GOPU NATARAJA CHETTY Vs. RAJAMMAL

JUDGEMENT

(1.) This is an appeal against the preliminary decree of the Subordinate Judge of Kumbakonam declaring that the defendant is not the lawful trustee of the plaint properties and that it is necessary to frame a scheme for the management of the plaint charities and to appoint new trustees. The defendant appeals against the decree.

(2.) The facts of the case are that one Appakutti Aiyar by his will dated 28 August 1844 and codicil dated 3 September 1844 devised the greater portion of his properties for the performance of certain charities and appointed his maternal uncle Chinnappier and one Gopu Nataraja Chetti as trustees for carrying on the charities and further directed that one of his heirs should take part in the management of the trust properties. Appa Kutti Aiyar died in 1844. At the time of his death he had one daughter Dharmi Ammal. Another daughter Rajammal was born subsequent to his death. Chinnappier evidently declined to act as trustee as he does not appear to have taken part in the management of the charities. Gopu Nataraja Chetti carried out the terms of the will and conducted the charities till his death in 1873. After his death, his son Kolandaivelu Chetty conducted the charities till his death in 1912. The defendant claiming to be the adopted son of Kolandaivelu took possession of the properties on the death of Kolandaivelu and he claims to be the hereditary trustee of the charities. 1st plaintiff is the daughter of the said Appakutti Aiyar and 2nd plaintiff is her son. They have brought this suit after obtaining the sanction of the Advocate-General under Section 92 of the Civil Procedure Code. The plaintiffs after setting out the history of the trust allege that the defendant has been guilty of various acts of misfeasance and malfeasance and pray that, in the interests of the trust, a proper scheme be framed, that the defendant be removed and a proper trustee be appointed and also that the properties unlawfully alienated be recovered for the benefit of the trust.

(3.) The defendant's contention is that he is the hereditary trustee of the plaint trust, that the plaintiffs are barred from bringing this suit by reason of the decree in O.S. No. 9 of 1876 on the file of the Court of Small Causes at Kumbakonam, that the plaintiff's suit is barred by limitation, that he has not been guilty of any acts of waste or malfeasance and that the plaintiffs have no right to bring the suit.