The central legal point established in the judgment is the invalidity of the sale of trust properties and the entitlement to relief for consideration paid.

Kumaraswami Sastri, J.

1. This appeal arises out of a suit filed by plaintiffs 1 and 2 who are the trustees of Sree Jambukeswaraswami temple against the defendants for possession of the properties mentioned in the Sch. A which according to the plaintiffs were dedicated by one Karupanna Pillai towards a kattalai known as the Dadhyodana kattalai under a deed Ex. C, dated 4th July 1891. The deed Ex, C was executed by Karupanna Pillai whereby he constituted himself as the first trustee, made provisions for the succeeding trustees, gave the properties mentioned in the deed towards this kattalai and gave also the particulars as to the expenses that are to be incurred. The material portions so far as it concerns this appeal are in paras.4, 5 and 7 of the deed. Para. 4 runs as follows:

Subsequent to my death, my son Subrahmania Pillai and Muthuswami Pillai son of Subramania Pillai of Tiruvannavanallur and (3) Davaraya Pillai son of Muthiah Pillai of Omandur, Musiri Taluk-these three shall either unanimously, or a majority of them, enjoy the properties as managing members and shall, out of the income thereof, conduct the charity permanently in the manner before mentioned.

2. Paragraph 5 runs as follows:

Neither myself nor the managing members of the charity who shall be conducting the charity shall have any right to alienate the same in any manner such as hypothecation, othi, sale, gift, etc Should any such alienation be made, it shall not be valid. But myself and those that succeed me as managing members shall have the right to sell the same only if other properties of value equivalent to these charity properties are available and if the income out of such other properties is likely to exceed that of these properties; and to buy with the sale proceeds, such other properties for the above charity.

3. Paragraph 7 runs as follows:

Some of my relations have asked me for a site to construct a choultry to conduct feeding there and I have also promised to so give. In the event of their asking for such cite the ground in the spot in item 1 below, to the east of the north to the south bazars in the eastern side of the trunk road shall be handed over. After my death, the managing member of the choultry, after it is built shall also join in the management and conduct of the present charity with the managers that succeed me. Should the managers above referred to, neglect the management, the supervisor of the devasthanam should also join in the management and conduct it either unanimously with them, or by a majority.

4. The case for the plaintiffs is, that Devaraya Pillai who was the last surviving trustee alienated the lands in the Sch. A properties which were comprised in the trust deed, Ex. C, without any necessity, that he purported out of the consideration for this sale deed to purchase lands in Sch. D which belonged to him. In other words the trustee sold to the trust the lands belonging to him purporting to do so under the powers conferred under Clause 5 Ex. C, that such a sale is invalid and not binding on the trust, that defendants 35 to 37 who are the sons of the deceased Devaraya Pillai objected to the sale, on the ground that their father had no power to sell the properties which were joint family properties, that the other defendants are in possession of these properties, the items in the plaint and that the plaintiffs are entitled to get back the properties with mesne profits.

5. The Subordinate Judge passed a decree in favour of the plaintiffs. Some of the defendants have not appealed. The only defendant who has appealed is defendant 1. Out of items 1 to 32, the subject matter of this suit, defendant 1 purchased items 1 to 24 and we are concerned only with these items as none of the other defendants have preferred an appeal. Items 2, 13 and 14 have been given to defendant 10, so that, we are not concerned with those items. The sale deeds under which defendant 1 claims are Exs. 7, 10 and 9 (supplemental sale deed by Devaraya Pillai t