V. Ramaswami, J.
1. The plaintiff is the appellant. The suit was filed for recovery of the suit properties from defendants 6 to 14. One Subbaraya Iyer purchased originally a small bit of land in Raghunathapuram, which is a harrlet of Sholapuram within the Sub-Registration District of Tiruvidaimaruthur, Kumbakonam taluk, and with his owr money put up a tiled building and planted cocoanut trees. In the building he installed 'Sri Ramachandramurthy' and consecrated the same and was performing daily pooja, and neivedyam end was also conducting festivals on important occasions. Later on, by a deed of endowment dated 4th September, 1904 he corstituted this into a trust and endowed also other properties. He called the trust property as a public charitable trust. The Hindu community of the Village were worshipping in the madam, doing bajanal and holding festivals on important occasions. The trust deed provided also for the management of the trust properties and the madam. The founder constituted himself as the first trustee and further provided that after his death, the eldest of his brothers should become a trustee and thereafter the eldest sons of his brothers should succeed and manage the properties as sole trustees. In the event of a failure to assume the trusteeship by any persons referred to above, or on their acting adversely to the trust, the deed further provided that it would be open to anybody who is interested in the trust or any worshipper to take steps in a Court of law to either have the trustees removed or seek the appointment of a trustee and ask for such other relief, as might be necessary. It appears that there were also certain buildings which were used as shops. The original founder died in the year 1940 and he was succeeded by one of his brothers by name C.V. Panchapagesa Iyer. He was managing the properties as a trustee, conducting the festivals and performing the daily pooja, for about six or seven, years. The first defendant is the son of the said Panchapagesa Iyer. Panchapagesa Iyer is now reported to be dead. But, even during his lifetime, he began to alienate the endowed properties in favour of defendants 6 to 9. Under Exhibit B-12, dated 15th August, 1957, Panchapagesa Iyer and his son (the first defendant) sold an extent of 2o cents, which included the madam proper, to the 6th deferdant. The same two vendors executed another sale deed on 30th, January, 1957 in favour of the 9th defendant, conveying another extent of 2a cents. With the consideration, it appears that they purchased a building in a nearby village called Kumbakonam, another property, removed the Sri Rama Pattabhisheka picture which was consecrated in the suit property and installed the same in the property newly purchased at Kumbakonam. The plaintiff, who is the grandson of the original founder, has filed this suit for a declaration that the alienations are not binding on the trust and for recovery of possession of the suit properties.
2. The main defence was that Raghunathapuram, which is part of Shclapuram village, had subsequent to the constitution of the trust and the consecration of the madam, become predominantly a Muslim locality, that the then trustee, Panchapagesa Iyer and the first defendant, considered it not congenial to have the madam or the performance of the festivals in that area and that therefore, having the interest of the temple as the primaly consideration, sold the properties to the defendants and constituted another madam in Kumbakonam village. The defendarts also raised the plea that the plaintiff has no loas standi to file this suit since he is not either a trustee or a person entitled to become a trustee and that therefore he could not maintair the suit. Incidentally, a question was also raised as to whether the suit properties are public trust.
3. Both the Courts below, on a consideration of the document and the recitals therein, came to the conclusion that it is a public religious and charitable trust. That the trust is of a public nature, admits of no doubt, because even in the document itself it is stated that the trust belonged to Raghunathapuram villagers and it is also specifically mentioned that it is a public, religious and charitable trust. The finding has, therefore, to be confirmed and we have to proceed on the basis that it is a public trust.
4. The trial Court dismissed the suit on the ground that the plaintiff is neither a hereditary trustee nor can he claim to be a trustee under the document. The lower appellate Court has confirmed this finding. But, the learned counnsel for the appellant points out that while he claimed to be the sole hereditary trustee, he also stated in the plaint that even otherwise, as a person interested in the trust, he is entitled to file the suit. The finding of the Courts below that he is neither a trustee nor a hereditary trustee, nor is he entitled to become a trustee under the document, is correct as the founder himself, though he had an adopted son, did not mention about his right to become a trustee; but on the other hand stated that after him, the eldest of his brothers should become the trustee and after him, the eldest sor of such trustee should become the trustee. It is only if that line of sucession failed, anybody else could become a trustee, and ever then, such a trustee could be appointed only by the Court and not by the inheritance. The plaintiff cannot, therefore, claim to be a trustee. But, even otherwise, as a person interested, the learned Counsel for the appellant contended, he is entitled to file the present suit for declaration of title and for recovery of possession. In support of this contention, the learned Counsel relied on the decision of the Supreme Court in Bishwanath and another v. Sri Thakur Radha Ballabhji and Ors 1, and a decision of this Court in Manikkanarasimhachari v. Rama-subbier and Ors. 2. In Bishwanath v. Radha Ballabhji : 2SCR618 , the Supreme Court held that when a trustee, acting adversely to the interest of the idol, alienates the trust property, even a worshipper can file the suit the reason being that the idol is in the position of a minor and when the person representing it leaves it in the lunch, a person interested in the worship of the idol can certainly be clothed with ad hoc power of representation to protect its interest and that to such a suit, Section 92, Civil Procedure Code is not applicable. In Manikkanarasimhachari v. Ramasubbier : (1970)1MLJ337 , this Court held:
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 worshippers or the beneficiaries to maintain a suit for possession of the trust property after declaring the alienation invalid; when such possession is asked for, the decree for possession will be in favour of the alienating trustee himself, because so long as he is a trustee he is the only person who is entitled to the lawful possession of the property... Section 92, Civil Procedure Code, is not applicable to such a suit.
These are clear authorities for the position that the plaintiff, as a person interested in the trust though he may not have been residing in the village where the madam is situate, is entitled to maintain the suit.
5. The important question that therefore arises for consideration is whether the alienation in favour of defendants 6, to 9 by the first defendant and his father as trustees, is valid.
6. There can be no doubt that the alienations were for proper consideration and that is the finding of both the Courts below. The only question is about the legal validity of the transaction. The defendants sought to support the alienations on the ground that the locality wherein the math was functioning had become predominantly a Muslim area, that the math was not having a congenial atmosphere and that in those circumstances if the trustees had bona fide acted believing it to be in the interest of the trust and gold the property, the sale could not be invalidated on the mere ground that it is a trust property. The defendants also relied on the fact that the amount realised as consideration was again re-invested in purchasing another building in another village wherein one Ramapattabahisheka picture was again installed. The trial Court negatived this contention, but the lower appellate Court had accepted the same. While we may assume that a trustee will have such a power to alienate the madam building itself in cases where the purpose for which the trust was created or the worship could not be carried on in the place, and that the trustees have a right to shift the madam to some other place, we do not find sufficient facts in this case for establishing that there was something in the nature of impossibility of performance of the religious festivals or daily pooja or daily bhajan in the madam. None of the witnesses, as rightly pointed out by the trial Court have spoken about any interference to the proper functioning of the madam by any of the Muslims in the locality. The lower appellate Court had assumed that the entire population in the village had become Muslims except two Brahmin families. The evidence only disclosed that in the particular street where the madam is situate, most of the residents are Muslims and only four or five houses belong to Hindus. The total number of houses in the entire street is mentionad as 20 or 22. But, there is no evidence to show that there were no Hindus in the other portion of the village. The fact that in the street in which there is the madam there were Muslims would not by itself show that the madam could not be utilised as a place of worship or for the purpose of bajanai or other festivals. The assumption of the lower appellate Court that the entire village had become a Muslim populated place, is rot supported by any evidence. The finding that the trustees were within their rights in shifting the place of worship to Kumbakonam from Sholapuram is, therefore, on the wrong assumption that there are no Hindus except two Brahmin families in Sholapuram Village. The finding of the lower appellate Court is, therefore, not acceptable, and the said Court has grievously erred in law in reversing the finding of the trial Court on this aspect, without any evidence on record. The sale in favour of the defendants is, therefore not binding on the trust. As held by this Court in Manikkanarasimhachari v. Ramasubbier : (1970)1MLJ337 , since the plaintiff in this case has filed the suit only as a person interested and he himself was not a trustee, though there will be a declaration of the title of the plaintiff trust, the decree for possession should be given in favour of the first defendant who is the alienating trustee.
7. There will accordingly be a decree declaring the suit properties as trust properties and directing delivery of possession of the same to the first defendant.
8. learned Counsel for defendants 6 to 9 pointed out that they have parted with valuable consideration and in fact there is evidence to show that with the money the first defendant and his father had purchased some property in Kumbakonam. The 9th defendant further stated that in a portion of the property purchased by her, she had even put up a construction. But I could not give any relief in these proceedings, as once the alienations are not binding, the trust is entitled to recover possession and if the defendants are entitled to any relief against the Ist defendant, that will not be affected by any decree passed in this suit.
9. With these observations, the second appeal is allowed and there will be a decree in favour of the plaintiff as stated above. No costs.