V.K.MANOJ PAI Vs. INDIRAMBAL

JUDGEMENT

(1.) Plaintiff is in appeal against dismissal of a suit for recovery of possession with future mesne profits.

(2.) For a better understanding of the disputes, the relevant pleadings are extracted hereunder: Appellant is the son of deceased 6th respondent. Deceased respondents 5 and 6 are the sons of deceased Venkateswara Pai Madhava Pai. 7th respondent is the son of deceased 5th respondent. Appellant and respondents 1, 2, 3, 5 and 7 belong to Hindu Gowda Saraswatha Brahmin Community. Pending the appeal, respondents 5, 6 and 8 died. Their legal representatives were not impleaded as the appellant was prepared to take the risk of their non-impleadment.

(3.) Plaint schedule property belonged to the joint family of deceased Madhava Pai and his brothers. They partitioned the property in the year 1112 ME. Ext.A1 is the partition. The plaint schedule property is item No.17 in A schedule to Ext.A1. The building situated in the property was constructed after Ext.A1 partition. The properties described in A schedule to Ext.A1 were set apart in common for meeting the common expenses. A schedule properties are not partiable. They belong to a Hindu Mithakshara Family comprising the appellant and the aforementioned respondents. The appellant filed the suit for himself and on behalf of other members of the family. A schedule properties in the partition deed are inalienable and none of the family members could have encumbered the same. As per the partition deed, they are set apart to perform some spiritual rites. Executants 1 to 3 in Ext.A1 document were entrusted with the duties of upkeeping the family temples and discharging other spiritual obligations. Income from the properties described in item Nos.12 to 17 in A schedule to Ext.A1 were to be utilised for conducting Upakarma, Ashtamirohini, Anandhavrutham, Udhwanadhwadhasi, Samaradhana, etc. in the family temple. That apart, the income should be utilised for conducting certain obsequies of the ancestors. There are express stipulations in Ext.A1 that those who committed default in discharging the duties would be personally liable. According to the appellant, the said stipulations in Ext.A1 legally constituted a private religious and charitable trust. Therefore the properties in A schedule to Ext.A1 are the trust properties and executants 1 to 3 therein were the trustees. And after them, their successors are liable to maintain the trust. Family members are the beneficiaries.5th respondent and his father deceased Madhava Pai, against the stipulations in Ext.A1, sold out the properties. Later, the 2nd respondent also sold out certain properties to the 3rd respondent. In one of the buildings, the 5th respondent and others are running a ration shop under the guise of a licence issued to the 4th respondent. 8th respondent conducts trade in another shoproom with the connivance of the 3rd respondent. All these transactions do adversely affect the interests of beneficiaries of the trust. Therefore, the appellant contended that all these transactions are illegal and the properties are liable to be recovered from the possession of the respondents with mesne profits.