MOOKKA PILLAI ALIAS SUDALAIMUTHU PILLAI Vs. VALAVANDA PILLAI AND ORS.

JUDGEMENT

(1.) THE first defendant appeals from a decree granted to the plaintiffs for recovery of possession of the suit properties with mesne profits. The plaintiffs' suit was dismissed by the Subordinate Judge, but was decreed on appeal by the District Judge of Madura. Originally, the plaintiffs sued for a declaration that they and the 12th defendant were trustees of the suit properties and were entitled to recover possession from defendants 1 to 3. The claim was opposed on the basis of a will executed by one Irulayi, widow of one Sudalaimuthu Pillai under which she set apart the properties for the performance of charities and nominated certain trustees. The will provides for the filling up of vacancies in the trusteeship, and if the trustees so appointed by her or coming in their place by co -option refuse to act or do not act properly, fresh trustees were to be appointed by all the married adult male members of her community, namely, that of Arumugamangalam Vellalars living in the Madura District. The plaintiffs stated that the trustees did not act properly, that the male members of the community met together and elected them, and that they were therefore entitled to sue for the recovery of possession of properties from defendants 1 to 3, who had no right whatever. The defendants contended that the plaintiffs were not duly elected trustees, that all the trustees who were previously functioning did not refuse to act and that there was nothing to show that they acted improperly. Another point raised by them was that Irulayi had only a life interest in the properties and had no right to dispose of any of them by will. Both these contentions found favour with the learned Subordinate Judge. On appeal, however, the defect in the title set up by the plaintiffs as trustees were sought to be got over, by an amendment petition in which the plaintiffs asked that they should be allowed to sue as the representatives of the community in question. The amendment though opposed was allowed and it is in this capacity as representatives of the community of Arumugamangalam Vellalars that they and the 12th defendant together got a decree at the hands of the District Judge. On the second point, the learned District Judge held that Irulayi got an absolute title to the properties in dispute under the award of the mediators who were called upon to settle the disputes that had arisen between her on the one hand and her husband's brother Gopala Pillai and his sons and others.

(2.) THE reference to the arbitrators is evidenced by Ex. P -1 dated 21st September, 1906, and the award is Ex. P -2 dated 10th January, 1907. It is not disputed that under the reference the parties wanted the properties allotted to each share to be allotted absolutely and that the award does so in fact.

(3.) THERE is no substance in the point that the plaintiffs should get the trustees removed first. Under the will they have the right to take possession of the properties in the event of mismanagement and if the trustees are not in possession having allowed third parties like defendants 1 to 3 to get into possession they can ask to be put in possession; the removal of the trustees who have already got out of the way is not a condition precedent.