N SRIPADMANABA NADAR Vs. P RAMALINGA NADAR

JUDGEMENT

(1.) THE first defendant in O. S. No. 41 of 1977, Sub Court, nagercoil, is the appellant in this appeal. That suit was instituted by the respondents herein for a declaration that Kaikkan Pathy Narayanaswmay Trust is the private family trust of the respondents and others and for the removal of the appellant from management, settling of a scheme and appointment of new trustees and for an account from the appellant from 28. 8. 1933.

(2.) THE facts giving rise to the dispute between the parties are as under: One Parameswaran Nadar constructed a temple and installed narayanaswamy therein and conducted daily poojas, monthly kattalais and yearly festivals. He had also acquired and set apart 11 items of properties for that purpose. Respondents 1 and 2 are the sons of Parameswaran Nadar. Respondents 3 and 4 are his major grand-sons. Parameswaran Nadar constituted himself as the first trustee for the management and administration of the temple and its properties and he executed on 18. 9. 1952 a registered Odambadi in favour of his eldest son Narayana Perumal Nadar, the father of the appellant and the second defendant in the suit. As per the provisions of Odambadi, Narayana Perumal nadar was to assist his father during his lifetime and thereafter he was to enjoy the property, realise the income, perform the poojas, etc. , without default and the other members of the family were entitled to get prasadams and other emoluments. Narayana Perumal Nadar was also empowered to appoint a successor. After the execution of the registered Odambadi on 18. 9. 1952, the founder Parameswaran Nadar purchased one more item, item 12 in the suit, and he died subsequently on 12. 1. 1129 M. E. (1954) Narayana Perumal Nadar succeeded as the trustee and according to the respondents, he died on 23. 5. 1967 without appointing a successor and without making available the accounts of the income as well as expenditure. THEreafter, the appellant got into the management of the temple and its properties and had been conducting the poojas. However, he did not maintain accounts of the income and expenditure from the properties of the trust and had also suppressed the accounts. Claiming that the respondents have a right to see the proper performance of the objects of the trust and that the appellant was unwilling for electing two trustees from among the beneficiaries for the management of the trust properties and the conduct of poojas, the respondents herein instituted the suit for the reliefs set out earlier.

(3.) THE learned Counsel for the appellant contended that no case for the removal of the appellant as trustee and for framing of a Scheme is made out. According to the learned Counsel, the mere circumstance that the appellant had set up title in himself to the suit properties and had disowned his duty to maintain accounts, which was characterised as a petty neglect of duty, would not justify the removal of the appellant from the trusteeship. Reliance in this connection was placed by the learned Counsel upon the decisions in V. K. Kelu v. C. S. Sivarama Pattar, A. I. R. 1928 Madras 879 and balmakund v. Nanak Chand, A. l. R. 1929 Allahabad 433. On the other hand, the learned Counsel for the respondents submitted that the appellant had not only denied the trust character of the properties, but had set up title in himself and had thus rendered himself unfit to be a trustee. It was also further pointed out that the appellant had failed and neglected to maintain proper accounts of the income and expenditure from the trust and its properties and had also violated the terms under Exhibit A-1' ; in not having acquired properties from the surplus income. Reference in this connection was also made to the report of the Commissioner showing the income from the properties and from this, it was sought to be established that though the appellant had come by substantial income from to trust properties, he had not acquired at property from out of the surplus income from the trust properties, as directed by Exhibit A-1, and had also not otherwise explained as to what happened to the large surplus income and that would justify the removal of the appellant from trusteeship. THE learned Counsel pointed out that the decisions relied upon by the learned Counsel for the appellant would have no application on the facts and circumstances of this case as well as on the terms of Exhibit a-1.