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:
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.
(3.) 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.
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. 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, Kalyanasundaramma 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 stated that 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 as alienees of trust properties 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).;