ESAKKIMUTHU PILLAI Vs. SIVATHANU PILLAI

JUDGEMENT

(1.) The litigation presents curious features. In Theroor Pakuthy, Agasteeswaram Taluk, Nagercoil Sub District, Trivandrum District, there is a place known as "Chembakaramanelloor" wherein are situated four Hindu temples dedicated to Chembaka Vinayakar, Veeramudaya Kandan Sastha, Azhakaperumal Sivannaperumal Kandan Sastha, and Amman Mutharamman. There was an Oor attached to the temples, the inhabitants whereof were all Vellalars. For reasons not made clear by the record, all of them shifted their residence to the neighbouring villages of Theroor and Veeramarthandan Puthoor, both of which are situate within a mile wherefrom it is said they were and are resorting to the said temples for worship. Thereafter there were no residential houses, the sites of which having been converted into paddy flats. Arrangement had at that time to be and was made for the conduct of the poojas in the temples and for the management of the properties appurtenant thereto. This was done by means of an udampadi dated 30.2.1050 executed by Nagaru Manikiavasakam the predecessor of the plaintiffs and two others in favour of Muthuswami Meenakshinadhan. Meenakshinadhan transferred his rights under the udampadi to his son Ramakrishna Pillai who in his turn transferred them to the 1st defendant.

(2.) The plaint averred in paragraph 3 that of the 12 items comprised in the schedule, the last was the "Nandavanam" and Neerazhi (God's garden and tank), that the revenue registry of the first two items was in the name of Vinayakar, the next two in the name of Veeramudaya Kandan Sasta, the 5th in the name of Chinnaperumal Kandan Sasta, the 7th in the name of Sivannaperumal Kandan Sasta, items 8 to 11 in the name of Amman Mutharamman and that on the 5th item were installed the idols of the two Sasthas. That paragraph stated that the 6th item is the Oor pertaining to the temples. In the next paragraph the plaintiffs made an averment which might mean either that the said temples and the properties belonged to the Vellalars who are the only inhabitants of the Oor, or that the said Vellalars are alone interested in them. The latter should be taken as the more and perhaps the only appropriate interpretation as otherwise the 4th paragraph will conflict with the third. Alleging breach of trust by appropriation of the income of the said properties which constitute a Trust, for the personal use of the 1st defendant, alleging also neglect in the performance of services and waste to the properties, removal of the first defendant from management, rendition of accounts by him, and the framing of a scheme for the management of the Trust, were among the main reliefs sought by the plaintiffs. The first defendant admitting the Trust, contended, inter alia, that except the obligation to carry on the poojas in the temples which he was doing properly, he had no obligation to carry on the poojas in the temples which he was doing properly, he had no obligation to maintain or render account of his management. He pleaded that the transfer to and by Ramakrishna was for consideration. The plaintiff's claim as successors of the inhabitants of the Oor was denied. The udampadi of 1050 was admitted but was characterised as a purchase of peace by Meenakshinadhan who was already in management and not a conferment of power or entrustment of duty. Along with the suit the plaintiffs filed an application under O. I, R.8 of the Code of Civil Procedure to permit them to prosecute the action as representing all the persons interested in the Trust. The application was granted.

(3.) The court below decreed the suit directing the preparation of a scheme by the court. It was found that the 1st defendant has neglected to perform the poojas in the temples. The 1st defendant's claim to special rights under Ext. I was negatived. The 1st defendant was made liable for the mesne profits of the properties. Against this decree, the 1st defendant appeals to this court.