K VENKATARAYA PRABHU Vs. VASUDEVA PRABHU

JUDGEMENT

(1.) This appeal arises out of an order passed by the Subordinate Judge dismissing the petitioner's application to execute the decree passed in O.S. No. 78 of 1914. The facts leading up to the execution application are shortly these. Upendra Prabhu and Ramakrishna Prabhu were brothers and succeeded to certain properties as reversioners. O.S. No. 78 of 1914 was filed by Ramakrishna Prabbu against Upendra Prabhu for partition and a compromise decree was passed. By the compromise decree pertain properties were set apart for the performance of religious trusts and Schedules A to D relate to the trust and its performance. Schedule A refers to the immoveable properties set apart for the trust, Schedule B. refers to the moveables, Schedule C, refers to the performance of the trust and the various acts to be done by the trustee and Schedule D refers to the properties which are made the security for the due performance of the trusts by the trustee. Upendra Prauhu the elder brother was constituted by the rajinama decree the trustee, but as he was old and blind his son, Srinivasa Prabhu was allowed to be in actual management of the trust properties and to perform the trust. The rajinama decree provided that if there was default in performing: the duties mentioned in Schedule C, then Ramakrishna Prabhu the plaintiff in the suit was given the right to get possession of all the immovable and moveable properties in execution. As regards the rights of Ramakrishna Prabhu after taking possession the decree runs as follows: When the plaintiff would accordingly take possession of the said properties he will be fully entitled to collect the value of the move-able properties which are found wanting and: the amount fixed for the expenses of the viniyogas which are left unperformed and also the amount of Court costs together with interest thereon at 12 per cent. per annum on the liability of the immovable property mentioned in D list attached hereto and belonging to the defendant. The plaintiff should take possession of the property accordingly collect the produce thereof, pay the tirva of the same and perpetually get performed all the viniyogasshown in C list without obstruction and any omission whatever. And the property called "Padi" consisting of S. F. No. 23/10, 3, 8, 7, 1,. 11, 4 & 27/1; 2, 7, 4, 9 out of the property-allotted to his share must be liable in that respect. Besides he should spend the amount collected for the acts left unperformed.

(2.) The decree goes on to state that both Ramakrishna Prabhu and Upendra Prarbhu should act jointly as regards the repairs to the trust house, the distribution of rice to the poor and the cutting of trees standing on the trust property. Upendra Prabhu the trustee committed default and this led to the proceedings in execution. The matter came upon two occasions to the High Court and it was decided that the decree was executable, that Upendra Prabhu committed default which was gross and persistent and that he is not entitled to any relief against forfeiture. Ramakrishna Prabhu went on with the execution and recovered the properties in Schedule A. Further proceedings were taken by him as regards making;good by the defendant of certain properties which he said were missing and for other relief. Ramakrishna Prabhu died before the decree could be fully executed. He, however, executed two documents. The first is Ex. M. dated 24 September 1920. It is a registered deed of trust which after referring to the execution proceedings empowered the appellant to conduct the further execution proceedings and take possession of the properties. The deed states that Ramkrishna Prabhu appointed the appellant as his sole representative and relinquished all his rights in his favour and conferred them on the appellant so that the appellant and his male children may from generation to generation perform the duties of trustee. In spite of this document however, proceedings were continued by Ramakrishna Prabhu. The next document that Ramakrishna Prabhu executed is a will Ex. L, dated 5 May 1923. It recites the previous document. The material portion of the will runs as follows: As per the trust dead executed by me in -favour of Venkataraya, he alone without any sort of objection from Annappa (elder brother) should become entitled to and should realise all reliefs which have accrued or may hereafter accrue against the respondent Srinivasa Prabhu. My intention that Venkataraya should collect all amounts in respect of all claims of whatever nature against Srinivasa Prabhu as expressed both in the settlement deed and trust deed executed by me in his favour, I have made it more explicit by this document.

(3.) On the death of Ramakrishna Prabhu the appellant applied to execute the decree but his application was dismissed on the ground that Ramakrishna Prabhu had no power to leave either the deed of settlement or the will.