Ganapathy and another vs Ambikai and others

Natesan, J.—Plaintiffs who have failed in the Courts below in their suit for recovery of possession of lands of the extent of 5 acres 27 cents

in Vadasanganthi Village, Tiruthuraipundi Taluk, Nagapattinam Registration District, with future profits have filed this second appeal. Their claim to

possession of the suit lands was rested on a registered settlement deed dated 18th April 1911, of which Ex. A-1 is the registration copy. The suit

lands are not directly covered by the settlement deed but were obtained by the settlor subsequent to the settlement under a deed of exchange for

some of the lands covered by the settlement and this is the principal ground on which the plaintiffs failed. The trail Court whose decision was

affirmed by the Appellate Court remarked that if the plaintiffs had filed the suit for recovery of the properties covered by the settlement deed, they

could have succeeded. In this second appeal the plaintiffs challenge the view of the Courts below and the defendants seek to maintain the decree in

their favour here on other grounds also. The plaintiffs and 7th defendant who are divided brothers are the sons of one Rathnasabapathy Thevar.

The settlement in question was made by Nagammal Achi, widow of one Saminatha Thevar, brother of Rathnasabapathy Thevar''s father, Aonappa

Thevar. The 1st defendant in the suit is the widow of Ramiah Thevar, natural brother of Ratnasabhapathy Thevar who had gone out of the family in

adoption to one Kanakappa Thevar. The 2nd defendant in the suit is the daughter and the 3rd defendant, daughter''s sons of the said Ramiah

Thevar. Defendants 8 to 11 are other heirs of the deceased 1st defendant. By the settlement deed Nagammal settled her properties described in

Schedules A, B and C of the deed of settlement, Ex. A-1, with the object of providing for the due performance of worship at Sri Thirugnanamurthi

Vinayagar Temple at Manapadugai which she constructed and for the necessary thirupanies to the temple. A total extent of 21 acres 80 cents of

land and also house property and trees and plants were the subject of the settlement. The settlement deed provided that during her life time she

would enjoy the settled properties paying circar kist carrying on the trusts provided for in the document, namely, daily pooja, daily lighting, temple

repairs, Vinayaka Chathurtbi ubayam, niramani ubayam and Thiru Karthigai ubayam After her death, Rathnasabapathy Thevar was to take charge

of the properties mentioned in Sch. A and B of the settlement deed, enjoy the same and give 37 kalams of paddy and Rs. 20/- for the daily pooja

and lighting and see to their performannce. He was also to carry on the charity of performing Vinayaka Chathurthi ubayam and niramani ubayam.

Ramiah Thevar aforesaid was to take charge of the properties mentioned in the C Sch. to the settlement deed, of the extent of 9 acres and 78

cents, and enjoy the same paying kist thereon and give towards daily pooja and daily lighting 29 kalams of paddy and Rs. 13. He had to conduct

the Thiru Karthigai ubayam. Rathnasabapathy Thevar and Ramiah Thevar bad to pay for the thiruppani to the temple in pre-portion to the lands

taken by them. If there was default by any of the parties in carrying on the trusts, the party carrying on the trust should take over possession of the

entire property and carry on the trusts provided in the settlement As regards further devolution, the settlement deed provided that if any of them

had no male heirs, the male heirs of the other should take the property end perform the charities. There was prohibition against any alienation of the

properties by the settlor, Rathnasabapathy Thevar, Ramiah Thevar and their heirs. This document was attested by Rathnasabapathy Thevar''s

father Annappa Thevar and Ramiah Thevar''s adoptive father Kanakappa Thevar. At the time this document was executed neither

Rathnasapapathy Thevar nor Ramiah Thevar had any issue.

Subsequent to this settlement deed, the settlor Nagammal exchanged the suit properties of the extent of 5 acres 27 cents for an extent of 6 acres

and 70 cents out of 9 acres 78 cents comprised in Sch. C of the settlement deed Ex. A-1. The exchange was under a registered deed dated 10th

August, 1924 with one Rangaswami Pillai. The deed of exchange (Ex. A-2 is a registration copy of the deed) specifically referred to the fact that

the lands given by her in exchange were covered by C Sch. in the deed of settlement made by her providing for the performance of the daily

pooja, neivadhya etc., for Sri Thirugnanamurthy Vinayakar to be enjoyed by her for her life time carrying on the trusts and after her to be enjoyed

by Ramiah Thevar carrying on the trusts. Nagammal died in 1928 and Ramiah Thevar who under the deed of settlement Ex. A-1 had to succeed

to the enjoyment of the properties mentioned in Sch. C of the settlement deed subject to the performance of the trusts assumed possession of the

available C Sch. properties and the suit properties that had been taken in exchange by Nagammal Achl. During his life time Ramiah Thevar (sic)

alienated some of the suit properties under exchange, sale and settlement. He tad no male issue and died in December, 1952. Before (sic) death,

he settled item 1 of the suit properties and another property in favour of his grandson, the 3rd defendant in the suit under a settlement deed Ex. B-5

dated 9th December, 1952. Item, 2, he conveyed in exchange for other properties under Ex.B-1 dated 28th May, 1942. He sold away under Ex.

B-4 dated 16th May, 1951 item 3 to one Samiappa Thevar whose son sold that item to the present 5th defendant The 1st defendant purported to

settle items 4 and 5 in favour of her grandson, the 3rd defendant under a registered settlement deed Ex. B-6 dated 31st December, 1960. The

plaint proceeds on the basis that under the settlement deed Ex. A-1 Rathnasabapathy Thevar and Ramiah Thevar had life estates with a charge for

contribution for the specified charities and that on the death of Ramiah Thevar leaving no male issue, the plaintiffs and 7th defendant as the male

heirs of Rathnasabapathy Thevar have became entitled to possession of the suit properties. The plaintiffs also state that they and the 7th defendant,

besides being entitled to possession of the properties under the settlement deed, under the very terms of the settlement deed are also the nearest

reversioners and heirs-at-law of Nagammal Achi entitled to possession of the properties after the life estate of Ramiah Thevar.

Several defences were raised .It was inter alia contended that the original settlement of Nagammal was a nominal document, and was not

intended to be given effect to. It was pleaded that under the settlement deed Ramiah Thevar bad an absolute estate in the C. Schedule properties.

The courts below find that the original settlement was not a sham or nominal document and that there was evidence of poojas to the deity being

carried on. The claim to an absolute estate in favour of Ramiah Thevar under the settlement deed was found against and the Courts below have

held that Ramiah Thevar got only a limited interest for his life. Both sides proceeded to argue the case on the assumption that under the settlement

deed the properties were only charged for pooja and other kuinkaryams in the temple and that the dedication was not an absolute one, but partial.

There has been no serious dispute that the plaintiffs and the 7th defendant are the nearest and immediate reversioners of Nagammal Achi and

entitled to succeed to the properties as her heirs. The decision of the Courts, below has proceeded in the view that the suit properties have not

taken the character of the properties covered by Ex. A-1 and that the plaintiffs cannot lay any claim to the suit properties upon the terms of Ex A-1

The courts below would hold that Ramiah Thevar by enjoyment of the suit properties from 1928 bad prescribed title to the properties in himself.

While the trial court has taken the view that Ex. A-1 conferred only a limited interest on Ramiah Thevar, the appellate Court considers it

unnecessary to give a finding on that question.

In the course of arguments before me, there was a complete volte face for the plaintiffs, the plaintiffs counsel arguing in the alternative that under

Ex. A-1 the dedication was absolute and not partial and the properties were all trust properties. As stated earlier, this was not the case of either

party, both parties pleading that there was only a charge for the expenses of the trust, that is the dedication was only partial. Apart from the fact

that the plaintiffs cannot be allowed to shift their case at this stage, I may also state that there are not enough materials on record for a decision on

the question. True, the settlement deed starts with the preamble that it is in favor of Sri Thirugnanamurthy Vinayagar, that is the settled was the

deity itself. But in the operative part of it, expenses to be incurred are specified and the document speaks of enjoyment of the properties by the

designated Individuals under the deed carrying on the trust The heading of the schedules also deserve attention. Learned Counsel for the plaintiffs

Sri Gopalaswami Iyengar would submit that even where a dedication is complete, there could be provision for the maintenance and personal

expenses of the Hukdhar Of trustee. In the written statement defendants 6 and 7 have pleaded that the income from the properties settled under

Ex. A-1 would be in the neighbourhood of 500 kalams of paddy, besides cash income of Rs. 500 and that the expenses provided for kainkaryam

to the deity would be about 1/12th of the income. It was pleaded that a conspectus of the entire provisions of the deed would show that the

designated persons were the true beneficiaries under the document, Rathnasabapathy Thevar of A and B Schedule properties and Ramiab Thevar

of C schedule properties subject to the charge for the expenses of worship of the deity and Thiruppani. It is well settled that the fact that the deed

proceeds as if the properties shall be the properties of the idol will not be conclusive of the question. Whether the estate is vested in the deity with

provision for a part of the income to be retained by the manager for the time being for his personal use or whether the estate is vested in designated

persons with directions to apply part of the income for the daily poojas of the idol and repairs of the temple is a matter for decision by determining

the initial intention of the donor at the time of the creation of the settlement. In M. Dasaratharami Raddi v. D, Subba Rao A. I. R. 1957 S. C 797

at 800, the Supreme Court lays down the rules in this regard as follows:

The answer to these questions can be found not by concentrating on the significance of the use of the word ""trustee"" or ""trust"" alone but by

gathering the true intent of the document considered as a whole. In some cases where documents purport to dedicate property in favour of public

charity, provision is made for the maintenance of the worshipper who may be a member of the family of the original owner of the property himself

and in such cases the question often arises whether the provision for the maintenance of the manager or the worshipper from the income of the

property indicates an intention that the property should retain its original character and should merely be burdened with an obligation in favour of

the charity.

If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is

allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on

the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is

left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication.

Where the dedication is partial, there is only a charge or trust over the property for the deity and the property descends and is alienable and

partible in the ordinary way, subject to the trust or charge. The property retains its private and secular character. When the dedication is complete,

the person in whom the possession is vested is only a manager. As the contesting parties were ad idem at the trial as to the character of the

endowment and there was no issue on the question, no evidence has been let in thereon. And the question cannot be decided as a pure question of

law, even if necessary. But having regard to the facts of the case and the relief claimed, it is unnecessary to decide this issue. It is needless to

record that the stand taken by the parties as to the character of the dedication will certainly not affect or bind the deity if ever a contest should

arise. The deity as such is not a party to this proceeding and cannot be bound by any case agreed upon between the parties to this suit.

It is however necessary to consider whether under the settlement deed, Ex. A-1, Ramiah Thevar had only an interest for life. The trial court, as

already pointed out, has held that Ramiah Thevar was given only a life estate, though the appellate court considered it unnecessary to decide the

question. There can be no doubt about the correctness of the trial court''s view of the matter, Read as a whole, the settlement deed is very clear.

The directions regarding enjoyment and carrying on of the Kainkaryam in the temple were addressed personally to Rathnasabapatby thevar and

Ramiah Thevar. After them their rights and obligations were to devolve on their male heirs. The provision regarding the male heirs taking the

properties of the designated persons are as employed in the instrument not words of limitation in respect of the estate given to the designated

individuals. There is besides prohibition against alienation by the persons who have to take possession of the properties under the settlement.

Whether the subsequent interest in favour of the male heirs is a valid provision or not is a different question. The only interest conferred on the

immediate donees, Rathnasabapathy Thevar and Ramiah Thevar was for their life only. The language In this regard does not warrant inference of

the grant of an absolute heritable estate to them subject to a charge in favour of the deity, to read the subsequent bequests in favour of their male

heirs as an invalid gift-over.

The trial court was of the view that the settlor has indicated a line of succession at variance with Hindu Law, providing succession in tail male.

Also on the date of the settlement neither Rathnasabapathy Thevar nor Ramiah Thevar had male issue to be direct objects of gift. I have not heard

arguments for a contrary position. The lower appellate court has contented itself by passing these problems with the observation that the suit does

not relate to properties covered by the settlement deed. Counsel for the respondents contended that even if it is found that there is a direct gift to

the immediate male issue of the first designated donees, the gift offended Section 13 of the Transfer of Property Act. The trusteeship now pleaded

as vested in the heirs under the settlement is not bare trusteeship but admittedly carried with it emoluments. Mr. Gopalaswami Iyengar submitted

that the Transfer of Property Act does not apply when the transfer is not to a living person, and that there it was an absolute endowment, a

settlement on the deity. It will be seen presently that for invalidating the succession provided for under the deed, it is needless to rely on section 13

of the Transfer of Property Act. At the trial, for the plaintiffs, it was conceded that they cannot claim the properties as heirs under the terms of the

settlement deed. They relied only on the alternative title they have pleaded, their rights as heirs of the settler. The simple question is whether as

against the plaintiffs and the 7th defendant any one else is entitled or has better claim to the present possession of the suit properties.

Learned Counsel for the respondents submitted that as the provision for the male heirs of the first donees to take after then was bad in law;

Ramiah Thevar took an absolute estate in the properties given to him. This argument is clearly untenable. If the settlor intended that Rathnabapathy

Thevar and Ramiah Thevar should take only an estate for life in the properties, the mere fact that the intention of the settlor as regards the

remainder cannot be given affect to will not enlarge the estate given to Rathnasabapathy Thevar and Ramiah Thevar. The line of descent of the

estate prescribed by the settlor may be illegal, but the nominated persons, the grants in whose favour standing alone are not invalid in law, could

intervence to enjoy the limited estates given to them. The ordinary law of devolution and descent of the estate would give way so far as it is

necessary to provide for these limited grants and would operate beyond and after the grants. The settlors intention cannot be ignored to the extent

it can be given effect to. She never intended in the instrument to provide Rathnasabapathy Thevar and Ramiah Thevar with absolute estates, if the

provision for their male heirs taking after them should turn out invalid in law. It would be making a new settlement if Ramiah Thevar is regarded as

taking an absolute estate on the subsequent gift proving ineffective. Whether the designated individuals and those that are to come after them under

the terms of the deed are to take the properties personally as charged properties or as managers in possession, it would make little difference.

As pointed out in AIR 1936 318 (Privy Council) all estates of inheritance created by gift or will, so far as they are inconsistent with the general

law of inheritance are void as such, and by Hindu Law no person can succeed thereunder as heir to the estates described in the terms which in

English law would designate estates tail, and the rule is applicable to an hereditary office and endowment as well as to other immovable property. If

the property is regarded as private property of the settlor charged with the performance of trusts, on the expiry of the life estate of

Rathnasabapathy Thevar and Ramiah Thevar, succession to the property has to be traced once again from the settlor. The same principle applies

even if the property should be regarded wholly as endowed property and the persons placed in possession as managers of the property. In AIR

1943 89 (Privy Council) , the Judicial Committee dealing with a case of sebaitiship where both elements of office and property and of duties and

personal interests are mixed up and blended together observed:

If the founder appoints X to be the first sebaiti but not absolutely or so as to carry any Interest to any heir of X, has he left no interest in himself

?...It must now be taken that the sebaiti is property, that it is not a catena of successive life estates, Gnanasambanda Pandora Sannadhi v. Velu

Pandaram 27 I. A. 69, but is heritable property which in the first instance is vested in the founder. It must further be accepted that the founder may

direct that a designated person should bold the office during that person''s life either immediately or on the death of a previous holder and that such

direction-subject to the relevant conditions as to perpetuity, whatever these may be-will be good although it carried on right to the heirs of the

grantee and does not amount to a complete disposal of the sebaiti.

If then on the death of the grantee the sebaiti goes to the founder or his heirs, this is because the right of the founder is heritable and he has not

completely disposed of the interest which be has not completely disposed of the interest which he has therein.

In the present case the interest of Ramiah Thevar coming to an end with his life, the right to possession of the C. Schedule properties in Ex.A-1

in whatever character, has to be traced once again from the settlor Nagammal Achi. The plaintiffs and the 7th defendant as the nearest and

immediate reversioners of Nagammal Achi are therefore the persons who would be entitled to the C Sch. properties in Ex.A-1, Quite correctly in

the circumstances, the trial Court points out that if the plaint ills had filed the suit for recovery of possession of the properties covered by the

settlement deed they would have succeeded. Ramiah Thevar died only in 1952 and the present suit for possession was filed on 16th February,

1961 and there could have been no answer if the suit properties are directly covered by the settlement deed.

The plaintiffs have been non-suited on the ground that the suit properties are not properties directly covered by the settlement deed, Ex. A-1,

but were properties obtained by Nagammal Achi in exchange. The trial Judge reasons that Ramiah Thevar, though be had no title to the suit

properties at the initial stage, had prescribed title to them by continuously enjoying them as absolute owner for ever 12 years. It is unnecessary to

consider the judgment of the lower appellate court which simply adopts the reasoning of the trial court without such discussion. The learned trial

Judge has overlooked two material aspects of the matter when finding that Ramiah Thevar had prescribed title to the suit properties by enjoyment

as absolute owner for over 12 years. He has completely overlooked that Ramiah Thevar took possession of the suit properties also only under the

provisions of the settlement deed, even though they were not covered by the settlement deed. Ramiah Thevar himself in Ex. B-5 dated 9th

December, 1952 when settling certain properties on his daughter''s son, the 3rd defendant herein, referred to the settlement deed, executed by

Nagammal Acbi in his favour as the basis of his title to the properties. He no doubt stated that he was enjoying the properties in his absolute right.

One of the properties settled under Ex. B-5, Survey No. 12/11, Nanja lands of the extent of 2 acres 25 cents, is the first item in the present suit,

an item taken by Nagammal Achi in exchange.

The short question is whether the fact that the properties have not not been subject of any specific document incorporating them with the

settled properties made a difference. The courts below considered them as private property of Nagammal Achi and not subject to any charge in

favour of the deity or obligations of the settlement. This is to ignore the terms of the exchange deed. The deed of exchange specifically provided

that the exchange was in respect of lands in the C Sch. of the settlement deed, set part for kainkaryam to Sri Thirugnanamurthi Vinayakar to be

performed by he and after her by Ramiah Thevar. The character in which the exchange has been made is clearly indicated. Significant by

Rathnasabapathy Thevar and Ramiah Thevar are attestors to this deed of exchange. Nagammal having secured the suit properties in lieu of certain

properties whose income was charged with certain trusts, white in management of the properties, cannot take advantage of her possession and

enjoyment of the properties to assert absolute and unencumbered personal rights in herself to the substituted properties. As a person in possession

of the properties under the settlement deed she was bound to protect and maintain the obligations enjoined on the settle under the deed. May be

the was the settlor, but she had parted with her personal right in the properties by the settlement. If she took properties in exchange for properties

whose income was subject to certain obligations to be attended to by her as a person occupying a fiduciary position she could be compelled to

hold the income from the properties taken in exchange also subject to the same obligations. She would not be permitted to plead her own invalid

exchange. The fact that the exchange may be set aside by a person interested and having locus standi is neither here nor there. In fact, there is no

evidence that she was treating the properties obtained in exchange differently from the properties covered by the settlement deed. It is only on

interpretation of the deed of exchange and as a question of law, the courts would hold that the properties were intended to be taken by her

absolutely for herself. This arises from a misreading by the Courts below of the recitals in the deed of exchange that each of the parties to the

exchange took the exchanged properties absolutely. It could well mean that the properties got in exchange would be held by the respective parties

without let or hindrance by the other party. The enjoyment of the absolute rights contemplated in the deed of exchange can only refer in the

context, to the absolute right inherent to the character in which the parties exchanged. A fair reading of the deed of exchange leads to the inference

that Nagammal intended to use the properties obtained in exchange as substituted properties for the portion of the C Sch. properties of Ex. A-1

she gave away in exchange. For the creation of a Hindu endowment or for dedication of property for a religious or charitable purposes among

Hindus no writing is necessary. The only requirement is clear and unequivocal manifestation of the intention to create an endowment. Certainly such

an intention in this case is manifest in the deed of exchange itself. The absence of a registered deed of endowment in respect of exchange

properties incorporating them with the settled properties, it, in the circumstances, immaterial. If Nagammal intended to appropriate the exchanged

properties for herself, there was no purpose in her referring to the settlement deed and her possession of the properties there under in the deed of

exchange. Her taking the attestation of Rathnasabapathy Thevar and Ramiah Thevar to the exchange deed becomes material in the context. She

seeks to bind them with knowledge of how she acquired the properties. The learned District Munsif refers to the document of exchange as an

indication of the reality of the original endowment. Should it then be assumed that she was completely taking out the properties secured by

exchange from the trust, assuming that she could do so ? If it is necessary in the interests of the endowment that there should be a specific

dedication of these properties taken in exchange by manifestation of an intention to do so, the Court will treat it as a matter of conscience of the

person occupying a fiduciary position and apply the rule that what ought to have been done shall be taken as done. The court will taken it that there

has been a dedication of the exchanged properties in terms similar to the settled properties.

The courts below observe that the actual exchange is not challenged ,that is the exchange is accepted. The result of the exchange is to convert

a part of the properties settled into other property. The conversion has been by a registered instrument. The question is whether as a result of this

conversion along with the property the character in which property was originally held was also changed. We are here not on the power of the

settlor to take other property in exchange. We are here concerned only with the character of the exchanged properties, namely, whether it would

retain and be subject to all the incidents and obligations of the properties given in exchange. It is a principle of general application that conversion

would not alter the quality or nature of the estate. See-Ranga Rao v. State of Madras A. I. R, 1953 Mad. 185 (187). No reason has been

advanced as to why this principle should not be applied here, particularly when the person in possession who brought about the conversion is in the

position of a trustee: Conversion here is really voluntary substitution. Whichever way the matter is looked at, it is clear that the exchanged

properties are subject to the same obligations as the properties given in exchange, that is the exchanged properties take the character of the settled

properties.

It follows that the suit properties would be held under the same terms as the other properties covered by the settlement deed Ex. A-1, When

Ramiah Thevar took possession of the suit properties, be entered on possession of the same under the same title as the other properties covered

by the settlement deed. Ramiah Thevar himself has referred to the title under which he had entered on possession of the properties in Ex. B-5 as

under the settlement. The courts below looked upon Ramiah Thevar''s possession of the properties as hostile to the true owner only on the ground

that the exchanged properties did not take the character of the settled properties and that when Ramiah Thevar entered on the properties, he had

no title to the same. Apart from the fact that the suit properties must be deemed to be impressed with the character of the settled properties, there

is the further fact as evidenced by Ex. B-5 that when Ramiah Thevar entered on the properties and took possession of them, it was in the animus

that they were properties covered by the settlement deed. This also would determine the character of the estate taken by him. Under the terms of

the settlement deed, Ramiah Thevar''s interest in the properties came to an end with his life and at that stage succession has to be traced from the

settlor, as already pointed out. Plaintiffs and the 7th defendant are the present heirs of the settlor Nagamnal Achi. The possession of Ramiah

Thevar was in accordance with his right to be in possession under the settlement deed. Any adverse possession by transferees from him during his

life time would come to an end on the termination of his interest in the properties. There is no question (sic) of Ramiah Thevar acquiring an estate of

inheritance by adverse possession. Ramiah Thevar died only in 1952 and the suit has been filed within 12 years after his death. There has been no

adverse possession for the statutory period thereafter by any one of the defendants. In this view, the reasoning of the courts below that though

Ramiah Thevar had no absolute title to the properties covered by the settlement deed, he acquired title to the suit lands by prescription and

therefore the alienations made by him were valid cannot stand. It may be that Ramiah Thevar had in the several deeds executed by him described

himself as absolute owner of the suit lands. If his interest had been absolute, subject to a charge in favour of the deity, then of course the alienees

could hold the properties subject to the charge. But if his interest in the properties and right to possession and enjoyment subject to the charge in

favour of the deity was limited for his life, then on his death the alienees from him have to surrender possession of the properties to the persons

entitled to the properties under the settlement deed. If the provisions of the settlement failed as to further devolution, as has happened in this case,

the heirs of the settlor become entitled to the properties subjeet to its valid provisions. The possession of the alienees and those claiming under

Ramiah Thevar ceased with his life. The estate reverted to the settlor for the purposes of tracing succession.

The lower appellate Court has incidentally remarked that the plaintiffs have not sured as trustees. The necessary for the requirement has not

been shown. The parties have proceeded on the basis that the properties are only charged with the expenses of the endowment. The plaintiffs have

specifically averred in the plaint that the chief object of the settlement is the worship at the Pilliar temple. They are bound by the terms of the

settlement deed, however interpreted whether the dedication is partial or absolute (sic) is said that the present plaintiffs have not been performing

daily pooja. There is no specific finding in this regard. The learned District Munsif in one part of the judgment observes that the evidence of the

plaintiffs that they were carrying on poojas to the deity was not seriously challenged in cross examination. If the plaintiffs are not carrying out the

Kainkaryams, as provided by the settlor, it will be a matter for the appropriate authority to take action. Before me there has been no denial by the

plaintiffs of their obligations under the settlement deed to carry on the several Kainkaryams under the settlement deed.

It follows that the plaintiffs along with the 7th defendant are entitled to possession of the suit properties and that there should be a decree in

their favour for possession of the suit properties. The plaintiffs in the suit have reserved their claims to past profits to independent proceedings and

have claimed only future profits, till delivery of possession. Having regard to all the circumstances of the case, the relief for future profits by

proceedings in this suit is rejected.

In the result, the second appeal is allowed, the judgments and decrees of the courts below are set aside and the plaintiffs and the 7th defendant

given a decree for possession of the suit lands. The parties will bear their respective costs, throughout.; No leave.