RAMAPPA NAIDU Vs. LAKSHMANAN CHETTIAR

JUDGEMENT

(1.) This is an appeal against an order passed by the District Judge of East Tanjore under Section 4 of the Provincial Insolvency Act declaring that the properties forming the subject matter of this appeal would vest in the Official Receiver for the benefit of the creditors.

(2.) The dispute relates to about 68 acres and odd of property which belonged to one Chinnaswami Naidu. He died leaving a will in favour of his son in which, generally speaking-- we will refer to the contents of the will in detail later--he called upon his son to maintain a choultry and-carry on in it the worship of their family deity, meeting the expenses from the income of the property, with liberty- to utilize the balance of the income for family purposes. His son became an insolvent. The children of the insolvent, the appellants before us, maintain that these properties are trust properties, while the Official Receiver and the creditors contend that the properties belonged to the insolvent with a charge for carrying out the trust mentioned in the will. If the properties are dedicated to a trust absolutely, it is clear that the Official Receiver cannot claim them; on the other hand, if the properties are only burdened with a trust, they would vest in the Official Receiver for the benefit of the creditors. The question for our decision is whether the properties covered by the will, Ex. A, are trust properties, or whether they are properties belonging to the insolvent with a charge for carrying out the trust mentioned in the will.

(3.) The answer to this question depends upon the correct construction of the. will, Ex. A. It runs in the following terms : "On the site which is situate to the north of- my shop and house and for which I have performed the manai muhurtham ceremony, my son Gopalakrishnan, shall with the stones, tiles and timber in my possession, construct a choultry spending an amount to the extent of Rs. 400 from and out of the out-standings set out in Schedule A, and instal in the aforesaid choultry the picture of Sri Gopalakrishnan, now kept and worshipped by me in the house as Kula Deivam (family deity). The monyam, the karnam and the tahsildar will be pleased to transfer the pattas for the nanja, punja, etc., properties of the value of Rs. 8,300 set out in Schedule A in the name of the said deity Gopalakrishnaswami after my death, and my son Gopalakrishnan and his heirs from generation to generation according to the rule of primogeniture, shall, without alienating the properties in any manner enjoy them paying sircar cist therefor, and, conduct the charity mentioned in Schedule C and utilise the balance of the income for family purposes. if there be several heirs to my son, the seniors shall enjoy the aforesaid properties and after deducting the amount for charity and sircar cist, distribute the balance of the income amongst the heirs according to their shares, and shall never divide the properties. No one except the heirs shall be entitled to ask for an account of the said income. My daughter Janaki and her husband Rangaswami Naidu shall after my death enjoy with all rights the immoveable property of the value of Rs. 800 set out in Schedule B as stridhanam property. The balance of Rs. " 500 remaining after deducting Rs. 400 for the construction of the choultry out of Rs. 900, the amount of outstandings set out in Schedule A, shall be invested in the name of the said Gopalakrishnaswami and shall be augmented by my son and his heirs. If there be, by act of Providence, no income for the payment of sircar cist, the said sircar cist shall be paid from and out of the accretions of the aforesaid amount. In case my son or his heirs, owing to their negligence, fail to augment the income and pay the sircar cist, efforts shall be made for payment out of the amount so as to prevent the land being brought to sale by the sircar. My son Gopalakrishnan shall inherit all my other properties". The nature of the charity mentioned in Schedule C will be referred to later.