The main legal point established in the judgment is that a valid trust can be created without a transfer of ownership, and the founder of the trust can constitute himself as the trustee without the need for a deed or appointment of a separate trustee.

M. Madhavan Nair, J.

1. A. S. No. 482 of 1957 is by the plaintiffs 3 and 4, and A. S. No. 30 of 1958 by the 2nd defendant in O. S. No. 31 of 1956 on the file of the Subordinate Judge, Mavelikara. The suit was to set aside a gift executed by the trustee, 1st defendant, in favour of the 2nd in respect of certain trust properties, for removal of the 1st defendant from trusteeship and for framing a scheme for the future management of the religious trust.

2. The plaintiffs and defendants 1 to 73 were members of a Nayar tarwad. There was a partition in the tarwad, evidenced by Ext. A dated Mithunam 21, 1076 M. E. The three branches in the tarwad divided most of their tarwad properties among them, leaving some properties in common for certain religious and charitable purposes to be managed by the 1st defendant. The 1st defendant mismanaged the trust, and appropriated all profits for his selfish ends. On January 30, 1950, the 1st defendant executed a gift of some of the suit properties by Ext. C in favour of the 2nd defendant, his nephew and son-in-law, as if they belonged to himself absolutely. He had no authority to make the gift; the same has therefore to be set aside, the 1st defendant removed from trusteeship and a proper scheme for the future management of the trust framed by the court.

The contesting defendants claimed several of the suit items as their own, not subject to the trust. The 2nd defendant questioned further the competency of the plaintiffs to institute the present suit and contended that no trust was created by Ext. A.

The Subordinate Judge found that a valid trust for religious and charitable purposes has been created by Ext. A, that the plaintiffs being members of the beneficiary tarwad were competent to institute the suit, that the suit properties have been dedicated to the trust, except items 46, 48 to 52, and 54 to 56 which belonged to defendants 2, 85, 95 and the tavazhi of defendant 24 and that the 1st defendant having died during the pendency of the suit no question of his removal from trusteeship arose but there being no provision for the continued management of the trust in Ext. A a scheme for its management was called for in this suit. A preliminary decree was therefore passed in respect of the suit properties (except the aforesaid items) declaring them to be trust properties and adjourned the case for passing a final decree incorporating a scheme for its management, It is from this judgment that the present appeals have been preferred by plaintiffs 3 and 4 and the 2nd defendant.

3. Plaintiffs 3 and 4 challenge the suit items 46, 48 to 52, 54 to 56 being excluded from the trust. The court below has found the 85th defendant to be the absolute owner of suit items 49 to 51. He was made the 72nd respondent in A. S. No. 482 of 1957 and the 5th respondent in A. S. No. 30 of 1958. He died in July 1960 and none has been so far impleaded as his legal representative in these appeals which have therefore abated in regard to him. The finding of the court below with regard to suit items 49 to 51 has therefore become final.

4. The suit trust is created by the provisions of Ext. A. It is admitted that items 46, 48, 52, 54, 55 and 56 do not find express mention among the properties set apart for the trust in Ext. A. The contention is that the aforesaid items belong to the tarwad and not having been allotted to any of its branches in the partition under Ext. A came within the purview of the residuary clause in that deed which provided that any properties discovered subsequently as belonging to the tarwad and not divided under it should go along with the properties set apart for the trust. The contention that the aforesaid items belonged to the tarwad is challenged by counsel for the contesting defendants.

It is averred in the plaint that the suit properties were made the subject of a claim for partition by the present 73rd defendant in O. S. No. 55 of 1107 on the file of the District Court, Quilon, which claim, though a