Appeal No. 89 of 1925.
1. This is an appeal against a decree framing a scheme in respect of the suit charity and removing the defendants from trusteeship. The suit properties which are said to be the subject-matter of the trust belonged originally to one Vaidyalinga Pillai who died leaving a widow Papammal, a son and two daughters. The son and his wife predeceased Papammal on whom therefore the property devolved. In 1858, by Ex. B she gifted the greater portion of the suit properties for a chattram and for feeding five Brahmins and two Saivites at Trichinopoly. She also purported to appoint trustees for the charity and mentioned four names in Ex. B. Apparently these trustees did not assume office during her lifetime but she continued to manage the. trust until her death in 1875. After her death' Ayya Pillai, her son-in-law and one of the trustees nominated in Ex. B took possession and carried on the trust. He died in 1877 leaving a will under which he nominated his son Kunju Pillai to be the trustee. One Visalakshi, another daughter of Papammal, then put forward her claim to the property and filed a suit against the tenants. The dispute between her and Kunju Pillai was eventually compromised in 1878 under Ex. I. In this compromise the trust was recognized, but certain additional properties were added to the trust property and it was agreed that Kunju Pillai should conduct the charity and enjoy the properties as a hereditary trustee. From that day until his death in 1915 Kunju Pillai was in possession of the suit property and after his death his sons, the defendants, have assumed possession. The plaintiffs having obtained the sanction of the Collector under Section 92, Civil P.C. have instituted this suit alleging that the defendants have misappropriated the trust funds. The lower Court has found that the defendants were trustees de son tort and that they must be removed from management and has framed a scheme.
2. The defendants now appeal and the first argument put forward is that the trust was not a valid trust as it was made by Papammal who had only a life-interest in the property. This is apparently correct, although there are allegations that she was given absolute ownership of the property dedicated to the trust; but after her death her son-in-law Ayya Pillai and his son Kunju Pillai have always recognized the existence of the trust. In fact from 1877 until 1913 Kunju Pillai always ascribed his right to the property to the existence of the trust. In settling the disputes in 1878 with Visalakshi he recognized the trust created in 1858 and was allowed to remain in possession of the trust property on that distinct understanding. Again in subsequent suits evidenced by Exs. K 1, O and O-1, FF, NII, and III Kunju Pillai invariably rested his right on the trust deed of 1858. It is therefore useless now to put forward the contention that the trust was not a valid trust and came to an end in 1877. It has been recognized continuously or established by suits for there have been occasions on which those who would be entitled to the property as reversioners of Vaithilinga Pillai's son have put forward their claims. Those claims have been negatived and the trust has continued ever since.
3. The next argument put forward by Mr. Ramachandra Aiyar is that the plaint property is not the property of the trust, but was vested in Kunju Pillai subject to the burden of maintaining the objects of the trust, and for this proposition he relies on the language of Ex. 1, where it is recited that Kunju Pillai shall conduct the said charity enjoying the said properties hereditarily. These words might lend some force to the argument if they stood alone, as it would not be quite obvious whether the enjoyment of the properties was the primary consideration or the conduct of the charity. However, in an earlier portion of the document reference is made to the trust deed of 1858 and when the words 'said charity' are used they refer to the charity constituted in 1858 by Ex. B. That document is perfectly clear and gives the trust property absolutely to the trust. The following recital occurs in it: 'I have gifted away cheis 39 1/8 etc.' From this document it is perfectly clear that the founder of the charity intended that the property should belong to the trust and that the whole of the income should be applied for the purposes of the trust. No doubt, the value of the property has now become largely enhanced and the income is very much in excess of what is necessary for the original purposes specified in Ex. B. Provision was, however, made in Ex. 1 for additional objects of the charity which were to be met out of the income. It is, therefore, quite clear that the original dedication to the charity was a dedication of the whole of the property and not merely income from the property sufficient to defray the expenses of the trust.
4. The contention that Kunju Pillai based his rights upon Ex. 1 is clearly negatived by his own statements in various legal proceedings in which he definitely based his right on the trust deed of 1858. In this view it must be held that the whole of the property belongs to the charity and not merely a small portion of the income. The defendants, therefore, are not entitled to the income subject to the burden of the charity, but the whole of the income of the property must be applied to the purposes of the trust.
5. The next contention raised is that the present suit is not maintainable, because the plaintiffs are not persons having an interest in the trust within the meaning of Section 92, Civil P.C., and reference is made to the Full Bench decision of this Court in Ramachandra v. Parmeswaran Unni  42 Mad. 360. In that case there were two plaintiffs, one resident in Tellicherry and the other in Madras and the suit related to a temple in Tellicherry. As regards the plaintiff resident in Tellicherry, no question was raised before the Full Bench it being taken for granted that he had an interest in the suit temple. As regards the resident in Madras, it was held that the mere fact that he was a Hindu and therefore entitled to worship in the plaint temple did not give him an interest in the temple within the meaning of Section 92. Here, in the present case, the facts are entirely different. All the three plaintiffs are residents of the place in which the chattram is situated. The charity is no doubt largely for the feeding of poor persons and it is not shown that any of the plaintiffs have received food in the institution, but, apart from that, there is a chattram building and that can be utilized for staying in although charity in the shape of food is not accepted and we have the evidence of plaintiff 3 that he has often been to this chattram and stopped in it and that fact is not seriously disputed. Plaintiff 1 alleges that he had frequently gone to the chttaram and had asked for food but had been refused. In any case, all the plaintiffs are persons who would be entitled to receive food in that chattram under the terms of the original trust deed if they so wished. In these circumstances, it must certainly be held that they have sufficient interest in the trust within the meaning of Section 92.
6. The next point is the claim of the defendants to be hereditary trustees. It has been found that Kunju Pillai acquired by prescription a right to be trustee and it is argued that inasmuch as his hereditary right was recognized in 1878 by Ex. 1 he must be held to have prescribed for a hereditary title. So far as Ex. 1 is concerned, it is quite clear that the recognition of a hereditary title by Visa-lakshi, his aunt, would not by itself confer such a title upon Kunju Pillai and he could only get such a title if he prescribed for that particular form of title. Had he given out to the world that he was holding the trust property as hereditary trustee and did so to the knowledge of the real owner of the property, he would no doubt have acquired such a right, but we find that for more than 12 years after 1878, by which time his title, whatever it was, had become perfected by adverse possession, he never put forward publicly his claim to be a hereditary trustee. It was not until much later that any such claim was put forward. Having acquired his title as trustee he could not subsequently acquire a different title by merely asserting it in proceedings in Court. The Subordinate Judge is right in holding that no hereditary right has been proved and that, therefore, the defendants are not the rightful trustees.
7. A question of res judicata has also been raised and it is contended that by reason of O.S. 44 of 1917 the present suit is barred. That was a suit brought by three persons under Section 92, Civil P.C., who, it appears, were financed and instigated by one Subramania Aiyar. During the pendency of this suit, this Subramania Aiyar, who had previously been quarrelling with the defendants, compromised matters with them and for a certain consideration abandoned the prosecution of the suit. When Subramania Aiyar refused to advance money for further proceedings the plaintiffs withdrew the suit alleging that they could not possibly continue it as they had no money. This fraudulent compromise certainly cannot constitute res judicata. The trust is a public trust and persons interested in it cannot be bound by any such suit, in which no decision was arrived at and which was withdrawn fraudulently. The present suit is, therefore, maintainable.
8. A separate appeal has been filed by the defendants (Appeal No. 288) against the final decree, [the other appeal (No. 89) being against the preliminary decree] and in that the plaintiffs have filed a memorandum of objections. They have taken objection to para. 12 of the scheme framed in the lower Court which runs as follows:
The trustee or any member of the Board shall be at liberty to apply to the Court for the framing of rules or such further or other directions as may be necessary from time to time for carrying out the provisions of this scheme or for modification of the term thereof.
9. In view of the recent decision of the Full Bench of this Court the last few words 'for modification of the term thereof' are ultra vires, and must be struck out [Cf. A.I.R. 1927 Mad. 1073-Ed.]. It is also suggested that in addition to the trustee or any member of the Board being at liberty to apply, permission to apply should be given to any person interested in the trust and this seems to be desirable. In order to make the first portion of the rule clearer and to show that it is only to apply in respect, of further directions for carrying out the provisions of the scheme the clause will be modified as follows:
The trustee or any member of the Board or any other persons interested in the trust shall be at liberty to apply to the Court for carrying out the provisions of this scheme by the framing of rules or by such further or other directions as may be necessary from time to time.
10. The respondents have not been allowed their costs in the final decree apparently by mistake, for the Subordinate Judge has referred them to the appellate Court for amendment of the decree in this respect. The final decree will therefore be modified by providing for the payment of the plaintiffs' costs out of the estate. Both the appeals will be dismissed with costs of the respondents. The memorandum of objections is also allowed with costs of the respondents. All these costs are payable by appellants personally.