Pichandy Ananthakrishnan and Another vs Chidambaram Pillai and Another

Govinda Pillai, J.—Defendant 9 is the Appellant in A.S. 287 of 1125 and Defendant 3 in A.S. 312 of 1125. There are 12 items of immovable properties shown in the plaint. Defendant 9 is interested in 1 acre and 25 cents forming the northern portion of plaint item 10. Defendant 3''s interest is in items 6 to 9 in. the plaint. In the plaint, relief had been claimed as regards one-half of item 6. It was admitted by both sides that over the one-half now declared as belonging to the Plaintiff and the one-half claimed by Defendant 3 are not identical so that the appeal does not relate to any portion of item 6. The plaint allegations are as follows:

All the plaint properties except item 12 belonged to one Chenthiperumal Pillai. He had a brother by name Chidambaram Pillai. Chidambaram Pillai had two sons Arunachalam Pillai and Pukazhumperumal Pillai Defendant 1. Defendant 1 had three wives. The Plaintiff''s father is the son by the first wife. Defendant 2 is Defendant l''s son by his third wife. Chenthiperumal Pillai was a person piously inclined. He died in 1076 and before his death he had executed Ext. A, dated 18-6-1072, a Dharmasasanam for the performance of certain trust. Plaint items 1 to 11 are included in this document. Plaint item 12 was stated to be a subsequent acquisition by the trustee with the income of the trust'' properties. It was stated in Ext. A that Chenthiperumal Pillai''s brother''s children and their heirs and successors were appointed as Darmakarthas for the performance of the trust. Arunachalam Pillai died in the year 1100 and he was attending to the performance of the obligation under Ext. A till then. After that Defendant 1 became the trustee. He defaulted in carrying on the trust and misconducted himself as a trustee in respect of various matters enumerated in the plaint. He had alienated several of the trust properties as if they belonged to him. The properties thus alienated are now with Defendants 3 to 9. The Plaintiff therefore prayed for a declaration that Defendant 1 is unfit to be the trustee. In his place the Plaintiff as the next senior member of the family prayed to be appointed as trustee. He had also prayed for a declaration that the plaint properties belonged to the trust and that they should be ordered to be delivered over to him from the Defendants who are in possession.

Defendant 2 who was a minor at the time of the suit filed a written statement through a guardian appointed for him by Court. His contentions are practically in support of the Plaintiff''s claim. After he had attained majority, notice of the suit had been given to him personally. He did not come forward to raise any contention against the reliefs claimed for by the Plaintiff. Defendant 3 contended that plaint items 6 to 9 did not belong to Chenthiperumal Pillai, But they were the properties of a Bhajana Matom belonging to the village of which Defendant 1 was a trustee that he (Defendant 1) was in possession of items 6 to 8 for some time as a trustee, that one Koonankani Pillai, the next succeeding trustee obtained various decrees against Defendant 1 for recovery of possession of such trust properties and that Defendant 1 surrendered the properties to Koonankani Pillai under Ext. C. Koonankani Pillai assigned items 6 to 8 in favour of Defendant 3. He had also purchased plaint item 9 so that the Plaintiff could not have any right over these properties. The income from these properties would not be even three Kottas of paddy per annum. Defendant 4 claimed to be interested in items 10 to 12 by virtue of a Maraya Pattom taken in the name of his brother Defendant 5. But he did not contest the case. At the time of argument in the lower Court Defendant 5 alone claimed the right under the Maraya Pattom in his favour.

Defendants 6 and 7 are interested in 1 acre and 25 cents out of plaint item 10. They stated that no valid trust was created by Ext. A as there was no valid dedication of the properties in favour of the trust. The idea of Chenthiperumal Pillai had been to tie the properties in the family and not subject them to any real trust. The properties are therefore liable to answer the debts of Defendant 1 and could be alienated by him. They also stated, that even if Ext. A be valid, the properties did not belong to the trust, for a charge over the properties in favour of the trust alone had been created. Thus the amount required for the performance of the trust obligation would alone be a charge on the properties. The father of Defendants 6 and 7 purchased in Court sale the portion of plaint item 10 in execution of a decree obtained against Defendant 1. Ext. B was that decree. Defendants 6 and 7 stated that this Court sale was not liable to be set aside. By an. additional written statement they had contended that item 10 did not belong to Chenthiperumal Pillai and that it was never in his possession. They had executed a document Ext. XIX in which they had declared that the father of Defendant 9 was the real owner of right purchased in Court auction in the name of Defendants 6 and 7. The Plaintiff was therefore stated to be not entitled to any relief so far as this property was concerned. The Plaintiff had objected to the impleading of Defendant 9, as the case of the benami purchase by the father of Defendants 6 and 7 was set up for the first time in 1123 by the execution, of Ext. XIX. This was nearly five years after the suit. But Defendant 9 stated in writing that he had no more contentions to raise than those raised by Defendants 6 and 7 and so he was impleaded in the case which was thereafter conducted by Defendant 9 in the place of Defendants 6 and 7.

The Court below had held that a valid trust had been created by Chenthiperumal Piliai by executing Ext. A, dedicating the properties for the performance of the trust mentioned there, that the owner of the Bhajana Matom referred to in the plaint was the Plaintiff''s family and not the village, that plaint item 9 lies within the boundaries of items 7 and 8, that Defendant 3 had not proved that he had obtained item 9 by a sale-deed as contended, that he had a mortgage right over items 7 and 8 to the extent of 200 fanams, that the Plaintiff could recover possession of the same on payment of that amount, that Defendant 5 was entitled to the Marayam amount in question, that the Court sale in respect of the portion of plaint item 10 was invalid and that the question of removal of Defendant 1 did not arise as he died pending the suit and that the Plaintiff was in possession of plaint items 2 to 6 (item 6 being the southern half), a portion of item 10 excluding 1 acre and 25 cents claimed by Defendant 9 and items 11 and 12 as receiver. A declaration that the Plaintiff was1 competent to act as Dharma Kartha of the trust and the plaint properties meaning thereby the mortgage right over item 1, the southern half in survey number represented by item 6 the equity of redemption over items 7 and 8 and the rest of the plaint properties belonged to the trust, was granted.

The Court sale evidenced by Ext. XVIII sale certificate was set aside. The Plaintiff was given a decree for recovery of possession of items 7 and 8 on deposit of 200 fanams in Court for payment to Defendant 3, and also 1 acre and 25 cents in item 10 purchased by Defendant 9 under the Court sale. Defendant 5 was allowed to draw from Court the Marayam amount in deposit. The Plaintiff was allowed to realise one-eighth of his costs from the 3rd Defendant and one-fourth from Defendants 6, 7 and 9. He was to bear the remaining costs. There was also no order as to costs of the Defendants. The Plaintiff was directed to submit his accounts as receiver and to move for an order of discharge of his receivership. It is against this decree that the two appeals are preferred. Though a declaration of the Plaintiff''s right as trusted over the plaint properties had been given, no relief was specifically given for the recovery of item 9. The Plaintiff therefore filed a cross- appeal in A.S. 312 of 1125 claiming possession of the same as against Defendant 3. In A.S. 287 of 1125 also the Plaintiff has filed a cross- appeal claiming mesne profits from the portion of plaint item 10 at the rate of 61/4 Kottas of paddy per annum.

The points argued by Defendant 9''s learned Advocate in A.S. 287 of 1125 were that the trust said to have been created by Chenthiperumal Pillai by Ext. A had not taken effect, that it was of an illusory nature, that the same, if valid, was only partial and not absolute, and that in any event, the trust could claim only a charge on the properties as the properties would virtually go to Chenthiperumal Pillai''s descendants with the charge attached to it. In addition to this, Defendant 3''s Advocate in A.S. 312 of 1125 argued that Chenthiperumal Pillai''s title to plaint items 7 to 9 had not been made out and that the Plaintiff was not entitled to any relief so far as those, properties were concerned.

Before considering the various questions advanced by the learned Advocate for the Appellant, it is necessary to analyse the provisions of Ext. A. On 18-6-1072, the date of execution of Ext. A, Chenthiperumal Pillai was 92 years old. It was stated there, that from the year 1015, he was regularly conducting ''Abhishekam'' in the Tiruchendoor Subramonia Swami Temple at the time of the Kumbhom Utsavam of that temple, by sending a Kavadi on the 5th day of the Utsavam, that on the 7th'' day of the -festival he was conducting some other ceremonies, that there was default in conducting the ceremonies the previous year, and that to avoid such contigencies in future, even in case of failure or destruction of crops by drought or fire, he was dedicating his own properties described in the schedule to the document for the purpose of conducting the ceremonies for all time to come and that the executees Arunachalam Pillai and Pukazhumperumal Pillai and their descendants were being) appointed as Dharmakarthas, leaving all the properties from that date into their possession. They were, asked to enjoy the same from Kumbhom of that year. He then gives the details of the ceremonies to be conducted when the ''Kavadi'' was to be sent every year to Thiruchanthoor.

Provision is also made for the ceremonies, for be conducted after the return of the ''Kavadi''. A ''Kavaclipura'' for conducting the ceremonies, was also to be put up by the trustees. But till'' that was constructed the ''Kavadi Kettu'' was to, take place at the Bhajana Matom at Tharian Vila belonging to him. It was also directed to conduct a Pooja to Lord Ganesa who was installed in the Bhajana Matom, the Pooja expenses per month under this head being limited to 221/2. Padees of rice. Provision was also made for the payment of one Kotta of paddy every month, and two Pudavas yearly at a cost of 30 fanams, to Chenthiperumal Pillai''s wife till her death. The trustees were allowed to exchange the properties for better ones if that was deemed necessary. There was a definite direction that the properties scheduled were intended for the conduct of Dharmam, and that if any one contravened the provisions contained therein, the interested persons should obtain the necessary reliefs either by themselves taking action or by moving the Sirkar to interfere to protect the interests of the trust It was declared that Arunachalam Pillai and Pukazhumperumal Pillai and their successors were to be the Dharma Karthas for all time to come.

7a. Based on the statement of Defendant 1 as P. W. 1, it was first argued that till the death of Chenthiperumal Pillai in 1076, he was himself attending to the performance of the ceremonies. It was therefore stated that even though Ex A purported to take effect immediately. Chenthiperumal Pillai was taking the yield from the properties and performing the ceremonies, so that he had no intention of bringing Ex. A into effect. It is stated in Ex. A that the possession of the properties is being surrendered to the Dharma Karthas forthwith and that they are to take possession of the same to attend to the performance of the trust. This document, though executed by Cnenthiperumal Piilai, was presented for registration by the first executee Arunachalam Piilai. The intention was therefore clear that Chenthiperumal Piilai wanted to divest himself of all his rights in the properties and to keep them vested in the Dharma Karthas appointed by him under Ex. A. Chenthiperumal Piilai who was then 92 years old had been conducting the ''Kavadi Kettu'' ceremony for 57 years beginning from 1015. Being a pious man and an ardent devotee he was himself attending to the performance of the ceremonies for the rest of his life, and the mere continuance of this activity during this short span will not indicate that Ex. A had not taken effect. After Chenthiperumal Pillai''s death, Arunachalam Piilai was attending to the conduct of the ceremonies till his death in 1100. Thereafter Defendant 1 performed the same for some more years. The Dharma Karthas were therefore performing the trust. It appears that in 1080 there was a suit relating to an exchange of the trust properties for some other properties. Ex. D, the copy of the decree in that case, would show that the creation of the trust and its performance had been declared in unequivocal terms in 1080 itself. There is therefore, absolutely nothing to show that Chenthiperumal Piilai did not intend to divest himself of the properties forthwith or that Ex. A had not taken effect. The finding of the lower Court that Ex. A came into force from'' the date of its execution is therefore confirmed.

It was then argued that Ex. A evidenced only an illusory endowment and as such, it was unenforceable in a Court of law. Mukherjea in his book on the Hindu Law of Religious and Charitable Trust (Tagore Law I Lectures Series) mentioned with reference to the text books on the subject that in every act of dedication there are two essential parts; one of which is called Sankalpa or the formula of resolve, and the other Utsarga or renunciation. The ceremonies always begin with a Sankalpa which after reciting the time of gift with reference to age, year, season, month etc., states what object the founder has in making the, gift. Utsarga, on the other hand, completes a gift by renouncing the ownership of the founder in the thing given. (Vide page 36). The essentials of a valid, religious or charitable trust are given at page 52 of the same book. It is essential in the first place, that the object or purpose of the trust must be a valid religious or charitable purpose according to the rules of law by which the Hindus are governed at the present day. In the second place, the founder or the settlor should be capable, under the Hindu Law of creating a trust in respect of a particular property which is the subject matter of trust. The third requirement is that the settlor should indicate with sufficient precision the purpose of the trust and the property in respect of which it is made, and the trust must also comply with the requirements of law as regards the form in which it is to be made. The last element is that the trust must not be opposed to the provisions of any law for the time being in force, an infringement of which makes it void or voidable in law. Ex. A satis-(sic) the above (sic)

As pointed out by Mulla in his Principles of Hindu Law, 11th Edn., the mere execution, of a deed, though it may purport on tile face of it to dedicate the property to an idol, is not enough to constitute a valid endowment; for the real object of the executant may be to defraud creditors or to defeat the provisions of the ordinary law of descent, or to restrain alienations and keep the property in perpetuity in the family. It is necessary for the validity of a deed of endowment that the executant should divest himself of the property. Where there is no real dedication of property for the worship of an idol, but only an -attempt to create a perpetuity in favour of the settlor''s descendants the gift to the idol is void (vide also -- Sri Thakurji Maharaj Vs. Sukhdeo Singh and Others, . None of these elements exists in this case. There is no case that Chenthiperumal ''Piilai was then involved in debts. He had no children of his own and the first two Dharma Karthas appointed by him were his brother''s children. In Ex. D itself it was declared that the trust had been duly and properly constituted. There is therefore absolutely nothing to indicate that the dedication is of an illusory nature. Though no religious ceremony such as Sankalpa or Samarpan is necessary to constitute a valid dedication, a clear and unequivocal manifestation of intention to create a trust and vesting the same in the donor or Anr. as a trustee is enough to constitute dedication. See also-''Prem Nath v. Har Ram'' AIR 1934 Lah 771 (B) and --''Jai Dayal v. Ram Saran Das'' AIR 1938 Lah 686 (C). It is therefore evident that the endowment in question is not an illusory one.

Another position taken by the Appellant''s learned Advocate was that even if Ex. A evidenced a dedication for the performance of a trust, it was not absolute but only partial. A dedication becomes absolute when it is made by the settlor in favour of an idol where the entire beneficial interest which he had in the property is dedicated. Where however some proprietary or pecuniary right or interest in the property is either undisposed of or is reserved for the settlor''s family or relations, a case of partial dedication arises. A dedication does not lose its absolute character simply because there is in the document a provision for remuneration of the trustees in a reasonable manner or for their residence in the dwelling house which is dedicated to the deity. This would be, as the Privy Council says, in-''Jadunath v. Sitaram'' AIR 1917 PC 177(D), a gift to the deity sub mode. The Calcutta" High Court in-''Bhuggobutty Prosanna. v., Gooroo Prosanna'' 25 Cal 112 (E), had even gone to the extent of stating, that a personal, though not a heritable privilege, may also be created in favour of specified members of the settlor''s, family to reside in the house provided for the trustee and that this would not affect the absolute character of the grant. All the cases reported in-''Maharaja Jagadindra Nath v. Hemanta Kumari Debi'' 31 Ind App 203 (F); AIR 1917 PC 177 (D);-''Sri Ganesh Dhamidhar Maharaj Dev v. Keshavrao'' 15 Bom 625 (G);-''Rajender Dutt v. Sham Chund Mittar'' 6 Cal 106 (H);-''Sathia Nama Bharati v. Saravanabaji Ammal'' 18 Mad 266 (I) and-'' Chandi Charan Das and Another Vs. Dulal Paik, would support the position thus taken. There might be cases, where although the document purports on the lace of it, to be an out and out dedication of the entire property to the deity, yet a scrutiny of the actual provisions reveals the fact that the donor did not intend to give the entire interest to the deity, but reserved some portion of the property or its profits for the benefit of his family relations. In such cases the property remains with the grantees or secular heirs of the founder subject to a trust or charge for the religious uses. The earliest pronouncement of the law on the subject is in --''Sonatun Bysack v. Juggutsoondaree'' 8 Moo Ind App 66(K).

There, a Hindu, by a Will gave all his properties to his family deity. He had four sons, and one of the sons was appointed as manager to attend to the festivals and ceremonies of the idol, and maintain the family. It was also provided that the properties should never be divided and that his sons and grandsons in succession should enjoy the surplus or proceeds only. The further direction was that the surplus which would remain after deducting the expenditure should be added to the corpus. In the event of a disagreement between the sons and family, the nett produce and surplus should be divided annually in certain proportions among the members of the family. It was held that the bequest to the idol was not an absolute gift. This was held to be a gift to the four sons of the testator and their offspring in the male line, as a joint family, and the four sons were entitled to the surplus of the property after providing for the performance of the ceremonies and festivals of the idol. This was followed in --''Ashutosri v. Doorga'' 6 Ind App 182 (PC) (L). In such cases, where the dedication is not absolute, the property descends, and is alienable and partible in the ordinary way, but subject always to the trust or charge in favour of the idol. Vide also 31 Ind App 203 (PC) (F)''; -- Mahim Chandra Sarkar Vs. Hara Kumari Dasee, ; --''Gopal Lal v. Purna Chandra'' AIR 1922 PC 253(N); ''Harnarayan v. Sarja Kun- wari'' AIR 1921 PC 20 (O) and --''''Parshadilal v. Mohanlal'', AIR 1936 Oud 52 (P).

The above being the rule to be applied, it can be seen from the provisions in Ex. A that it constituted an absolute dedication and not a partial one. The provision for payment of maintenance to the dedicator''s wife and also thirty fanams for her clothing was the portion relied on by the Appellant to show that Ex. A did not disclose an absolute dedication such a provision was not a hereditable one. It would terminate with the death of Chenthiperumal Pillai''s wife Thus, as held in-AIR 1917 PC 177 (D) and --'' 25 Cal 112 (E), already referred to, this provision does not in any way affect the characteristic of Ex. A as an absolute dedication.

Another argument advanced was that the provisions made in Ex. A for Pooja in the Bhajana Matom had become incapable of performance, because that Bhajana Matom was on a property belonging to Anr. person and that person had alienated it, so that the trustees lost possession of the property where the Bhajana Matom was. It was therefore argued that to that extent a resultant trust in favour of the secular heirs of Chenthiperumal Pillai had been created and that the same was liable to be proceeded against in execution of decrees against those heirs. At the time when Ex. A was executed there was this Bnajana Matom. It was long after Ex. A that the same became lost to the Dharma Karthas family. Even if a property is dedicated to an idol and if the idol is destroyed or mutilated, the endowment will not be affected in any way. A new Bhajana Matom could be constructed and all the Poojas mentioned could be conducted. Vide-''Mohatap Bahadur v. Kalipada'', AIR 1914 Cal 200 (Q). There is therefore no force in this argument also. It would thus be seen that the position taken by the Advocates for the Appellants in the two cases on the validity of or otherwise of Ex. A Dharmasasanam is without any substance.

Defendant 9 who had obtained the right of Defendants 6 and 7 over 1 acre and 25 cents, in plaint item 10 had no case that the decree in execution of which the property had been sold was one binding on the trust. Since the property belonged to the trust, the decree and execution proceedings so far as the trust property was concerned was ''ab initio void''. The lower Court was therefore correct in holding that the Court sale held in O. S. 1092 of 1109 of the Munsilfs Court, Nagercoil was invalid and not binding on the property. It is seen from Ex. XVI copy of the execution diary in the case and Ex. XVII copy of the delivery list that the property, was delivered over'' to the auction-purchaser on 12-11-1112. The present suit was filed on 4-7-1118 and the Plaintiff had claimed mesne, profits from this portion of the property. Although the lower Court was inclined to allow the same, it did not do so, as there was no evidence, as to the amount of mesne profits. The Plaintiff had claimed mesne profits at the rate of 61/4 Kottas of paddy from this property. Defendants 6 and 7 in their written statement had not specifically denied the quantum of mesne profits claimed by the Plaintiff. Defendant 9 who had adopted'' the contention of Defendants 6 and 7 had also done nothing in the matter. So in view of the extent of the property, that is 11/4 acres, the mesne profits of 61/4 Kottas of paddy claimed in the plaint cannot be excessive.

The Plaintiff''s suit was to remove Defendant 1 from the management of the trust. The lower Court had not adjudicated upon it as Defendant 1 died pending the suit in the year 1121. If Defendant 1 had been the Dharma Kartha of the trust till his death, the Plaintiff could not claim any mesne profits till 1121. He could certainly claim mesne profits from 1122 and it is only proper that he is allowed mesne profits at the rate of 61/4 Kottas of paddy from 1122 onwards till he gets possession of the property, subject to the limitation mentioned in the Code of Civil Procedure. Thus, A.S. 287 of 1125 has to be dismissed with costs and the cross appeal filed has to be allowed as indicated above. There will be no costs as to the cross appeal.

Coming to ''A.S. 312 of 1125'', the finding on the general question of law dealt with in A.S. 287 of 1125 will govern this appeal also. As regards plaint item 6 there is now no dispute between the parties, for, Defendant (sic) takes the northern half and the Plaintiff the southern half. As. regards items 7 and 8, the lower Court found title with Chenthiperumal Pillai and held that it was outstanding on mortgage with Defendant 3 for 200 fanams. As regards item 9, the lower Court was inclined to hold title with the trust, but due to inadvertence has not made any provision for the same in the decretal portion. The Appellant had understood that the decree covered items 7, 8 and 9, for the market value of these items was taken to be the first item of valuation in the appeal. Defendant 3''s contention in the written statement was that he had purchased item 9 from some body else and that Chenthiperumal Piilai had no right to the property. He did not prove the same. As D.W. 4 he had stated that he got possession of item 9 also along with items 6 to 8. He also admitted that items 7 to 9 were lying within the same boundaries. Fearing that he had gone wrong in cross-examination about this, his counsel asked him in re-examination, and he affirmed his position taken earlier that items 7 to 9 were within the same boundaries. Admittedly, he had only a mortgage right over items 7 and 8 and if in this suit he is liable to surrender items 7 and 8, he has to surrender item 9 also along with that.

Without apprising the real situation, the Plaintiff had stated that Defendant 3 had obtained possession of item 9 by trespass. He was not advised properly in making such an allegation. Items 7 and 8 are admittedly held by Defendant 3 under Ex. IX mortgage of 1004. Ex. IX mortgage was taken in the name of Chenthiperumal Piilai as trustee of the village Bhajana Matom. After his death, Defendant 1 was the trustee. He was removed from office and one Koonankani Piilai was appointed as trustee. Koonankani Piilai obtained decrees against Defendant 1 for possession of the same and subsequently Defendant 1 executed Ex. C release to Koonankani Piilai. That relates only to the mortgage right, over these two items. From Koonankani Piilai Defendant 3 obtained an assignment of the mortgage right under Ex. H. Thus,- what Defendant 3 claims is the mortgage right over items, 7 and 8 by virtue of Ex. IX mortgage of 1064. If the plaint trust owns the equity of redemption over items 7 and 8, Defendant 3 has to surrender possession of these properties on receipt of the mortgage amount''. There- is also a prayer in the plaint that if any amount is found due to Defendant 3 so far as item 8 is concerned then the Plaintiff must be allowed to recover possession of that property on payment of the same. The Plaintiff''s suit was for declaration of the title of the trust over the plaint properties and for recovery of possession from the parties in possession. If the title is found with the plaint trust and if recovery of possession could be ordered only on the Plaintiff''s satisfying a condition to clear a charge on the property, the Court is competent to give the necessary relief.

There is therefore no objection in ordering (sic) edemption of the- mortgage over items 7 and in, (sic) case the title to the same is found with (sic) le trust. Admittedly, Ex. IX is the mortgage for items 7 and 8. They are described as Lek- (sic) koms 4 and 5. Ex. IV is the copy of the decree by which Koonankani Piilai was allowed to recover possession of the property from defend- (sic) 1. Items 3 and 4 there are described thus: (sic) 3, Lekkom 4, S. No. 3539 J 22 cents and (sic)20B, 15 cents, Item 4 there is Lekkom 5 with survey number 4120 C with the extent of 35 cents. Thus, there can be no dispute as to the Lekkom and survey numbers of plaint items 7 and 8. It is seen that Chenthiperumal Pillai had obtained Patta for items 7 to 9. Ex. G is copy of the settlement register showing this. There Patta is given to Chenthiperumal Pillai for S. Nos. 4120B, C and G with an extent of 15, 30 and 28 cents respectively. These are plaint items 7, 8 and 9. Prima facie, the title, was therefore with Chenthiperumal Pillai.

The Plaintiff had produced a sale-deed Ex. E dated 12-12-1068 in favour of Chenthiperumal Pillai for Lekkoms 4 and 5. Ex. IX dated 22-3-1064 the mortgage for Lekkoms 4 and 9 also stood in the name of Chenthiperumal Pillai. The argument was, that if Ex. E related to Ex. IX properties, then there would have been a direction in Ex. E for the redemption, of Ex. IX mortgage. There is no doubt that this is an argument in support of the Appellant. But the circumstances under which Exs. IX and E were taken are not known at this distance of time. It is seen however that Chenthiperumal Pillai got Patta for these properties, and that none else had advanced any claim to the same. Items 7 and 8 were also claimed in Ex D suit of 1080 as belonging to the trust. In Anr. suit O.S. 476 of 1107 of the Munsiff''s. Court, Nagercoil, the present Defendant 3 was a party, he had filed a written statement Ex. J contending that the plaint items 7 and. 8 which had also been scheduled in that suit, belonged to the plaint trust. The decree in. that case is Ex. K. Items 7 and 8 are items- 8 and 10 in Ex. K. That is the admission made by Defendant 3 and that is against the present, contention. In view of all these circumstances, we agree with the lower Court in holding that the title over items 7 and 8 is with the plaint trust and that the Plaintiff is entitled to redeem Ex. IX mortgage on the property. Defendant 3 admittedly got possession of item 9 along with, items 7 and 8 when he obtained Ex. H assignment. All were therefore under the impression that item 9 was a portion of the mortgage holding. Thus, while surrendering possession of plaint items 7 and 8 as directed by the lower Court, the Defendant 3 has to give possession of item 9 also to the Plaintiff. The Plaintiff''s claim for mesne profits from item 9 cannot therefore be sustained. Both the appeal and the cross appeal are therefore dismissed with costs, except in regard to the direction relating to item 9.

In the result, A.S. 287 of 1125 is dismissed with costs. The Plaintiff is allowed mesne profits from the portion of plaint item 10 in the possession of Defendant 9 at the rate of 61/4 Kottas of paddy from 1122 onwards. A.S. 312 of 1125 and the cross appeal filed there are dismissed with costs except in regard to the direction relating to item 9.

Vithayathil, J.

I agree.