V.M. Velumani, J.

This Second Appeal has been filed against the judgment and decree dated 31.08.2005, made in A.S. No.118 of 2005 on the file of the Principal District Court, Trichirapalli, confirming the judgment and decree dated 10.11.2004, made in O.S. No.60 of 2004 on the file of the II Additional Subordinate Court, Trichirapalli.

2. The appellant is the fourth defendant in O.S. No. 60 of 2004, on the file of the Subordinate Court, Trichy, who lost in both the Courts below. The first respondent Trust, represented by its Managing Trustee Sri. K. Santhana Gopalakrishnan, is the plaintiff. The respondents 2 and 3, the Trustees of the first respondent, are the defendants 1 and 2. The fourth respondent, who agreed to purchase the suit property, is the third defendant.

3. The first respondent filed the suit in O.S. No.60 of 2004 before the Subordinate Court, Trichy, seeking permission to sell the suit property to the fourth respondent or his nominee as per the Agreement, dated 01.02.2001 and to deposit the sale consideration in any one of the Nationalised Banks and to permit the present Managing Trustee and other subsequent Managing Trustees to withdraw only interest from the Fixed Deposit and not to withdraw corpus fund/sale consideration and carry on charities as contemplated by settlement deed, dated 08.07.1901, executed by Thoppulan Chettiar, the great Grandfather of present Managing Trustee, Santhana Gopalakrishnan.

4. Facts of the case:-

(i) The suit property originally belonged to Thoppulan Chettiar. On 08.07.1901, he executed a settlement deed for carrying out Charity by his descendants. In the suit property, he constructed a 'Stone Mandapam' and used to invite Deity Sri Renganathaswamy during the Gajendra Motcham in the Tamil month of Chithirai, Pathinettam Perukku or Aadi 28th day festival in the Tamil month of Aadi and he used to receive Honours from Srirangam Renganathaswamy Devasthanam. The said Thoppulan Chettiar was doing charity of "Thaneer Pandal", "Kollu Kanchi" and supply of food for three days during Car Festival of Sri Renganathaswamy in the Tamil Month of Chithirai, from and out of the "Mahimai" fund [Gods Account], which was established from his Granary business. He was doing the said Charity for 14 years and was willing to do the same till his life time. After his life time, he directed his three sons to continue to do the Charity and establish "Mahimai" fund from and out of the income of their business. After their life time, their descendants must continue to do the said Charity from the income of their business and his sons and descendants are entitled to receive first Honour from the Deity. If "Mahimai" fund is excess, it must be kept as fund and if "Mahimai" fund is less than the expenditure, from and out of the business income, the Charity has to be carried out.

(ii) The said property was leased out to Sri Renga Fibre for 20 years, by lease deed, dated 29.04.1978. The said Renga Fibre has sub-let the suit property to various third parties. A portion of the suit property measuring 2,500 sq. ft., was encroached by third parties. The first respondent has filed O.S. No. 706 of 1984 before the Principal Subordinate Court, Trichy, for eviction. There is a possibility of more encroachment and there is no income from the suit property. The suit property is not dedicated to the appellant and the Charities are not directed to be carried out from and out of the income from the suit property. There is no charge created over the suit property and there is no prohibition for creating encumbrance or sell the property as per settlement deed. Even if there is any prohibition, it is hit by provisions of Transfer of Property of Act.

(iii) The present Managing Trustee Santhana Gopalakrishnan is carrying on Charity from and out of his income. The Trustees are finding it very difficult to maintain the suit property and to prevent the encroachment. The fourth respondent has agreed to purchase the suit property, measuri