The main legal point established in the judgment is that the alienation of trust properties by the trustees led to their disqualification and modification of the trust arrangement, allowing both parties to act as trustees in turn for alternative years.

P. SHANMUGAM, J.

The above two appeals have been preferred against a common judgment, by the plaintiff in A.S. No.681 of 1984 and the first defendant in A.S. No.1146 of 1986.

2. The first suit O.S. No.235 of 1981 for a partition was decreed by the learned Subordinate Judge. The second suit O.S. No.469 of 1981 was for a declaration that the plaintiff is the sole trustee of the family trust and for possession of the items of the suit property. The second suit was dismissed and the appeal is against this common judgment.

3. The facts of the case are stated hereunder. The parties are described as per their rankings in the partition suit. The plaintiff-Koodayee Ammal's husband Muthukinglinatha Pillai and the first defendant O.Meenakshia Pillai are brothers and sons of one Oorkavalan Pillai. For better appreciation, the genealogy of the parties is given below :

T.V. MEENAKSHIA PILLAI

__________________|________________

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Ponnammal (died) Koodayee Ammal (died)

1st wife 2nd wife

(Paternal Aunt of (No issues to Koodayee Ammal)

Koodayee Ammal)

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Muthukaliammal

W/o. Ramalingam Pillai

(brother of Koodayee Ammal)

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Poochendu @ Koodayee Ammal

W/o. Oorkavalan Pillai

Son of Muthupillai -

Brother of T.V. Meenakshi Pillai

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|__________________________________

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O. Meenakshia Pillai Muthukinglinatha Pillai

Plaintiff in O.S. No.469/81 (died 31.1.80)

and 1st Defendant in Koodayee Ammal wife of

O.S. No.235/81 Muthukinglinatha Pillai

Rajalakshmi (died)

daughter of Muthukinglinatha Pillai

Plaintiffs 1 & 2 in

O.S. No.235/81

1st Defendant in

O.S. No.469/81

The suit properties are claimed to be the self-acquired properties of Koodayee Ammal, the second wife of T.V. Meenakshia Pillai. Koodayee Ammal executed a trust-dharmam settlement under Ex.B.13 dated 20.8.1943. As per this settlement, Koodayee Ammal appointed herself as trustee for performing the dharmam of poor feeding in the month of Margazhi on the Egadasi Day at the Bajanai Madam and also to perform pooja of her family deity in Keelamuthu Kinglinatha Swamy Kovil at Arukkanedi. Pongal was prepared everyday in the month of Margazhi and was to be offered to the God and then, to the devotees. She appointed herself as a trustee during her lifetime and thereafter, her grandchildren namely O. Meenakshia Pillai and Muthu Kinglinatha Pillai to continue the performance of poojas. Until they attain majority, their mother Poochendu @ Koodayee Ammal was to look after and perform the poojas. The trust deed prohibited alienation of the properties. There were seven items of properties covered under the trust deed, including the house properties referred as suit properties in these suits.

4. The case of the plaintiff in the partition suit, viz., the wife of Koodayee Ammal's grandson, i.e. Muthukinglinatha Pillai, was that the settlement deed was not a trust deed and in any event, the trust has ceased to exist and they did not perform the poojas as ordained in the trust; the properties were partitioned by the two brothers after the demise of Koodayee Ammal as per the partition deed dated 27.7.1971 and the brothers were in respective enjoyment of the properties by making mutation of records, paying kists and effecting alienations. Muthukinglinatha Pillai died on 31.1.1980, leaving behind his wife Koodayee Ammal, the first plaintiff in the partition suit and her minor daughter. The case of the plaintiff, Koodayee Ammal was that after the death of her husband, O. Meenakshia Pillai tried to interfere with her possession of the house property and had occupied the upstairs portion of the house of the 'B' schedule property in the partition suit and that he had also leased out the downstairs portion of the property to defendants 2 and 3, who are running a hotel business therein. According to her, as O. Meenakshia Pillai failed to give effect to the partition deed, the suit for partition came to be filed.

5. The case of the defendant O. Meenakshia Pillai, in the suit for a declaration that he is the sole trustee, is that lat