It is the case of defendants 1 and 2 that none of the executors mentioned in Exhibit A-1 had taken charge of the trust properties and that, therefore the trust did not come into effect. It does not appear from the materials on record that the executors mentioned in Exhibit A-1 had taken charge of the trust properties and administered them. However, P.W. 2, the paternal aunt's son of Natesa, the adopted son of Arunachala, the founder of the trust stated that after the death of Arunachala, Natesa was adopted and his natural father, Murugesa managed the properties bequeathed to Natesa absolutely under the will Exhibit A-1 and also the properties dedicated to the trust and after the death of Natesa, Subbaraya, the elder brother of Natesa, was managing the trust properties. P.W. 2 had also given the details of the charities performed by both Murugesa and Subbaraya. Therefore, the evidence of this witness examined on the side of the plaintiff does not show that after the death of Arunachala, any one of the executors mentioned in Exhibit A-1 had taken charge of the trust properties and administered the trust. On the materials and evidence in the case, we find that the executors mentioned in the will had not taken charge of the trust properties and admit-nistered the trust. But Sri V.V. Raghavan, the learned Counsel for the appellant (as he then was) would, however, say that Murugesa had been managing the trust properties as the executor as his name had been mentioned in the will Exhibit A-1. It is clear from the recitals in the will that only seven persons mentioned therein Were named as executors and that they were given option to co-opt Murugesa if during the life-time of Arunachala, he was in cordial terms with Arunachala. There is no evidence that Murugesa was co-opted as one of the executors by the Board of the Executors mentioned in Exhibit A-1. It, therefore, cannot be said that Murugesa was managing the trust properties as one of the executors. On the other hand, it is the contention of the respondents that as Natesa was a minor, his natural father, Murugesa was managing the entire properties including the trust properties as the guardian of Natesa, that Subbaraya, after the death of Natesa managed the trust properties as de facto guardian of Natesa and that, therefore, the trust failed as it was not administered by the executors mentioned in the will.
28. The question now to be considered is whether the trust failed on account of the executors not accepting the trust and administering it. The learned Subordinate Judge held as we observed already, that the trust failed as the executors did not take charge of the pro. perties mentioned in Exhibit A-1 and that they did not administer the same as per the terms of the will. He, however, found that there was a dedication of the suit properties for the charities by Aruna-chala, the testator. The fact that the executors under the will had failed to administer the trust, would not render the trust itself inoperative because a trust does not fail merely for want of a person to administer the trust. According to the will Exhibit A-1, the executors shall take charge of the trust properties and administer the same by performing the charities mentioned therein. The terms of the will would take effect immediately on the death of the testator and the executors should be deemed to be the trustees irrespective of the fact whether they had actually taken charge of the trust properties. A trust is not affected by the fact that the trustee who is named by the founder of the trust either refuses or is unable to discharge the trust through death, disclaimer or incapacity or otherwise to act and administer the trust. This principle is based upon equity as equity never allows a trust to fail for want of a trustee. In public interest, it is necessary for someone to administer the trust, to keep the trust alive. The statement of law on this aspect is stated in Halsbury's Laws of England, Third Edition, Volume 38, page 911, in paragraph 1543, as follows:
Failure of trustees. - Trusts do not fall by failure of trustees. Where no trustee is effectually appointed by the creator of the trust, or all the trustees appointed by him die or refuse to accept the trust before the trust takes effect, the person in whom the trust property is vested by reason of the failure of appointment, death, or refusal is deemed in equity to be the trustee of the property for the purposes of the trust. In such an event, however, if there is any procedure for the appointment of new trustees which is applicable to the case, it can be resorted to for the appointment of an original trustee, and, if that procedure is not applicable or is not resorted to, a Court of equity will appoint an original trustee.
In Brown v. Higgs 31 E.R. Chancery 366 , it was held that the Court never permits any trust to fail through the defect of the person to execute the trust and in the same decision the principle laid down in a number of earlier cases that a trust shall not fail because there is no trustee, has been reaffirmed.
29. In Attorney-General v. Stephens 40 E.R. Chancery 132, it isfound that a testator, who gave a legacy for charitable purposes to be executed, named a certain officer, describing him by his office, as one of the trustees, and later that office was abolished by an Act of Parliament. The question arose whether the failure of the trustee to take charge of the trust would fail the trust itself. It has been observed by Sir John Leach, the Master of the Rolls, as follows:
It is true that the testator has named, as trustee, an officer who in his official character no longer exists, and his intended trust in that respect (Italicised is mine) fails ; but the failure of a trustee will be supplied by this Court, and it must, therefore, be referred to the Master to approve of a proper person to be a trustee of this charity jointly with the relator.
30. We have already observed that the executors named by Arunachala in Exhibit A-1 had not administered the trust,, but it is not known from the evidence as to whether they refused to accept or whether they were inactive because Murugesa, the father of Natesa who was adopted to Arunachala within six or seven days after the death of Arunachala had taken charge of the properties and begun to 'administer the trust. In any event, the executors named in the will must be deemed to have disclaimed the executorship by their inaction. Though the executors had failed to take charge and perform the trust, it is clear and wellestablished that the trust on that account does not fail though the trusteeship has not taken effect. Sri R. Gopalaswami Iyengar appearing for the respondents does not seriously dispute this position. His contention, on the other hand, which has been seriously put forth is in respect of as to who would become the trustee, on the failure of the trustees mentioned in the will to administer the trust and what are the powers of such trustee. Therefore, on this point, a question arises as to what becomes of the trust if the trusetees had not taken charge of the trust.
31. As a trust cannot fail for want of trustees the administration of the trust must vest with someone or the Court of equity should appoint some person to administer the trust. The law on this point is that if all the trustees fail to administer the trust or repudiate the trust, the property dedicated to the trust would revest in the disposer or in his legal representatives, namely, heirs at law if he is dead, and in such cases, they become by operation of law the trustees for the purpose of administration of trust. In cases where there are no legal representatives or if legal representatives, even if available, do not take charge of the trust for some reason or other, then it will be for the Court to interfere for the purpose of appointing a trustee or trustees for the administration of the trust. On this aspect, it is stated in Halsbury's Laws of England, Volume 38, paragraph 1550, page 913, as follows:.If all the trustees disclaim, the property revests in the disposer, or, if he is dead, in his legal representative, who becomes, by operation of law, the trustee thereof for the purposes of the trust.
The disclaimer of the trustee, or of all the trustees nominated by the disposer, does not avoid the trust; but a new trustee will be appointed by a Court of equity to execute it....
32. According to Hindu Law, when the trust is founded, the trusteeship vests in the founder and his heirs, and if the founder had prescribed a line of succession to the office of the trust but the succession to the office had entirely failed, the right of management reverts to the founder and his heirs.
33. After the death of Arunachala, Natesa became the heir as his adopted son and he would succeed to the office of the trusteeship and the right of management of the trust properties would vest in him. We have already noted that while Natesa was a minor, Murugesa, his natural father was administering the trust by performing the charities mentioned in Exhibit A-1 and after Murugesa's death, his eldest son Subbaraya, the elder brother of Natesa, was managing the trust properties. Subbaraya died somewhere in 1938.
34. After the death of Subbaraya, Natesa sought to get possession of the trust properties from Andalammal, the widow of Subbaraya (8th defendant) by Exhibit B-11 dated 16th January, 1939.' Natesa was put in possession of some of the trust properties by the 8th defendant. Even before Natesa was put in possession of the trust properties, he executed a registered trust deed on 23rd December, 1938 (the registration copy of which is Exhibit A-2 and the original is Exhibit B-14). It may be necessary to note the recitals in the trust deed in detail as arguments were advanced by the counsel appearing for both sides in respect of the effect of the terms of the will. The recitals reproduced are as follows:
The properties more particularly described in the schedule hereunder and Worth about Rs. 15,000 originally Were belonging to my adoptive father Arunachala Mudaliar and he on 1st May, 1896, executed a will under Which he set up a charity (endowment) and after his life-time, my natural father, Murugesa Mudaliar and after him his son Rao Sahib CM. Subbaraya Mudaliar have been administering charity properties set out in detail hereunder for about 25 years. Since the aforesaid Subbaraya Mudaliar demised, from his wife Andalammal the charity properties described hereunder were taken charge and with a view to permanently carry out the Dharmas this deed of trust is executed. From out of the income derived from these properties after meeting the tax and repair expenses, not more than Rs. 250 shall be spent every year and Vasantha Ut-chavam of Shri Subrahmanyaswamy Kumarakottam, Kancheepuram. shall be celebrated. From out of the income of these properties, expenses should be made for lighting purposes in the aforesaid temple, carry out the repairs of the choultry set up by aforesaid Arunachala. Mudaliar iin Tiruttani and for upkeep and watch and on every Krithiga day' ten pilgrims should be fed. After meeting these expenses the remaining amount shall be augmented and improved and in this way the administration of the properties shall be carried out. Out of the income derived from these endowed properties the charities set out herein shall be performed and under no circumstances the properties shall be alienated or encumbered and no one shall have any right in this regard. As these charities were established by my forefathers for the purpose of properly carrying out these charities and administer, one member from my family i.e., the eldest living shall be the permanent trustee of this Trust. Further my aunt's son, Valavanur Deivasigamani Mudaliar's son, Sethupathy Mudaliar and Porasai Murugesa Mudaliar, residing in No. 9, Subbaraya Mudali Street, these persons shall be the administrators under the Trust whom I have appointed With their consent. These and I, in all three trustees are bound in duty to carry out the charities properly. Among these two trustees, if at any time, vacancy is caused the remaining trustee or trustees can appoint a person or persons whom they consider fit as trustees. Always the trustees shall not exceed more than three. If at any time two vacancies are caused or if one vacancy is caused and disputes arise between the two remaining trustees, then with the help and in the presence of an elderly Honorary Presidency Magistrate appointment shall be made by casting lot in the name of God. All the business transactions by the Trust Board shall be recorded in he Proceedings Book. Either I, or any of the Trustees shall have no manner of right either to cancel (revoke) or alter the deed of trust.
The deed has referred to Arunachala having set apart properties for the performance of charities under Exhibit A-1 and Murugesa and Subbaraya having administered the trust by performing the charities. Natesa, by this deed provided for the performance of charities mentioned therein from the income of the properties set apart for the trust and mentioned that if there is a surplus from the income after performing the charities, the surplus should be added to the trust and augmented and administered as properties of the trust, apart from appointing himself as a trustee and certain others, he chalked out a line of succession in respect of a permanent trustee by providing that an elder member of his family should be a permanent trustee as the trust was created for the performance of charities by the ancestors. He appointed two persons, namely, one Sethupathi Mudaliar and one Porasai Murugesa Mudaliar as trustees for the purpose of administering the trust along With him. It is the case of the respondents that the two trustees appointed by Natesa were not performing the charities and administering the trust as mentioned in Exhibit A-2. Murugesa Mudaliar,, one of the trustees appointed by Natesa under Exhibit A-2 who was examined as D.W. 3 stated that the trustees mentioned in Exhibit A-2 did not take possession of the properties or perform the charities and they did not agree to be the trustees. The plaintiff Who examined himself as P.W. 1 admitted, in cross-examination that the trustees; mentioned in Exhibit A-2 did not take, possession of the properties.
35. In respect of this deed, the learned' Subordinate Judge found that the trust created by Natesa did not come into effect as the trustees appointed by him failed to take charge of the trust and the: trust properties. We have already observed in dealing with Exhibit A-1 that the trust did not fail for want of trustees. In respect of Exhibit A-2, it is clear that though the two trustees appointed by Natesa did not agree to be trustees, yet Natesa appointed himself as; a trustee and he as the trustee was. managing and administering the trust and its properties and, therefore, the finding of the lower Court that Exhibit A-2 was not acted upon is obviously incorrect.
36. It was contended by the appellant that Natesa did not create a trust but he reaffirmed the terms of the will Exhibit A-1 in respect of the administration of the trust created by Arunachala and administered by his father and brother and that, therefore, Exhibit A-2 cannot be taken as a basis for determining either the nature of the charities to be performed as per the recitals under Exhibit A-1 or the extent of the properties dedicated for trust by Arunachala to be administered after his death. But, on the contrary, the learned Counsel for the respondents contended that the executors mentioned in Exhibit A-1 having failed to take charge of the trust properties and administer the trust, Natesa as the adopted son became the legal heir and that he was entitled to administer the trust himself and nominate any person as he desired and chalk out a line of succession. There cannot be any doubt that Exhibit A-2 does not create any new trust, but it reiterates and reaffirms the number of charities and administration of trust by his ancestors in clear and explicit terms. It stated that properties worth about Rs. 15,000 belonging to Arunachala Mudaliar, the adoptive father of Natesa were dedicated for endowment by Arunachala under a will dated 1st May, 1896 executed by him (Exhibit A-1) and that after his life-time, Murugesa, the natural father of Natesa and after him, his son Rao Sahib G. M. Subbaraya Mudaliar (elder brother of Natesa), have been administering the charity properties for about 25 years. But the question is, as contended by the learned Counsel for the respondents, whether Natesa being the heir of the founder of the trust can nominate and create a new line of trustees owing to the failure of the line of original trustees.
37. In Gauranga Saku v. Sudevi Mate : AIR1918Mad1278 , a Full Bench of this Court by majority judgment held that it is competent to an heir of the founder of a shrine, in whom the trusteeship has vested owing to the failure of the line of the original trustees, to create a new line of trustees. The dissenting Judge in that case was of the view that in the absence of any such power in the deed of trust, the Court alone has the power to appoint a trustee and that such a power of nomination by the heir of the founder is equivalent to an alienation of the office of trustee, which is illegal. The question posed in that case was whether the right of nomination accrues to the heirs of the founders. After elaborate discussion of the case law, Abdur Rahim, J., answered the question in the following terms:
To my mind the question whether the right of nominating a trustee to a Hindu religious endowment vests in the heirs of the founder in the absence or failure of a specific provision in the deed of endowment or where there are no especial usages or circumstances indicating a different mode of devolution is concluded by authority and must be answered in the affirmative. It is not suggested that there is any text of Hindu law bearing on the point, but the question has been the subject of unanimous rulings of this Court as well as the Allahabad and Calcutta High Courts, the later decisions being mainly founded on the pronouncement of the Judicial Committee in Gossami Sri Gridhariji v. Roman Lalji Gossami (1890) I.L.R. 17 Cal. 3 (P.C.) : 16 I.A. 137,...it does not seem to me that nomination of a trustee by the heirs of the founder who on the failure of the line of trustees indicated by the deed of endowment would themselves be entitled to act as trustees is ipso facto the same thing as alienation of the office of a trustee by the hereditary trustee. It is no more an alienation of the office, properly speaking, than the provision for appointment of a trustee when made by the founder himself.
Nor can it be said that the nomination of a trustee by the heirs of the founder would not be in accordance with the genesis of the Hindu law relating to trusts. That system recognises the hereditary principle with reference to trusteeships, such office is liable to partition like ordinary joint family property and it has been held to be capable of being acquired by prescription. It would doubtless be more in accordance with modern legal notions to release the office of trustee from the domination of the joint family and hereditary principles relating to tenure of property and the arguments of convenience probably preponderate in the same direction. At the same time I am not convinced that there are really insuperable difficulties in working out the view which upholds the right of the heirs of the founder to nominate and appoint trustees....
Wallis, G.J., while answering the question an the affirmative, stated as follows:.I do not see much difficulty in presuming an intention that the heirs should be at liberty to make fresh arrangements for the devolution of the trust instead of leaving it to devolve in the family, a result which the founder had shown himself anxious to avoid....
38. With great respect, we agree with the majority judgment of the Full Bench decision and we are bound by it. Applying this principle, Natesa as the legal heir to Arunachala and who under the law has the right to manage and administer the trust properties dedicated by Arunachala, has power to nominate or prescribe a line of succession since the line of trustees prescribed by Arunachala had failed. In Exhibit A-2, as already noted, Natesa prescribed a line of succession that the eldest male member of the family should be the permanent trustee. The appellant claims that he being the eldest member of the family, will have the right to be a permanent trustee. But, however, Sri R. Gopalaswami Iyengar appearing for the respondents contended that Natesa by the subsequent documents executed by him, which we will advert to presently, had nominated his own wife giving authority to her to nominate as she desired and, therefore, the appellant could not claim to be the heir as the line of succession chalked out by Natesa in Exhibit A-2 had been altered by Natesa himself, as a result of which, the wife of Natesa and her nominees alone would have the right to trusteeship.
39. The two trustees nominated by Natesa under Exhibit A-2 having failed to co-operate with Natesa to administer the trust and its properties, Natesa as the sole trustee had been performing the charities and administering the trust. Natesa had no issues. He executed a will Exhibit A-3 dated I4th May, 1940 by which he bequeathed to his wife, Kalyanasundarammal the properties mentioned in 'A' Schedule therein to be enjoyed by her absolutely and giving the right of management - a right which he himself had to his wife in respect of 'B' Schedule properties which had been dedicated by Arunachala for the performance of charities. He further gave authority under the will to his wife to adopt a competent boy from their family if she desired and stated thatif in case she adopts, the adopted son will have the right to manage the trust properties. Natesa appointed four executors including his wife and the second defendant, Singaravelu Mudaliar, the brother of his Wife to administer the trust properties with a direction that the other three executors should not act against or in detriment to the wishes of his wife in respect of the administration of 'B' Schedule properties. It is also mentioned in the will that neither his dayadis (agnates) nor their heirs will have any manner of right to 'B' Schedule properties. After the execution of this will, the first defendant came to live with his sister, Kalyanasundarammal. During that period, Natesa executed Exhibit B-1 a settlement deed in favour of his wife cancelling the will Exhibit A-3 and authorising his wife alone to conduct the charities mentioned in 'C Schedule, from the income of the 'B' Schedule properties mentioned therein. By this settlement deed, Natesa gave authority to his wife to nominate any person as she desired to perform the charities and administer the trust after her life-time.
40. In respect of the further nomination made by Natesa appointing his wife as the trustee subsequent to Exhibit A-2, Sri V. V. Raghavan,the learned Counsel for the appellant, contended that as Exhibit A-2 is irrevocable and cannot be altered, the further nomination made by Natesa is invalid under law.
41. Sri R. Gopalaswami Iyengar on the contrary urged that even according to the case of the appellant, Exhibit A-2 was not given effect to and, therefore, it is not open for the appellant to contend that the line of succession prescribed by Natesa in Exhibit A-2 cannot be altered:1 This contention of Sri Gopalaswami Iyengar was based on the evidence by P.W.I, the plaintiff, that the trust deed Exhibit A-2 did not come into effect at all. It appears that when P.W. 1 was cross-examined as to whether the trustees mentioned in Exhibit A-2 took possession of the properties, while answering that they did not take possession of the properties stated in that context that the trust deed Exhibit A-2 did not come into effect. He added that Exhibit A-2 was not cancelled. This admission by P.W. 1 cannot be taken seriously in view of the abundant evidence that Natesa had been performing the charities as mentioned in Exhibits A-1 and A-2. The appellant based his claim as the legal heir to the founder of the trust both under Exhibits A-1 and A-2. In the plaint, it is stated clearly that Exhibit A-2 provided that, the eldest member in the family should be a permanent trustee and that the plaintiff was the eldest member in the family. We have already observed that though the two trustees mentioned in Exhibit A-2 did not take charge of the properties, Natesa who appointed himself as one of the trustees was managing and administering the trust properties. Exhibit A-2 was, therefore, given effect to.
42. Exhibit A-2 is a registered trust deed. It is irrevocable. Natesa, after having prescribed a line of succession in Exhibit A-2, stated that neither he (Natesa) nor any of the trustees shall have any manner of right either to cancel (revoke) or alter the deed of trust. Natesa is not the founder of the trust. He made it clear in Exhibit A-2 itself that he executed the trust deed for the proper administration of the trust and its properties, endowed and managed by his ancestors. The line of devolution prescribed by the founder, Arunachala having failed, it became necessary for Natesa, the legal heir of Arunachala to nominate and prescribe a line of succession. Natesa stated that the eldest or elder member of his family should be a trustee after his lifetime. He was competent to give this direction and, according to that, the plaintiff would be entitled to become a trustee, because he answers the description of being a member of Natesa's family. Even assuming for the sake of argument that Natesa's appointment of his wife as a trustee in the subsequent settlement deed, Exhibit B-1 would be valid and that Kalyanasundarammal as the heir of the founder Arunachala would be entitled to nominate a trustee or trustees after her lifetime; we have no doubt that her brothers, the two defendants, cannot in law be held to have been validly appointed as trustees to succeed her. Her will Exhibit B-3 and codicil Exhibit B-4 are in derogation of the trust and proceed on the basis that her brothers were absolutely entitled to deal with the properties as they liked without being compelled to administer the trust. Hence it is not possible to construe Exhibits B-3 and B-4 to mean that Kalyanasundarammal recognised the trust and appointed defendants 1 and 2 as trustees. Even assuming for the sake of argument that it is possible to construe Exhibits B-3 and B-4 as amounting to an appointment of her brothers as trustees, it would not be valid in law, because it was not a bona fide appointment. In this view, therefore, the line of trustees failed after Kalyanasundarammal and the plaintiff, being one of the heirs of Arunachala and Natesa, the original founder, would be entitled to be a trustee.
43. Sri R. Gopalaswami Iyengar, the learned Counsel for the respondents urged that the dedication by Arunachala is only a partial dedication inasmuch as a charge alone has been created in the trust properties to ensure the performance of charities from a portion of the income of the said properties and also urged that any alienation made in respect of the trust properties will not be invalid as the alienees Would take the properties subject to the charge. The recitals in both Exhibits A-1 and A-2 make it very clear that the properties were dedicated absolutely to the trust. In Exhibit A-1 it is stated that the executors appointed by him shall take possession of the charity properties and from oat of the income got from the properties allotted for charities, after meeting the expenses for taxes and repairs of the said properties, if there is surplus, it should be added to the capital and augmented and if in case there was deficiency and the income from the properties would not suffice to meet the expenses for the charities, the charities should be done on a lesser scale. It is also mentioned in Exhibit-B-1 that the executors shall not sell or mortgage the charity properties. The alienation of the trust properties has been totally prohibited in Exhibit A-1. Similarly, even in Exhibit A-2, it is stated that the income from the trust properties after meeting the expenses for tax and repairs should be utilised for performing charities and if there was a surplus from the income of the trust properties after meeting the expenses, such surplus shall be augmented and administered as trust properties. It is further stated in Exhibit A-2 that from out of the income of the charity properties, the charities mentioned therein should be performed and that no one had the power to alienate or encumber the properties in any manner as the said charities had been set up by the ancestor of his family. These recitals, as already observed, clearly show that there was an absolute dedication of the properties and the income from such properties should be utilised and augmented only for the purpose of performing the charities.
44. It is contended by the respondents of course faintly, that Natesa acquired a prescriptive title to the suit properties by his having treated the properties and their income as his own, though he continued to do some of the charities mentioned by his father in the will according to his pleasure and discretion. Both the documentary evidence and the oral evidence make it abundantly clear that the properties dedicated by Arunachala in his will were treated as trust properties and the charities were performed from the income of those properties. We have already observed that in Exhibit A-2 Natesa had stated that after the death of Arunachala, Murugesa Mudaliar, the natural father of Natesa and after him, his eldest son and the brother of Natesa, Rao Sahib C. M. Subbaraya Mudaliar have been administering the charity properties for about 25 years. It is further stated that he was executing the trust deed (Exhibit A-2) for the purpose of carrying out Dharmams (charities) permanently. In Exhibit B-1, the deed of settlement executed by Natesa in favour of his wife, Kalyanasundarammal, it is stated that Natesa was performing all the charities mentioned in the 'C schedule from the income of the trust properties mentioned in 'B' schedule therein. Natesa described himself as a trustee under Exhibit A-2 and he had been managing and administering the trust properties as a trustee.
45. Vadivelu Mudaliar, the plaintiff, who examined himself as P.W. 1 stated that he knew Subbaraya performing the charities on behalf of his younger brother Natesa and after his death, Natesa was performing the charities and that till 1953,the charities were being properly performed by Natesa and after that, he was confined to bed due to illness for five years and even during that time, he used to attend to the charities. In cross-examination, he gave the details of the several charities performed by Natesa during his lifetime.
46. P.W. 2 Arunachalam, aged about 85, who is the paternal aunt's son of Natesa stated that after Arunachala, Murugesa was managing the properties and after him, Subbaraya was managing them and after his death, Natesa was managing them. He has given the details of the various charities performed by Natesa. He stated that till 1953 or 1954,Natesa was performing all the charities and subsequently, he fell ill and in cross-examination, he stated that after 1953, the charities Were not performed.
47. P.W. 5 Seethapathi, the maternal uncle of Natesa stated that he knew' Natesa performing charities in Kancheepuram, Kumaragoshtam, Tiruttani and Ghittocr and he also gave the details of various charities performed by Natesa. In cross-examination, to a suggestion that Natesa treated the suit properties as private properties, he denied the same. This Witness was engaged by Natesa for collecting rents from the trust properties excepting item No. 5 in the plaint, the income from which was collected by the eighth defendant. This witness is the most competent witness to speak about the various charities performed by Natesa from the income of the trust properties as he himself had been collecting the rents and income from the trust properties and assisting Natesa in performing charities. In respect of the various charities performed by Natesa from the income of the trust properties, P.W. 5 stated as follows in his evidence:
Natesa Mudaliar was doingdharmams. He was paying dhanams in Kanchee-puram in Kumaragoshtam. He was also doing charity in Tiruttani and Ghittoor. In Kancheepuram, the Balaji thottam is by the side of the house from Kumaragoshtam. Subramaniaswami in the morning in Vaigasi month is taken in procession along and alighted in Mandapam and abishekam is performed and Saivite Brahmins are fed and in evening for people and othuvars, tiruppanam is distributed and in the evening after Sathupadi after 8 P.M. the deity will be taken to Koil. In the Koil, Deeparathanai will be performed, Archana will be performed and Neivethiyam is performed. About 400 rupees will be spent for the said performances. For Veeraraghava Perumal in Thirupukuzhi in Margazhi last Friday, Utsavam is performed. In Kamatchi Amman Koil for Saraswathi Amman on Ashtapujam day, the Abishekam is performed. In Sangu-padi Veerapillaiar Koil known as Sappani Pillayar Koil, Thoonga Vilakku is lit and abishekam is performed. In Margali also abishekam is performed. In Anjaneyar Koil opposite to the Ulagalanda Perumal, Thirumanjanam is done and Vada Malai is offered. In Ekambara Koil, Somavararn Archanai and Thoonga Vilakku is lit. In Tiruttani Overseer Arunachala Choultry, i.e., adoptive father of Natesa Mudaliar during Kritigai, paradesies are fed and in Kartigai month, deepam is lit. Thanneerpandal is also set up. In the choultry, Annamalai Naicker was watchman. After his death, his wife Unnamalai is in the said premises. Annamalai was cultivating 1/2 cawnie of land about 1 mile from Tiruttani. In Ghittoor Sri Vinayakar Koil is built. There is choultry there. In the 4th mile from it in Koneyapettai there are 4 acres of lands. The income of it is spent for paying Gurukkal and doing abishekam for Pillayar. In Kosapalli there was tamarind and Palmyrah topeI went and sold it for Rs. 1,000. Natesa Mudaliar asked me to go and sell it. There is correspondence to it. As Natesa Mudaliar was not able to go, I went and attended to the Dharmams. Till Natesa Mudaliar's death, charities were being performed. After his death, they stopped. There is property for the charities. It was endowed by his ancestors. In Kancheepuram, there were 7 and 8 bungalow trust and 10 and 11 - 2 houses. In the said 2 houses, 8 rupees per month from each house, will be got as rent. In the plantain trees, cocoanut trees and in the Baugh thottam about Rs. 400 will be got as income. In 132 there is soda shop. 43, Nellikar street was choultry. Now it is being run. For it, rent is received. In Hodgsonpet, Kancheepuram, there is javuli shop. For it, rent is got. Further, there is iron shop in it. In Arkonam there are 7 shops downstairs. In the upstairs, there are five rooms. For them rent of Rs. 135 per month is got. I was going and collecting rent from, them every month. In Keezhkadyur there are shrotriem pangu and miras pangu. There are 7 cawnies in it. 30 bags of paddy will be got. Paddy was used for the neivedyam and utsavam. The other incomes were being utilised for the charities. Natesa Mudaliar maintained accounts for the same. He himself used to write them. Natesa Mudaliar deposited in the Town Bank the income from the properties separately as trust property. Natesa Mudaliar, Kalyanasundaram, and first defendant have written letters about it. They are Exhibits A-8 to. A-19. Natesa Mudaliar's pangali used to come and attend the Utsavam. Letters used to be written to them to. Come Gangappa Munuswami Mudaliar hasor Sangali lands near Ghittoor. In the latter, I have been asked to go and collect it.... he asked me to go and attend the lands in Keelkadirpur, Ghittoor Singaravelu and Alavandar of Ghittoor to whom registered notices were issued, were vendees of lands and other trees; Brother-in-law Kuppuswami Mudaliar is alive. He is the defendant. Kalyanasundaram is not alive. On 31st December, every year in Tiruttani, Padi Uttsavam is performed.
It is clear from his evidence that not only Natesa. was performing charities as mentioned by him but also those charities Were performed from the income of the trust properties. It is also clear from his evidence that Natesa deposited in the Town Bank, the income from the properties separately and that he was maintaining accounts. The only suggestion made to this witness to discredit his evidence was that he expected that Natesa would give certain properties to him and that having come to know that Natesa settled all his properties in favour of his wife, he came forward to give false evidence. This was stoutly denied by him. Besides the oral evidence given by him, Exhibits A-8 to A-17, the letters written by Natesa Would show that P.W. 5 was taking active part in assisting Natesa for collecting the income from the trust properties and performing the charities. There is specific reference in Exhibit A-12 that one of the items of trust properties was cultivated by Singaravelu and Abu Reddi and from that income, Vasanthotsavam was being performed. We do not see any reason to disbelieve his evidence. Even the first defendant who examined himself as D.W. 1 admitted that P.W. 5 was the maternal uncle's son of Natesa and he used to come for the utsavams performed by Natesa and occasionally assist Natesa for collecting money from all the properties, i.e., personal and charity properties and that Natesa used to send P.W. 5 to collect the income from the charity properties.
48. D.W. 1 admitted that Natesa was doing charities, namely, abishekam in Kumara Koshtam Koil, Kamakshi Amman Koil, Ulagalanda Perumal Koil and Sangupani temple and that he was doing the charities till his lifetime. He further admitted that after the death of Natesa, Kalyanasundarammal Was performing the charities and after her death, he and his brother, the second defendant were performing them.
49. D.W. 2 Singaravelu, the second defendant, admitted that Natesa was a person with pious disposition and that he was performing the charities. It is true that both these witnesses stated that though the charities were performed by Natesa and later by his wife, they were done according to their will and pleasure and they did not set apart the income from the properties for the purpose of performing charities and that Natesa enjoyed the properties absolutely in his own right. Apart from their evidence being interested, it is contrary to the recitals in Exhibits A-2, A-3 and B-1. In Exhibit B-1 dated 25th April, 1944, it is clearly stated that the charities mentioned in the 'C schedule were performed from the income of'B' schedule properties. When D.W. 1 was confronted with the recitals in Exhibit B-1, he admitted that he Was present when Exhibit B-1 Was executed and that 'B' schedule items therein were set apart for charities. But he Would however, say that some of the charities mentioned in 'C schedule of Exhibit B-1 were not conducted by Natesa Mudaliar and that the recital that all the charities mentioned in 'C schedule of Exhibit B-1 were conducted by Natesa, was not correct. We do not accept the evidence of D.W. 1 that the recitals in Exhibit B-1 are incorrect. Natesa Was admittedly a religious and charitable minded man. He was very keen in performing the charities as was performed by his forefathers, as seen from the recitals of Exhibits A-2 and B-1 and, therefore, he would not have made false and incorrect recitals in respect of the charities performed by him, mentioned in 'C schedule of Exhibit B-1. When D.W. 2 was confronted with the recitals of Exhibit B-1, he admitted that in Exhibit A-1, Natesa directed his wife, Kalyanasundarammal to perform the charities mentioned in 'C schedule. But, he would say that he did not know the reasons why he mentioned in 'C schedule all those charities which he was not performing. We are not impressed with the evidence of this witness. He is the scribe of Exhibit B-1. When Exhibit B-1 was executed, D.W. 2 was an official in the Government. At the time he gave evidence he was Secretary, Official Language Committee. He would say that the averment in Exhibit B-1 that Natesa was performing the charities mentioned in 'C Schedule was not completely correct and that when he wrote Exhibit B-1, he knew that it was not completely correct. If he had known that the recitals were incorrect as stated by him in his evidence, there is absolutely no explanation as to why he wrote the incorrect recitals knowing them to be incorrect. It is significant to note that D.W. 2 was appointed one of the trustees in Exhibit B-1 for the purpose of performing the charities mentioned in the 'C schedule from the income of the 'B'. schedule properties. We reject the evidence of this witness,
50. D.W. 3 Murugesa Mudaliar, aged about 57, is one of the trustees appointed by Natesa under Exhibits A-2 and A-1, which he declined later. He stated in his evidence that Natesa was a Bakthar and he used to arrange religious lectures and perform abishekams in Pachavanar Koil, Pavazhavanar Koil, Murugan Koil, Ulagalanthar Koil, Kamakshiamman Koil and Varadarajar Koil. But, however, he would say that he did not make any difference between his own properties and the properties set apart for charity and that he was collecting the income from these properties and they were put together. He also stated that neither Natesa nor his ancestors left any property for charity. This witness attested the original of Exhibit A-2, namely, Exhibit B-14. He admitted that in Exhibit B-14 the properties set apart for charity were mentioned and those properties dedicated by the ancestors of Natesa were also mentioned. Though he admitted that he knew the contents of the recitals in Exhibit B-14 and signed that document, he would say that what was recited therein never happened. He, however, admitted that by mentioning the charity pror perties in Exhibit B-14, Natesa had deemed his own properties as separate properties from those of charity properties. Though this witness claims to be respectable, in view of the answers given by him which have been referred to above, we are not impressed with his evidence. We are of the view that Natesa was performing the charities from the income of the properties set apart for trust by Arunachala, excepting the income from item No. 5, which we will refer to later, that he had not treated the properties set apart for charity as his own properties and that he' himself was a trustee in respect of the trust properties and, therefore, he had not prescribed his title to the property by adverse possession as contended by the learned Counsel for the respondents. Once he gave effect to the trust, it was not possible for him, in law, to prescribe adversely to the trust.
51. To appreciate the details in respect of the properties set apart for the purpose of trust in Exhibits A-1, A-2, A-3, B-1 and B-3, the following comparative statement will be useful (pages refer to the typed set):
S.No. Plaint description A. 1 A. 2 A. 3 B. 1 B. 3 Remarks.
(1) (2) (3) (4) (5) (6) (7) (8)
1 10 and 11, Talayari St. Item 1 B B. Sch. B. Sch. Item 11
(Subbaraya Mudali St.) Page 13 Item 2 Item 3
2 8 -do- -do- Item 3 1 1 4 12
Page 13 Page 43 Page 57 Page 79
3 2 -do- -do- 4
4 132, West Raja St., 6 3 3 10
Kancheepuram Page 13 Page 43 Page 57 Page 77
5. 372, Shop- 32 9 10 1
Hodgsonpet Page 17 Page 43 Page 59 Page 75
6 7, Talayari St., 33 2 (4) 12
Kancheepuram Page 17 Page 43 Page 57 Page 79
7 Bangalore Thottam, 35 1 4
Kancheepuram Page 17 Page 43 Page 43
8 Arkonam House 17 2 4 5 13
Page 15 Page 35 Page 43 Page 57 Page 79
9 Tiruttani 21 3 5 6 14
Choultry Page 15 Page 37 Page 43 Page 59 Page 79
10. Tiruttani Nanja 22 4 6 7 15
Punja Lands Page 15 Page 37 Page 43 Page 59 Page 81
11 Greanspet Mandapam, 23 7
Chavedi Thope Page 15 Page 43
12 Konapalli, Chittoor 24
District Page 15
13 Saraswathipuram, 25
Chittoor District Page 17
14 Murugapatti 27
15 43, Nellukara st., 36 3 in 3 in 3
Kancheepuram Page 19 Sch. A Sch. A Page 75
Page 41 Page 51
16 Lands in Kilkadirpur 30 6 in 6 in 7 8 and
Village (8.72 acres) Page 17 Sch. A Sch. A 9 Page 77
Page 43 Page 53-55
52. It is contended by Sri R. Gopala-swami Iyengar, the learned Counsel for the respondents that in Exhibit A-2, only four items of properties are shown as the trust properties and that, therefore, the rest of the properties either mentioned in the plaint or in Exhibit A-1 as trust properties could not be said to have been treated as trust properties. The circumstances under which the four items of properties alone were mentioned in Exhibit A-2 are these:
53. We have already noted that before Natesa actually took possession of the trust properties, his father Murugesa and after his death, Subbaraya and after his death, the eighth defendant, the wife of Subbaraya was for sometime in possession. She handed over possession of the four - items of properties probably which were with her under Exhibit B-11 and those items alone were included in Exhibit A-2. But Exhibit A-2 does not say that the properties mentioned therein Were alone the properties dedicated for trust by Arunachala under Exhibit A-1. It is clear from the evidence and the recitals in Exhibit B-1 which Was executed subsequent to Exhibit A-2 that besides the four items of properties mentioned in Exhibit A-2, the other properties mentioned therein were also treated as trust properties.
54. Of the 16 items in the plaint, item No. 15 does not appear to have been dedicated for the trust by Arunachala. Though this item is described as choultry as item 36, in Exhibit A-I, we do not find anywhere in the recitals in the will that this property was actually used as choultry or the income from it was utilised for any of the charities. This item was not treated as trust property by Natesa. In Exhibits A-3 and B-1, this item is treated as the private property of Natesa and it was placed in the 'A' schedule as item 3 in both the documents, which was given absolutely to Kalyanasundarammal, the wife of Natesa. Therefore, item No. 15 in the plaint has to be excluded.
55. Item No. 5 in the plaint is a shop in Hodgsonpet, Kancheepuram, with door No. 372. In respect of this item it is contended by the eighth defendant, Andalammal that the property belonged to her absolutely and she and her husband were in possession of this property for more than 12 years and thus, she had perfected title to the said property by prescription. She also contended that this property belonged to Muniappa Mudaliar having been got by him in a partition and that Muniappa alone was in sole possession and enjoyment of this property and that Muniappa died leaving only a widow, Ghandrammal, who executed a release deed in favour of Murugesa, the elder brother and Murugesa became entitled to the property and later, his son Subbaraya Mudaliar and then, his widow, the eighth defendant was in possession and enjoyment of the property mentioned as item 5 in the plaint. She further contended that though item 5 had been included in Exhibit A-1 by Arunachala as trust property, neither Arunachala and after his death, Murugesa nor Subbaraya treated this property as trust property. This item, according to the eighth defendant, had been included in Exhibit A-1 as trust property by mistake.
56. Item 5 in the plaint schedule has been mentioned as item 32 in Exhibit A-1 and the description given in item 32 is as follows:
This description shows that the Javuli shop at No. 372, Hodgsonpet, Kanchee-puram, belonged to Muniappa as stated by the eighth defendant, but Muniappa even during his lifetime, as decided by the Panchayatdars had handed over the property to Arunachala for the purpose of performing Vasanthotsavam of Subramaniaswami of Kumarakottam from the income of the said property. Though this item clearly finds a place as the trust property, we have to consider whether this property was treated as trust property and dealt with as such by Murugesa and later by Subbaraya and subsequently by the eighth defendant. In Exhibit B-u dated 16th January, '939, while the eighth defendant surrendered some of the trust properties which were in her possession and put those properties in possession of Natesa, item 5 was not handed over to Natesa. Natesa had not taken any steps to recover possession of item 5 and there was absolutely no explanation as to why he had not taken steps to recover possession. Even in Exhibit A-2, the trust deed executed by Natesa, this item has not been included as trust property. This will give a strong indication that item 5 was treated as private property by the eighth defendant and before her, by her husband, Subbaraya and before him, by Murugesa, the father of Subbaraya. It is true that later, Natesa himself had included this item 5 as trust property in Exhibits A-3, B-1 and B-3; but we do not have any material to show as to whether he took possession of this property at all from the eighth defendant or merely included this item in these documents since this item found a place in Exhibit A-1 as trust property. Even the first defendant who examined himself as D.W. 1 stated that by Exhibit B-3, a will executed by Kalyanasundarammal, the wife of Natesa in favour of defendants 3 and 2 on 17th November, 1957, he got possession only of items 1, 2,4 and 7 and certain other items and that he did not get possession of item 5. If item 5 had been in the possession of Natesa and after his death, in the possession of his wife, Kalyanasundarammal, there was no reason as to why either the first defendant or the second defendant did not take possession of item 5 though mentioned in Exhibits A-3, B-1 and B-3. The oral evidence in respect of the possession of the item 5 as private property by the 6th defendant is this.
57. D.W. 6 Ethiraj, the brother's grandson of the eighth defendant who claims to have been living with the eighth defendant from 1940 stated that the eighth defendant has been collecting rents from Shop No. 372, Hodgsonpet, to his knowledge from 1945 and that the eighth defendant had been paying municipal taxes for that shop. Exhibits B-355 to B-3g8, the property tax receipts from 1932 to 1962 have been filed on behalf of the eighth defendant showing that she had been in possession of item 5, as her private property. This witness also produced Exhibit B-399, counterfoil rent receipt book of eighth defendant from 1945 to 1948. According to this witness, door No. 372 of item 5 was subsequently changed to No. 362. This witness definitely stated that the eighth defendant did not utilise the rent for trust. It appears that the eighth defendant could not be examined as a witness as she was having heart trouble, blood pressure and rheumatic complaint and as she was confined to bed. In cross examination, this witness stated that he had gone on several occasions to request the tenants to pay rents when they were in default, that the eighth defendant was of pious disposition and that she would not utilise charity properties for her own purposes.
58. P.W. 1 who is the plaintiff admitted that item 5 fell to the share of Muniappa Mudaliar according to Exhibit A-5, the registration copy of partition deed between Arunachala and others, dated 29th May, 1889. He also admitted that door No. 372 of item 5 was changed to No. 362 and that the eighth defendant and her husband and her brother's father were enjoying item 5. He stated that he did not know whether the income from item 5 was utilised for any charity;
59. P.W. 5 Seethapathi who is a close relative of Natesa ,and who was looking after the properties of Natesa including the trust properties stated that the eighth defendant used to collect the rent from the property in item 5 that she did not give possession of this property to Natesa and that he did not know as to why she did not deliver possession of it. He also admitted that the eighth defendant herself was letting it out for rent and paying tax therefor. We would however, say that on some occasions, Natesa used to ask him to go and get money from the eighth defendant and that the eighth defendant used to give Rs. 20 per month. But he could not say as to why Natesa collected the money through the eighth defendant. Both the documentary and oral evidence would show that item 5 was not treated as trust property. Whether item 5 was acquired from Muniappa's family by Murugesa, Subbaraya and eighth defendant or not, the evidence is clear that title to item 5 has been perfected by prescription for more than over 12 years. In any event, from the date of Exhibit B-11, namely, 16th January, 1939, it is clear that the eighth defendant had been in possession of item 5 exclusively as her own property. The notice Exhibit B-5 in this case was issued by the plaintiff to defendants 1 and 2 on 26th August, 1962. Therefore, the eighth defendant had prescribed her title to item 5 by adverse possession, and this item has to be excluded from the properties dedicated to trust.
60. Item No. 10 in the plaint is Nanja and Punja lands in Tiruttani. This item in Exhibit A-1 finds a place in item 22 of the properties belonging to Arunachala and described as wet and dry lands in Tiruttani with the patta standing in his name. Though this item of property is not specifically mentioned in Exhibit A-1 as the property set apart for the trust, it appears that the dry land to the extent of 12-60 Kulis in Section Nos. 151 and 156 in Tiruttani Village was dedicated to the trust as we find that this extent of Punja land1 was treated as trust property by the successors of Arunachala. Under Exhibit B-1 1, Andalammal, the eighth defendant had handed over only the dry land mentioned above to Natesa and Natesa under Exhibit A-2 had mentioned only the extent of the dry land (12-60 Kulis in Section Nos. 151 and 156 in Tiruttani Village) as item 4, Which was in the possession of his ancestors as trust property. Similarly, in Exhibit B-1, item 10 has been mentioned as trust property in. item 7 of B Schedule therein.
61. P.W. 3 Unnamalai Ammal, a sweeper woman in Tiruttani choultry stated that her husband was employed as a caretaker of the choultry and they were residing in one portion of the choultry sweeping, washing and lighting lamps etc., in the choultry and that Natesa had permitted Annamalai, the husband of P.W. 3 to cultivate half a caWnie of land in Tiruttani and take the proceeds thereof in lieu of remuneration for the services rendered by him. It is therefore, clear from the evidence that only dry land tothe extent of 12.60 Kulis in Section Nos. 151 and 156 in Tiruttani Village had been treated as trust property. We therefore, hold that in item 10 of the plaint, 12.60 Kulis in Section Nos. 151 and 156 alone is the trust property.
62. Item 16 which has been included. in the amended plaint are lands to the extent of 8.72 acres situate in Kilkadirpur Village in Kancheepuram Taluk. Items Nos. 28, 29, 30 and 31 in Exhibit A-1 relate to the lands including shrotrium and Mirasi shares in Kilkadirpur Village; but item No. 30 alone is set apart along with other properties as trust property in Exhibit A-1. Items Nos. 28, 29 and 31 in. Exhibit A-1 are not mentioned as trust properties. The description of item No. 30 is as follows:
This item has been again mentioned in Exhibit A-1 while setting apart this item for the trust and it is described as follow:
It is not clear from Exhibit A-1 that the lands mentioned in item 16 were set apart for the trust as item 28, 29 and 31 in Exhibit A-1 relating to the lands mentioned in item 16, are excluded and they do not appear to have been dedicated for trust. This item does not find a place in Exhibit A-2. In Exhibits A-3 and B-1, this item has been treated as the private property of Natesa and it has been mentioned in item 6 of A schedule in both the documents showing that they were private properties of Natesa. Therefore, there is no acceptable evidence that the lands mentioned in item 16 in the plaint were dedicated to the trust either by Arunachala under Exhibit A-1 or that they were treated as such later by Murugesa, Subbaraya or Natesa. On the other land, there is evidence to show that item 16 has been treated as the private property of Natesa and enjoyed as such. D.W. 1 stated that Kalyanasundarammal, the wife of Natesa had sold a portion in Kilkadirpur as she acquired this property under Exhibit B-1 with absolute title. He admits that a portion of item 16 is with him and his brother D.W. 2 and they got it under Exhibit B-3 from Kalyanasundarammal and that they are in possession and enjoyment as their own property. This item has, therefore, to be excluded as it is not proved to be the property dedicated for trust.
63-64. We thus find that barring items Nos. 5, 15 and 16 and a portion of item No. 10 the rest of the items mentioned in the plaint schedule are properties dedicated to the trust and they have been dealt with as such.
65. Before We deal with the alienations purporting to have been made by the wife of Natesa and defendants 1 and 2, the question raised by Sri R. Gopalaswami Iyengar, the learned Counsel for the respondents in respect of the non-maintainability of the suit can be conveniently considered. The learned Counsel contended that the plaintiff was not the legal heir either to the founder Arunachala or to Natesa and that even if he were the legal heir to Arunachala, there are others who are also equally entitled to claim the management of the trust properties and in the absence of those legal heirs being parties to the suit, the suit by the plaintiff excluding the other legal heirs is not maintainable. He further contended that Natesa under Exhibit A-2, while prescribing the line of succession after his death for a permanent trustee, had mentioned that only the elder or the eldest member of Natesa's family could become the permanent trustee and that the plaintiff can not claim to be the elder or eldest member of the family of Natesa and, therefore, the suit by him is not maintainable; He also contended that by virtue of the nomination made by Natesa appointing his wife Kalyanasundarammal under Exhibits A-3 and B-1 as the trustee and giving her authority to nominate a person as she desired and that: Kalyanasundarammal herself having directed defendants 1 and 2 to perform the charities as they desired under Exhibit B-3, the plaintiff will not have right to claim either possession of the trust properties or management of the same for the purpose of performing charities. On the contrary, Sri V.V. Raghavan, the learned Counsel for the appellant contended that the plaintiff was the legal heir to the founder of the trust, Arunachala, and also to Natesa,. that the plaintiff was the eldest member of Natesa's family that. after having prescribed the line of succession, Natesa had no power to revoke and make fresh nomination and further the nomination appointing his wife Kalyanasundarammal and in her turn her asking defendants 1 and 2 to manage the trust properties-would be invalid, that the nomination by Natesa being invalid, the trusteeship would revert to the founder's heir by virtue of the doctrine of reverter and that, therefore, the plaintiff who is the legal heir to Arunachala is the competent person to file the suit. He further contended that even assuming that the line of succession prescribed by Natesa is valid, the plaintiff being the eldest member of Natesa's family, will have the right to claim possession, and management of the trust properties and that the other legal heirs who are entitled to claim the management of the properties need not be parties to the suit' and on account of their not being, impleaded, the suit would not be barred. He lastly contended that even assuming: that the plaintiff is not the legal heir, still the beneficiaries under the trust being the public, the plaintiff as worshipper could maintain the suit for the proper' management of the trust and to set aside the alienations, if any. We have already dealt with the powers of nomination by Natesa and by his wife. It is, therefore, not necessary to repeat the same here.
66. As seen from the pedigree, the plaintiff is the great-grandson of Ponnambala, the brother of the founder of the trust Arunachala. The grandfather of the plaintiff Lakshmana was the elder son of Ponnambala. There are also two other great-grandsons of Ponnambala, namely, Muniappa and Gopala whose grandfather was Muniappa, the youngest son of Ponnambala. The plaintiff has two younger brothers, Lakshmana and Narasimha. The plaintiff being the founder's brother's great-grandson, will bet he legal heir to the founder Arunachala. According 'to the line of succession under the Hindu Law, the brother's son's son's son takes place No. 22 (See Mulla's Hindu Law - Thirteenth Edition - page 114). The plaintiff is one of the surviving legal : heirs to the founder as per the pedigree and there is no evidence disputing the pedigree. Though there are other legal heirs entitled to claim possession and management of the trust properties, in a suit like this where no shares are claimed as reversioners to the absolute properties of the founder but the right to possess and manage the trust properties alone is I claimed, it is not necessary that the I other legal heirs should also have joined in the claim made by the plaintiff. It may be that the other legal heirs may not wish to be burdened with managing a trust property. The suit of this nature can therefore, be maintained even without the other legal heirs being made parties.
67. We have already noted that under Exhibit A-2, Natesa had prescribed a line of succession for the permanent trusteeship providing that the eldest member of his family should be the permanent trustee. It is seen from the pedigree that of the surviving male members of the family of Natesa, the plaintiff is the eldest.
68. Sri R. Gopalaswami Iyengar, contends that the words 'eldest member of my family' used in Exhibit A-2 should be meant to be the family of Natesa and his wife and not the family of Natesa alone. There is no substance in this contention. It is clear that by using such words, he should have meant only the male heirs of Natesa.
69. Even otherwise, as contended by Sri V. V. Raghavan, in case of mismanagement of the trust or the wrongfu alienations of the trust properties, any worshipper can maintain the suit for possession and management of the trust property.
70. In Manika Narasimhachari v. Ramasubbier : (1970)1MLJ337 , Ramamurti, J., on behalf of the Division Bench, in considering the scope and extent of the power of a trustee and the maintainability of the suit by a worshipper, stated as follows:
When there is a wrongful alienation not binding upon the trust and when the alienating trustee still functions as a trustee and has not been removed, it Will be open to the worshipper or the beneficiaries to maintain a suit for possession of the trust property after declaring the alienation invalid....
71. In another case reported in Amir Jan v. Shaik Sulaiman Sahib : (1968)2MLJ559 , Alagiriswami, J., held that the worshippers are entitled to maintain a suit for preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an injunction or even for possession and in cases where there is no trustee, it is open to the Court to direct delivery of possession to the worshippers on behalf of the trust and that there was ample authority for the position that where the trust property has been alienated by the trustee and is in wrongful possession of a trespasser, it is open to any worshipper to maintain a suit even for possession, if there is no lawful trustee.
72. We respectfully agree with the views expressed in the above decisions. We hold that the suit by the plaintiff is maintainable.
73. Now we are left with the question of considering the alienations purporting to have been made by Kalyanasunda-rammal and defendants 1 and 2 of the trust property.
74. Item 4 to the plaint schedule is a shop bearing Municipal door No. 132, Raja Street, Kancheepuram. We have held that this property was dedicated by Arunachala for the trust and that it is trust property. Defendants 1 and 2 claiming that they acquired title to this property under Exhibit B-3, the will executed in their favour by Kalyana-sundarammal, sold it to the third defendant, Srinivasa Ghettiar by a registered sale deed Exhibit B-7 dated 27th 'September, 1962 for Rs. 3,000. The third defendant did not file any separate written statement; nor has he examined himself or any other witness on his side to show that he was a bona fide purchaser and that he was not aware that the property was trust property. Defendants 1 and 2 must have been aware that this item was trust property though the recital in Exhibit B-3 would show that it belonged absolutely to Kalyanasundarammal. Kalyana-sundarammal acquired the properties including this item under Exhibit B-1 executed by Natesa. It is clearly stated in Exhibit B-1 that the properties mentioned in B schedule had been dedicated to the trust for the purpose of performing charities mentioned in the G schedule as Was being performed by Natesa and that his wife should conduct the same charities in the same manner mentioned in the C schedule from the income of the B schedule properties. In B schedule, this property is mentioned as item No.2. In Exhibit B-1, the will executed by Natesa in favour of his wife, Exhibit A-3, is also mentioned. Exhibit B-1 was admittedly written by the second defendant (D.W. 2), the brother of first defendant.
75. D.W. 2 in his evidence stated that Natesa had mentioned two schedules in Exhibit B-1, but he did not leave any properties to the charity as mentioned in B schedule therein. He further stated as follows:
He (Natesa) wanted some charity to be performed from B schedule. It is mentioned in Exhibit B-1, that from the income got from 'B' schedule properties the charities mentioned in 'G' schedule which he was performing, should be performed...Natesa Mudaliar was a person with pious disposition.... I do not know the reasons why he mentioned in 'G' schedule of Exhibit B-I the charity which he was not performing. In Exhibit B-1, he has directed that Kalyanasundarammal should perform the charities mentioned in G schedule.
When this witness was confronted with the recitals in B schedule in Exhibit B-1, he had stated that the averment in Exhibit B-1, that he was performing the charities mentioned in G schedule was not completely correct and that when he (the witness) wrote Exhibit B-1, he knew that it was not completely correct. He, however, claimed ignorance of Exhibits A-1 and A-2. We have already noted that this witness during the time when he wrote Exhibit B-1, was the Assistant Secretary of the Home Department and he must have known while he wrote Exhibit B-1, the implications of the recitals in Exhibit B-1. The answers given by him in cross-examination create an impression that he was interested in securing the properties for himself and his brother. We have also observed that in Exhibits A-1 and A-2, both Arunachala and Natesa respectively had stated that no one can alienate the trust property or encumber the same. It appears that the third defendant had purchased the property (item No. 4) without even looking into the prior documents for the purpose of finding out whether defendants 1 and 2 had title to item 4 at all, and if he had been prudent, he would not have purchased this property. The alienation of item 4 in favour of the third defendant is not for the benefit of the trust. The alienation in respect of this item has, therefore, to be set aside and accordingly it is set aside.
76. Item No. 8. - This item is astoreyed building at Bazaar Street, Arkonam. This is a very substantial building of value about Rs. 50,000 mentioned in the plaint itself and it was dedicated to the trust by Arunachala even before the execution of the Will as stated in Exhibit A-1 and the income from this property had to be utilised for most of the charities mentioned therein. In subsequent documents, Exhibits A-2, A-3 and B-1, this item has beenmentioned as trust property. D.Ws. 1 and 2 who claimed to have acquired title to this property under Exhibit B-3 sold this property to the fourth defendant by a registered sale deed Exhibit B - 353 dated 11th February, 1963, for a consideration of Rs. 31,500. The fourth defendant contended that he was a bona fide purchaser, that he was not aware of any trust created in respect of this property and that from the date of purchase, he had been in possession of the property in his own right. The recital in the sale deed mentions about the copy of the settlement deed executed by Natesa in favour of Kalyanasundarammal (Exhibit B-1) having been handed over to the fourth defendant at the time of the execution of the sale deed. In Exhibit B-1, it is mentioned that Kalyanasundarammal should perform all the charities which were being performed by Natesa from the income of the B schedule properties. This property forms item 5 in B schedule, which is described as follows:
The terraced buildings, terraced rooms bearing union Nos. 1 to 7, measuring east to west, 116' and north to south 65' situate on the western row of Robertsonpettai, BazaarStreet, Arkonam Union, Arkonam sub-district, Walajah Taluk, North Arcot District, bounded on the east by the aforesaid street, on the west by Ponnusami Chettiar's house;, on the south by the lane street running east to west by the side of the Railway compound, and on the north by late Chairman Rajabathar Mudaliar's house together with and inclusive of the compound wall and 8' projection on the south for lavatory. The value of these is Rs. 1,500.
The fourth defendant, therefore, must be presumed to have looked into Exhibit B-1 and must have been aware that the property purchased by him was a trust property, The fourth defendant examined himself as D.W. 4. He admitted that the settlement deed executed by Natesa in favour of Kalyanasundarammal was handed over to him and that Exhibit B-1 was a title deed for the property purchased by him. He also admitted that it was recited in Exhibit B-1 that the charities' mentioned in G schedule of Exhibit B-1 should be performed from the income of the B schedule properties. He further admitted that he knew that with the income from the B schedule properties, the charities should have been performed and that he was aware that it was mentioned in Exhibit B-1 that Natesa had been performing the charities. He stated that he did not enquire about the powers Natesa Mudaliar had in B schedule properties. He further stated that he knew that Natesa had left A schedule properties in Exhibit B-1 to his wife with absolute rights. He would further say that he consulted his vakil and on his advice, he purchased the property. But,, however, he would say that he did not ask the va' il about the difference between A schedule and B schedule properties mentioned in Exhibit B-1. He also stated that he did not enquire about the actual rent collected from item 8 at the time of his purchase. The necessity for selling this property is mentioned in Exhibit B-353, which is as follows:
Whereas the first of us, C.N. Kuppuswami Mudaliar being in Kancheepuram and the second of us,. Singaravelu Mudaliar being at Madras, whereas both of us are not able to-enjoy the properties set out hereunder; not able to carry out the repairs etc. and not able to let out and collect the rental income therefrom, whereas we have decided to sell the properties-set out hereunder for better investment, so that no wastage could be committed, whereas we have decided to invest the aforesaid sale proceeds, in 10 years Defence Deposit investments as notified in New Delhi Notifi-fication on 1st November, 1962, and for paying the Government tax, this-day, we have agreed to sell to you and in your favour for a sum of Rs. 31,500 (Rupees thirty-one thousand and five hundred only) and in pursuance of such agreement, we entered into an agreement on 27th January, 1963,, and we have received from you a sum of Rs. 2,000 as advance. The balance of sale proceeds, a sum of Rs. 29,500 shall be paid at the time of the registration of the sale deed in the presence of the Sub-Regisrar for the purpose of investing the said amount as aforesaid. 'Thus, in the manner set out supra, we hereby acknowledge the receipt of the sale price of Rs. 31,500 from you and this day, we have delivered possession of the property more particularly described hereunder.
The recital in Exhibit B-353 shows that 1 this property was sold as D.Ws. 1 and 2 could not enjoy this property conveniently by collecting the income from the properties and effecting repairs and, therefore, it was sold for the purpose of making better investment in Defence Deposits for a period of ten years in order to fetch a steady and stable income. These recitals would indicate that the fourth defendant was aware that this must have been a property in respect of which there was a restriction on alienation. But this property has been sold by defendants 1 and 2 as if it belonged to them absolutely. We have already observed that in both Exhibits A-1 and A-2, the alienation of the trust properties was prohibited. The sale is not for the benefit of the trust. The inability to collect the rent from this property cannot be a ground for disposing of the property. This alienation has, therefore, to be set aside. But, however, considering the improvements alleged to have been made by the fourth defendant since the date of purchase and to avoid further complications and litigation in respect of this property, we, in the interests of the trust, taking into consideration the present market value of the property, direct the fourth defendant to deposit Rs. 10,000 more than what he had already paid towards the same and on such deposit, the fourth defendant can retain item 8 with him. The fourth defendant will deposit Rs. 10,000 with the official trustee, Madras, within three months from this date. Otherwise, the alienation will stand set aside. The sum of Rs. 31,500 which was said to have been deposited in the Defence Bonds by defendants 1 and 2 and the sum of Rs. 10,000 if deposited by the fourth defendant, will be treated as trut property and the lower Court will give direction as to how best this money could be utilised to fetch better income for the purpose of performing the charities as desired by the founder.
77. Item 7. - Defendants 1 and 2 had given a portion of the property, compri ed in this item to the fifth defendant by a settlement deed Exhibit B-354 dated 24th December, 1962. The gift made by defendants 1 and 2 in respect of this property, which we have already held to be trust property, is invalid. However, taking into consideration the fifth defendent as a public institution, we direct the fifth defendant to execute a registered lease deed once in ten years undertaking to pay reasonable rent which will be fixed by the lower Court. The lower Court while fixing the rent, will take note of the improvements made by the institution and that it is a public institution.
78. Items 11 to 14. - These are properties in Chittoor, we have already held that they are trust properties. They are now in the possession of the sixth defendant, who is the correspondent of B. Section Kannan Higher School, Chittoor District. It is the case of the sixth defendant that he entered into an agreement on behalf of the institution, B.S. Kannan Higher School under Exhibit B-10, dated 27th September, 1958 with Kalyanasundaram-mal with regard to the maintenance and conduct of worship in Sri Vinayagar temple situated in one of the items of property from out of the income from other items to be leased or to be raised by cultivation and also in consideration of the school using and utilising the items covered by the agreement as play ground for the school. It was submitted by this defendant that he bona fide believed that Kalyanasundarammal had right to alienate and in pursuance of the agreement, he had been leading out properties and from the income, the charities mentioned in the agreement were performed. The sixth defendant further submitted that the temple has been properly maintained with the income from the land allotted under the agreement and daily worship and other connected religious functions and ceremonies were being duly performed after submitting accounts to the Hindu Religious and Charitable Endowments Board by paying all dues and taxes.
79. The sixth defendant who examined himself as D.W. 8 stated that on the lease of the landed properties, he Was getting an income of Rs. 400 or Rs. 600 and With that income, he was performing daily worship and other religious functions in the temple and paying salary to the Gurukkal. He also stated that he used to submit accounts to the auditor and to the Endowments Board. He stated that the portion of land abutting the school given by Kalyanasundarammal under the agreement has not yet been used as playground. It appears that the sixth defendant is performing the charities as desired by the founder from the income of the lands leased out by him by virtue of the agreement Exhibit B-10 between himself and Kalyanasundarammal. It cannot be said that the arrangement entered into is not for the benefit of the trust. We, however, direct the sixth defendant to execute a fresh registered deed on the terms that may be fixed by the lower Court.
80. We are left with item No. 9 and a portion of item No. 10 of the plaint schedule. Item 9 is a choultry in Tiruttani. Item No. 10 is dry land to the extent of 12-60 Kulis in Section Nos. 151 and 156 in Tiruttani Village. Item No. 9 is now in the possession of the seventh defendant, the Executive Officer of Sri Subramania Swami Devasthanam, Tiruttani. The dry land to the extent of 12-60 Kulis is now in the possession of P.W. 3 Unnamalai, sweeper and caretaker of Tiruttani choultry. The seventh defendant contended that he was not in possession of item 10 and that he was allowed to occupy item No. 9 in the plaint (Tiruttani Choultry), for the purpoe of running an orphanage therein from the funds of the seventh defendant by means of a letter dated 17th August, 1959. He further contended that he effected improvements and repairs to the choultry at a cost of Rs. 40 and also electrified the same at a cost of Rs. 200 and has been running and maintaining the orphanage consisting of 30 inmates at a cost of Rs. 1,000 on an average per month. It was submitted by this defendant that Kalyanasundarammal handed over the property to this defendant acting in the best interests of the trust and that since this choultry is being used both for accommodating the pilgrims as per the wish of the original founder and also a portion of it for the orphanage, the inmates of which are being fed and taken care of, he might be allowed to continue in possession of this property for the purposes for which the choultry was being utilised and subject to the conditions that the Court might direct. By letter dated 17th August, 1969 addressed to the seventh defendant by Kalyanasundarammal, the following terms and conditions were imposed in respect of the use of item No. 9 by the seventh defendant:
I am willing to allow you to occupy my choultry in Sannadhi Street, Tiruttani for the orphanage proposed to be run by the Devasthanam under the following conditions:
(1) The existing building requires repairs now which should be made-by you before occupation.
(2) We are not liable to pay the-costs of repairs to be done now and to be done periodically by you till you occupy it.
(3) Any assessment and enhanced assessment by the Panchayat Board should be borne by you.
(4) Myself or my relatives should be permitted to have access to the rooms in our possession.
(5) The building is to be delivered to-us without any claim for compensation if the orphanage is not run.
The seventh defendant accepted the terms mentioned in the letter and was using the choultry for the purposes mentioned therein.
81. P. Varadarajalu, Senior Clerk of Sri Subramaniaswami Devasthanam who Was examined as D.W. 7 on behalf of the seventh defendant stated that item 9 was handed over to the seventh defendant in a bad condition of disrepair and the eighth defendant had effected repairs and electrified the building and that a portion of the building was used for orphanage where there are 30 orphans and they are being fed and their school fees are being paid out of the Devasthanam funds. He further stated that they have been paying the tax for the panchayat. He also stated that a portion of the choultry is reserved for the occupation of the pilgrims on the festive days and that they have been allowing the pilgrims to occupy a portion of the choultry.
82. P.W. 3 Unnamalai who is in possession of dry land to the extent of 12-60 Kulis stated that she had been living With her husband Annamalai in the choultry for a long number of years and. her husband was appointed by Natesa for the purpose of sweeping, washing and lighting lamps in the choultry and that after her husband died about seven years ago, she continued to reside in a portion of the choultry performing the same duties as were done by her husband. She stated that there are thirty rooms in the choultry, of which twelve rooms were used by the seventh defendant for orphanage. She also stated that Natesa had leased out a portion of land (12-60 Kulis of dry land) and she is cultivating and taking the income therefrom in lieu of remuneration. She further stated that some rooms were leased out for rent and the Executive Officer was collecting rent therefrom. A portion of the choultry was reserved for the relations of Natesa for their stay during festive days. She is now getting a salary of Rs. 20 from the Executive Officer as she had been appointed as maid servant by the seventh defendant for the orphanage. Since the seventh defendant is using the choultry after having effected repairs and after having electrified the choultry both for orphanage and the accommodation of the pilgrims, we do not want to disturb the possession of item 9 of the seventh defendant who, in our opinion, is maintaining the choultry efficiently from the income of Devasthanam. At the same time we feel that the original purpose of the founder that the choultry should be used for accommodation of the pilgrims to the temple should be maintained. Since it is not clear from the evidence how many rooms there are exactly (whether 12 or 30) We direct that at least half the accommodation should be made available for the pilgrims, without collection of any rent. One of these rooms should be made available to the founder's family and the trustees. The orphanage should be confined to the remaining portion. The seventh defendant should further execute a registered lease deed for a period of five years. It may be renewed periodically.
83. Though we have held that the plaintiff is the eldest male heir to the founder Arunachala and Natesa and that on that account he would be a trustee for taking possession of the trust properties for the administration of the trust, yet we are of the view that at least four more trustees should be appointed, for the efficient administration of the trust along With the plaintiff. It was the desire of Arunachala that the trustees should be of religious and pious disposition and, in fact, he appointed respectable persons belonging to different communities of pious and religious disposition as executors to administer the trust. He had even stated that his adopted son could be co-opted by the executors if he was of religious and pious disposition. The desire of Arunachala was that the, trust should be administered by respectable persons irrespective of the community to which they belonged, if they : are religious and pious, believing in Hindu faith and in temple worship. The lower Court is, therefore, directed to ;> appoint four suitable persons as trustees bearing in its mind the wish of the founder, Arunachala for the purpose of administering the trust, and, while doing so, it 1 may frame a scheme for the proper 3 administration of the trust and carry out ' the directions mentioned in this judgment and do all those things which may be incidental and necessary for the administration of the trust. The suit is remanded to the lower Court to carry out the directions mentioned above.
84. The appeal is partly allowed. Since-the plaintiff has succeeded substantially,., we direct defendants 1 and 2 to bear the plaintiff's costs in both the Courts.