Subramania Asari (died) v. Pitchai Asari — 1986 DIGILAW 408 (MAD)

Judgment :- 1. This is an appeal by the second plaintiff Subramania Asari and the third plaintiff Nalla Perumal Asari against the judgment and decree dated 3rd March, 1978 in, O.S. No. 462 of 1973 on the file of the court of the learned Subordinate Judge of Dindigul, dismissing the suit for declaration that the suit property belonged to a private trust and for recovery of possession, with costs. 2. The case of the plaintiffs before the lower court is that the members of the Goldsmith Community of Dindigul were originally confined to Chinnakadai Street, Dindigul Town. Seventeen Goldsmiths by name (1) Mahadevan Asari, (2) Ponnusamy Asari, (3) Nalla Perumal Asari, (4) Paul Vannamachari, (5) Palaniappa Asari, (6) Thirumalai Asari, (7) Krishna Asari, (8) Ramadass Asari, (10) Annaiyasari, (11) Palani Asari, (12) Krishnan Asari, (13) Marughai Asari, (14) Ayyathurai Asari, (15) Chinnathambi Asari, (16) V elmayil Asari and (17) Lokadass Asari had created a trust fund by selling the gold dust in their smithy and by collecting donations for the purpose of purchasing a vacant site for constructing “Kamatchi Amman Temple”. Accordingly the above said 17 persons, as trustees, purchased the suit vacant site under a registered sale deed dated 15-3-1909. They were in possession and enjoyment of the property till their death and their descendants continued to be in possession after the death of original trustees. Subsequently, they had constructed “Kamatchi Amman Temple” in the property. The original trustees and their descendants alone were entitled to the management of the suit property. The first plaintiff is the son of Ayyadhurai Asari (No. 14 in the original sale deed) and the 2nd plaintiff is the son of Sudalai Asari (No. 9 in the original sale deed. The plaintiffs had filed the suit in a representative capacity, representing the heirs of the remaining 15 persons (vendees) found in the original sale deed. Out of the 17 persons, Palani Asari, Ramadass Asari and Sudalai Asari (father of the 2nd plaintiff) were appointed as trustees and Ramadass Asari was managing the properties in his capacity as Managing trustee. After the death of the said Ramadass Asari, his son Palanivel Asari was managing the property as managing trustee. Since Palanivel Asari happened to be imbecile, the defendants 1 to 4 threatened him and took possession of the key of the suit property without the knowledge of the plaintiffs. After the death of the said Ramadass Asari, his son Palanivel Asari was managing the property as managing trustee. Since Palanivel Asari happened to be imbecile, the defendants 1 to 4 threatened him and took possession of the key of the suit property without the knowledge of the plaintiffs. In spite of repeated demands by the plaintiffs to hand over the possession of the suit property to them, the defendants 1 to 4 refused to do so. The suit property was held to be a private trust in O.S. No. 78 of 193 on the file of the District Munsifs Court, Dindigul and in the appeal in A.S. No. 46 of 1944 on the file of the Subordinate Court, Dindigul. The suit property, therefore exclusively belonged to the heirs of 17 persons who purchased the property and the defendants had no right over the same. The defendants 1 to 4 had been proclaiming that the suit property was a public trust and that they were appointed as trustees to manage the property and they had been taking steps to lease out the property to the 5th defendant. The defendants had issued a notice on 10-9-1969 demanding possession of the property and the defendants 1 to 4 had sent a reply on 17-9-1969 raising certain untenable contentions. 3. The first defendant Dr. Gurusami Asari died during the pendency of the suit and the defendants 6 to 11 were added as legal representatives. 4. Since the defendants 1 to 4 have absolutely no right to manage the suit property, the plaintiffs have come forward with the suit for a declaration that the suit property is a private trust belonging to the descendants of the 17 persons mentioned in the sale deed dated 15-3-1909 and for recovery of possession. 5. The second defendant, in his written statement which was adopted by the defendants 1, 3 and 4 contended that “Kamatchi Amman Trust Fund” was created by the Viswa Bramins of Chinnakadai Street, Dindigul Town, in 1904 by selling the gold-dust in their smithy and by collecting donations. One Mahadevan Asari was the then trustee and he along with 16 others purchased the suit vacant site for the purpose of constructing “Kamatchi Amman Temple” on 15-3-1909. One Mahadevan Asari was the then trustee and he along with 16 others purchased the suit vacant site for the purpose of constructing “Kamatchi Amman Temple” on 15-3-1909. The said Mahadevan Asari was managing the trust till 1918, and he entrusted the management to Ramadass Asari, Ponnusamy Asari, and Palani Asari, as he was not able to manage due to different health. Out of the said there trustees, Ponnusamy Asari died in 1926 and Palani Asari died in 1950. Ramadass Asari was managing the trust till his death in 1957. After the death of Ramadass Asari, his eldest son Palanivel Asari was keeping the key of the trust property. 6. All the seventeen persons mentioned in the sale deed were not goldsmiths and the father of the 1st plaintiff Ayyadurai Asari, was a Carpenter and Maruthai Asari (No. 13 in the sale deed) was a blacksmith. The suit property was purchased out of the donations collected from Viswa Brahmins working at Chinnakadai Street, and not out of the golddust donated by the goldsmiths alone. The seventeen persons mentioned in the sale deed had not purchased the suit property for their private use, but for the benefit of entire Viswa Brahmins who worship Goddess Kamatchi Amman. The claim of the plaintiffs that the suit properties belonged to the seventeen persons mentioned in the sale deed and their descendants was not tenable. 7. One Palanivel Asari had filed a suit in O.S. No. 304 of 1945 on the file of the District Munsifs Court, Dindigul for rendition of accounts in respect of the said trust against Palani Asari and five others, and it was held in A.S. No. 104 of 1946 that the said trust was a public trust and that the sanction of the Advocate-General was necessary for filing the suit. The suit in O.S. No. 304 of 1945 was filed in a representative capacity and the decision in that suit was binding on the plaintiffs. The suit is therefore liable to be dismissed for want of sanction from the Advocate-General under S.92, Code of Civil Procedure. 8. After the death of Ramadass Asari, one trustee was appointed and a general body of the Viswa Brahmins of Chinnakadai Street, Dindigul Town, was convened and the defendants 1 to 4 were appointed as trustees. The suit is therefore liable to be dismissed for want of sanction from the Advocate-General under S.92, Code of Civil Procedure. 8. After the death of Ramadass Asari, one trustee was appointed and a general body of the Viswa Brahmins of Chinnakadai Street, Dindigul Town, was convened and the defendants 1 to 4 were appointed as trustees. Palanivel Asari son of Ramadass Asari handed over the key of the suit property to the defendants 1 to 4 without raising any objection and they had been managing the property ever since 1957. The appointment of defendants 1 to 4 as trustees was approved by the Hindu Religious and Charitable Endowment Board. The 1st plaintiff had attended the general body meeting in which the defendants 1 to 4 were appointed as trustees and he had also signed the minute books. The defendants 1 to 4 had been managing the trust for the past 13 years with the knowledge of the plaintiffs and they were estopped from questioning the validity of their appointment. After the death of Ramasamy Asari, his son, Palanivel Asari, was not appointed as trustee by the general body of Viswa Brahmins. He had informed Abirami Ammal Temple authorities that he was not able to conduct the Mandagapadi which was being conducted by the Viswa Brahmins. He had handed over the key voluntarily to the defendants 1 to 4 and he was not threatened by the defendants 1 to 4, as alleged in the plaint. 9. The suit property had been leased out to the 5th defendant long prior to the suit and the 5th defendant was conducting a school in the suit property. 10. Though Palanivel Asari had also issued a notice to the defendants 1 to 4 along with the plaintiffs and another, they were not added as parties to the suit. The suit was therefore bad for non-joinder of parties. 11. The plaintiffs were not appointed as trustees by any body and the suit filed by them was not maintainable. The suit had been filed by the plaintiffs at the instigation of the enemies of the defendants 1 to 4. The defendants 1 to 4 had collected funds and constructed a ‘Kalyana Mandapam’ in the suit property at a cost of Rs. 20,000. The suit had been filed by the plaintiffs at the instigation of the enemies of the defendants 1 to 4. The defendants 1 to 4 had collected funds and constructed a ‘Kalyana Mandapam’ in the suit property at a cost of Rs. 20,000. The plaintiffs had been co-operating with the defendants 1 to 4 collecting funds and the construction of the ‘Kalyana Mandapam’ without raising any objection, the plaintiffs are liable to pay Rs. 20,000 to defendants 1 to 4 in case the property is to be held by them as a private trust. The plaintiffs do not own any properties and they are not working as goldsmiths at present. They are also not entitled to represent the descendants of the seventeen persons mentioned in the sale deed. The defendants 1 to 4, who had improved the suit property, had ceased it out to the 5th defendant on a monthly rental of Rs. 75 for the purpose of running a school. The 5th defendant has spent Rs. 1,000 for repairing the property and the said amount was to be adjusted in the rent. The plaintiffs had filed the suit with a view to grab the property which had been improved at considerable cost by the defendants 1 to 4 and misappropriate the income from the property. 12. The 5th defendant filed a written statement alleging that the Dindigul Municipality was running a primary school in the suit property from the year 1969 by paying a rent of Rs. 75 per month. The 5th defendant had spend about Rs. 1,000 for repairing the building and the repair charges were to be deducted from the rent. The 5th defendant is a tenant under the first defendant and the suit against the 5th defendant for possession was not maintainable. 13. The 8th defendant in his written statement which was adopted by the defendants 6, 7 and 9 contended that they were not necessary parties to the suit. 14. The plaintiffs in their reply statement denied the allegation that “Kamatchi Amman Trust Fund” was not created in 1904. The suit property, as a vacant site, was purchased in 1909 by the seventeen persons mentioned in the sale deed and was the private trust belonging to the said seventeen persons and it was purchased out of the funds provided by the said seventeen persons alone, and not out of the donations from Viswa Brahmins. The suit property, as a vacant site, was purchased in 1909 by the seventeen persons mentioned in the sale deed and was the private trust belonging to the said seventeen persons and it was purchased out of the funds provided by the said seventeen persons alone, and not out of the donations from Viswa Brahmins. Ayyadhurai Asari was not a carpenter and Maruthai Asari was not a blacksmith as alleged in the written statement filed by the defendants 1 to 4. There was no necessity to get sanction from the Advocate-General as the suit property was a private trust. Palanivel Asari was the trustee after the death of his father Ramadass Asari and he was managing the trust property. The defendants 1 to 4 were not appointed as trustees by anybody and the 1st plaintiff had not signed in the minutes book to have been prepared in the general body meeting. The defendants 1 to 4 had leased out the su it property to the 5th defendant only during the pendency of the suit. The defendants 1 to 4 did not belong to the family of 17 persons who had purchased the suit property originally and they were not appointed as trustees by the descendants of the said seventeen persons. The defendants 1 to 4 had no right to construct the ‘Kalyana Mandapam’ in the suit property and they were not entitled to claim Rs. 20,000 from the plaintiffs. 15. On the above pleadings, the following issues were framed by the lower court: 1. Whether the suit property is private trust property of the 17 persons mentioned in the sale deed dated 15-5-1909? 2. Whether the suit property belongs to all the members of Viswa Brahmin Society. 3. Whether the suit property is a public trust and so the suit is not maintainable for want of sanction from Advocate-General under S.92, C.P.C.? 4. Whether the defendants 1 to 4 are the relatives of the 17 persons and so they have been validly appointed as the trustees for the suit property? 5. Whether Palanivel Asari voluntarily handed over possession of the suit property and Kamatchi Amman Temple to defendants 1 to 4? 6. Whether the plaintiffs are estopped from questioning the trustee-ship of the defendants 1 to 4? 7. 5. Whether Palanivel Asari voluntarily handed over possession of the suit property and Kamatchi Amman Temple to defendants 1 to 4? 6. Whether the plaintiffs are estopped from questioning the trustee-ship of the defendants 1 to 4? 7. Whether the suit property was leased out to the 5th defendant long prior to the suit in O.S. No. 173 of 70 on the file of the District Munsifs Court, Dindigul? 8. Whether the suit is bad for non-joinder of necessary parties? 9. Whether the plaintiffs represent the heirs of 17 persons mentioned in the sale deed dated 15-3-1909? 10. Whether the defendants 1 to 4 have made any improvement to the suit property? 11. Whether the suit trust can still be said to belong to the 17 persons and heirs in view of the contribution to the same by the entire Viswa Brahmin people? 12. Whether the plaintiffs are liable to reimburse to the defendants 1 to 4 to the extent of Rs. 20,000 spent by the said defendants for the trust in good faith? 13. Whether the plaintiffs are entitled to a decree for declaration and for possession as prayed for? 14. To what relief are the plaintiffs entitled? Additional issues framed on 22-10-1974: 1. Whether the suit for possession against the 5th defendant is maintainable? Additional issue framed on 26-9-1976: 1. Whether defendants 6 to 11 are unnecessary parties to the suit? 16. The first plaintiff Subramania Asari examined himself as P.W.1. On behalf of the plaintiffs Ex. A1 registered sale deed dated 15-3-1909 for Rs. 300 executed by Ammani Ammal for self and as guardian of minor daughter in favour of Kamachi Amman Koil Madam Mandagapadi Dharmaparipalana Karthars Mahadeva Asari and others, Ex. A2 registered notice dated 18-6-1909 issued by Mahadeva Asari to Arunachala Pillai, Ex. A3 printed copy of judgment in OS.75/1210 of District Munsifs Court, Dindigul dated 11-3-1912, Ex. A4 printed copy of Judgment in O.S No. 78/3, dated 31-3-1944 of District Munsifs Court, Dindigul, certified copy of judgment dated 5-11-1945 in A.S.46/44 of Sub-Court, Dindigul Ex. A6 registration copy of mortgage deed dated 7-10-1918 for Rs. 700 executed by Muttan Mahadeva Asariar in favour of Ponnusamy Asariar and others, Ex. A7 reply notice dated 17-9-1969 sent by defendants 1 to 4 to plaintiffs, Ex. A8 certified copy of judgment dated 27-11-1965 in Cal. Case No. 426/65 of Sub-Divisional Magistrate, Dindigul, Ex. A6 registration copy of mortgage deed dated 7-10-1918 for Rs. 700 executed by Muttan Mahadeva Asariar in favour of Ponnusamy Asariar and others, Ex. A7 reply notice dated 17-9-1969 sent by defendants 1 to 4 to plaintiffs, Ex. A8 certified copy of judgment dated 27-11-1965 in Cal. Case No. 426/65 of Sub-Divisional Magistrate, Dindigul, Ex. A9 copy of order dated 23-3-1973 in C.R.P. 240/72 of High Court Madras, Ex. A10 copy of notice dated 10-9-1969 issued by plaintiffs to defendants 1 to 4 Ex. A11 printed Brahmorshava invitation dated 21-4-1958 of Dindigul Sri Kalakastheeswara Swami Devasthanam were filed. The second defendant Pitchai Muthu Asari himself examined as D.W.2 and one Kumarasamy was examined as D.W.1. On behalf of the defendants Ex. B1, printed copy of judgment dated 6-9-1946 in O.S No. 304/45 of District Munsifs Court, Dindigul, Ex. B2 certified copy of judgment dated 12-3-1947 in A.S. No. 104/46 of Sub-Court, Dindigul, Ex. B3 registered mortgage deed dated 19-6-1930 for Rs. 225 executed by Perumal Asari for self and as guardian of minor in favour of Ramadass Asari and others representing as Kamatchi Amman Devalaya Dharmaparipalana Karthars, Ex. B4 reply notice dated 12-3-1943 sent by Ramadass Asari and another to Narayana Asari and another, Ex.B5 Order R.O.C. No. 2443/58 issued by Asst. Commissioner, H.R. and C E. (Adm.) Department, Madurai regarding performance of Mandagapadi by Viswabrahmanal in Sri Kalashastheeswarar temple, Ex.B6 printed notice issued by 1st defendant for 3rd day Viswa Brahmanal Mandagapadi in Sri Abhirami Ambal Sameda Badmagireeswaraswami Bramorchava on 23-4-1958, Ex.B7 copy of notice dated 23-7-1966 for publication sent by the 1st plaintiff as Assistant Secretary of Dindigul Thangam, Pon; Velli, Thozilalargal Sangam, to Navamani Newspaper regarding the general body meeting to be held on 24-7-1966, Ex.B8 certified copy of extract of minute book dated 17-11-1957 to 12-8-1962 pages 22 and 23 showing the general body meeting by five groups of Viswakulathavars, Ex.B9 to B11 printed copy of Brahmorshava invitation dated 7-4-1954, 13-4-1956 and 3-4-1957 respectively of Dindigul Sri Kalakastheeswara Swami Devasthanam, Ex.B12 printed copy of debits and credits accounts dated 28-4-1963 for 3rd day mandagapadi conducted by Viswabrahmanal Sabai, Ex.B13 printed Brahmorshava invitation of Sri Abirami Sameda Sri Padmagreeswarar Dindigul dated 16-4-1972 to 27-4-1972, Ex.B14 printed notice dated 6-5-1962 for general body meeting of Viswabrahmanal, Ex. B15 General Body Meeting book dated 28-3-1962 to 16-6-1969 by Viswakarma Magajana East Car Street, Dindigul, Ex.B16 Counterfoil receipts dated 19-8-1966 to 16-6-1969 showing the donation to Sri Kamakshiamman Koil Viswakarma Mahasabai, Dindigul Ex.B17 Marriage invitation dated 19-8-1966 given by N. Sankaralingam Asari for his son Ex.B18 true copy of proceedings dated 15-9-1969 in R.O.C. No. 9624/69/C-3 issued by 5th defendant to the trustees, Viswakula Asariyarkal Madam, East Car Street, Dindigul informing the function of Municipal Primary School in the new premises, Ex.B19 entry at pages 5 and 6 of General body meeting in the book of Kamakshiammal Kovil dated 18-4-1974 to 9-5-1975, Ex.B20 printed invitation dated 5-5-1963 of opening ceremony of Kalyana Mandapam in Sri Kamakshiamman Kovil by Viswabrahmanal, Ex.B21 printed notice dated 12-8-1962 issued by Viswakarma saba for the renovation of Sri Kamakshiammal Kovil and Kalyana Mahal, Ex.B22 certified copy of extract from the suit register in O.S.296/65 of D.M.C. Dindigul and Ex.B23 certified copy of order dated 6-3-1971 in C.M.P. No. 8/71 of Sub-Court, Dindigul were marked. 17. On the consideration of the above evidence available on record both oral and documentary, the lower court under issue Nos. 1 to 3 held that the parties in the proceedings in A.S. No. 104/46 which was rendered under O.1, R.8 cannot be questioned regarding its correctness of the findings in the said judgment which had become final. The initial in almost all the signatures alleged to have been obtained from the first plaintiff had been tampered with and the defendants have established that the first plaintiff had actually signed in Exs.B15 and B19. The lower court held that the plaintiffs are bound by the decision in O.S. No. of 204 of 1946 and they cannot be heard to say that suit property is a private trust. The lower court further held that the property is not the property belonging to the seventeen persons mentioned in Ex.A1 that it belongs to all the members of the Viswa Brahmin community and that it is a public trust created for public purpose of religious nature. The suit is therefore not maintainable for want of sanction from Advocate-General under S.92 of Civil Procedure Code. Under issue No. 4, the lower court held that the first defendant died during the pendency of the suit and the question whether he is fit to continue as a trustee did not arise. The suit is therefore not maintainable for want of sanction from Advocate-General under S.92 of Civil Procedure Code. Under issue No. 4, the lower court held that the first defendant died during the pendency of the suit and the question whether he is fit to continue as a trustee did not arise. Under issue No. 5, the lower court came to the conclusion that Palanivel Asari had voluntarily banded over the suit property to the defendants 1 to 4. Under issue No. 6, the lower court held that the first plaintiff himself had conducted the functions in Kalyana Mandapam situate in the suit property and therefore found that issue against the plaintiffs. Under issue No. 7 and additional issues framed on 20-9-1974 the lower court held that the property belongs to a public religious trust and as such the suit for possession against the 5th defendant is maintainable. Under issue No. 8 the lower court held that the suit has been filed in a representative capacity and the question of non-joinder of necessary parties did not arise. Under issue No. 9, the lower court held that since the plaintiffs are admittedly the heirs of original vendees, the issue is answered in favour of the plaintiffs. Under issue No. 10, the lower court held that the defendants 1 to 4 had improved the property by constructing a Kalyana Mandapam. Under issue No. 11, the lower court held that the suit trust belongs to the entire Viswa Brahmin Community. Under issue No. 12, the lower court held that that issue did not arise in view of the findings on issues 1 to 3. Under issue No. 13, it has been held that the suit property is a public trust and so the plaintiffs are not entitled to a decree for declaration and possession as prayed for. That issue was found against the plaintiffs. Under additional issue framed on 26-9-1976 the lower court held that the first defendant was managing the property in his capacity as a trustee and the plaintiffs had no case that their interest devolved on the defendants 6 to 11 and therefore, defendants 6 to 11 are not necessary parties to the suit. The issue was thus answered in favour of the defendants 6 to 11. In the result, the suit was dismissed with costs. 18. The issue was thus answered in favour of the defendants 6 to 11. In the result, the suit was dismissed with costs. 18. Aggrieved by the above decision of the lower court, as already stated plaintiffs 2 and 3 have come forward with this appeal. Appellants 3 and 4 in this appeal were impleaded as party appellants as per order, dated 23-4-1981 in C.M.P. 10288/80. 19. It is inter alia contended on behalf of the appellants by Mr. E. Padmanabhan, that the learned Subordinate Judge erred in dismissing the suit and that the lower court acted illegally and improperly, in that it has failed to frame necessary and proper issues which arise for consideration in the suit and consequently, the conclusion of the learned Subordinate Judge are vitiated. It is further contended that the contents of Exs.A1, A4 and A5 have not been properly appreciated together with the admission D.Ws. 1 and 2. It is also contended that the defendants have not proved the signature of the first plaintiff in Exs.B15, B19 and B8 and that therefore, the lower court ought to have held that the Viswa Karma Community as a whole has no right over the suit trust property which is a private trust belonging to the family of seventeen individuals and their defendants. It is strenuously contended on behalf of the appellants that the conclusion of the court below on all issues are based on mere surmises and conjectures. 20. The point for consideration in this appeal is whether the lower court has properly considered the evidence available on record, both oral and documentary and whether the decision arrived at by it, namely, that the plaintiffs are not entitled for a declaration that the suit property belongs to a private trust for and recovery of possession, is correct and in accordance with law? 21. The line of distinction between a public purpose and a purpose which is not public is very thin and technical and is difficult of an easy definition. Tudor (Tudor on Charities, 5th Edn. 21. The line of distinction between a public purpose and a purpose which is not public is very thin and technical and is difficult of an easy definition. Tudor (Tudor on Charities, 5th Edn. P12 cited in the 1st edition of B.K. Mukherjea on The Hindu Law of Religious and Charitable Trusts) on “Charities” thus summed up the principles deducible from the cases on the subject:— “If the intention of the donor is merely to benefit specific individuals, the right is not charitable, even though the motive of the gift may be to relieve their poverty or accomplish some other purpose with reference to those particular individuals which would be charitable if not so confined; on the other hand, if the donors object is to accomplish the abstract purpose of relieving poverty, advancing education or religion or other purpose charitable within the meaning of the Statute of Elizabeth, without giving to any particular individuals the right to claim the funds, the gift is charitable”. 22. In Kanwar Doorga Nath v. Ram Chandra 1. Their Lordships of the Judicial Committee observed, in the course of their judgment, that in the case of a family idol the consensus of the whole family might give the Debutter estate a secular turn. The case arose out of a suit to set aside certain alienations of an ancestral mahal on the ground that the mahal had been dedicated to the workship of an idol. The defence was of a twofold character: First, that there was no dedication, and even if there was, there was legal necessity justifying the alien ation. On evidence, Their Lordships of the Judicial Committee agreed with the High Court in holding that the estate was not dedicated, and they further held that the alienations were justified. The suit, therefore, had to be dismissed. In course of their judgment, the Judicial Committee observed as follows:— “If the deed of endowment from Raja Mahanand were satisfactorily proved, and it were an endowment which dedicated this mahal to the service and worship of a particular idol, the property would be impressed with a trust in favour of it. Where the temple is a public temple, the dedication may be such that the family itself could not put an end to it; but in the case of a family idol the consensus of the whole family might give the estate another direction. Where the temple is a public temple, the dedication may be such that the family itself could not put an end to it; but in the case of a family idol the consensus of the whole family might give the estate another direction. No question, however, of that kind arises in the present caseEven if property is dedicated to a family deity, the endowment is a religious and charitable trust in the proper sense of the term, and as the law of perpetuity or remoteness cannot affect such dedication, there is no reason why the other incidents of private trust should be applied to it. The deily itself is a juridical person in Hindu Law and the dedicated property vests in it absolutely. The property cannot be taken away from the deity or diverted to other purposes without the consent of the idol.” 23. The observation of the Judicial Committee in Kanwar Doorga Nath v. Ram Chandra 1, was given effect to by a Division Bench of the Calcutta High Court in Gobinda Kumar v. Debendra 2, and it was held that the several instances of alienation of the Debutter property by the members of the family on the footing that the property was secular, proved that by common consent the Debutter was given a secular turn. On the other hand, the soundness of the opinion expressed by the Judicial Committee has been questioned by Chatterjee, J., in Chandi Charan v. Dulal 3, and by Rankin, C.J. in Surendra Krishna v. Shree Shree Bhubaneswari 4. In course of his judgment in the last mentioned case, Sir George Rankin observed as follows:— “I am not prepared to hold on the strength of the well-known passage in the case of Doorga Nath Roy v. Ram Chandra Sen 1 , that there is in Hindu law any warrant for the proposition that at any particular time by consent of all the parties then interested in the endowment, a dedication can be set aside. The passage so much relied upon does not appear to me to be intended as a considered opinion to that effect, and before importing any such doctrine into the Hindu Law there is much to be considered.” 24. In Narayan v. Narasing Charan 2, there is an observation that the members of the family could by their consensus withdraw the endowment from the trust. In Narayan v. Narasing Charan 2, there is an observation that the members of the family could by their consensus withdraw the endowment from the trust. But in Sukumar Bose v. Abani Kumar 3, it was held by the Calcutta High Court on a review of the authorities that it was not open to the members of a family even when there is a consensus of all of them to put an end to an endowment in favour of a family idol. 25. In Vythilinga v. Somasundara 4, Muttusami Aiyar, J., explained that the term ‘Kattalai’ as applied to temple means endowments and signifies a special endowment for certain specific service or religious charity in the temple. Ardajama Kattalai or endowment for midnight service is an instance of such a Kattalai and Annadan Kattalai or an endowment for distributing food to the poor is also another example. In this sense, the word ‘Kattalai’ is used in contradistinct to the endowment designed generally for the upkeep and maintenance of the temple Seshagiri Aiyar, J., in Ambalavana v. Sree Minakshy 5, discussed in detail the import of this expression. According to the learned Judge, this expression is used with reference to three minds of endowments: Properties may be endowed— (a) for the performance of ‘pujas’ in the temple, or (b) for the performance of certain festivals in the temple, or (c) for the performance of Archanas to the deity in the name of the doners. (a) Ordinarily, the puja is not performed in the name of the donor, and consequently supplementary grants are made by pious persons in order that the service should be more efficiently performed. Instances of this type of grant are to be found in the famous temple at Chidambaram where almost all the necessary daily services are conducted by means of ‘Kattalais’ endowed by pious donors. (b) It also happens that where lands for funds in respect of particular service or festival at temples are not sufficient for conducting them on the original scale, new donors come forward to supplement these funds. (c) For Archana, however, no supplementary grant by other donors is possible. It is intended solely for the spiritual benefit of the grantor and it is not the concern of third parties to help in his performance if the funds are for any reason not found sufficient. (c) For Archana, however, no supplementary grant by other donors is possible. It is intended solely for the spiritual benefit of the grantor and it is not the concern of third parties to help in his performance if the funds are for any reason not found sufficient. The CYPRES doctrine is applicable with reference to elucidation and ascertainment of the exact nature of the endowments and they depend upon the usages of particular temples. 26. In the instant case before us, we have to consider whether the plaintiffs are entitled for declaration that the suit property belongs to a private trust and they are entitled to recover possession thereof? The suit property was purchased by 17 goldsmiths under a registered sale deed Ex.A1 dated 15-3-1909 for the purpose of constructing Kamatchi Amman Temple and conducting the third Mandagapadi during the Brahmothsavam in Abhirami Amman Temple. The case of the plaintiffs is that the suit property is a p rivate trust and that the heirs of the 17 persons mentioned in Ex.A1 alone are entitled to manage the property. The funds for the purchase of property appears to have been raised by selling gold-dust in the smithy and by collecting donations from others. It is seen from the recitals in Ex.A1, that the property was purchased by the 17 persons mentioned in their capacity as trustees of Kamatchi Amman Temple Madam and Mandagapadi (“ ”) It is further stated in Ex.A1 that the consideration was paid out of the common funds, that the 17 persons were put in possession of the property in their capacity as trustees and that they and their descendants were to enjoy the property without any right of alienation. The property has been usufructuarily mortgaged on the date of Ex.A1 and Mahadevan Asari had issued a notice, Ex.A2, dated 18-6-1909 demanding redemption and the vendees under Ex.A1 had filed a suit for redemption in O.S. No. 76 of 1910 on the file of the District Munsifs Court, Dindigul and obtained a decree for redemption. Ex.A3 is the printed copy of Judgment in O.S. No. 76 of 1910, dated 11-3-1912. The suit property was being managed by Mahadevan Asari, Palani Asari and one Ponnuchamy Asari originally Subsequently, Sudalai Asari, Ramadoss Asari and Palani Asari were managing the property of trustees. Ex.A3 is the printed copy of Judgment in O.S. No. 76 of 1910, dated 11-3-1912. The suit property was being managed by Mahadevan Asari, Palani Asari and one Ponnuchamy Asari originally Subsequently, Sudalai Asari, Ramadoss Asari and Palani Asari were managing the property of trustees. Mahadevan Asari had executed a morgage deed under the original of Ex.A6 on 7-10-1918 in favour of Ponnuchamy Asari, Ramadoss Asari and Palani Asari, the then trustees, for Rs. 700 which was due from him to the trust. 27. One Nallaperumal Asari and two others who were the then trustees and managers of Shri Kamatchi Ammal Kovil belonging to goldsmiths of Chinnakadai Street, Dindigul, had filed a suit against Palani Asari, Ramadoss Asari and Sudalai Asari for rendition of accounts in O.S. No. 78 of 1943 on the file of the District Munsifs Court, Dindigul, and the suit was dismissed. 28. One of the issues raised in that suit, viz., O.S. No. 78 of 1943, on the file of the Court of the District Munsif of Dindigul, was whether the suit was not bad under S.92 of the Code of Civil Procedure, and it was held that the sanction of the Advocate-General was not necessary as the trust was a private trust. We have just incorporated the salient features of a trust which should be exhibited in order to hold that the same is a private trust. 29. Coming back to the facts of the case, we find that the matter was taken in appeal in A.S. No. 46 of 1944 and the judgment and decree of the trial Court were confirmed by the appellate Court. Exs. A4 and A5 are respectively the printed copies of the judgments of the trial Court and the appellate Court. It is submitted by the learned counsel for the appellants that the finding in O.S. No. 78 of 1943 which was confirmed in A.S. No. 46 of 1944 that the trust was in favour of the 17 persons alone, was binding on the parties and the defendants were not entitled to contend that it was a public trust. It is submitted by the learned counsel for the appellants that the finding in O.S. No. 78 of 1943 which was confirmed in A.S. No. 46 of 1944 that the trust was in favour of the 17 persons alone, was binding on the parties and the defendants were not entitled to contend that it was a public trust. However, there was a subsequent suit O.S. No. 304 of 1945 on the file of the District Munsifs Court, Dindigul, by Palanivel Asari is a representative capacity against Palani Asari, Ramadass Asari, Sudalai Asari and others for rendition of accounts, and there also, the identical issue, viz., whether the suit was not bad under S.92, C.P.C., was again raised. The trial Court held that the suit trust was a private trust and no sanction from the Advocate-General under S.92 was called for (Ex. B1). In appeal, A.S No. 104 of 1946 however, the lower Court held that it was a public trust and hence, the suit was not maintainable under S.92, C.P.C. fox want of sanction from the Advocate-General (Ex. B2). 30. S.92, C.P.C. reads as follows:— “See. B1). In appeal, A.S No. 104 of 1946 however, the lower Court held that it was a public trust and hence, the suit was not maintainable under S.92, C.P.C. fox want of sanction from the Advocate-General (Ex. B2). 30. S.92, C.P.C. reads as follows:— “See. 92;—(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or were the direction of the court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained leave of the Court, may institute a suit, whether contentious or not, in the principal civil Court of original jurisdiction or any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree— (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) to settle a scheme; or (h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1963, or any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no Suit claiming any of the reliefs specified in sub-S.(1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion there of to be applied CYPRES in one or more of the following circumstances, namely:— (a) where the original purposes of the trust, in whole or in part, (i) have been, as far as may be fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust, or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provided a use, for a part only, of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes, can be more effectively used in conjunction with, and to that end, can be suitably made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have since they were laid down,— (i) been adequately provided for by other means, or (ii) ceased as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.” Under the amended section, leave of the court has to be obtained instead of written consent of the Advocate-General. The new sub-S (3) has been inserted incorporating the doctrine of CYPRES. This amended provision shall not apply to or affect any suit, appeal or proceeding instituted or filed before the commencement of the said section. (Vide: S.92(2)(k) of Act 104 of 1976). The object of this Section has been discussed in Madappa v. Mahantha-devaru 1 and the conditions thereof have also been discussed in Bishwanath v. Radha Ballabhji 2. This amended provision shall not apply to or affect any suit, appeal or proceeding instituted or filed before the commencement of the said section. (Vide: S.92(2)(k) of Act 104 of 1976). The object of this Section has been discussed in Madappa v. Mahantha-devaru 1 and the conditions thereof have also been discussed in Bishwanath v. Radha Ballabhji 2. The test regarding public and private trusts and their distinction have been discussed in Deoki Nandan v. Murlidhar 3. It has been held in Marain Lal v. Sundarlal Toolia 4 that the authority to sue, given to several persons being a joint authority, a suit by some of them only cannot be in conformity. A decision in suit under S.92, C.P.C. does not bind the interest not represented therein, is the view expressed in Ahmad Adam v. M.E. Makhri 5. In Paramaiman and Saraswathi v. R. Thripati 6 it has been held that in order to come to a decision whether a particular suit falls within the scope of the provision, relevant factors have to be considered. The applicability of this Section has been comprehensively dealt with by the Supreme Court in Harendranath v. Kaliram Das 7. It has been held in Charan Singh v. Darshan Singh 8 that a suit against a trustee for enforcement of due performance of his duties in relation to a particular object of the trust will not be maintainable on the ground of failure to obtain the permission of the Advocate-General. 31. In A.S. No. 104 of 1946 the lower Court held that the suit trust was a public trust and that the suit was not maintainable under S.92, C.P.C. without sanction from the Advocate-General. Defendants 1 to 3 in that suit were found to be trustees and the suit was filed in a representative capacity. It was contended in the lower court on behalf of the defendants, which, in turn, is the submission here also, that the earlier suit, O.S. No. 78 of 1943, was not filed in a representative capacity, while O.S. No. 304 of 1945 was filed in a representative capacity and that the parties were bound by the decision in A.S. No. 104 of 1946. It was already decided in A.S. No. 104 of 1946 that the suit property was a public trust and the said decision will prevail over the earlier judgment in A.S. No. 46 of 1944. It was already decided in A.S. No. 104 of 1946 that the suit property was a public trust and the said decision will prevail over the earlier judgment in A.S. No. 46 of 1944. The judgment in A.S. No. 104 of 1946 was rendered under O.1, R.8, C.P.C. and, as such the plaintiffs who are successors-in-interest of the parties to that proceeding, cannot question the correnctness of the said finding in A.S. No. 104 of 1946, which had become final. The conclusion of the lower court in this regard is correct and in accordance with law. 32. A careful reading of the sale deed, Ex.A1, will go to show that the property was purchased by the seventeen persons named therein, who belonged to Kammalar caste following the profession of goldsmithy. Though the first plaintiff, examined as P.W.1, made a feeble attempt to show that the community of goldsmiths was a separate sect of Viswa Brahmins (Kammalar), he had admitted that the Viswa Brahmins who follow the five professions, viz., goldsmith, blacksmith, carpenter, sculptor and mason, used to intermarry and that the members of Viswa Brahmin community were at liberty to follow any of the above five professions. He has admitted in cross examination that his son and paternal uncle were blacksmiths. Thirumalai Asari, one of the vendees in Ex.A1, was married to the daughter of a blacksmith. The evidence of D.W.1 is that the daughter of Mahadevan Asari, the first vendee in Ex.A1, was married to the brother-in-law of the first defendant. It is therefore clear that the goldsmiths did not constituted a separate community and that they are only Viswa Brahmins who have chosen a particular profession. The suit property was admittedly being managed by Ramadoss Asari till his death in 1957. After his death, his son, Palanivel Asari, had represented to the Abhirami Amman Koil Devasthanam that he was not able to conduct the mandagapadi, and so, the general body of Viswa Brahmin community was convened on 17-11-1957 in which the first plaintiff was also present, as is seen from Ex.B8, the minutes book. The general body, it shows, appointed five persons including the first and fifth defendants to manage the property which was only a vacant site with a gate, and Palanivel Asari who was having the key voluntarily handed over the same to the trustees who took up management of the property. The general body, it shows, appointed five persons including the first and fifth defendants to manage the property which was only a vacant site with a gate, and Palanivel Asari who was having the key voluntarily handed over the same to the trustees who took up management of the property. Several general body meetings of Viswa Brahmins were held subsequently and they used to get the signatures of the members indicating the dates of the meetings. Exs.B15 and B19 are two of such books maintained by the trustees. The first plaintiff is said to have signed at pages 2, 7, 12, 14, 18, 22 and 31 of Exs.B15 and at pages 6, 11 and 14 of Ex.B19. But, the first plaintiff has denied having signed in Ex.B15 and B19. Though the signatures were said to have been taken from the respective members at their residences, the person who was said to have taken such signatures had not been examined to prove the said contention. The initial in almost all the signatures said to have been obtained from the first plaintiff has been tampered with, and the defendants have not established that the first plaintiff had actually signed in Exs.B15 and B19. 33. P.W.1, the first plaintiff, has also admitted that the defendants had been conducting the third mandagapadi in the suit property ever since 1958 and they had also constructed a Kalyanamandapam in the suit property. Ex.A11 is a printed invitation in connection with the Brahmotsava festival dated 21-4-1958 in the Abhiramaiamman temple, wherein the name of mandagapadidarar for the third day mandagapadi is mentioned as Ramadass Asari and Sons. The said mandagapadi was to be conducted in the temple itself. It was argued for the plaintiff that the mandagapadi was being conducted by Ramadass Asari in his individual capacity and that Viswa Brahmin community as such was not taking part in the mandagapadi. Ex.B5 is a communication dated 5-4-1958 received by Dhuruvan Asari, brother of D.W.1 from the Assistant Commissioner, H.R. and C.E. (Administration) Department, Madurai, on the petition submitted by him (Dhuruvan Asari), in which the Executive Officer was informed that the name Viswa Brahmins was to be mentioned in the festival notice for the year 1958 for the third day mandagapadi in the annual Brahmotsavam. Ex. Ex. B6 is a printed invitation for the third day mandagapadi to be conducted on 23-4-1958 by the first defendant in his capacity as managing trustee of the Viswa Kula Tholilalar Mahasabai to the effect that the mandagapadi would be conducted in the Kamatchiamman temple land belonging to Viswa Brahmins. 34. Exs.B9, B10, B11 and B13 are similar printed invitations for the third day mandagapadi for the years 1954, 1956, 1957 and 1972 respectively. Ex.B12 is a printed copy of the accounts relating to the third day mandagapadi conducted on 28-4-1963 by the Viswa Brahmins. The general body meeting of Viswa Brahmins was convened on 9-5-1962 by the first defendant and others and Ex.B14 is the printed invitation to attend the general body meeting. Ex.B16 is the receipt book containing the counterfoils of receipts for the donations received by the Kamatchiamman Koil Viswa Karma Mahasabhai, East Car Street, Dindigul, which shows that donations were collected from persons other than goldsmiths. The first plaintiffs paternal uncle had celebrated his sons marriage in the suit property on 19-8-1966, and Ex.B17, printed invitation shows that the said marriage was celebrated at No. 70, Sree Kamatchiamman Building Viswakarma Mahasabhai, East Car Street, Dindigul. 35. It is relevant to note in this connection that the foundation stone for the Kalyanamandapam in the suit property was laid on 5-5-1963 and Ex. B20 is a printed invitation issued by the first defendant, who died after the institution of the suit. Ex. B21 is a printed notice calling for donations for the construction of the temple and the Kalyanamandapam. One Natarajan Chettiar had filed a suit in O.S. No. 269 of 1965 on the file of the District Munsifs Court, Dindigul against defendants 1 to 4 in their capacity as trustees of the Kamatchi Amman Kovil Mandagapadi Kalyanamandapam, as seen from Ex. B22, the suit register extract. Ex. B23 is a certified copy of the order in C.M.A. No. 8 of 1971 on the file of the lower Court preferred against the order of the District Munsif, Dindigul in I.A. No. 1908 of 1970 in O.S. No. 173 of 1970 which related to the present suit which was originally filed in the District Munsifs Court and subsequently returned for re-presentation before the Sub Court. Defendants 1 to 4 were directed to file the account in respect of the collection of rents from the suit property and expenses made therefrom once in every six months, in C.M.A. No. 8 of 1971. The second defendant as D.W.2 had spoken to the fact that Palanivel Asari son of Ramadass Asari, had handed over the key of the suit property to defendants 1 to 4 in or about 1957 after the death of his father, that the defendants had put up a kalyana mandapam in the suit property on behalf of the Viswa Brahmins. The paternal uncles son of D.W.2 had married the daughter of Palanivel Asari. The grandfather of the first plaintiff, who was the brother of the grandfather of the fourth defendant was a blacksmith. 36. Ex.B3 is a registered mortgage deed dated 19-6-1930 executed by one Perumal Asari in favour of Ramadass Asari and Palanivel Asari in their capacity as Kamatchi Amman Devalaya Dharma Paripalana Karthas. Ex. B4 is a reply notice issued by the counsel for Ramadass Asari and Palanivel Asari on 12-3-1943 to one Narayana Asari and L. Karuppiah Asari, wherein it had been stated that Ramadass Asari and Palanivel Asari were trustees of the funds collected by the goldsmiths. Ex.A10 is a copy of the notice dated 10-9-1969 issued by the plaintiffs to defendants 1 to 4. Ex.A7 is the reply notice dated 17-9-1969 issued by defendants 1 to 4 disputing the right of the plaintiffs to manage the suit property. 37. The following passage which occurs in the decision in Coimbatore C.E. Vinayagar Koil v. Commr., H.R. & C.E., Madras 1, is interesting and it could be usefully incorporated in this judgment:— “Could it be posited in this case that this temple was found and maintained for the use of an individual or individuals that could be definitely ascertained? At the outself it must be mentioned that neither Ex.A3 of 1886 nor Ex.A4 of 1902 render any support to the argument that the temple was intended for the binefit only of families that pertain to the appellant Chettimai. The case that the temple was meant for the use of the 60 families is put forward for the first time in this litigation. Assuming that it were so, we find it difficult to accede to the proposition advanced for the appellant. The case that the temple was meant for the use of the 60 families is put forward for the first time in this litigation. Assuming that it were so, we find it difficult to accede to the proposition advanced for the appellant. It should be remembered that the beneficial interest is supposed to accrue only to the families that acknowledge the religious leadership of a particular Chettimai. There can be little doubt that this would be a fluctuating number. This group may be diminished by families ceasing to acknowledge the religious leadership of this Chettimai, or it may increase by more families of this community professing to fallow its lead. It is therefore difficult to satisfy in the instant case the test of definite ascertainment. What may be 60 families at a given time might increase to a 100 or even 200 or, might diminish to 10 or 15. In such a situation, it cannot be premised that it is a private institution founded for the benefit of one or more individual that could be definitely ascertained, coming within the rule stated in the passage in Lewin on Trusts. On the contrary, it could be safely asserted it is a public trust co nstituted for the benefit of a considerable portion of the public contemplated. by the passage quoted above in Mukherjeas Hindu Law of Religious and Charitable Trusts.” In the instant case, the suit vacant site was purchased by the seventeen persons mentioned in Ex. A1 in their capacity as ‘Chinnakadai Street Kamatchi Ammal Koil, Mandagapadi Paripalana Karthas’, and not in their individual capacity, out of the common funds. It is seen from Ex.A1 that the vendees belonged to Kammalar community (Viswa Brahmins) and it is equally clear from the evidence that Viswa Brahmin community is divided into five sects according to the professions which they follow, and they inter-marry. The son of a goldsmith may run a blacksmithy or become a carpenter. Defendants 1 to 4 admittedly belonged to the Viswa Brahmin community and it could not be said that they were disqualified to the trusteeship on the ground that they were not goldsmiths. The son of a goldsmith may run a blacksmithy or become a carpenter. Defendants 1 to 4 admittedly belonged to the Viswa Brahmin community and it could not be said that they were disqualified to the trusteeship on the ground that they were not goldsmiths. Though the seventeen persons mentioned in Ex.A1 were goldsmiths and their defendants were admittedly not following the same profession, the trust property belonged to Viswa Brahmins and it was already held to be a public trust in A.S. No. 104 of 1946 which had become final, and the plaintiffs are bound by the said decision and they cannot be heard to say that the suit property is a private trust. In the above circumstances, the lower court was correct in having held that the property is not the property belonging to the seventeen persons mentioned in Ex.A1, but it belonged to all the members of Viswa Brahmin community and that it is a public trust created for a public purpose of religious nature. Therefore, I agree with the finding of the lower court that the suit is not maintainable under S.92, C.P.C. for want of sanction from the Advocate General. 38. The present suit was filed before the learned District Munsif, Dindigul and it was returned by the District Munsif for presentation to the proper Court, as per order of this Court in C.R.P. No. 240 of 1972, dated 23-3-1973, the certified copy of which is Ex.A9. The suit property was leased out to the fifth defendant for the purpose of running a primary school which started functioning in the premises from September, 1969. D.W.2 admitted that the building was leased out to the fifth defendent subsequent to the issue of the reply notice and before the filing of the suit in the lower Court. It is seen from Ex.B18 that the fifth defendant had taken possession of the premises on or about 15-9-1969, and therefore, the lower court was correct in having held that the suit property was leased out to the fifth defendant prior to the institution of the suit in O.S. No. 173 of 1970. The property belongs to a public religious trust and as such, the suit for possession against the fifth defendant is maintainable. The suit has been filed in a representative capacity and the question of nonjoinder of necessary parties will not arise. The property belongs to a public religious trust and as such, the suit for possession against the fifth defendant is maintainable. The suit has been filed in a representative capacity and the question of nonjoinder of necessary parties will not arise. There is no dispute relating to the fact that the plaintiffs are the heirs of the vendees mentioned in Ex.A1. The first plaintiff claims to be the son of Ayyadurai Asari, vendee No. 14 in Ex.A1 and the second plaintiff is said to be the son of Sudalai Asari, vendee No. 9 in Ex.A1. Since the plaintiffs are admittedly the heirs of the original vendees, issue No. 9 has been rightly answered by the lower court in favour of the plaintiffs. 39. The first plaintiff admitted that the suit property was only a vacant site when it was taken over by defendants 1 to 4 and that they had put up a Kalyana mandapam therein. The Commissioners report shows the value of it as Rs. 17,000. It is therefore clear that defendants 1 to 4 had improved the property by constructing a Kalyana mandapam, and the lower Court has correctly found the issue No. 10 in favour of the defendants. In view of the discussions made above, I agree with the findings of the lower court on issues 4 and 5. Issue No. 11 is covered by the findings of the lower Court on issues 1 to 3, and the lower court is correct in having held that the suit property belonged to the entire Viswa Brahmin community, and this finding does not warrant any interference. 40. The first defendant died during the pendency of the suit and defendants 6 to 11 were impleaded as his legal representatives. The first defendant was managing the property in his capacity as a trustee and the plaintiffs had no case that his interests devolved on defendants 6 to 11. Therefore defendants 6 to 11 are not necessary parties to the suit. The lower Court is correct in its finding on that issue. It has already been found that the suit property belonged to a public trust and so, the plaintiffs are not entitled to the decree for declaration and possession as prayed for by them. 41. Therefore defendants 6 to 11 are not necessary parties to the suit. The lower Court is correct in its finding on that issue. It has already been found that the suit property belonged to a public trust and so, the plaintiffs are not entitled to the decree for declaration and possession as prayed for by them. 41. Thus, on a careful and anxious consideration of the entire evidence, both oral and documentary, this Court finds no grounds for disturbing the findings arrived at by the lower Court with respect to the issues framed by it. There is no merit in the appeal and hence the same is dismissed with costs.