IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2011 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU
C.S.No.921 of 1999
The Idol of A/m Kamakala Kameshwarar
temple reptd by its Fit Person,
HR & CE Administration cum
Executive Officer of Arulmighu
Kamakalakameswarar Thirukoil,
Triplicane, Chennai 600005. … Plaintiffs
Vs
Sri Siddaraja Manicka Prabha
Temple repd by its Guru, Prabhu,
Manicka Nagar
Himinabad, Gulbarga District … Defendant
Civil Suit filed under Order 4 rule 1 of O.S. Rules read with Order 7 Rule 1 of C.P.C.
For Plaintiff : Mr. V. Raghavachari For Defendant : Mr. K.P. Gopalakrishnan JUDGMNET The Civil Suit is filed for declaration, for declaring the plaintiff as the absolute owner of the plaint scheduled mentioned property and for direction to the defendant to deliver possession of the suit property. 2. The following are the contents in the plaint:-
2.(a) The plaintiff temple viz., Kamakala Kameshwarar Temple was founded by Late Raja Eswardoss Dayavanth Bahadur. On his death, his guardian and son became the owners of the temple and were adjudicated as insolvents in I.P.No.50 of 1924 and hence their estate including the temple and the right to manage the same came to be vested in the Official Assignee, Madras; that one of the creditors filed C.S.No.545 of 1926 on the file of this Court and that a consent decree was passed in that suit and by virtue of that decree the ownership and management of the temple stood vested with the predecessor Guru of the plaintiff; that the plaintiff succeeded his predecessor, that when he was a minor, his guardian filed O.A.No.76 of 1954 on the file of the Deputy Commissioner, HR & CE for the purpose of declaring that the temple was a private temple; that application was allowed and on appeal preferred thereon, the same was set aside, that the defendant therefore filed a suit in O.S.No.557 of 1995 on the file of the City Civil Judge at Madras; that the suit was decreed and the order passed by the Commissioner was set aside that the defendants therein preferred appeal in A.S.No.730 of 1997 met with the same fate.
2.(b) A further appeal by way of Letters Patent in L.P.A.No.119 of 1983 was filed by the trustees of the temple was allowed by this Court on 04.04.1990 and the Division Bench held that the suit temple is a public temple; that the defendant herein preferred a further appeal before the Supreme Court and the same was dismissed concluding that the temple is a public one; that the HR and CE department appointed a fit person to manage the affairs of the temple in and by way of order dated 26.07.1999.
2.(c) A bare perusal of the decree in C.S.No.545 of 1926 would show that the property vest absolutely with Guru Mathanda Manicka Guru as the Head of Guru Manicka Prabhu temple and the successor in office as head of the temple subject to the conditions mentioned therein, that on the death of Parvathi Bai and due to the judgment aforesaid, it has now fallen to the lot of the Hindu Religious and Charitable Endowment Administration to administer the same, that in the decree it is specifically observed that the official assignee of Madras shall bring all the property to sale by public auction or private treaty and utilise the net sale proceeds for discharge of the debt incurred by the 7th and 8th defendants, that it was further observed that the plaintiff in that suit (C.S.545/1926) shall be entitled to full satisfaction of all claim against the 7th and 8th defendants.
2.(d) It is clear that the property set out “A” Schedule shall be used for the object of maintaining the temple and it is not the subject matter of encumbrance or attachment, that a petition for appointment of receiver had been filed with a direction to the receiver to carry out the terms of the compromise, that a counter had been filed by the 5th defendant Mr.T.K. Sankararao, who was one of the trustees of the KamaKala Kameswarar temple, an appointee of the Hindu Religious Endowment Board, that in the affidavit it has been specifically stated that in pursuance of the decree dt.26.11.1929, Kamalakala Kameswarar temple and other properties vested in the head of the Guru Manicka Prabhu and one Sri Ranganatha Naidu was appointed as his Agent to manage the property.
2.(e) Guru Manicka Prabha had lost his right to manage the temple after the same was taken over by the Hindu Religious and Charitable Endowment Administration, that since the property which is the subject matter of dedication to the temple, the defendant has lost all rights in respect of the property, that the plaintiff had made several demands on the defendant calling upon them to vacate and deliver possession of the property; that the defendant had recently vacated the tenants and had hastily started demolishing the superstructure, that he is attempting to sell the properties to 3rd parties and make the profit out of transaction, that if such course is allowed, the temple would be deprived of its property and that the power to manage the temple had been conferred on the Board by virtue of the Hindu Religious and Charitable Endowment Act, it is just and necessary to direct the defendants to deliver possession of the property to the plaintiff, enable it to effectually discharge his duties.
3. In the written statement filed by the defendant, the following are averred:-
3.(a) The suit for a declaration of title to the suit property is not maintainable either in law or on facts, that it is not the case of the plaintiff that the suit property has been given to HR & CE Board by anybody or by any decisions of the Court; that all the proceedings relied upon and narrated by the plaintiff relate only to the Kamakala Kameshwar Temple and not the suit property, that the suit property has been given in favour of this defendant’s predecessor Shri Martand Manik Prabhu vide registered conveyance deed No.1113 dated 28.08.1931, in pursuance of the decree passed by this Court in C.S.No.545/1926, that it is entirely clear that the property vested absolutely in Shri Martand Manik Prabhu with the following certain conditions:
a) that the monthly income from the said properties ascertained after payment of repairing charges, taxes and quit rent as and when the same accrued be applied and utilised by the transferee or his duly authorised agent for the maintenance of the said T.Lakshmidoss and T.Venkatprasad and of the survivors of them during their life time.
b) That after the death of the survivors of the said T.Lakshmidoss and T.Venkatprasad the Head Guru for the time being of the said Manicka Prabhu temple or his duly authorised agent shall pay to Parvathibai the sister of the said T.Venkatesaprasad during the terms of her natural life from and out of the said income Rs.40/- per mensem and the balance of the income, if any, shall be utilised by him or by his duly authorised agent for the purpose of the said temple. (Here “said temple” means Shri Manik Prabhu Temple and not Kamakala Kameshwar Temple).
c) That after the death of Pravati Bai the said house and ground intended to be hereby transferred and more particularly described in the schedule hereto and the income thereof shall absolutely vest in the Guru for the time being of the said temple as the Head of the temple and they shall be utilised for the maintenance and upkeep of the Manicka Prabhu Gadi and Kamakala Kameshwar Temple.
3.(b) The plaint schedule mentioned property absolutely belongs to this defendant, and the condition No.1 and 2 have been fulfilled and Parvati bai died. As per the conveyance deed “after the death of Parvati Bai the said house and ground intended to be hereby transferred and more particularly described in the schedule and the income thereof shall absolutely vest in the Guru for the time being of the said temple as the Head of the temple”, that the income from the property is being utilised for Manik Prabhu Gadi, that the proceedings relied upon by the plaintiff are only concerning Kamakala Kameshwar Temple and have nothing to do with the suit property, that the suit property is in the absolute ownership of the defendants from 1931 onwards without any interruption, right or claim from anybody much less from the plaintiff, that the suit is barred by limitation, principles of constructive resjudicata and by the principles of Estoppel; that the suit is false, frivolous, vaxatious, barred by principles of estoppel and barred by limitation and besides not maintainable in law.
6. On the strength of the above said pleadings, the following issues were framed by this Court:-
(i) Whether the suit property is dedicated to temple?
(ii) Whether the judgment of the Courts in earlier proceedings would not operate as estoppel as against the defendant denying them of any claim over the property.?
(iii) Whether the judgment in previous proceedings would not operate as res-judicata precluding the defendant from asserting any right over the suit property?
(iv) Whether the suit claim is barred by limitation?
(v) to what relief the plaintiffs are entitled to?
Issue No.(i)
7. The suit premises is situate in Door No.28, Hanumantha Lala Street, Triplicane, Madras. This property and the plaintiff temple originally belonged to late Rai Raja Eswardoss Diawanth Bahadur, who founded the temple. After his death, his descendants who inherited the temple and other properties were adjudicated as insolvents in I.P.No.50 of 1924 and the management of the properties including the temple vested with Official Assignee, Madras. One among the creditors filed C.S.No.545 of 1926 on the file of this Court and a consent decree was passed between the parties. Copy of the consent decree dated 26.11.1929 is Ex.P.1. The operative terms of compromise are as follows:
“1. That the provisions of the Trust deed dated the 12thday of December 1917 shall attach only to the property described in schedule “A” here to and even in so far as those properties are concerned shall be modified as follows:-
The said items of properties shall immediately be vested in Sri Guru Marthanda Manicka Guru as the Head of the Guru Manicka Prabhu Temple and his successors in office as the Head of the said Temple, subject to the condition that the net worthy income from the said properties ascertained after payment of repairs and taxes, as and when the same accrues be applied and utilised by the said Sri Guru Marthanda Manicka Prabhu for the maintanence of the defendants Nos.7 and 8 of the survivor of them, during their lifetime.
2. That after the death of the survivor of the 7th and 8th defendant’s the head of the said Guru Manicka Prabhu Temple for the time being do pay to Ponbati Bai the sister of the 8th defendant during the term of her natural life from and out of the said income the sum of Rupees forty (Rs.40/-) per mensem and the balance of the said income shall be utilised by him for the purpose of the said temple.
3. That after the death of the said Ponbati Bai the said premises and the income thereof shall absolutely vest in the Guru of the said temple for the time being and be utilised for the maintenance and upkeep of the said Manicka Prabhu Gadi and the Karnataka Kameshwara Temple founded by the late Rai Hanumantha Lala Street, Triplicane, Madras.”
Presently, the defendant is representing the said Manicka Prabu Gadi.
8. Subject to the conditions contained in the above said consent decree, the temple and its properties vested in Martand Manik Prabhu who was the head of Guru Manik Prabhu Temple. By virtue of Ex.P.8 dated 28.8.1931, registered deed of transfer in Document No.1114 of 1931, the Official Assignee of Madras who was in charge of estate and effects of T. Lakshmidoss s/o Rai Raja Eswardoss Diawanth Bahadur and T.Venkataprasad s/o T.Lakshmidoss transferred the suit properties to Guru Manik Prabhu, describing him the spiritual Head of the plaintiff temple, in pursuance of stipulations in Ex.P.1. The important portion in Ex.P.8 is as follows:
“Now this indenture witnesseth that in pursuance of the above said premises the Transferors do hereby convey and transfer into the Transferee the said temple of Kamakala Kameshwari situated in Raja Hanumantha Lala Street, Triplicane, Madras, more particularly described in the schedule hereto to hold the same unto and to the use of the transferee as the Head of the said Temple.”
9. On the same date Document No.1113 of 1931 in Ex.D1 also came to existence between the above said parties for the transfer of the plaintiff temple. The operative portions of the deed are as follows:
“That the provisions of the said trust deed dated 15-12-1917 shall be decreed to attach only to houses Nos.1, 2 Raja Hanumantha Lala Street, Triplicane, Madras and even so far as these properties are concerned to provisions of the said trust deed shall be modified as follows:-
That the said two items of properties viz 1 and 2 Raja Hanumantha Lala Street shall immediately vested in Sri Guru Martand Manik Prabhu the head of the Guru Manik Prabhu Temple and his successors in office subject to the conditions that the net monthly income from the said properties ascertained after payment of repairs and taxes as and when the same accrues be applied and utilized by the said Sri Guru Martand Manik Prabhu for the maintenance of the defendants 7 and 8 viz., the said insolvents and if the survivors of them during their lifetime after the death of the survivor of the 7th and 8th defendants the head of the said Guru Martand Manik Prabhu temple for the time being shall pay Parvati Bai the sister of the 8th defendant during the term of her natural life from and out of the said income the of Rs.40/-per mensem and the balance of the said income shall be utilised by him for the purpose of the said temple. After the death of the said Parvati Bai the said premises and the income thereof shall absolutely vest in the Guru of the said temple for the time being and be utilised for the maintenance and upkeep of the Manik Prabhu Gadi and Kamakala Kameshwari Temple founded by the late Raja Eshwardoss Diawanth Bahadur the father of the 7th defendant and situated in Raja Hanumantha Lala Street, Triplicane, Madras. The remaining properties included in the said trust deed dated 12-1-17 shall be exonerated from the said trust and shall be declared to be the absolute properties of the 7th and 8th defendants and have vested in the 2nd defendant viz. the 1st name transferor.”
10. From the materials contained in the above said documents it is descernible and unambiguous that the suit property is a Trust property. There is a specific mention in Ex.D.1 that certain provisions in the Trust Deed were modified as per the clauses contained therein. It is also stated in the said document that remaining properties included in the Trust Deed dated 12.1.1917 shall be exonerated from the said deed. There is also a reference in Ex.D.1 that Trust Deed dated 15.12.1917 relates to the suit property herein. The forefather of the defendant accepted the terms and recitals in the above said documents and took charge of the properties inclusive of the suit property.
11. The fact that the income from the suit property had to be spent for the maintenance and upkeep of the Manik Prabhu Gadi and plaintiff temple would candidly indicate that it is a trust property. Further it is the admission of the defendant himself in his cross examination that there is an obligation that the income/profits derived from the suit property should be spent for upkeep of both the above said temples. Even though he has deposed in his cross examination that he is not aware whether the suit properties were treated as trust properties, he has come out with a version that there is an obligation to spend on the temple. Once the party connected to the property is conscious enough that the properties were dedicated to a temple by accepting the condition that the income from the properties has to be spent for the temple, the necessary corollary would be, the property was dedicated to the temple. In unequivocal terms Ex.P.8 and Ex.D.1 would vividly provide that the suit properties were dedicated to both the temples. In view of the above said circumstances, this issue is answered in the affirmative.
Issue Nos.(ii) and (iii):
12. Much was said about the character of the suit property. Though the defendant has admitted in his cross examination that a charge was created over the suit property by imposition of an obligation for spending the income from the property in the plaintiff temple, it is his stern stand that it is his private property. A careful scanning of his evidence would show that as required by Ex.P.8 and Ex.D.1, for certain period, income from the suit property was spent to the plaintiff temple and at one point of time viz., on taking over of the temple by the Hindu Religious and Charitable Endowment Board, the defendant’s forefathers discontinued spending money from the suit property to the temple. It is profitable to extract relevant portions in the cross examination of D.W.1, the defendant for better appreciation:-
“I had spent money from out of the income from the suit properties on the Karnakala Kameshwara Temple before 1946. My grandfather died in 1945 and my father was a minor then. The residents of the locality broke open the locks of the temple and then the HR & CE Board taken over the Temple. That was why, I was not able to spend on the Temple. There is an obligation to spend on the Temple. I have not endeavoured to spend money to the Temple. There is no such control in Ex.P1 decree that if only the temple is my condition, I have to spend on the temple. I am not under any obligation to spend on the temple, if the temple is managed by somebody else. It is my private property. I deny the existence of the Trust.”
13. Even though he has mistakenly stated that he had spent money on the plaintiff temple before 1946, it has to be treated that is forefathers had spent money before 1946, because his father was minor in 1945 as per his evidence. From his evidence it also transpires that since the temple was taken over by the Hindu Religious and Charitable Endowment Board, he stopped spending for the temple. His response is that he is not under any obligation to spend on the temple if the temple is managed by somebody else. But still, the obligation to spend on the temple did not cease to continue.
14. In this context, it is also to be borne in mind that the three important documents Ex.P.1, Ex.P.8 and Ex.P.D.1 would clearly recite that even though the vesting of the suit property was absolute in favour of Martand Manik Prabhu, it was only “for the time being”. The vesting of the trust properties upon the Guru was only temporary in nature. Hence, neither the said Guru nor his descendants including the defendant cannot lay claim over the suit property as their absolute or private properties.
15. In the considered view of this Court both Ex.P.8 and Ex.D.1 were temporary measures arranged by the Official Assignee conveying the suit properties to the Guru for maintenance and upkeep of the temples. At no later point of time, had there been any valid deed of conveyance either in favour of Guru or in favour of his descendants vesting absolute right over the properties, making them as full owners of the property.
16. This Court is unable to find out at which point of time Hindu Religious and Charitable Endowment Board took over the control of the temple. The defendant has not whispered anything either in his written statement or in his oral evidence as to the date of such taking over, but in the plaint it has been pleaded, that on the death of Parvathi Bai and due to the judgements, the suit property has now fallen to the lot of the Hindu Religious and Charitable Endowment administration to administer the same. Exs.P.6 and P.7 are the proceedings of the Special Commissioner of HR & CE appointing fit person to the plaintiff temple and defining the powers of the Trust Board of the plaintiff temple. Ex.P.6 is dated 26.7.1999. As adverted to supra, the date of taking over is not known. However, it is evident from the oral evidence on record that after 1946, income from the suit property was not spent on the plaintiff temple. The defendant has not come forward with the fact of date of taking over of the temple so as to say that from which date he was not spending the amount. In view of his admission that there is an obligation for spending on the temple from the income of the suit property, it is his duty to initiate proceedings before the authority concerned for getting necessary orders to fulfil the obligations as adumbrated in the clauses of the earlier decree in Ex.P.1 and as per the recital in Ex.P.8 and Ex.D.1. But he has not done so. The necessary inference would be, in the absence of spending of income from the suit property to the temple, he has been appropriating the money to himself from the property, more specifically stated as trust property. It is not the case that there had been no income from the suit property.
17. In this context, the learned counsel for the plaintiff Mr.V. Raghavachari would contend that when the defendant is under an obligation to utilise the money from the suit property to the temple, who denies the trust, he is debarred from dealing with the profit to his own advantage. It is also his submission that where the property is found to be the trust property, it is not open to the trustee to make a demand as if it is his acquisition and any contrary claim would strip him off the responsible position. In support of his contention, he relied upon certain decisions of Privy Council and of this Court.
18. In (1922) L.R. 49 I.A. 237 [Srinivasa Chettiar v.Evalappa Mudaliar] a Full Bench of the Privy Council has held that it is not open to the trustee to hold the office of trustee when he exercises his private ownership over the trust property. The operative portion of the judgment goes thus:
“42. It will now be seen how serious is the position of the respondent as a claimant for the continuance of the trusteeship of this temple and its endowments. The doubts in the minds of the Courts below, on the subject of his being allowed to continue in office, are sufficiently plain. But when it is now decided that the whole of this litigation has substantially been occupied by an unfounded assertion, supported by the concoction of accountsan assertion by the trustee of private ownership in himself and a powerful resistance to the recovery of these properties for the trust which he administers– it does not appear any sound principles either of administration or of law, to permit the continuance of the respondent in the office of dharmakarta”
19. In AIR 1927 Mad 249 [T.Krishnajee Bat v. Sadasiva Tawker and Ors.] it is observed that as far as the utilisation of Trust funds by the trustee to his own purposes, it has been held by this Court in an earlier decision that without any specific stipulation in the Trust Deed, the trustee is precluded from taking advantage of the Trust money for his own use. The following is the important portion of the judgment:
“12. The judgment of Munro, J., proceeded upon this distinction which, he emphasizes but in the present case there can be no such distinction as Ex. A, the letter, and Ex. B, the receipt did not contemplate the possibility of any person being a trustee except the firm of Tawker and Sons. Abdur Rahim, J., thinks that that distinction is not material; but with all respect, it seems to me that, if that distinction does not exist, there is absolutely no ground for reversing the decision of Sir Arnold White, C. J., and holding that the trust ceased to be a trust, because the trustee is given authority which he would not otherwise have of utilizing the trust fund for his own benefit. The provisions of the Trust Act are that, unless there is any provision to the contrary, a trustee cannot use the trust fund for his own purpose.”
20. In AIR 1931 Madras 251 = (1931) 60 MLJ 355 [P.L.N.K.M. Nagappa Chettiar v. The Official Assignee of Madras, as the Assignee of the Estate of P.L.N.K.Subramanian Chetty] a Division Bench of this Court has rendered observations in the light of the provision in Section 51 of the Trusts Act. The preposition laid down therein is as follows:
“I find it very hard to see how when trust money is handed over to any person, he be or he be not a trustee, to use in his business, and subject to the payment of interest, no relationship of creditor or debtor is set up. The circumstances that he may use the money as his own, and that he has to pay interest, seem to me to point clearly to the engrafting of a contract upon the trust, whereby title to the money is transferred, and the trust no longer can look to that particular sum of money, as its res or subject-matter, but to a promise to pay an equal sum. If he holds it purely as trust money he is debarred by Section 51 of the Trusts Act (II of 1882) from dealing with it for his own profit, and the veto so imposed seems to be absolute, and not subject to modification by the terms of the trust It will be seen that whereas Sections 46 to 48 and 50 of the Act all contain some such phrase as “Except where the instrument of trust otherwise provides,” there is no qualification of this kind to Section 51.”
21. From the above said judicial pronouncements, the law on the subject has been made clear that the trustee is not competent to appropriate or utilise the funds derived from the Trust property for his own purpose and he has to be debarred from the holding the office of the trustee if he commits such violations in the absence of any specific direction or stipulation in the Trust Deed.
22. As stated already, after 1946 till the date of filing of the suit, there is no evidence on record to show that the income from the suit property viz., the Trust property was spent for the maintenance and upkeep of the plaintiff’s temple as mandated Ex.P.1, Ex.P.8 and Ex.D.1. Hence, it has to be observed that the forefathers of the defendant and the defendant after 1946 have been utilising the money for themselves that is for their own purposes till the date of taking over of the property by Hindu Religious and Charitable Endowment Department. The inaction or the failure to observe the mandate contained in Ex.P.1, Ex.P.8 and Ex.D.1, have not been justified by the defendant. In order to claim that it is his private property, the defendant has to establish that by a valid conveyance, absolute right over the suit property was conveyed to his ancestors. In this case such evidence is miserably missing. Similar earlier proceedings were referred to by both the learned counsel. But they are with reference to the subject, whether the plaintiff temple is a private or a public temple. It has ultimately been held that plaintiff temple is a public temple. Whatever be the nature of the temple it would not affect the obligations on the temple towards the suit property.
23. The learned counsel for the defendant Mr.K.P. Gopalakrishnan would contend that the defendant has produced documents to show that he is the absolute owner of the property that the earlier references in the litigations would show that there was no necessity for the landlord viz., the defendant to spend on the temple after the plaintiff temple was taken over by the Hindu Religious and Charitable Endowment Board.
24. Ex.D.3 is extract from the Permanent Land Register with reference to the suit property. It shows the defendant as the owner of the property. Ex.D.4 is the computer print out showing the payment of property tax from the assessment year 1993-94 uptill 2009-2010 by the defendant. Ex.D.5 is receipt issued by Chennai Metropolitan Water Supply and Sewerage Board, evidencing payment of money for water supply from 2005-2006 and 2006-2007 by the defendant. Ex.D.6 is Form 5-G of the Urban Land Tax, 1966, showing the payment of tax made by the defendant. Ex.D.7 is dated 28.08.1996 stating that the defendant is assessed Wealth Tax for the suit property. It is not in dispute that the property has been in the hands of the defendant, but whether he is the absolute owner is the moot point to be decided.
25. Against some of the tenants in the suit property, the defendant filed eviction petitions before the Rent Controller. Finally, it came up before this Court in C.R.P.No.2929 of 1996 and an order came to be passed by this Court on 12.4.1997 in which the learned judge has made observation that the documents show that the Hindu Undivided Family is the landlord and not the public trust and that if it is a public temple was taken over by the Hindu Religious and Charitable Endowment Board, the landlord need not spend any amount towards its upkeep and maintenance. It is worthwhile to note that the plaintiff is not a party to the above said proceedings. Hence it cannot be stated that the observations are binding upon the plaintiff. Further, the question regarding the title of the demised premises cannot be determined by a rent controller, which does not come under his domain. The Civil Court is competent authority to discuss and decide the issue, who is the title holder of the property. Hence, the defendant cannot take recourse to the observations made in the said C.R.P. by this Court.
26. In view of the above said observations and findings, in the light of the documents and under the guidance of the judicial pronouncements, it is held that the suit property is Trust property dedicated to the plaintiff temple; that the defendant is not absolute owner of the property; that the forefathers viz., Guru of the defendant Gadi was nominated as a temporary trustee for the suit property and no rights more than the said Guru possessed could have been derived by the present defendant, that in the absence of evidence that the Trust money was utilised for the upkeep of maintenance of the plaintiff temple, the defendant ceased to be the trustee of the suit property and that he is not possessing any right to hold the property. In these circumstances, I answer both the issues in negative.
Issue No.(iv)
27. The learned counsel for the defendant stressed much on the point of limitation. It is his contention that since the suit property has been in possession and enjoyment of this defendant and his forefathers for quite a long time for over 70 years, the suit is barred by time. Only if the property vested in the Guru of the defendant got absolute right, then the question of bar of limitation would arise. As observed by me earlier, the vesting of the property with the Guru of defendant Gadi was a temporary measure for proper holding of the suit property and maintenance and upkeep of the plaintiff temple. There were no recitals in Ex.P.8 and Ex.D1 conveying the absolute interest over the property to the Guru. “For the time being” the suit property was handed over to the Guru. The imposition of condition of spending income from the suit property to the temple is not satisfied. The defendant side has not explained the terms “for the time being”. Hence it could not be stated that the suit property was either dedicated to defendant Gadi or vested exclusively in the Guru of defendant. The temple and the suit property were given to defendant only for management and not to exercise absolute ownership over them.
28. In the light of the above, it is held that the suit is not at all barred by time. More particularly speaking, no question of operation of limitation would arise. This issue is answered in the negative.
Issue No.(v)
29. This Court has after a conspectus, found that as per the provisions made in Exs.P.1, P.8 and D.1, the Guru of the defendant was given management of the suit property, that no absolute right over the suit property was vested with him, that the defendant ceased to be the trustee of the suit property and has made himself to be incompetent to hold the office of the trustee for his appropriation of income from the trust property for his own purposes and hence he is bound to deliver the possession of the suit property to the plaintiff. I have answered all the issues in favour of the plaintiff. Hence, the suit deserves to be decreed as prayed for.
30. In the result, the suit is decreed as prayed for with costs. Time for delivery three months.
ggs