A worshipper can maintain a suit for possession of trust property alienated by the trustee even if the trustee continues in office.

JUDGMENT :- Defendants 1 to 3 are the appellants. The suit was filed on behalf of Kaliamman Koil of Virudhunagar by one Mahalingam, claiming to be a representative of the residents of Arunthathiar second street, Virudhunagar Town, praying for a declaration that the suit property belongs to the Kaliamman Koil in Arunthathiar second street, Virudhunagar, and for recovery of possession and costs from defendants 1 and 2, who claim to have taken a sale of the suit property from the third defendant under Ex. A-l dated 16-1-1957. It was alleged in the plaint that the third defendant had been removed from trusteeship as he had been acting adversely to the interest of the trust. Permission was given to Mahalingam to sue in a representative capacity under Order 1, Rule 8, C. P. Code. Defendants 4 and 5 are worshippers. It was alleged that they were elected trustees in the place of the third defendant.

2. The third defendant denied the title of the residents of the aforesaid suit and contended that the temple belonged to him and his group of people and that the plaintiff was not entitled to any relief. Several other contentions regarding the maintainability of the suit, particularly under S.92, C. P. Code were also raised. The trial court rejected these contentions and held that the suit property belonged to the plaint-temple and that the alienation by the third defendant in favour of defendants 1 and 2 was not valid and binding on the temple. The trial court also found that defendants 4 and 5 were not elected as trustees. However, the trial court granted a decree in favour of the plaintiff and defendants 4 and 5, in their capacity as ordinary worshippers. The appeal preferred by defendants 1 to 3 was dismissed by the lower appellate court.

3. The only point urged before me is that the decree as passed by the courts below in favour of the worshippers is not proper inasmuch as the third defendant continues to be a trustee. It is, therefore, contended that a decree may be passed in favour of the third defendant and he may be allowed to be in possession until he is validly removed from trusteeship. But on behalf of the temple it is submitted that Mahalingam who is now representing the temple, has been since elected as a trustee by the residents of Arunthathiar second street, Virudhunagar town, and that, therefore, the decree may be allowed to stand as it is. An affidavit has been filed to this effect. The third defendant-appellant who has all along been contending that the suit temple and its properties belonged only to his group of people, has also filed an affidavit giving up that plea and further stating that the suit temple belongs to the residents of Arunthathiar second street, Virudhunagar.

4. It is contended on behalf of the appellants that inasmuch as the third defendant-appellant continues to be the trustee, no decree can be passed in favour of the worshippers so long as he is the trustee and until he is validly removed. In support of that contention, reliance is placed upon the decision of Alagiriswami J. reported in Amir Jan v. Shaik Sulaiman Sahib, 1968-2 Mad LJ 559. That was a suit filed by an individual for recovery of possession of the properties belonging to a trust which had been alienated by the mutavalli - (trustee) from the alienee. On facts it was found in that case that there was no trustee in office functioning and that, therefore, the suit for possession was maintainable by a worshipper. No doubt, there are some observations to the effect that if a suit is brought for possession by a worshipper, the court can, after declaring the property to be trust property and setting aside the alienation, direct delivery of the property to be given to the trustee. But it is not the decision in that case that if the trustee continues to be in office a decree can be given only in favour of the trustee and cannot be passed in favour of the worshipper. In a case, as the one under consideration where the idol itself is the plai