KATHAN MUTHIRIAN Vs. SIVABAGHIATHAMMAL

JUDGEMENT

(1.) One Kathan Muthirian had two sons, Subramanian and Maruthamuthu. The father acquired considerable properties by his own exertions. He made a Will (Exhibit A) on the 16th July 1893, by which he gave his two sons the A and B schedule properties absolutely. He set apart the C and D schedule properties for performing certain services in the Jambukeswarar temple. He directed that each of his sons should in alternate years contribute Rs. 250 for the performance of these services and that the surplus income should be enjoyed by them absolutely. Subramania had a son, Ponnusami, by his first wife. His widow is the plaintiff in this case. The defendants are Subramania s sons by his second wife, Ponnusami was addicted to bad habits, and consequently the father entered into a partition with him. It is a matter to be decided whether this partition was by any deed, or whether it was oral, or whether it was effected by a deed of release executed by Ponnusami to his father. On the 30th July 1904, Ponnusami executed to his father a deed of release in which it is stipulated that one-half of the payment due to, the temple should be made by the son in consideration of his enjoying a portion of the C schedule properties. He was given a share in the A schedule properties as well. Exhibit B recites that the son should enjoy the properties from generation to generation without powers of alienating them by gift, sale, etc; finally it is stipulated that he will maintain himself from the income, and that after his lifetime his male issue shall also enjoy them likewise and maintain themselves conducting the said charity in every third year." More than a year after this, on the 27th December 1905, Ponnusami executed a deed of trust in favour of his father (Exhibit C). The reason for executing this deed is stated to be that Ponnusami was unable to attend to cultivation. It provides that the property should be in the possession of the father during the latter s lifetime and that the father should himself pay the amount due to the temple and pay every year 50 kalams of paddy for the maintenance of the son. It concludes: "After your lifetime either I or my heirs shall take charge of the properties and enjoy them without subjecting them to any simple or usufructuary mortgage or alienating the same in any other manner." Ponnusami died in 1909. Subramania died in 1911. The plaintiff, the widow of Ponnusami, brings the suit for possession of the properties on the ground that, as the person in whose favour that trust-deed was executed is dead, she as the heiress of Her husband is entitled to recover them. The suit is resisted by the sons of Subramania on various grounds. They plead that notwithstanding the release deed and the trust deed the family continued to be joint and that by survivorship the rights and the properties of Subramania devolved on them; and consequently the plaintiff is not entitled to maintain the suit.

(2.) The main contention relates to the exact nature of the gift in favour of the temple. The contention of the plaintiff is that the Will gave the properties absolutely to the two sons of Kathan Muthirian, subject only to a trust in favour of the temple. The defendants case is that the properties were given to the temple and that the sons of Kathan Muthirian wore only trustees with the right of appropriating the surplus income, if any, for their private use. The defendants argue that it was not competent to their father to give away the trusteeship either wholly or in part in favour of his son Fonnusami, and that as both Ponnusami and Subramania are dead, they as the surviving (members of the family are entitled to take possession of the trust properties to the exclusion of the plaintiff.

(3.) After giving our best consideration to the arguments on either side, we have come to the conclusion that the properties in schedules G and D were only burdened with a trust and were not absolutely dedicated to the trust. The document itself is styled a Will. In paragraph 2, the testator says: "In view of my attaining salvation, I have set apart certain properties to be devoted to the under- mentioned charity after my lifetime." Then follow certain absolute dispositions in favour of the sons. Schedule A properties are given to Subramania and schedule B properties to Maruthamuthu. In paragraph 4 it is stated: The properties mentioned in schedules C and D have been set apart by me for the charity. The properties in schedule C shall be enjoyed by Subramania Muthirian and those in schedule D shall be enjoyed by Maruthamuthu Muthirian, who shall after paying from the incomes thereof the circar cist and other expenses spend Rs. 250 from the remaining income and duly conduct the charity mentioned in column 5 thereof.... In this manner they shall be conducting the charity permanently by turns one in each year,"