M. THIAGARAJAN Vs. M. GANESAN

JUDGEMENT

(1.) THIS appeal which has been preferred by the plaintiffs is a useless one and devoid of substance. The plaintiffs -appellants instituted the suit. O. S. No. 65 of 1964 on the file of the Sub -Court of Tanjore to establish their joint right of management along with the defendant in respect of certain charitable trust and its properties. The following genealogical tree shows the relationship between the parties: - -

(2.) PROCEEDING with the narrative Thayyamuthu got possession of all the properties from her husband's agnates and, managed the charities till her death in 1915. There is no evidence as to when Sabhapathy and his son Jambulingam died. But there is evidence, and it is not disputed, that Jambuga Ganapathy was in possession of the charity properties and managed the same till his death and after the death of Jambuga Ganapathy, his adopted son Muthukumaraswamy, in his turn, was functioning as trustee and managing the properties till his death in 1944. When he died, his son the defendant, through the senior wife, and the plaintiffs in this case, sons through the second wife, were minors and his Junior widow, Ranganayaki was in possession of the charity properties and in management thereof. In 1953, the plaintiff and the defendant, entered into a partition arrangement under Ex. B -2 dated 9 -3 -1953 dividing all their family properties, but there was no provision made for the management of the charity and its properties. The case of the defendant is that the charity properties did not from the subject -matter of that partition arrangement and the defendant alone was allowed to be in possession and management of the charity and its properties in pursuance of the compromise, Exhibit B -1, which provided for the management of trust properties by the male descendant according to the law of lineal primogeniture, i.e. the senior most male member in the family. The defendant's further contention is that throughout he has been in management of the charity and its properties and that the suit in 1964 was filed by the plaintiffs claiming joint trusteeship on account of some recent misunderstandings in the family. On behalf of the plaintiffs both in the trial Court as well as here, it was contended that the trusteeship of the charity founded by Jambuga Ramalingam should devolve upon the heirs in succession one after another and that on the death of Muthukumaraswami, the right devolved jointly upon his three sons, the defendant and the two plaintiffs, that the plaintiffs are entitled to manage the charity jointly along with the defendant and the compromise, Exhibit B -1, will not affect their rights so far as it purported to deprive the plaintiffs of a right to a joint management but provided for the devolution of the right in the senior -most line. In substance the contention of the plaintiffs is that the founder should be deemed to have laid down a rule of devolution that the trusteeship should devolve upon Subbu Pillai's heirs for the time being whenever a vacancy arose and that it was not open to Jambuga Ganapathy, Sabhapathy and Jambulingam to enter into a compromise which would prejudice the plaintiffs and would also have the right of laying down a rule of devolution totally different from the one laid down by the founder. There is no reference to the compromise. Exhibit B -1, in the plaint in O. S. No 7 of 1897 and this attack against the validity of the compromise was put forward only when the same was relied upon by the defendant in his defense. The learned Subordinate Judge dismissed the plaintiff's suit negativing their contentions.

(3.) LET us now consider the various alternative constructions or interpretations of the Will. Ramalinga, while appointing Subbu Pillai as trustee, conferred an absolute and heritable right of trusteeship upon Subbu Pillai, there was a total divestiture of all rights of Ramalinga as founder and there was no question of any reverter of any right from the trustee on his death so far as Ramalinga was concerned and the appointment of trustees in future or laying down the rule of devolution was the exclusive right of Subbu Pillai. When once the Will took effect. Subbu Pillai became the trustee and it is his exclusive privilege or right to constitute a trustee to succeed him or to lay down the rule of devolution. The result was that as soon as Subbu Pillai died. Thayyumuthu became entitled to be the trustee functioned as such trustee and she had also the right to nominate a trustee to succeed her and/or to lay down the rule of devolution of trusteeship. Subbu Pillai, during his lifetime, had two right : (1) the right to be the trustee; (where there is no beneficial interest in any of the trust properties, it is really a trust solely burdened with duties and obligations) and (2) the sole right or the privilege to appoint his successor and/or to lay down the rule of devolution of the trusteeship. On Subbu Pillai's death both the rights devolved upon Thayyamuthu and therefore, she had full competence to appoint her successor and/or to lay down the rule of devolution of trusteeship to function in future. Under this compromise, Exhibit B -1 she had nominated her successor or successors and also laid down the rule of devolution on the death of the trustee for the time being. At the time when Ramalinga executed the Will Subbu Pillai his only son, was the sole owner and it will be an unnatural reading of the will to hold that Ramalinga reserved for himself any right as founder to lay down the rule of devolution and merely appointed Subbu Pillai as trustee during his lifetime. The provision which the founder has made for the management of the properties during the minority of Subbu Pillai coupled with the provision that on his attainment of majority the guardian must hand over possession of the entire properties to Subbu Pillai to function as trustee thereafter, shows that Ramalinga's intention was to confer an absolute heritable trusteeship upon Subbu Pillai. In the environment and set -up of the family, if Ramalinga intended to delimit the trusteeship upto the lifetime of Subbu Pillai, Ramalinga would certainly have laid down the provision with regard to further devolution. There is the further important fact that the Will itself does not delimit the duration of the trusteeship upto Subbu Pillai's lifetime. in which case some problem may arise as to the right of the founder or his heirs to nominate successors or to enter into arrangements altering the rule. Under the Will Subbu Pillai has been appointed trustee and there is no other or further provision. If the intention of the founder was that it is merely an appointment delimited to the lifetime of Subbu Pillai the founder would have made some provision after that contingency. Nothing of the kind was done, but, on the other hand. Subbu Pillai was appointed trustee. which, in law, amounts to conferring an absolute heritable trusteeship upon Subbu Pillai. As observed already, the circumstances of the family, the fact that Ramalinga was very old at the time of the Will and Subbu Pillai was his only son and was deeply attached to him lends considerable support to this view that Ramalinga did not think of any other aspect concerning the devolution of trusteeship and he was content to confer an absolute heritable trusteeship upon Subbu Pillai. In other words, we are clearly of the view that there is absolutely nothing in the surrounding circumstances of the case and in the language of the Will to warrant an interpretation that Ramalinga merely appointed Subbu Pillai delimiting the trusteeship to his lifetime and not making any provision as to reserve the power for himself to lay down the further rule of devolution. At that time he was very old and it will be unnatural in the extreme if we introduce the notion that Ramalinga reserved and retained for himself any further power to lay down the rule of devolution.