A ARUPUTHAM Vs. A V YAGAPPA

JUDGEMENT

(1.) This is an appeal by certificate from a judgment of the Madras High court involving the construction of a will executed on 11/01/1933, by Yagappa Nadar. The following short pedigree table will be of assistance in understanding the facts :in his will Yagappa set apart certain properties for charities. The properties so set apart are contained in three Schedules A, B and G attached to the will. The income from these properties was to be respectively used for the purpose of charities specified in Schedules D, E and F. The testator made provision for the management of the three sets of properties. We are concerned, in the present appeal, with properties mentioned in Schedule A. The will was in the Tamil language and the relevant portion has been translated by the learned judges of the High court who knew that language as follows:

(2.) The testator died on 16/03/1938. Arulanandaswami his eldest son died on 20/04/1954, leaving behind him two sons Arogyaswamy and aruputham. In accordance with the terms of the will Arogyaswamy succeeded to the management of "a' 'schedule properties. He died in 1961 leaving a son Yagappa who is a minor. Aruputham the brother of Arogyaswamy maintained that under the terms of the will he was entitled to trusteeship of the suit properties after the death of Arogyaswamy and not Yagappa minor. The result of this dispute was that the appellant filed a suit in August, 1961 against the respondent for a declaration that he was the trustee entitled to possession and management of the suit properties and that the administration of the charities, etc. was to be done by him. The respondent contested the suit which was dismissed by the Trial court. The decree of the Trial court was affirmed by the High court.

(3.) The decision of the case hinges on the correct translation of the portion previously extracted, the will being in Tamil language. The learned trial Judge was familiar with the language as also the learned Judges of the High court concurred in holding that according to the correct translation the testator provided that hi cider son Arulanandaswamy and after him the senior most male member amongst the heirs in his line from generation to generation shall manage the "a" Schedule properties. The suggestion which was made in the courts below and before us that according to the correct translation it would be the appellant who would be entitled to be the trustee of schedule properties cannot possibly be accepted. As stated before the Trial court and the learned Judges of the High court were agreed that on a correct rendering of the relevant portion of the will into English the appellant's claim could not be sustained. The appellant cannot ask us to differ from that view without having moved for a translation being made here of the relevant portion of the will if it was sought to be established that the translation before the High court was not correct. The High court has given other additional reasons for coming to the conclusion at which it arrived. Dealing with the contention urged on behalf of the appellant that the will prescribed a special or peculiar rule of succession whereby the rule of primogeniture would apply only to a limited extent and the office would devolve on the senior most among the existing descendants of Arulanandaswamyat the time when the office fell vacant, the High court observed "if this contention were to be accepted, it would mean that the trusteeship would not be successive but ambulatory, in the sense of going up and down the the genealogical tree of the family. There is no warrant for this view in the document. " The High court further pointed out that the peculiar rule of devolution contended for by the appellant was generally unknown in this country. It was said that such a rule obtained amongst the members of the royal family of Cochin. But as the testator was a Roman Catholic christian the High court considered it more probable that his intention was to prescribe the rule of lineal primogeniture for the trusteeship rather than the complicated rule which the appellant contended for and which would become more and more difficult to apply with the passing of generations. According to the High court the present case was one of hereditary trusteeship under the law by which succession could be traced only to the last holder and not to the document.