Appointment of trustee of the trust created by testator.

K. M. NATARAJAN, J.

This appeal is filed by the unsuccessful plaintiff against the judgment and decree passed by the II Additional Subordinate Judge Madurai, in O. S. No. 486 of 1977 dismissing the suit filed by the appellant.

2. The brief facts which are necessary for the disposal of the appeal are as follows : The appellant, hereinafter referred to as the plaintiff, filed the suit for a declaration that she is the trustee of the private trust established by Ramayee Ammal, for delivery of possession of the suit properties and for rendition of accounts by defendants 1 and 2 on the following averments. One Andiappa Pillai son of Arumugham Pillai of Veeracholam village executed a registered will dated 12-12-1912 while in a sound and disposing state of mind and volition, whereby he made provision for carrying out the following charities (1) Performing daily pooja in the Vinayagar temple constructed and installed by him in his native village Veeracholam; (2) Arranging a payasa kattalai pooja at uchikalam to Lord Subramania at Tirupparankundram and (3) Performing daily pooja to his family deity Andrappa Swamigal at Sennalgudi wherein he has constructed a temple for the said deity. He has appointed his brother's son Mahalingam Pillai as trustee to manage the said trust from the sum of Rs. 9, 300/- being the outstandings due to him and also the income thereof. He has specifically stated that his heirs have no manner of right in the Trust or to perform the Trust or in the properties of the trust. Under the Will, he bequeathed his other properties to his heirs. Andiappa Pillai died in the year 1913. His brother Senthivelu Pillai's son Mahalingam was performing the above charities as per the recitals in the registered will out of the trust fund.

3. Ramayee Ammal, wife of Andiappa Pillai, who was the owner of Rs. 20, 700 /- left by her husband, purchased certain properties in her name as well as in the name of Mahalingam Pillai from out of the said funds and dedicated the same to the abovesaid charities. She has also left some amount with Mahalingam Pillai for the purpose of purchasing properties for the trust. She also executed a registered Will on 27-1-1915 of her own volition and disposing state of mind wherein she appointed Mahalingam Pillai as Trustee to manage the properties and to have the charities performed. Schedule I properties were purchased by Ramayee Ammal in her name and in the name of Mahalingam Pillai for the purpose of the charities. As per the said will Mahalingam Pillai and his heirs alone were the trustees and that the heirs of Ramayee Ammal and Andiappa Pillai were not the heirs of the trustees. Ramayee Ammal died in or about 1917. Mahalingam Pillai purchased 10 acres of lands for the benefit of the charities and they are shown as items 1 to 21 in Schedule II of the plaint. After the death of Ramayee Ammal, Mahalingam Pillai was performing the trust.

4. Mahalingam Pillai had no male issue. He was frequently going to Rangoon in connection with his business. Hence, he had arranged for the trust to be managed through one Arunachalam Pillai who was his paternal uncle's son-in-law and also subsequently married his brother's daughter. Arunachalam Pillai was managing the properties only as the agent of Mahalingam Pillai. Mahalingam Pillai died on 5-8-1939 leaving behind his only daughter the plaintiff, and his widow Lakshmi Ammal as his heirs. Lakshmi Ammal, the widow of Mahalingam Pillai, became the trustee of the said trust. Being a lady, she allowed Arunachalam Pillai to manage the trust properties on her behalf. Lakshmi Ammal died in the year 1965. Thereafter the present plaintiff who is her only daughter and sole heir has become the trustee. Since Arunachalam Pillai was closely related to the plaintiff, she too was having confidence in him and allowed him to manage the trust properties and perform the charities as her agent, since she was a woman and Arunachalam Pillai was having experience in the trust matter