Pappa vs Shanmughathammal and others

K.M. Natarajan, J.—This appeal is filed by the unsuccessful plaintiff against the judgment and decree passed by the II Additional

Subordinate Judge Madurai, in O. S. No. 486 of 1977 dismissing the suit filed by the appellant.

The brief facts which are necessary for the disposal of the appeal are as follows : The appellant, hereinafter referred to as the plaintiff, filed the

suit for a declaration that she is the trustee of the private trust established by Ramayee Animal, for delivery of possession of the suit properties and

for rendition of accounts by defendants 1 and 2 on the following averments. One Andiappa Pillai son of Arumugham Pillai of Veeracholam village

executed a registered will dated 12-12-1912 while in a sound and disposing state of mind and volition, whereby he made provision for carrying out

the following charities (1) Performing daily pooja in the Vinayagar temple constructed and installed by him in his native village Veeracholam; (2)

Arranging a payasa kattalai pooja at uchikalam to Lord Sub-ramania at Tirupparankundram and (3) Performing daily pooja to his family deity

Andrappa Swamigal at Sennalgudi wherein he has constructed a temple for the said deity. He has appointed his brother''s son Mahalingam Pillai as

trustee to manage the said trust from the sum of Rs. 9,300/- being the outstandings due to him and also the income thereof. He has specifically

stated that his heirs have no manner of right in the Trust or to perform the Trust or in the properties of the trust. Under the Will, he bequeathed his

other properties to his heirs. Andiappa Pillai died in the year 1913. His brother Senthilvelu Pillai''s son Mahalingam was performing the above

charities as per the recitals in the registered will out of the trust fund.

Ramayee Ammal, wife of Andiappa Pillai, who was the owner of Rs. 20,700/- left by her husband, purchased certain properties in her name as

well as in the name of Mahalingam Pillai from out of the said funds and dedicated the same to the abovesaid charities. She has also left some

amount with Mahalingam Pillai for the purpose of purchasing properties for the trust. She also executed a registered Will on 27-1-1915 of her own

volition and disposing state of mind wherein she appointed Mahalingam Pillai as Trustee to manage the properties and to have the charities

performed. Schedule I properties were purchased by Ramayee Ammal in her name and in the name of Mahalingam Pillai for the purpose of the

charities. As per the said will Mahalingam Pillai and his heirs alone were the trustees and that the heirs of Ramayee Ammal and Andiappa Pillai

were not the heirs of the trustees. Ramayee Ammal died in or about 1917-. Mahalingam Pillai purchased 10 acres of lands for the benefit of the

charities and they are shown as items 1 to 21 in Schedule II of the plaint. After the death of Ramayee Ammal, Mahalingam Pillai was performing

the trust.

Mahalingam Pillai had no male issue. He was frequently going to Rangoon in connection with his business. Hence, he had arranged for the trust

to be managed through one Arunachalam Pillai who was his paternal uncle''s son-in-]aw and also subsequently married his brother''s daughter.

Arunachalam Pillai was managing the properties only as the agent of Mahalingam Pillai. Mahalingam Pillai died on 5-8-1939 leaving behind his only

daughter the plaintiff, and his widow Lakshmi Ammal as his heirs. Lakshmi Ammal, the widow of Mahalingam Pillai, became the trustee of the said

trust. Being a lady, she allowed Arunachalam Pillai to manage the trust properties on her behalf. Lakshmi Ammal died in the year 1965. Thereafter

the present plaintiff who is her only daughter and sole heir has become the trustee. Since Arunachalam Pillai was closely related to the plaintiff, she

too was having confidence in him and allowed him to manage the trust properties and perform the charities as her agent, since she was a woman

and Arunachalam Pillai was having experience in the trust matter.

There was considerable income from the trust properties. Arunachalam Pillai also purchased certain properties from the income of the trust and

those properties are described as items 1 to 12 of Schedule III. Since the plaintiff is not in a position to give the exact extent of the properties

purchased by Arunachalam Pillai, she reserves her right to include such other assets as may be found to exist at a later stage as and when she

comes to know of them. Arunachalam Pillai died on 5-11-1965 leaving behind the first defendant (his widow) and defendants 2 and 3 (his sons).

Defendants 4 and 5 are the brothers of the first defendant. The second defendant married the daughter of the fifth defendant. Since the plaintiff is

living in Mahindi village, defendants 1 to 3 got into possession of the trust properties and took into their custody all the documents relating to the

trust. Defendants 4 and 5 also colluded with them and they also are trying to claim trusteeship in themselves. The defendants are setting up that

they are the trustees and that they are entitled to be in possession of the properties.

It is further submitted that the trust has not been properly conducted by Arunachalam Pillai and the defendants have misappropriated large

income. Arunachalam Pillai purported to have executed certain deeds like sale deeds in respect of some of the properties which are described in

Schedule IV.

Defendants 1 and 2 being the heirs of Arunachalam Pillai are liable to account''for the monies realised by those transactions which are invalid

and void and make good the plaintiff from the estate of Arunachalam Pillai in their hands. The plaintiff also suspects that certain documents have

been fabricated to defe''at the trust. Since defendants 1 and 2 in collusion with defendants 4 and 5 have been in control and managemennt of the

trust, they are liable to render a true and faithful account of all the resources and assets of the trust to the plaintiff and also for its income and

realization from the date of death of Arunachalam Pillai and also during the management of late Arunachalam Pillai. All attempts made by the

plaintiff to get back possession of the trust properties and rendition of accounts, both in person and by means of a registered notice, proved to be

of no use. The first defendant sent a reply with false allegations. Defendants 4 and 5 also sent a reply with false allegations. Hence the suit.

Defendants I to 3 together filed a written statement wherein besides denying the allegations stated in the plaint, it was contended that

Arunachalam Pillai never acted as agent of Mahalingam Pillai or the plaintiff and he was not liable to account to the plaintiff. Since defendants 1 to

3 are only the legal representatives of the deceased Arunachalam Pillai, the plaintiff is not entitled to ask for rendition of accounts. As such the suit

as framed is not maintainable. Further, any right to call for records and day-books is barred as Arunachalam Pillai died more than 12 years back.

Even assuming that Arunachalam Pillai was the agent, since Mahalingam Pillai died in 1939 and Lakshmi Ammal died in 1962, the suit for accounts

against Arunachalam Pillai or his estate is barred by limitation. Defendants 1 to 3 never acted as trustees and the court-fee paid on that basis is

neither correct nor sufficient. Lastly, it is submitted by them that they adopt the written statement of defendants 4 and 5.

Defendants 4 and 5 filed a written statement contending as follows:-- It is true that Andiappa Pillai founded the charity referred to in the plaint

and he was also performing the same during his lifetime. He also executed a registered Will dated 12-12-1912. But defendants 4 and 5 did not

admit the legal validity of the Will in respect of the claim made in the plaint that Andiappa Pillai disinherited his heirs from the rights to the

trusteeship so far as the suit charities are concerned. It is further stated that Maha-lingam Pillai went to Rangoon and did business. Mahalingam

Pillai could have started the said business only with the assistance of the funds inherited by him from Andiappa Pillai. Therefore, the properties

acquired by him should be deemed to be impressed with the character of joint family properties in the hands of sole coparcener and they could not

be said to be his self-acquired properties. Andiappa Pillai had no male issue. Hence, he adopted one Parangundram Pillai in or about 1891. After

the joint family came into existence at the moment of adoption, all the properties became the joint family properties. Further, no joint family

member could execute a Will as against the interest of the other members of the family under law as it stood then. The charities were family

charities. There was another adopted son by name Muthirulappa Pillai to Andiappa Pillai. The two adopted sons had acquiesced in the setting

apart of the outstanding amount of Rs. 9,300/- for the purpose of performing the charities and the charities become the family charities. Any

provision in the Will which can be read as disinheriting other members from trusteeship is void. As such, any right claimed in the plaint on the basis

of sueh disinheritance is not tenable. They also denied that Mahalingam Pillai was appointed as a trustee to manage the family charities.

Mahalingam Pillai and his father Senthilvel Pillai were the power-of-attorney agents of Andiappa Pillai. Andiappa Pillai intended that these agents

should continue as agents in respect of the charities even after his own death. Mahalingam Pillai was managing the charity and improved it as agent

of Andiappa Pillai and not with the conscious that he was a trustee. It is further stated that even assuming that in legal effect the appointment of

Mahalingam Pillai could be equated to trustee, no heritable right of trusteeship was given to him under the wills of Andiappa Pillai and Ramayee

Animal. Hence, his widow and daughter did not succeed to the office of trusteeship. It is stated that the construction of the Will by the plaintiff is

not correct. Ramayee Ammal was not the founder of the charities and anything in her Will cannot deprive the heirs of Andiappa Pillai of the right of

trusteeship. Muthirulappa Pillai, the second adopted son, died leaving his widow Valliammal as his only heir. Since dispute arose between

Valliammal, the first adopted son Parangundram Pillai and Muthammal, the daughter of Andiappa Pillai, it was referred to certain panchayatdars

for decision and in pursuance of the decision, a partition deed was executed and registered on 1-10-1916. Mahalingam Pillai acted as guardian of

Muthammal in the said partition deed wherein also it is stated that he, as the guardian of Muthammal, should manage the charities founded by

Andiappa Pillai as per the provisions of the Will of Ramayee Ammal. It was also provided that after Mahalingam Pillai, the other sharers should

manage the charities and Mahalingam Pillai derived the right to the management under the said partition deed. After Mahalingam Pillai, the other

sharers became the trustees, the other sharers being Valliammal, Muthammal and Parangundram Pillai. Muthammal also executed a Will in favour

of her husband Arunachalam Pillai and by virtue of the same, Arunachalam Pillai became the trustee under the terms of the partition deed.

Defendants 4 and 5 are entitled to the right of trusteeship as reversionary heirs to the estate of Andiappa Pillai, after the death of Valliammal, in the

absence of any person claiming under the adopted sons. Since Mahalingam Pillai was given only a personal right, he can claim only a right to

nominate his successor if he is given such a power under the instrument. Since Mahalingam Pillai has not nominated his wife or daughter, he could

be deemed to have nominated Arunachalam Pillai as per the allegations levelled in the plaint.

Defendants 4 and 5 stoutly denied that Arunachalam Pillai was ever appointed as an agent by Mahalingam Pillai or was an agent under

Lakshmi Ammal or the plaintiff. But, it is stated that Arunachalam Pillai was acting in his own right. Mahalingam Pillai became old and was unable

to look after his own affairs in the year 1937 and hence he abandoned the charities. Arunachalam Pillai being the son-in-law of Andiappa Pillai

entered into possession of the properties of the charities. Hence, any right which could be claimed by the plaintiff became lost by adverse

possession. After the death of Ramayee Ammal, trouble arose in the family. Parangundram Pillai filed a suit O. S. No. 26 of 1930 on the file of the

District Court, Ramnad which was transferred to the file of the Sub Court, Ramnad and numbered as O. S. No. 19 of 1931. Valliammal, the

widow of Muthiru-lappa Pillai, Muthammal the daughter of Andiappa Pillai, Mahalingam Pillai the father of the plaintiff and Kandasami Pillai, the

father of defendants 4 and 5 were the defendants in the said suit. The said suit was compromised by the parties under a razinamah in I. A. No. 12

of 1932. It was agreed tht Mahalingam Pillai and Kandasami Pillai were themselves recognised as rever-sioners and a decree was passed on 9-1-

1932. The said decree is binding on all the parties including Mahalingam Pillai. Mahalingam Pillai predeceased Valliammal. The plaintiff and her

mother Lakshmi Ammal cannot claim any right as reversioner to the second adopted son Muthirulappa Pillai., Further, under the arrangement of

the year 1916 Valliammai had become the trustee and''her rights descended to defendants 4 and 5 as reversioners. Vailiammi had no issues.

Defendants 4 and 5 were looking after her. In 1957 she gave all her properties to defendants 4 and 5 and they took possession of them. Though

Valliammai had intended to execute a formal settlement deed, she suddenly died in 1958. It is only by virtue of the oral gift, defendants 4 annd 5

are in possession of the entire estate. Arunachalam Pillai surrendered possession of the charity properties on the same occasion to defendants 4

and 5, as he became old. Defendants 4 and 5 are in management of the charity properties for over a period of 20 years and as such, they have

perfected title by prescription. The plaintiff''s right if any is barred by limitation. They are not liable to account to the plaintiff in any manner. They

would contend that the properties described in schedules 3 and 4 are not charitable properties and they are not in possession of the same as

trustees. It is also stated that the suit is bad for non-joinder of the alienees in respect of the properties in schedule 4. Hence, they prayed for

dismissal of the suit.

On the pleadings, the court below framed as many as 5 issues. Under issue No. 4 it was held that the suit is in time and that it is not barred by

limitation. Under issue No. 2 it was held that the plaintiff has no title to the trusteeship of the suit charities and Mahalingam Pillai or Lakshmi Ammal

or the plaintiff never appointed Arunachalam Piliai as their agent in respect of the trusteeship. Under issue No. 3, it was held that in view of the

decision on issues 1 and 2, the defendants are not liable to render account. Consequently the suit was dismissed in view of findings on issues f and

Aggrieved by the same, the plaintiff has preferred the appeal.

Learned counsel for the appellant, Mr. K. Sengottian after taking us through the recorded evidence and the documents, made various

submissions challenging the judgment of the trial court. According to the learned counsel, as per Exs. A-1 and A-2, M ahalingam Pillai was given a

heritable right of trusteeship and not a personal right. He would further submit that under Ex. A-1 Andiappa Pillai specifically excluded his heirs to

the right of trusteeship which clearly proves that what was given to Mahalingam Pillai was only heritable right. Further, there is no clause in Exs. A-

1 and A-2 limiting rights of Mahalingam Pillai during his lifetime only. The learned counsel would submit that the court below has erred in holding

that Ex. 8-2 is admissible. The lower court failed to see that Ex. B.2 does not and cannot alter or vary the terms of Exs. A-1 and A-2 and deprive

the appellant of her right to succeed her father and mother. Ex. B.2 is admittedly in respect of the personal properties of Andiappa Pillai and not

the properties belonging to the charities. Further, Mahalingam Pillai acted only as guardian of Muthammal and not in his personal capacity and he is

not competent to give up his right under Ex. B-2 so as to deprive his heirs the right of succession. The learned counsel vehemently argued that Exs.

B-3 and B-4 are quite irrelevant as they do not deal with the suit properties. The learned counsel would submit that the trial Sub Judge ought to

have held that on Mahalingam Pillai''s death, his wife Lakshmi Ammal and on her death in 1965 the appellant is entitled to the trusteeship. The trial

Judge erred in holding that Arunachalam Piliai never acted as agent of Mahalingam Pillai or Lakshmi Ammal. The Court below erred in rendering

the said finding without considering the admission of D. W. 1 and the oral evidence of P. Ws. and Exs. A-9 and A-10 in its entirety. The learned

Sub Judge failed to see that the case of defendants 4 and 5 that they were in possession of the properties from 1957 is belied by Exs. A-14 and

A-15 which are of the year 1960 and also Ex. A-24 wherein they admitted that Arunachatam Pillai was in possession as trustee till his death on 5-

11-1965. He would also submit that Ex. A-20 does not deal with the trust properties and Ex. A-21 the statement of lands submitted by

Arunachalam Pillai to the Authorised Officer falsifies the case of the defendants. Lastly it is submitted by the learned counsel that the finding of the

lower court that after Mahalingam Pillai''s death, the right should go to Andiappa Pillai''s family, namely, Parangundram, Valliammai and

Muthammal is incorrect on law and facts.

Per contra, the learned counsel for the respondents, Mr. T. R. Mani, submitted that the reliefs prayed for in the suit were for declaration that

the plaintiff is the trustee of the private trust founded by Ramayee Ammal and for recovery of possession of the suit properties and rendition of

accounts by defendants 1 and 2 on the ground that Arunachalam Pillai was only the agent, that the agency itself is not established, that Mahalingam

Pillai was not appointed as trustee to manage the properties under Ex. A-1 of the year 1912 and that the dismissal of the suit by the court is

justified. The learned counsel would further submit that in view of the allegations stated in para 9 of the plaint that Mahalingam Pillai himself had the

trust managed through one Arunachalam Pillai even during his lifetime as he was having business at Rangoon and he was frequently going to

Rangoon, that after the death of Mahalingam Pillai, Lakshmi Ammal allowed him to act as agent and that thereafter the plaintiff too allowed him to

act as her agent, it is quite probable that Mahalingam Pillai also was only allowed to manage the properties and not appointed as trustee. He would

state that since P. W. 1 has admitted that she has not executed any power in favour of Arunachalam Pillai, the court below is justified in holding

that the agency pleaded by the plaintiff is not true and that no reliance could be placed on Exs. A-9 and A-10. According to the learned counsel,

Ex. A-2 only reiterates the earlier trust under Ex. A-1 and the right conferred is not hereditary but only a personal one. He would further submit

that since Ex. B-2 was marked in the earlier proceedings, even though the award was not stamped and registered, its admissibility cannot be

questioned in this proceedings and even though Mahalingam Pillai acted as guardian of Muthammal, he was bound by the recitals therein. The

learned counsel also submitted that S. 10 of the Limitation Act is not attracted and the finding of the lower, court that the suit is in time is not

correct. According to the learned counsel, Arunachalam Pillai was recognised as the heir of Muthammal under Ex. B-4 and even though it is with

reference to other properties and not the suit properties, by the same analogy Arunachalam Pillai is entitled to be the heir of Muthammal in view of

the right conferred under Ex. B-4.

The points that arise for consideration in this appeal are :

Whether under Exs. A-1 and A-2 Mahalingam Pillai was constituted as trustee of the private trust established by Andiappa Pillai and Ramayee

Ammal, his wife?

Whether the right given to Mahalingam Pillai under Exs. A-1 and A-2 was a personal right or a heritable one?

Whether Mahalingam Pillai divested the right of trusteeship by virtue of Exs. B-2 and B-4.

Whether Mahalingam Pillai or Lakshmi Animal or the plaintiff appointed Arunachalam Pillai as agent in respect of the trusteeship?

Whether the finding of the lower court that the suit is in time is not correct as contended by the respondents?

Whether the defendants or any of them are liable to render account and to what extent?

Points I and 2 : It is admitted by both the parties that Andiappa Pillai founded the trust under the Will dated 12-12-1912 the registration copy

of the same being Ex. A-1. Ex. A-2 is the will dated 27-1-1915 executed by Ramayee Ammal wife of Andiappa Pillai. The question to be decided

is whether Mahalingam Pillai was appointed as a trustee to perform the charities founded by Andiappa Pillai and subsequently by Ramayee Ammal

and whether such right given to Mahalingam Pillai was a personal right or a heritable one. According to the plaintiff, Mahalingam Pillai was

appointed as trustee to perform the charities and that it is a heritable one while the case of the respondents is that Mahalingam Pillai was only asked

to manage the properties and even if it is construed that he was appointed as trustee, it is only personal and not heritable one. It is worthwhile to

consider the recitals in Exs. A-1 and A-2 for proper appreciation of the respective contentions. Ex. A-1 is the Will dated (2-12-1912 executed by

Andiappa Pillai, wherein he has categorically stated that he wanted to establish a trust in respect of his self-acquired properties and the said trust

should continue for ever and also to make arrangement in respect of his other properties even during his lifetime. It is specifically stated that all the

properties are his self-acquired properties and that he has got his senior wife Ramayee Ammal and two adopted sons Muthirulappa Pillai and

Parangundram and two daughters Muthammal and Muthirulayee. It has been specifically staled that excluding the properties earmarked for the

chanties, the heirs are entitled only to divide the other properties. As regards the amount ear-marked for the charities, it has been specifically stated

that the charities which arc being performed by him were to be done by Mahalingam Pillai, his brother''s son out of the above amount and interest

and improve the same and that his heirs have no right whatsoever in the amount ear-marked for the charities. The charities referred to therein were

already set out while narrating the case of the plaintiff and that it is needless to reiterate them once again. There is absolutely nothing to spell out

that Mahalingam Pillai was merely asked to manage the said trust. But he has been given the absolute right to perform the charities out of the

amounts ear-marked for the same and improve the same. As rightly observed by the learned counsel for the appellant, when once the creation of

trust under Ex. A-1 is admitted, the person who is managing the Trust is nothing but a trustee. It is not in dispute that Mahalingam Pillai acted as

trustee till his death in 1939 and that he purchased properties for the charities as is evidenced by Exs. A-4 to A-8. It is to be noted that Ramayee

Ammal, widow of Andiappa Pillai, who was the owner of a sum of Rs. 20,700/-left by Andiappa Pillai to her, purchased properties in her name as

well as in the name of Mahalingam Pillai from out of the funds dedicated to the abovesaid charities and further amounts were also left with

Mahalingam Pillai for purchasing properties for the trust. Under Ex. A-2 Ramayee Ammal by a registered will dated 27-1-1915 has specifically

stated that after the death of her husband in 1913, out of the amount of Rs. 20,700/- left by him in a hundial for her benefit, she purchased certain

properties in her name and that of Mahalingam Pillai and also left certain amount by way of documents and that since she was unwell, she has

executed the will. In the will she has stated :

(Matter in vernacular hence omitted --Ed.)

At the end of Ex. A-2, it is recited that her heirs have no right whatsoever in the above charities or the properties, but they are entitled to question

if the charities are not performed properly. It is clear from the above recitals that Mahalingam Pillai was appointed as trustee and he has been given

the right to perform the charities out of the income and improve the same and he or his heirs have no right to appropriate the income of the trust

properties for personal benefit. It is further made clear that the heirs of Ramayee has no right whatsoever in the charities except to question if the

charities are not conducted properly. According to the learned counsel for the appellant, Ex. A-2 is an independent trust created by Ramayee

Animal. But the learned counsel for the respondents submitted that the trust was founded only under Ex. A-1 by Andiappa Pillai, that after the

death of Andiappa Pillai, Ramayee was also managing the trust, that she purchased certain properties out of the charities fund and also out of her

own money in her name and in the name of Mahalingam Pillai, that in addition to the charities referred to, she added one charity and in respect of

the same Mahalingam Pillai was appointed as trustee to perform the charities out of the income of the properties and improve the same. Hence,

tinder Ex. A-2 she only reiterated the earlier trust. We find much force in the contention of the learned counsel for the appellant as it is seen that

under Ex.A-1 only the outstanding of R''s. 9,300/- was ear-marked for performing the charities in 1912 and Andiappa Pillai died in 1913.:

Thereafter his widow Ramayee Animal purchased the properties described in Schedule I in her name and that of Mahalingam Pillai for the purpose

of the charities out of the amounts which were given to her by her husband and also out of the amount earmarked for the charities in the earlier will

and after purchasing the properties, the balance fund was left with Mahalingam. After the death of Ramayee, Mahalingam Pillai too purchased 10

acres of land which are described in items 1 to 21 in Schedule II of the plaint. It is to be noted that as rightly contended by the learned counsel for

the appellant, it is nowhere staled under Ex. A-1 that Mahalingam Pillai was appointed as Manager or was given right to enjoy the properties till his

lifetime and that the heirs of the founder have to succeed him. On the other hand, it is specifically stated that the heirs of the founder have no right

whatsoever in the said performance of the charities or in the funds earmarked for the same, even though they were given other properties to their

share. After Ex. A-1 the widow of the founder Andiappa, Pillai was also managing the trust along with Mahalingam Pillai and she only wanted the

charities founded by her husband to continue for ever and since the properlies were purchased subsequent to the death of her husband, she only

executed the will wherein she reiterated the appointment of trusteeship by her husband, and the wish of her husband in respect of the line of

succession after Mahalingam Pillai has also been set out therein. As widow of the founder, she is entitled to create a line of succession. In this

connection, the learned counsel for the appellant drew our attention to the decision of Division Bench of this Court in Jayarama Naidu Vs.

Tirupathi and Another, wherein it was held :

A bare trusteeship to which only duties are attached is not property in any sense of the term unlike Shebaiti in Bengal. It is competent to the heir of

the founder of a shrine, in whom the trusteeship had vested, owing to the failure of the line of the original trustees, to create a new line of trustees.

This rule is actually based on the presumed intention of the founder that the heirs should be at liberty, to make fresh arrangements for the devolution

of the trust instead of leaving it to devolve in the family, the reason behind it being that the ordinary rules of succession under Hindu Law would not

apply to the office of trusteeship which is not property. In the result, the heir of the founder, or his nominee, be it even the widow of the founder

would be competent to make nomination to such an office.

In this connection it is worthwhile to quote the decision in Putti Ramachar and Others Vs. P.V. Venkata Row and Others, wherein Their Lordships

of this court observed, ""Where a testator creating a religious trust by his will appoints his son to the office of the trustee without any further

directions, he must be deemed to have prescribed a line of succession in that son and his heirs, although he does not make any provision for

succession after that son''s death. The will by implication makes provision for the appointment of trustees to succeed him and confers the office on

his heirs after him. The appointment amounts to grant of a heritable trusteeship to the particular son and other sons of the testator cannot claim to

be declared trustees on the ground that the appointment of the first trustee was only for his lifetime."" Applying the ratio to the facts of this case,

even though the testator has created a trust by his will appointing Mahalingam Pillai as trustee without any further direction, certainly, he must be

deemed to have prescribed a line of succession in Mahalingam Pillai and his heirs, although he does not make any provision for succession after his

death. The reasoning given by the lower court for not accepting the said decision is not acceptable as no distinction can be made whether it is a son

or brother''s son. Further, even in the above quoted case, there were other sons available and they were not entitled to claim any right in the said

trust. Similarly, in this case also, though Andiappa Pillai had two adopted sons and one daughter, he has appointed his brother''s son Mahalingam

Pillai to the office of trusteeship without any further direction and by implication he made provision for the appointment of trustee to succeed him

and to the office of the trusteeship also. The same view was reiterated in M. Thiagarajan and Another Vs. M. Ganesan, wherein one Ramalingam

appointed his only son Subbu Pillai as the trustee and conferred on him the trusteeship. Their Lordships observed :

In other words, we are clearly of the view that there is absolutely nothing in the surrounding circumstances of the case and in the language of the

will to warrant an interpretation that Ramalingam merely appointed Subbu Pillai delimiting the trusteeship to his lifetime and not making any

provision, as to reserve the power for himself to lay down the further rule of devolution.

Similarly, in this case also, the founder has not delimited the trusteeship to his lifetime. He has not reserved any power for himself to lay down the

further rule of devolution. The court below though referred the above judgment has not given any convincing and acceptable reasons for not

applying the ratio to the facts of this case. The intention of the founder Andiappa Pillai is clearly reflected in the will Ex. A-2 executed by his wife

Ramayee Ammal wherein she has categorically stated that their heirs have no right whatsoever in the charities or properties and there is an

indication that Mahalingam Pillai and his heirs have to perform the charities as trustees by saying that neither Mahalingam Pillai nor his heirs are

entitled to appropriate the income from the properties endowed to the trust, but they should only improve the trust out of the surplus amount, if

any. That Mahalingam Pillai was in exclusive possession and enjoyment of the trust and its properties in his capacity as trustee is not in dispute. The

learned counsel for the appellant drew our attention to certain decisions with regard to the question as to what is the course to be adopted if no

mode of line of succession is provided under document. The learned counsel for the respondents submitted that the office of trusteeship is property

and only the legal heirs of the. founder are entitled to succeed. On the other hand, the learned counsel for the appellant invited our attention to

various decisions that the office of trusteeship is not property. According to him, there are some decisions to show what is the course to be

adopted if no line of succession is provided. The decision in Jayarama Naidu Vs. Tirupathi and Another, , already referred to, lays down that a

bare trusteeship to which only duties are attached is not property and that the heir of the founder or his nominee, the widow, would be competent

to make nomination to such an office owing to the failure of the line of the original trustees, to create a new line of trustees. In K. Manathunainatha

Desikar Vs. Sundaralingam and Others, it was held, ""The dharmakartha or manager of a temple who has no emoluments attached to his office, but

only duties to discharge, has no personal interest of a beneficial character in the institution. The office of dharmakartha is no doubt a highly prized

office but when no material benefits are attached to the office it cannot be considered ""property"" under the ""Hindu Law"". It is further provided (Sic)

:

There is no prohibition in Hindu Law against such a scheme of succession to trusteeship or office of manager or dharma-kartha. The rule in

Tagore case, LR 1872 Iml App 47 : 9 Beng LR 377, does not apply to bare offices which are not property and which have not necessarily to be

hereditary, but may be made hereditary by the founder who has a right to provide a special case of succession for the office. The restrictions laid

down in the Tagore case, LR 1872 Ind App 47 : 9 Beng LR 377, does not therefore apply to the office of dharmakartha which has no

emoluments or profits attached to it. The successor to the office does not take the office solely in his right as heir to his predecessor, but pro forma

doni as direct nominee under the rule of succession laid down by the founder.

The next case cited by the learned counsel is, Chockalinga Sethurayar and Another Vs. Arumanayakam, . That was a case where a Hindu

governed by the Mitakshara Law died leaving behind his wife K, and a foster son D. He had executed a will constituting a private trust. Under the

will, K and D were constituted as trustees after the testator''s death and after the death of K and D, the sons of D were to be the trustees, and in

their absence the ''Vamsathar'' of D were to be the trustees. D predeceased K. After K''s death, R became the trustee. R died issueless and the

respondent (who was the sister of R) claimed the trusteeship; on the other hand, the appellants (who were the grand-sons of paternal uncle of R)

pressed their claim for trusteeship on the ground that they belonged to the ''vamsa'' of R. The trial court accepted the appellant''s claim, but in

appeal the High Court held that the trusteeship devolved on the respondent. The Supreme Court confirmed the decision of the High Court and held

that the respondent was entitled to succeed to the trusteeship previously held by her brother R. While doing so, it was observed :

A true reading of the will shows that the testator had prescribed a line of succession for the devolution of the trusteeship only up to a point and not

beyond it. According to the will after the death of the testator his wife and foster son were to be the trustees and after their lifetime the sons of D, if

any, should succeed to the trusteeship and in their absence the ''Vamsathar'' of D should take over the trusteeship. The direction contained in the

will as to the line of succession exhausted itself as soon as R became the trustee. He remained as the trustee till his death. Therefore, there was no

question of the ''vamsathar'' of R succeeding to the trusteeship. As soon as R took over the trusteeship, the mode of succession prescribed in the

will came to an end. R became a fresh stock of descent. Thereafter the succession was regulated by the ordinary rule of Mitakshara law.

In V.R. Santhanam Iyer Vs. V.S. Sundra Hammal, the learned single Judge, of this court relied on the Full Bench decision of this court in K.

Manathunainatha Desikar Vs. Sundaralingam and Others, and also the decision in Chockalinga Sethurayar and Another Vs. Arumanayakam, .

That was a case where the office of trusteeship was last held by one V. R. Subramania Iyer, the elder brother of the plaintiff and the husband of the

defendant, and he died. On his death, his wife assumed management of the properties. At that time, the plaintiff filed a suit for a declaration that he

was the hereditary trustee and also for recovery of possession of the temple and its properties from the widow of the last trusteeship holder.

Relying on the decision of the Supreme Court in Chockalinga Sethurayar and Another Vs. Arumanayakam, and the decision of this court in

Parameswaran Pillai v. Sivathanu Pillai (1978) 2 MLJ 19 it was held :

There is no proof of any mode of devolution prescribed by the founder. The succession is thus to the last holder of the office. The widow and not

a brother would be his heir"".

Applying the ratio to the facts of this case and the recitals in Exts. A-1 and A-2 we have no hesitation in holding that the right given to Mahalingam

Pillai is not personal right but only a heritable right. Further, after his death, his wife was entitled to act as trustee, and on the death of his wife, his

daughter, the plaintiff, is entitled to act as trustee as claimed by the appellant. Hence points I and 2 are answered accordingly in favour of the

appellant.

Point 3 : It is the contention of the learned counsel for the respondents that by virtue of Exts. B-2 and B-4 Mahalingam Pillai divested his right

of trusteeship and that the defendants and their predecessors were given the right of trusteeship to the charities of the private trust. Ex. B-2 dated

28-9-1916 is the certified copy of agreement for partition entered into among Parankundram, adopted son, Valliammal, widow of Muthirulappa

Pillai, another adopted son of Andiappa Pillai, Muthammal represented by her next friend Mahalingam Pillai. By virtue of the said agreement, five

panchayatdars mediated and they recorded ihe statements of the parties and effected division of the joint family properties teft by Andiappa Pillai

as they were not able to enjoy jointly. That partition came into existence on 10-10-1916. In that document, there was a recital to the effect that a

trust was founded by Andiappa Pillai. Subsequently, a property was purchased by his wife and she also executed a will for performing the

charities. As per the will, Mahalingam Pillai has to perform the charities and maintain accounts and upon his death, the heirs of the parties to the

document have to perform the same in succession. Relying on the said recital, it was contended that Mahalingam Pillai divested the right of

trusteeship in favour of the heirs of Andiappa Pillai and hence the defendants are entitled to the same after the death of Mahalingam Pillai. The

learned counsel for the appellant submitted that the recitals in the said document in Ex. B-2 consist of two parts, the first part being the agreement

for partition, between the parties Parangundram, Valliammal, the widow of Muthirulappa Pillai and the daughter Muthammal, dated 26-9-1916,

wherein they agreed to have a partition in equal shares of the properties of Andiappa Pillai which do not include the properties belonging to the

trust, and the second part is dated 10-10-1916 styled as ""Valliammal Muthammal partition deed"". Admittedly the second part is not stamped and

it is not registered. Hence, it is inadmissible in evidence in view of the provisions of the Stamp Act and the Registration Act even if it is construed as

family arrangement. In this connection the learned counsel for the appellant drew the attention of this court to the decision in Lily Ammal alias

Saraswathi Bai Vs. B.T. Vadivelu and Another, wherein a Bench of this Court held that if the family arrangement is made under a document it is

registrable, and if the document is only a memorandum of the family arrangement which had already been made, it requires no registration. In this

case it is not in dispute that it is a family arrangement or partition pure and simple and that it is to be stamped and registered. On the other hand, the

learned counsel for the respondents, Mr. T. R. Mani submitted that this partition deed along with the agreement were marked as Ex. C in C.S. No.

5344 of 1918 on the file of the Court of Small Causes, Rangoon even in the year 1918 and it must be presumed to be valid and the admissibility of

the same cannot be questioned. It is seen that the trial court also relied on the decision of this court in Ahmad Raza v. Saiyid Abid Husain (1917) 5

MLW 153 : AIR 1916 PC 41 wherein it was observed at page 154 that where a original document in an earlier case was marked as exhibit and

the certified copy of the document is produced in a later case, the court is entitled to presume that the original deed is valid under law and properly

stamped. The learned Subordinate judge has further observed :

But here is a case wherein Ex. B-2 was admitted in evidence in Court of Small Causes in Rangoon and 1 am inclined to agree with the arguments

advanced by the counsel for the defendants that Ex. B-2 is admissible in evidence for collateral purposes.

In this connection, the learned counsel submitted that once it is marked for collateral purpose, the contents cannot be looked into and relied on for

the division of the properties and the status and that in this case the contents are relied on. There is no evidence to prove the contents of the

document. He would farther submit that Mahalingam Pillai acted only as a next friend of Muthammal in Ex.B-2 agreement. But he was not a party

in his individual right. Further, the trust properties were not the subject matter of the agreement. Even as per the partition deed, the panchayatdars

examined only Valliammai and Parankundram and their statements were recorded. In the circumstances, the recitals in Ex. B-2 are not binding on

the plaintiff and it cannot be said that Mahalingam Pillai has divested his rights after his death contrary to the line of succession provided under Exts.

A-1 and A-2. The learned counsel would submit that Mahalingam Pillai cannot alter or change the line of succession which was already provided

by the founder in Exs. A-1 and A-2. In this connection, reliance was placed on the decision in Mahant Manadeo Vs. Mahant Yaduvansh Deo

Gopinath, wherein a Division Bench held ""Relinquishment of office of Mahantship cannot be made in favour of person other than the person next

entitled to succeed."" It was further held, ""Head of religious or charitable institution has no power to bargain away his office or alter constitution of

institution. ""In that case, their Lordships relied on the earlier decision of the Supreme Court in Sheikh Abdul Kayum Vs. Mulla Alibhai, wherein it

was observed, ""Trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place

unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries."" It was also observed, ""A person who is

appointed a trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with

the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself."" In Brindaban Vs. Ram Lakhan Lalji

and Mahadeoji and Others, it has been held :

When a property has been dedicated by a donor and he has thereby divested himself of all interests in the property, the rule of succession to the

office of Shebait assumes considerable importance in the case of trusts, and, if the line of succession has been laid down by the donor at the time of

the dedication, the same cannot be changed by the donor in the absence of any reservation of power to himself of changing the line of succession.

A shebait cannot also alter the line of succession to the office of Shebait laid down by the founder.

In view of the ratio laid down in the above decisions, Mahalingam Pillai was not competent to alter or change the tine of succession which was

provided under Exs. A-1 and A-2.

Next it was contended by the learned counsel for the appellant that Ex. B-2 has not been acted upon. In this connection the learned counsel

drew the attention of this Court to the averments made in the written statement filed by defendants 1 to 3 wherein they have categorically stated in

para 6 that they never acted as trustees and the court-fees paid on that basis is neither correct nor sufficient. If Ex. B-2 was acted upon, certainly

defendants 1 to 3 would have become trustees and they would have acted in such capacity. But, they have positively stated that they never acted

as trustees. Defendants 4 and 5 also in their written statement did not claim that they became the trustees as per the terms of the said partition

deed. But, they only contended that Arunachalam Pillai, who is the husband of Muthammal who in her turn executed a will in favour of her

husband, became the trustee only under the terms of the partition deed and not for any reason stated in the plaint. It is to be noted that the heirs of

Arunachalam Pillai denied the same. Further, the defendants are not certain about the source of right to the said office, as they also contended that

they are also entitled to the right of trusteeship as the reversionary heirs to the estate of Andiappa Pillai in the absence of any person claiming under

the adopted sons, after the death of Valliammai. In para 11 of the written statement, defendants 4 and 5 have also stated that Mahalingam Pillai

abandoned the charities as he became old and was unable to look after his own affairs and that Arunachalam Pillai of his free will and volition

entered into possession of all the charities and their properties. Hence, there are as many versions as possible with regard to the alleged line of

succession to the office of trusteeship after Mahalingam Pillai. Hence it cannot be said that under Ex. It-2 Mahalingam Pitlai has divested his right

conferred under Exs. A-1 and A-2 in favour of the heirs of Andiappa Pillai.

As regards Ex. B-4 which is the certified copy of the compromise decree in O.S. No. 19 of 1931 on the file of the Sub Court,

Ramanathapuram at Madurai, it is seen that Parangundram, one of the adopted son of Andiappa Pillai filed the suit O.S. No. 26 of 1930 on the file

of the. District Court, Ramnad, which was transferred and numbered as O.S. No. 19 of 1931, against Valliammai, widow of Muthirulappa Pillai,

another adopted son, Muthanimal, daughter of Andiappa Pillai, Mahalingam Pillai, Kandasami Pillai and Arunachalam Pillai, and the validity of

adoption of Parangundram and Muthirulappa Pillai and their right of succession has been recognised in the said suit. According to the learned

counsel for the appellant, Ex. B-4 is not relevant as the trust properties were not the subject matter of the said proceedings and the right of

succession to the properties is only in respect of those properties and has nothing to do with the trust properties and hence no reliance could be

placed. The learned Subordinate Judge observed that Ex. B-4 goes to show that Ex. B-2 was acted upon and Mahalingam Pillai had only the right

to perform the charities till his life and thereafter Andiappa Pillai''s heirs were to perform the trust. As rightly observed by the learned counsel for

the appellant, the said observation is not at all correct as Ex. B-4 has absolutely no reference to Ex. B-2. Hence, it cannot be said that by virtue of

Ex. B-4 compromise decree, Mahalingam Pillai has divested his right conferred under Exs. A-1 and A-2 in favour of the defendants and their

predecessors. Hence for the foregoing discussion, this point is answered in favour of the appellant.

Point 4 : It is the case of the plaintiff that since Mahalingam Pillai was having business at Rangoon and he was frequently going over to Rangoon

and since he had no male issue, he had the trust managed through one Arunachalam Pillai, who was his paternal uncle''s son-in-law and who also

subsequently married his brother''s daughter. Arunachalam Pillai was managing the trust properties in the capacity of agent of Mahalingam Pillai

during his lifetime. As such, he had come into possession of both the wills and other documents relating to the trust and Mahalingam Pillai died on

5-8-1939. That Arunachalam Pillai acted as power agent of Mahalingam Pillai is evidenced Ex. A-9 which is the certified copy of the sale

certificate in E.P. No. 18 of 1925 in O.S. No. 105 of 1921. From Ex. A-9 it is seen that the said Arunachalam Pillai has acted as the power of

attorney agent on behalf of Mahalingam Pillai and obtained the sale certificate in such capacity on behalf of Mahalingam Pillai in respect of certain

properties. The only contention raised on behalf of the respondents is that the power of attorney deed was not produced, It is to be noted that this

Ex. A-9 related to the transaction of the year 1925. Unless the power of attorney deed was produced, he would not be permitted to take part in

the auction. So, that he acted as the power agent is established by Ex. A-9. But it is not clear as to whether he acted as power of attorney in

respect of any particular item or,in respect of his entire affairs. However, Ex. A-9 probabilises the case of the plaintiff that Arunchalam Pillai acted

as power agent during the lifetime of Mahalingam Pillai. There is absolutely no contra evidence on the side of the respondents in this respect. It is

also the further case of the plaintiff that after the death of Mahalingam Pillai, his widow Lakshmi Ammal became the heir and she became the

trustee. She being a lady, allowed Arunachalam Pillai to manage the properties on her behalf and she died in the year 1965. The plaintiff relied on

the document Ex. A-10 which is the general power of attorney deed dated 10-4-1956 executed in favour of Arunachalam Pillai in respect of all

her properties to act on her behalf as agent in all activities including the court proceeding and management of the properties. The said document is

attested by P.W. 4 Sundararajan who has deposed that Arunachalam Pillai married his mother-in-law''s sister and Lakshmi Ammal also is related

to him as grand-mother by courtesy and she possessed charity properties at Thennoor. Besides that, she owns properties at Veeracholam and

Iluppakulam. Arunachalam Pillai was managing the said properties. He has attested Ex. A-10. Arunachalam Pillai was managing the properties

before and after Ex. A-10. In cross-examination also, he has stated that Arunachalam Pillai was managing the properties for about 30 years prior

to Ex. A-10 as agent, Ex. A-10 was in respect of all her properties. But, when he was cross-examined as to whether it is stated in Ex. A-10 that it

includes trust properties, he has stated that he has to look into the document. He has also stated that he is related to both parties. His evidence also

supports the case of the plaintiff that Arunachalam Pillai acted as agent not only in respect of her private properties but also the trust properties and

he is an attestor to Ex. A-10. Nothing tangible was elicited to discredit his evidence. The case of the plaintiff is that when Lakshmi Ammal died in

1965, Arunachalam Pillai was alive. She was having absolute confidence in him and allowed him to manage the properties and perform the

charities as her agent also because he was having much experience in trust matters and she happened to be a woman. P.W. 1, the plaintiff has

stated in her evidence that her father executed a power of attorney in favour of Arunachalam Pillai and Arunachalam Pjllai purchased property in

court auction under Ex. A-9 and he also acted as power agent of her mother under Ex, A-10. Arunachalam Pillai died in the month of Karthigai,

1965. Her mother died in the month of Purattasi, 1965. The learned counsel for the respondents submitted that P.W. 1 admitted in evidence that

she did not execute any power of attorney in favour of Arunachalam Pillai. It is to be noted that there is nothing improbable in her evidence (hat

after the death of her mother, she allowed Arunachalam Pillai to manage the properties since she is a woman and since Arunachalam Pillai had

already acted as agent of her mother. It is to be noted that Arunachalam Pillai died within 2 months after the death of Lakshmi Ammal. In the

circumstances, the evidence of P.W. 1 that she did not execute any document in writing in favour of Arunachalam Pillai appointing him as power

agent would not in any way falsify the case of the plaintiff. Her evidence is also corroborated by the evidence of P.W. 2 who is aged 69 years of

age. He has categorically stated that Arunachalam Pillai acted as agent and managed the properties including the trust properties under Mahalingam

Pillai and after his death under Lakshmi Ammal and thereafter under the plaintiff. Nothing tangible was elicited in cross-examination to reject his

evidence. It it to be noted that the learned counsel for the appellant observed that the trial Judge has not considered the oral evidence adduced on

behalf of the plaintiff in deciding this point as well as other points. The learned counsel for the appellant drew our attention to the admission made

by D.W. 1. the 4th defendant, who has categorically stated that Mahalingam Pillai died in 1939. Thereafter the plaintiff husband was managing the

properties. He has also stated that Valliammai executed a power in favour of Arunachalam Pillai in 1944. He pleaded ignorance about Ex. A-9

purchase by Arunachalam Pillai in court auction at power of attorney agent of Mahalingam Pillai. However, he admitted the power of attorney by

Lakshmi Ammal in favour of Arunachalam Pillai, with great difficulty. The mere fact that the plaintiff has not executed any power of attorney, as

already stated, would not falsify the case of the plaintiff. Similarly, even though by a general power of attorney Arunachalam Pillai was appointed as

agent by Mahalingam Pillai and Lakshmi Ammal, the mere fact that specific reference was not made about the trust properties in Ex. A-10 would

not in any way falsify the case of the plaintiff. The fact remains that Arunachalam Pillai was managing not only the private properties but also the

trust properties and it has been established by acceptable evidence. The practice of appointing power agent was prevalent in the family of the

plaintiff and the defendants ever since the time of their ancestor Andiappa Pillai. It is seen from Ex. A-1, which is of the year 1912, Andiappa Pillai

appointed Mahalingam Pillai son of Senthively Pillai as his general power of attorney agent. Similarly it is the evidence of D.W. 1, the fourth

defendant that Valliammai appointed Arunachalam Pillai as her power of attorney event even in the year 1944 for managing her properties. Even

though the first defendant has got two sons, defendants 2 and 3, she has appointed Muthusami Servai as her power agent as is evidenced by Ex.

A-22 wherein Muthusami Servai gave the statement before the Authorised Officer on behalf of the first defendant as her power agent. These

circumstances clearly probabilise the case of agency put forward by the appellant in the instant case. This point is accordingly answered in favour

of the appellant plaintiff.

Point 5 : As regards the question of limitation, the eourt below rightly applied S. 10 of the Limitation Act and also relied on the decision in

Moosabhoy v. Yakubbhoy (1905) ILR 29 Bom 267 where it was held that if express trusts are created by deed or will and some third parly takes

upon himself the administration of the trust property, he becomes a trustee de son tort and as such is bound to account as if he were the rightful

trustee and limitation will not run in his favour under S. 10 of the Limitation Act. Admittedly the suit is in respect of a private trust and the trust was

created under Exs. A-1 and A-2. Arunachalam Pillai was a third party and he was in charge of the administration of trust. The suit is filed to

recover the trust properties and also for rendition of accounts and income from the suit properties. The learned counsel for the appellant drew our

attention to the statement of the Power of Attorney Agent of the first defendant, Ex. A-22, before the Authorised Officer under the Land Reforms

Act, dated 23-6-1967 wherein it is stated that as per the will by Ramayee (Ex. A-2), Mahalingam Pillai was performing the charities as trustee till

his death in 1939. Thereafter his heir and brother Kandasami Pillai was looking after the same. Since he was sick and his sons were very young,

Arunachalam Pillai was managing the properties. Arunachalam Pillai never treated the properties as his own properties. It is further stated that in

the return the allegation showing Arunachalam Pillai as trustee is not correct. The trust properties were purchased only out of the trust funds. It is to

be noted that Arunachalam Pillai never claimed right under the trust properties as his own and no adverse possession was ever claimed at any point

of time. Even under Ex. A-24 dated 28-2-1977 the fourth defendant in his statement before the Land Reforms Officer has stated that they are the

present trustees of the properties concerned under Ex. A-2 and prior to them, Arunachalam Pillai was performing the charities and looking after

the properties as trustee. Therefore, it is clear that the proper-tics were treated only as trust properties and Arunachalam Pillai was enjoying the

properties in his capacity as trustee and as such, it is too much to say that S. 10 of the Limitation Act is not applicable and the suit is barred by

limitation. The properties were registered as trust properties as is evidenced by certified copy of extract from the re-survey and settlement register,

which is marked as Ex. A-19. Further, in view of the findings on their points also, it cannot be said that the suit is barred by limitation and S. 10 of

the Limitation Act is not applicable. Hence we are of the view that the court below rightly found this point in favour of the appellant and we also

answer the point accordingly in favour of the appellant.

Point 6 : The next question is, which of the defendants are liable to render account and to what extent. The case of the plaintiff is that after the

death of Arunachaiam Pillai, defendants 1 and 2 in collusion with defendants 4 and 5 have been in control and management of the trust and in

possession of all its assets and documents. Hence defendants 1, 2, 4 and 5 are liable to render true and faithful accounts of all the resources and

assets of the trust to the plaintiff and also for its income and realisations from the date of death of Arunachalam Pillai, that is, from 1965. It is also

claimed that defendants 1 and 2 are also liable to account for the same during the management of Arunachalam Pillai and make good the loss to the

trust from the assets of Arunachalam Pillai in the hands of defen-danls 1 to 3 who are the sons of the deceased Arunachalam Pillai. It is not in

dispute that defendants 1, 2, 4 and 5 are in possession of the properties after the death of Arunachalam Pillai. P.Ws. 1 and 2 were examined on

the side of the plaintiff in respect of the enjoyment of the properties after the death of Arunachalam Pillai and on the side of the defendants, the

fourth defendant was examined as D.W. 1. D.W. 1 would state that they came into possession of the properties even in 1957 while Valliammal

was alive and thereafter they were enjoying. It is also admitted in Ex. A-24 statement which is given by the fourth defendant and his brother, the

fifth defendant, that they became trustees from 5-11-1965 and were enjoying the propeties and it is not correct to say that they trespassed into the

properties. The evidence of D.W. 2, Karnam, is not useful as he would say that he was the Karnam from 18-1-1979 and he did not know

anything about the enjoyment. In the written statement filed by defendants 1 to 3, they would only contend that the claim for rendition of account is

barred by limitation and that their father never acted as agent. In the written statement filed by defendants 4 and 5, they contended that in

pursuance of the gift, Valliammal placed these defendants in possession of all the properties. It is stated that after the gift, these defendants are in

actual physical possession of the entire estate. Arunachalam Pillai has become old and he surrendered the management of the charity properties to

these defendants on the same occasion and they are in management of the charity properties for over 20 years. From the evidence, both oral and

documentary, we find that till the death of Arunachalam Pillai, he was managing the properties in his capacity as agent and after his death,

defendants 4 and 5 in collusion with defendants 1 to 3 were in actual management of the properties and they are bound to render accounts of the

income. The plaintiff also asked for accounting from defendants 1 and 2 during the period for which Arunachalam Pillai was in Management. In this

connection, our attention was drawn to the decision Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddy, and the

learned counsel submitted that as to what period ex-trustee should be made liable to render accounts depends upon facts and circumstances of

each case. In para 9 it was held as follows :--

The decisions relied upon by the learned Judge do not support the view that an ex-trustee need not render accounts in the absence of allegations

of negligence or wilful default. In V.K. Kelu Achan Vs. C.S. Sivarama Pattar Karikar and Others, one of the questions raised was whether the 1st

defendant therein, who was a karnavan of a tarwad and also the manager of temple properties, should be made to give a general rendition of

accounts of his management from 1900. It was found in that case that the 1st defendant was not personally responsible for any loss to the temple,

that no relief for rendition of accounts was asked for against him and that he was not the person who was maintaining the accounts. On those facts,

the High Court refused to give a decree against the 1st respondent for back-accounting. In the course of the judgment the following observations

were made :

It is a general principle also that back-accounting will not be decree except on proof of dishonesty and malversation, and we have not found any

such proof here against the present trustee.

These observations do not circumscribe the scope of the court''s discretion, but only lay down a guide for its exercise. They must be read in the

context of the facts found in that case. Nor the decision in The Madura etc. The Madura Devasthanams Vs. R. Doraiswami Nayudu and Another,

lays down any such wide proposition. There, the executive officer of a temple sought to recover from its ex-trustee a certain amount by way of

damages on foot of gross negligence. It was found that the trustee was not guilty of any wilful defeult and that he was justified in acting upon the

vouchers and accounts furnished by the law department of the Devasthanam and also that it was not established that any items were really due to

the temple. On those facts the suit was dismissed. Briefly stated, that was a suit for rendition of accounts on the ground of wilful default in the

course of management of the temple affairs and as no wilful default had been established, the suit for accounts was dismissed. It is not an authority

for the position that unless wilful default is established an ex-trustee need not account to the present trustee and to pay to him the amount due under

the said accounts. In the case of rendition of accounts by an ex-trustee to a present trustee, it will necessarily ralate to back-accounting, for no

question of accounting in future arises in his case. The question that invariably arises in such a context is as to what period he shall be made liable to

render accounts. That depends upon the facts of each case. Sir Thomas Flumar, M. R. said in Attorney General v. Exetor Corpn. (1822) 37 ER

918 :

It has, I think, been properly stated on both sides that there is no fixed limit of time in directing an account against a trustee of a charity..... It does

not, however, follow that the relief will be given after a great length of time, it being the constant course of Courts of Equity to discourage stale

demands; even in cases of fraud, in which, if recent, there would have been no doubt, lapse of time has induced the Courts to refuse their

interference. In cases of charities, this principle has often been acted on. When there has been a long period, during which a party has, under an

innocent mistake misapplied a fund, from the laches and neglect of others, that is, from no one of the public setting him right, and when the

accounts have in consequence become entangled, the Court, under its general discretion, considering the enormous expense of the enquiries, the

great hardships of calling upon representatives to refund what families have spent, acting on the notion of its being their property, has been in the

habit, while giving the relief, of fixing a period to the account.

These observations were followed by a Division Bench of the Madras High Court in Sanyasayya v. Muthamma, AIR 1919 Mad 943 . Where a

suit was filed for an account for the year 1884 and the 1st defendant was asked to account for the management of his father and grandfather the

learned Judge of the Madras High Court fixed the period of accounting at 12 years. The said observations were also followed by the Andhra High

Court in Gutha Hariharabrahman and Others Vs. Doddappaneni Janikiramaiah, Chataparru and Others, and, having regard to the circumstances in

that case, the said High Court directed accounts to be taken for a period of six years prior to 1938.

It is clear from the ratio laid down in the above decision that the defendants are not personally liable for any loss to the temple as they were not

managing the properties during the lifetime of Arunachalam Pillai and the court has got every reason to refuse to grant back-accounting. But, as

regards the period subsequent to the death of Arunachalam Pillai, it may be recalled what the Supreme Court has observed. The Supreme Court

observed, ""In the case of rendition of accounts by an ex-trustee to a present trustee, it will necessarily relate to back-accounting, for no question of

accounting in future arises in his case. The question that invariably arises in such a context is as to what period he shall be made liable to render

accounts. That depends upon the facts of each case."" It is also seen from the said judgment, ""When there has been a long period, during which a

party has, under an innocent mistake, misapplied a fund, from the laches and neglect of others, that is, from no one of the public setting him right,

and when the accounts have in consequence become entangled, the Court, under its general discretion, considering the enormous expense of the

enquiries, the great hardships of calling upon representatives to refund what families have spent, acting on the notion of its being their property, has

been in the habit, while giving the relief, of fixing a period to the account."" In the above quoted case, having regard to the circumstances of the case

and in exercise of discretion, the Court directed the respondent to render accounts for a period of six years from 1947 to 1952. Their Lordships of

the Supreme Court referred to the decision of our High Court in Sanyasayya v. Muthamma, AIR 1919 Mad 943 , wherein this Court fixed the

period of accounting at 12 years. Another decision referred to is Gutha Hariharabrahman and Others Vs. Doddappaneni Janikiramaiah,

Chataparru and Others, , where the Court directed accounts to be taken for a period of six years. Considering the facts and circumstances of the

case and in view of the relationship between the parties, we feel that in the interest of justice it is enough if defendants 1, 2, 4 and 5 are directed to

render accounts of the income from the trust properties for a period of three years prior to the date of the suit and also subsequently till the date of

delivery of possession to the plaintiff. This point is answered accordingly.

In view of the findings on all the points, [he judgment and decree passed by the court below are to be set aside and a decree is to be granted in

favour of the plaintiff.

In the result, the appeal is allowed and the judgment and decree passed by the court below are set aside. The plaintiff is granted a decree

declaring that the plaintiff is the trustee of the private trust established by Andiappa Pillai and Ramayee Ammal under wills dated 12-12-1912 and

27-1-1915 and directing defendants 1 to 5 to deliver possession of the suit properties mentioned in schedules 1 to 3 to the appellant-plaintiff

together with all records relating to the trust and also directing defendants I, 2, 4 and 5 to render a true and faithful accounts of all the assets and

income of the trust for the period of three years prior to the filing of the suit and make good the loss to the trust and subsequently till the date of

delivery of possession. The respondents are directed to pay costs of the appellant throughout.

Appeal allowed.