PUTTI RAMACHAR Vs. PVVENKATA ROW

JUDGEMENT

(1.) Plaintiffs are the appellants. Their grandfather Ramachar had three sons. In 1891, he died leaving a will in which he founded a religious trust and appointed his second son Venkatasubbarayar to carry out its object, namely, the building of a temple, the installation in it of certain idols and the regular conduct of worship of the said idols. Venkatasubbarayar died in 1924 having performed the duties of trustee and was succeeded by his three sons defendants 1 to 3 who have continued in office till 1929 when this suit was filed. Plaintiffs are the sons of the youngest son of the founder. They seek to be declared trustees on the ground that the appointment by testator of Venkatasubbarayar was only for his life, that on Venkatasubbarayar's death in 1924 the office became vacant and the trusteeship vested in all the heirs of the founder, namely, themselves, defendants 1 to 3 and defendants 5 and 6 who are sons of Ramachar's eldest son, and who now support the plaintiffs. The lower Court held that the appointment of Venkatasubbarayar was for himself and his heirs. The appeal therefore is that the lower Court is wrong in its interpretation of the will. Other questions have been raised but this is the principal question which we have to decide.

(2.) The relevant clauses of the will are: I have set apart the undermentioned lands for charity; for the cost of building Hanumantharayan's temple; for the worship and the daily upkeep of the same. For the purpose of conducting this charity my second son, Venkatasubbarayar has been appointed to the management" and again, "Whereas, I have appointed.... Venkatasubbarayar my second son as manager to administer the charities out of the dedicated properties if the said charities be not conducted properly the leading persons in the village shall intervene and conduct the said charity properly. The Madhwas (testator was a Madhwa Brahmin) shall take an interest in the affairs of this charity and see that the puja and other duties to the God are performed by Madhwas alone.... My sons Venkatarayar, Venkatasubbarayar, and Venkataramanachar shall have no right whatever in the properties dedicated to the said charities, the properties given as stridhanam to my daughters and the properties set apart for the puja of Lakshminarayanaswami and Hanumantharayaswami.

(3.) Appellants case briefly is that according to the law as established by the leading cases of the High Courts in India the appointment of a trustee without indicating how the trust is to devolve after his death confers on him a trusteeship only for life. It will be necessary therefore for us to examine the authority cited in support of this proposition. The learned Subordinate Judge in construing the will observes that if the testator had wished his eldest and youngest sons to participate in the management of the trust after Venkatasubbarayar's death he might well have made a provision to that effect in the will itself. We might add that he might also have made a similar provision in fayourof his existing grandsons the present 5 and 6th defendants - then aged 12 and 7 respectively - since in the natural course; they were likely to survive their uncle. We think these omissions do lend support to the inference that the testator intended the heirs of Venkatasubbarayar to be his successors in the office of trustee. Moreover in the clause in which the testator makes provision for the conduct of the trust in the event of Venkatasubbarayar's misconduct, the omission of the testator's eldest and youngest sons is we think significant. The duty of intervention is cast on the leading men of the village. It may be inferred that if the testator had intended his two other sons to be trustees on Venkatasubbarayar's death he would have thought them fit to supersede Venkatasubbarayar in the event of the latter's misconduct. If however the will as it stands creates a lawful and well-recognised mode of devolution we are not at liberty to draw these inferences. The testator must be held to have intended the legal effect of his words.