KANAGAVELU NADAR Vs. SOORAVALI SUBBIER

JUDGEMENT

(1.) This second appeal arises out of a suit for recovery of possession of the property comprised in Schedule A by the plaintiff who was a trustee of certain charities under a scheme decree in O.S. No. 13 of 1922, on the file of the Sub- Court, Madura. The said property admittedly belonged to the charity but it was sold on 7 December, 1924, by the first defendant who was then a trustee of the charity for Rs. 2,212, to the second defendant. The second defendant firm was adjudicated insolvent and all its properties and effects including the said property vested in the Official Assignee of Madras, who by a conveyance, dated 7 May, 1929, sold this property among other properties to the firm of Maya Nadar Bros, and on the date of this suit the said property vested in defendants 4 to 6. The fourth defendant died during; the pendency of the litigation and defendants 8 to 10 who are the appellants herein are has legal representatives. The fifth defendant was adjudicated an insolvent and the Official Receiver, Madura as representing his estate is the 7 defendant in the suit.

(2.) The sale in favour of the second defendant was impeached by the plaintiff on the ground that it was in excess of the powers of the trustee and invalid. Both the Courts have answered that question in favour of the plaintiff and this finding is not challenged in second appeal by Mr. Sitarama Rao, learned Counsel for the appellants. But the main contention urged by him is that his clients and defendants 6 and 7 are entitled to recover the properties comprised in the B Schedule or the Rs. 2,212 the purchase price paid for the sale of A Schedule property before the plaintiff can recover possession of the said A Schedule property. Both the Courts have negatived this contention and declined to give the relief asked for on behalf of defendants 4 to 7.

(3.) To appreciate the contention of Mr. Sitarama Rao a few facts are necessary. On 7 December, 1924, two documents came into existence, viz., Exs. C and C-l. Ex. C purports to be a declaration of trust executed by the first defendant. The recitals in the said deed are that as the A Schedule property which was dedicated to charity was not yielding proper income, he for the benefit of the said charity settled the price of the said property at Rs. 2,212 and completed the sale deed in favour of N. K. K. Venkatarama Aiyar, the second defendant herein, that in substitution of A Schedule property through the said document Ex. C, he was setting apart of his free will the property comprised in B Schedule which is also worth Rs. 2,212 and which belonged to him so that the income of the said property may be utilized for the said charity. Ex. C-l is a deed of absolute sale in favour of the second defendant by the first defendant for Rs. 2,212. He recites almost the same facts as in Ex. C. In the said document also occurs the recital that A Schedule property which was being sold was not yielding any income and therefore he had to sell this property to the second defendant and that in substitution thereof he was giving his own property. To provide against any loss that the second defendant may sustain by reason of the conveyance he provided the following security, viz., the B Schedule property. The clause relating thereto runs thus: If any encumbrances or litigations should arise and you should incur a loss, you shall get the undermentioned second item of property shown) as security for the same; to this effect is the deed of absolute gale of punja land executed by me out of my free will.