SWAMINATHA AIYAR Vs. RAMASWAMI AIYAR

JUDGEMENT

(1.) The only question argued in this second appeal is whether, on a proper construction of the deed of partition dated the 19 November 1887, the right to manage the family charity vests in the eldest member of all the four branches of the family or in the eldest member of the senior line.

(2.) The founder of the charity was one Annavier, who died leaving four sons Subramania Iyer, Muthusami Iyer, the father of defendants 1 and 2, Ramasami Iyer, the plaintiff, and Vengappier. The sons divided the family properties by the deed of partition dated 19th November 1887, (Ex. 1). As regards the family charity the deed provides that Subramania Iyer who was the eldest member should exercise supervision and perform the acts therein mentioned. The deed then states: After Subramania Iyer above named, those that come next in the order of seniority should take the charity property in due course and manage the charity properly.

(3.) Both the Munsif and the District Judge are of opinion that under the terms of the deed of partition the management vests in the senior of the four brothers and after them in the senior member of the four branches and not in the senior member of the first branch alone. I am of opinion that they are right. The charity is admittedly one founded by their father and on his death it would be a joint family charity in which all the four brothers were interested. In a suit for partition provision would ordinarily have been made for management by turns as there is nothing special in this case which would take it out of the principle enunciated in Ramanathan Chetty V/s. Murugappa Chetty [1901] 27 Mad. 192 There is nothing in the deed of partition to suggest that the three brothers gave up all their rights in favour of the eldest member and his descendants. It would require clear words to that effect to shut them out. The words jeshta varisai kramapadiki irukkiravargal would ordinarily include the eldest of the four branches. The word varisai kramam is applicable equally to the four brothers in succession as to the descendant of the eldest branch.