T.R. KRISHNAMOORTHY AND ORS. Vs. T.S. KRISHNAMACHARY AND ORS.

JUDGEMENT

(1.) THE suit out of which these two appeals arise was instituted in forma pauperis by three plaintiffs, (1) for a declaration that they are co -trustees of the suit trust along with the fifth defendant (2) for a direction to the defendants 1 to 4 and 6 to hand over possession of the trust properties, accounts and records to the plaintiff and the fifth defendant, (3) for a direction to the defendants 1 to 4 to render a true and correct account of the income and expenses of the trust, both for the period prior to the death of Ramakrishna Iyer, father of defendants 1 to 3 and for the period subsequent to his death, (4) for a decree against defendants 1 to 4 to pay the plaintiffs and the fifth defendant all the amounts that may be found due on accounts, (5) for a direction to the sixth defendant to pay the plaintiffs and the fifth defendant damages for wrongful possession of the plaint item 1 at Rs. 500 - per mensem from the date of plaint upto the date of delivery of possession, and (6) for costs.

(2.) THE case of the plaintiffs was that the immovable properties situate in Madurai town and described in the plaint schedule as well as the cash of Rs. 2,000 belong to the trust called " Thurvas J. Muninagendra Iyer, Nagier, Krishana Iyer, Jayarama Iyer Dharmam". As shown in the genealogical table attached to the plaint, the plaintiffs and the defendants 1 to 5 are the descendants of one Jagannatha Iyer, who had four sons, Muninagendia Iyer, Nagier, Krishna Iyer and Jayarama Iyer. By a registered deed dated 20th October, 1930, Lakshmana Iyer, son of Muninagendra Iyer, representing the first branch, Narasimha Iyer, son of Nagier, representing the second branch, Ramasami Iyer, Seshadti Iyer and Sundararaja Iyer, sons of Krishna Iyer, representing the third branch, and Subbier and Rama Iyer, sons of Jayarama Iyer, representing the fourth branch, created a trust. The trust deed shows that a sum of Rs. 2,000 had already been endowed to the trust for the purpose of performing poojas and neivedyams to Sri Ramar and Hanumar already installed by the said Thurvas family at Sri Kooda -lagar Perumal Temple at Madurai, as well as for the performance of the annual Sri Ramanavami Festival. Under the said document, a further sum of Rs. 10,500 -was endowed for the purpose of constructing a platform for the Dwajasthambam already built by the said family in the said temple, for the purpose of completing the gold covering of the Dwajasthambam and for the purpose of celebrating the Kumbabishekam for the Dwajasthambam as well as for the purpose of completing the construction of an incomplete chatram building in Door No. 1, Nallathannir Kinar Lane, South Masi Street, Madurai. The chatram building for which the foundation had been laid and basement had been constructed was also endowed under the deed, which provided that the idol of Krishnaswami should be installed in the chatram at a cost of Rs. 1,000 from out of the trust amount of Rs. 10,500. Under the said deed of trust all the records, accounts and cash belonging to the trust were to be with the branch of Muninagendra Iyer. Four trustees were appointed under that deed for the performance of the trust, and they were Lakshmana Iyer belonging to the first branch, Narasimha Iyer, belonging to the second branch, Seshadri Iyer belonging to the third branch and Subbier belonging to the fourth branch. It was provided in the deed that if any co -trustee in any branch died, he should be succeeded by a person older in age in that particular branch as a co -trustee. Accordingly upon the death of Lakshmana Iyer, his brother's son T.M.V. Ramakrishna Iyer, who was the father of the defendants 1 to 3 and the husband of the fourth defendant, being the oldest in that branch, became the co -trustee in the place of Lakshmana Iyer. Likewise, upon the death of the other co -trustees, who represented the three other branches, the oldest persons in each branch became the co -trustees. On the date of suit, the plaintiffs 1 to 3 had become the co -trustees representing the three branches. T. M. V. Ramakrishna Iyer, who became the co -trustee, was permitted at his own request, to manage the trust properties himself and to keep correct and proper accounts of the income and expenditure of the trust on condition that he showed the accounts for checking and verification whenever his co -trustees demanded the same. It was also agreed between Ramakrishna Iyer and the three co -trustees that whatever cash belonging to the trust that remained in the hands of Ramakrishna Iyer should be utilised by him on payment of compound interest at 6 per cent per annum with annual rests. This arrangement was entered into because the three other branches became financially weak. After Ramakiishna Iyer became the co -trustee, he spent for the construction of the incomplete chatram by advancing monies out of his joint family funds and was repaying himself out of the rental income from the chatram buildings. He leased out the chatram building, Door No. 1, Nallathanni Kinar Lane, South Masi Street, Madurai, and the adjoining building, Door No. 7 -A (items 1 and 2 in the plaint schedule) to various tenants and realised the rentals from them. As he failed to perform the charities as directed in the deed of trust and to show the co -trustees the accounts of the trust for verification, a registered notice was sent to Ramakrishna Iyer and his brothers on 19th March, 1952, by the then three co -trustees calling upon him to render accounts of his management of the trust funds. By his reply dated 10th April, 1952, Ramakrishna Iyer made certain false allegations, while at the same time expressing his willingness to show the accounts. But Ramakrishna Iyer failed to show the accounts to the co -trustees and continued to carry on the management of the trust till he died on 21st May, 1962. Thereafter, the defendants 1 to 3, his sons, and the fourth defendant, his widow, have been in possession of the trust properties including the cash, accounts, records, etc. As par the trust deed, the fifth defendant alone is entitled to succeed Ramakrishna Iyer as co -trustee, because he was next oldest male member, in Ramakrishna Iyer's branch. The defendants 1 to 4 are not entitled to retain the trust properties or accounts and are, therefore, liable to render accounts of the management by Ramakrishna Iyer as well as for their wrongful management of the trust after the death of Ramakrishna Iyer. The properties will fetch a monthly income of not less than Rs. 600, and the defendants 1 to 4 are, therefore, liable to pay the plaintiffs and the fifth defendant damages or mesne profits at the said rate from the date of death of Ramakrishna Iyer till delivery of possession. The defendants 1 to 3 would appear to have leased out the chatram building in Door No. 1, Nallathannir Kinar Lane, South Masi Street, Madurai, to the Sixth defendant on a rent of Rs. 500 per mensem. In reply to the notice sent by the plaintiffs, the sixth defendant falsely alleged that the rent was only Rs. 250. The sixth defendant is liable to be ejected from the premises and to pay damages at Rs. 500 per mensem. These are the facts on the basis of which the plaintiffs claimed the reliefs already mentioned. The plaintiffs also prayed for the framing of a scheme for the administration of the suit trust but they gave up that relief subsequently.

(3.) IN their answer to the plaintiffs, after the pauper original petition was converted as suit, the defendants 1 to 4 stated that they were not aware of the trust deed dated 20th October, 1913 mentioned in the plaint, that the gift deed dated 20th October, 1913 executed by Lakshmana Iyer would reveal that his heirs alone would be entitled to the suit properties, that neither the plaintiffs nor their ancestors had any right to manage the trust properties, that the suit was barred by limitation, and that under Section 92, Civil Procedure Code, the suit was barred for want of sanction by the Advocate -General.