JUDGMENT :

R. Subramanian, J.

1. The defendants 4 to 9 and the legal heirs of the 10th defendant in O.S. No. 128 of 1997 are the appellants. Challenge is to the judgment and decree of the trial court made in the said suit granting a declaration that the suit property belongs to the Deity Sri Muthiahswamy and directing the defendants 3 to 10 to vacate and hand over the suit property to the plaintiff without any let or hindrance and for payment of future mesne profits.

2. The plaintiff laid the suit contending that the suit property is a trust property, in which, the Deity Sri Muthiahswamy is established. The suit Deity which is the family Deity of the first plaintiff and the defendants 1 and 2 is kept in the suit property for more than 5 generations. The predecessors in interest of the plaintiff one Nagappa Pillai and his brother Arumugam Pillai had executed a trust deed on 30.04.1951, in and by which, the elder brother Arumugam Pillai was appointed as a Trustee to look after and conduct festivals and functions of the family Deity. Under the said deed, there is an absolute dedication of the property in favour of the Deity and the elder brother Arumugam Pillai was appointed as a trustee to administer the property without making any alienations. It is also borne out from the document that after the life time of Arumugasamy Pillai, his brother Nagappa Pillai and his heirs shall be Trustees for the Deity Sri Muthiahswamy.

3. The plaintiff would further claim that during his life time, Arumugasamy Pillai was conducting festivals, poojas and functions of the family Deity. It is also claimed that apart from performing daily poojas, special poojas were also performed on certain occasions like, Chitra Powrnami, Sivarathiri and Pongal etc. One Muthuvel is a eldest son of Nagappa Pillai, who died in the year 1956. He had executed a release deed in favour of his father in respect of trust property and other properties even during his life time. Nagappa Pillai predeceased his brother Arumugam Pillai on 26.05.1958. Arumugam Pillai had no issues of his own. The defendants 1 and 2 and the plaintiff are the children of Nagappa Pillai. After the death of Nagappa Pillai all his living heirs including the plaintiff and defendants 1 and 2 have become the trustees of the trust and all of them are looking the affairs of the trust.

4. It is also claimed that one Vijayalakshmi, sister of the first plaintiff left the family long time back and she has not been heard of for more than 10 years. It is claimed that the defendants 1 and 2 did not look after the affairs of the family Deity. Claiming that she had been looking after the affairs of the family Deity and conducting festivals and that the second defendant had executed release deed in favour of the first defendant on 29.04.1963, the plaintiff would contend that she has been leasing out the property to the defendants 3 to 6 and she has been collecting rents from them and performing the daily poojas and other festivals.

5. The plaintiff would further contend that the defendants 1 and 2 in collusion with the defendants 3 to 6 brought about alienation on 31.08.1981 in respect of the suit property by means of a purported exchange deed between themselves. Contending that the exchange deed is invalid since alienation of the trust properties is prohibited, the plaintiff would term the document as a fraudulent instrument. It is also contended that the property alleged to have been transferred to the trust under the exchange deed never belonged to the defendants 3 to 6. According to the plaintiff, it is a poramboke property and by creation of the exchange deed, the defendants 1 and 2 have practically sold away the trust property. On the above contentions, the plaintiff sued for a declaration and for recovery of possession.

6. The suit was resisted by the defendants 1 and 2 contending that the plaintiff being a daughter, who has gone out of the family upon marriage is not entitled to claim as a trustee of the trust. I