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Judgment
Srinivasan, J.—In order to understand the point that arises for consideration in this appeal, a few facts relating to a prior litigation between
the same parties have to be set out. One Gnanambal and certain others executed a settlement deed dated 4th July, 1927 endowing certain
properties for the Annadhanam Charity of Ayyan Papakudi Choultry. The validity of this trust is no longer in Issue. One Ramaswami Konar was
appointed as the trustee by the settlor and be and after him his heirs were directed to manage the properties and perform the charity. This
Ramaswami Konar had two wives. By the first wife, Kartik Kone, the present defendant, was his son. The second wife is the plaintiff in the suit
and she has a daughter, one Chinna Ponnu. For reasons that are not germane Bhagyathammal, the second wife, was allowed to be in possession of
half the trust estate after the death of her husband, Ramaswami Konar, in 1942. In 1955, Kartik Kone, the present defendant, filed a suit O S. No.
248 of 1955, District Munsif''s Court, Madurai Taluk, seeking to recover possession of the trust properties from Bhagyathammal and her
daughter. Now, it appears that Bhagyathammal had purported to execute a settlement deed in favour of her daughter, Chinna Ponnu. It was
claimed in that suit that Bhagyathammal took possession on behalf of the plaintiff Kartik Kone under an arrangement to manage the properties on
his behalf and to render an account thereof. The suit was accordingly laid for recovery of possession and for accounts. That suit was dismissed by
the trial Court. But, on appeal, however, Kartik Kone succeeded and a decree was granted in his favour for recovery of possession and for mesne
profits. The matter came before this Court in S. A. No. 905 of 1959. Kailasam, J, who heard the second appeal, confirmed the finding that the
trust created by Gnanambal was genuine and had been acted upon. He rejected the contention that the properties were not affected by any trust
and held that after the death of Kamaswamy Kone his heirs inherited the trust estate. It was also contended before the learned Judge that even if
there was a dedication of the properties, on the death of Ramaswami Kone. Bhagyathammal, his widow would also be entitled to the management
of the properties along with Kartik Kone, the son of Kamaswami Kone. The learned Judge dealt with this contention and came to the conclusion
that the right of trusteeship is property within the meaning of that expression under the Hindu Women''s Rights to Property Act and that the widow
of Ramaswamy Kone was entitled to inherit this property, that is to say, to be a co-trustee along with her stepson, Kartik Kone (Son of
Ramaswamy Kone by the first wife). The decree of the lower appellate court was accordingly modified granting a declaration in favour of
Bhagyathammal that she was also entitled to joint management along with Kartik Kone of the trust properties. But Bhagyathammal was directed to
take appropriate steps by separate proceedings to work out her rights to joint management.
It was in pursuance of the right recognized by the above decree that Bhagyathammal filed the present suit, praying for a decree for joint
possession of the trust properties along with the defendant Kartik Kone and for a direction to him to render accounts in respect of the trust
properties. Her claim were resisted by the defendant, firstly, on the ground that the decision of this Court in S. A. 905 of 1959 did not confer any
rights upon her, for the reason that in that earlier suit Bhagyathammal in fact repudiated the trust and there was no issue which went into the
question of her rights to co-trusteeship. This contention was negatived. The defendant''s contention that Bhagyathammal lost through adverse
possession any rights in relation to trusteeship was also rejected by the trial court. The further contention that since the Hindu Women''s Rights to
Property Act of 1937 was amended only in 1946 bringing within its scope agricultural lands, and as the trust properties consist of agricultural
lands, Bhagyathammal could not benefit under the Act as amended, for succession opened in 1942 prior to the amendment, was also negatived by
the trial Court, holding that the decision of this Court in S. A. 905 of 1959 denied such a plea being available to the defendant. Though the trial
court found in favour of Bhagyathammal on almost all the issues, it yet refused (sic) grant a decrees for joint possession. This was based on the
ground that she being in possession of part of the trust properties had not surrendered possession as directed in S A No. 905 of 1959, and that for
this reason the suit as framed seeking joint possession only of the rest of the properties was not maintainable.
Both sides appealed. The learned Subordinate Judge accepted the appeal of Bhagyathammal and dismissed that of the defendant. The
defendant prefers this Second appeal.
The principal questions raised in this second appeal are:
(1) Is the mere right of management of the trust conferred upon Ramaswami Kone and his heirs, without any beneficial interest in the properties
being available to the trustees, heritable property as understood in law?
(2) Is such property within the scope of the separation of the Hindu Women''s Rights to Property Act?
(3) The amendment of the Act in 1947 bringing within its scope agricultural lands not being rest respective in operation, can Bhagyathammal claim
any rights under that Act ? and
(4) On the question whether Bhagyathammal was entitled to joint trusteeship along with the defendant, did this Court in S A. 905 of 1959 render
an enforceable decision, or are the observations of the Court in this regard mere obiter dicta ?
In dealing with the first three questions, Mr. V. K. Thiruvenkatachari, learned Counsel for the appellant, has placed considerable reliance upon
Umayal Achi v. Lakshmi Achi (1945) 1M.L J 108 a decision of the Federal Court. It is the contention of the learned counsel that the Hindu
Women''s Rights to Property Act would apply only to property which is beneficially owned and not to anything in the nature of a mere trusteeship.
Certain observations of Varadachariar, J. have been relied upon in pursuing this line of argument. It is further contended that the expression
property"" may have a far wider connotation in the Constitution that it has in municipal law and that such wider connotation cannot be applied in
construing that expression in the Hindu Woman''s Rights to Property Act. On the other side. Mr. M. S, Venkararama Iyer, for the respondent,
urges that even apart from any additional right created by the Hindu Women''s Rights to Property Act in favour of female members of a joint Hindu
family, numerous cases have held that an office, even though devoid of any beneficial interest in any property or emoluments attached to it,
devolves by inheritance and that an office cannot in all cases be equated to property consisting of lands or other emoluments. It is next urged that
the observations of Varadachariar, J., in the case cited above have been distinguished and explained in later decisions. It is claimed that if the office
is regarded at distinct from any properties which the office-holder is called upon to manage, it can nevertheless be property within the meaning of
the Hindu Women''s Rights to Property Act. The fact that agricultural lands were brought within the scope of the Act only in 1947 would not
therefore prevent a female member also succeeding to the property in a mere office in 1942, and no question of retrospective operation of the
amendment of 1947 would therefore arise. It is next contended that though in the pleadings of Bhagyathammal in the earlier suit, the question of her
right to joint trusteeship was not raised, it was nevertheless argued by both the sides during the course of the second appeal and a decision was in
fact rendered by Kailasam, J., therein and that decision was incorporated in the decree in the second appeal. It is further said that the defendant-
appellant himself sought a review of that decision which was dismissed. He could have appealed against the decree which embodied the decision
that Bhagyathammal was entitled to joint trusteeship. Having failed to do so, that matter has become final and it is not open to the appellant at the
present stage to deny the operative force of the decree in that second appeal. We shall row proceed to consider those questions.
In Mulla''s Hindu Law (13th Edn.) at page 445, the position of a Shebeith is explained as one where by virtue of his office be is also the
administrator of the property attached to the temple of which he is the Shebaith, it is said that both the element of office and property or duties and
personal interest are blended together and neither can be detached from the other. As regards the property, he is in the position of a trustee, but as
regards the service to the temple and the duties that appertain to it, he is in the position of a holder of an office or dignity, it is not impossible
therefore for the one to exist without the other, trough in cases where the Shebeith has a beneficial interest in the property, the two no doubt exist
jointly. According to Halsbury''s Laws of England (Second Edn.), Volume 33-paragraph 357, at common law, trust property devolves in the same
way as property to which a person is beneficially entitled, and consequently, on the death of a sole or surviving trustee, all personal estate which
was vested in him upon any trust devolves upon his personal representatives It would follow from this that the office of trusteeship would also
follow the line of devolution of personal or real property. This legal position is recognised in a very early decision of the Privy Council in
Ranganatham Chetti v. Murugappa Chetty I. L. R. 29 Madras 283. The facts of that case show that the managership of a Hindu temple which was
hereditary in the family of the sole manager and no beneficial interest in the endowed property or income was available to the manager, devolved
on his descendants. The question in that case arose as to the validity of an internal arrangement with regard to the management, which was upheld.
That was no doubt a case of male heirs succeeding to that interest in the trusteeship. But the principle enunciated in Halsbury''s Laws of England
that the trust estate devolves on the personal representatives is recognised in this decision Manchur v. Bhupendranath A. 1. R. 1932 Calcutta, 791
was no doubt concerned with a Shebeithship which had a beneficial interest in the endowed property. But it was held therein that the office of a
Shebeith is hereditary and is regarded in Hindu Law as (sic) immovable property. It was further held that while a founder of a trust in competent to
lay down the rules of succession to the office, he cannot create any estate unknown to Hindu Law and if any rule of succession to the office
provides for the office to be held by some only among the heirs of the founder to the exclusion of others in the line of succession, thereby deviating
from the line of Hindu inheritance such a rule would be invalid. It is also the accepted position in law that even if the grant says nothing about the
succession, the right of management passes by inheritance to the natural heirs of the donee. This is based upon the principle that a grant without any
words of limitation conveys an estate on inheritance (See Mayne''s Hindu Law-11th Edn. Paragraph 808). This view finds support in Putti
Ramachar and Others Vs. P.V. Venkata Row and Others, .
Nor can It be contended that a woman by reason of her sex is denied the right to succeed. In Shahar Bhanoo v. Aga Mohammad jaffar
Bindaneem 34 Indian Appeals, 46 was considered a case where the court bad to exercise a discretion in the selection of a trustee. A female
descendant claimed an absolute right to be appointed, but the Privy Council observed that though she had a right to succeed, still the Court which
bad to exercise its discretion in the matter was right of appointing another person in preference to the female claimant who could at best discharge
many of the duties only by a deputy. The point to notice In so far as this decision is concerned is that the Judicial Committee did not deny the right
of the female descendant to succeed, but upheld the order of appointment of another person in the Interest of the trust. Such a right in a female was
also upheld in the case of a Shebeithi in Raj Kali Kuer Vs. Ram Rattan Pandey, . This decision also laid down that a religious office can be
hereditary and that the right to such an office is in the nature of property under the Hindu Law. Their Lordships observe also that in respect of such
officers, especially where they are attached to public institutions, the duties are to be regarded as primary and the rights and emoluments only
appurtenant to the duties. If, therefore, it is found that the recognition of a female''s right to succeed to the hereditary office of Poojari in a temple
held by her husband is incompatible with her due discharge of the duties of the office, her right to succeed must be negatived, but there is no legal
prohibition against a woman holding a Muthavalliship when the trust by its nature involves no spiritual duties such as a woman could not properly
discharge in person or by deputy, and in coming to that conclusion they relied upon the Privy Council decision in Shahar Bhanoo v. Aga
Mohammad Jaffar Bindaneem 34 Indian Appeals, 46.
We thus reach the conclusion that the right of trusteeship or the right of management of trust properties, whether the trustee has or has not a
beneficial interest in the properties dedicated to the trust, is property and regarded as immovable property under the Hindu Law to which a woman
can also succeed, except in cases where the functions required to be discharged by the trustee involve spiritual duties which a woman cannot
properly discharge.
Prior to the passing of the Hindu Women''s Rights to Property Act, the position in Hindu Law was that a woman cannot succeed to the property
of her husband in the presence of her sou. The Act was intended to enlarge the rights of the widow and to remove the obstacles that stood in the
way of her succession. As the preamble to the Act indicates, it was intended to confer better rights open woman in respect of property
Undoubtedly, if succession to Ramaswami Kone had opened prior to this Act, since the defendant, son of Ramaswami Kone, was alive,
Bhagyathammal, his step-mother, could have no rights in relation to the trust properly. S. 3 of the Act provided by Sub S 2, that when a Hindu,
governed by any school of Hindu law other than the Dhayabhaga school or by customary law dies, having at the time of his death an interest in a
Hindu joint family property, his widow shall have the same interest in the property as he himself had. But this interest was declared by Sub-S. 3 to
be a limited interest, known as the Hindu Woman''s Estate. Sub-S. 1 of this section deals among other things with separate property, left by a
Hindu governed by the Mithakshara Law dying intestate, and it states that his widow shall be entitled to the same share as a son in respect of the
property left by the Hindu. The same qualification that such an interest shall be a limited interest known as the Hindu Woman''s estate applied in
this case. A plain reading of this section would appear to cover any kind of property, for the wide amplitude of the expression ''property'' is
nowhere whittled down by any of the provisions of the Act, It is no doubt true that in 1947, the Act was amended to bring within its scope
agricultural lands. That was for the reason that agricultural lands came within List 2 of the VII Sch to the Constitution and could be legislated upon
only by the Mate Legislature. But locking at the right to management as property, independent of the thing to be managed, namely, agricultural
land, the subsequent amendment in no way affects the interpretation that should normally be placed upon the expression ''property''. It is however
the contention of Mr. V. K. Thiruvenkatachari that the pronouncement of the Federal Court in Umoyal Achi v. Lakshmi Achi (1945) 1 M. L. J.
108 gives a limited construction to the word ''property'' in relation to the rights sought to be conferred upon women. It is claimed for the other side
however that this limitation sought to be inferred from this decision has not been accepted in later decisions.
Umayal Achi v. Lakshm Achi (1945) 1 M. L. J. 108 was really concerned with the validity of the Act. In so far as we are concerned, the
contention that it was ultra vires the Indian Legislature was advanced only to the extent that agricultural lands could be comprehended within the
general term property''. It was further contended that the court could not recognise the validity of the Act by excluding agricultural land from its
operation. The majority of the court held that the Act was validly enacted, though the Act could not affect the devolution of agricultural land. The
question which is more pertinent to the present case arose in this manner. One Arunachalam Chettiar died leaving behind him two widows. He had
no male issue, and he, by will, appointed two relations as executors and entrusted to them the management of his large estate under the numerous
religious and charitable trusts. The plaintiff in the suit was the widow of a predeceased son, and the two surviving wives were the defendants in the
suit. The plaintiff in assertion of the rights created in favour of the widow of a predeceased son by the 1937 Act claimed a share in the estate. The
genuineness of the will left by the testator was put in issue end it was affirmed. It was also held that the executors were not entitled to remain in
possession till the three widows made adoptions which were permitted by the will. The trial court granted the plaintiff a half share in all the
immovable properties and the movable assets, but dismissed the plaintiff''s claim to a share in the trusteeship of the religious and charitable
endowments. On appeal, the High Court modified the decree limiting the plaintiff''s right only in respect of immovable properties other than
agricultural properties. One of the questions brought before the Federal Court was whether the rejection of the plaintiff''s claim to a share in the
management of the religious and charitable trusts was correct. Vatadachariar, J., observed that he was inclined to agree with the High Court in the
view that it took that the Act was intended to apply only to property beneficially owned by the prepositus and not to anything in the nature of a
trusteeship. He said:
The Hindu Law has no doubt regarded trusteeship as property for certain purposes and it has long been established that the title to the
management of religious and charitable trusts follows the line of inheritance from the founder where no other arrangement has been made
therefor.... The question is whether the heirs are to be determined according to the ordinary Hindu Law or according to the provisions of Act
XV1M of 1937 In view of the limited objective of the Act, the ordinary rule of Hindu Law must furnish the rule of succession. That the Act was
intended to deal only with private property is shown by the provision in sub-section 3 of section 3 to the effect that the interest devolving on a
Hindu Widow under the preceding sub-sections shall be only the limited interest known as a Woman''s estate. This provision will be appropriate
enough in relation to private property where the woman''s estate is different from the interest taken by a male heir. But, in respect of trusteeship or
other similar office, the law makes no difference between interest taken by a male heir and the interest taken by a female heir.
It will be seen from the above passage that the principal reason why this limited construction was adopted was, firstly, that the Act would apply
only to property which was beneficially owned, and secondly, that in the case of an office such as a trustee, though it is property, the qualification
that the interest inherited by the widow should be a woman''s estate would be meaningless. Spense, C. J., did not amplify this aspect of the matter
but contented himself with expressing his general agreement with the views of Varadachari, J., Though Zafrulla Khan, J., the other learned judge,
differed from the majority, with regard to the validity of the Act, he also purported to be in agreement on those other questions with Varadachariar,
J. It is Mr. Thiruvenkatachari''s argument that this decision cuts at the root of the claim of the plaintiff in the present case Bhagyathammal, for both
of the reasons mentioned above; firstly, neither Ramaswami Kone, the first trustee, nor his heirs can have any biennial interest in the trust
properties; and secondly, since the law relating to trusteeship makes no difference between the interest taken by a male and a female heirs, sub-
Section 3 of Section 3 of the Act, which limits the interest taken by a female as a Hindu Women''s estate should necessarily indicate that the
property dealt with by Section 3 of the Act should be something other than the office of a trusteeship. On the other hand, Mr. M. S. Venkatarama
Iyer contends that even these observations do not cut down the measure of the expression ''property'' used in the Act and that, in fact, in a later
decision, the Supreme Court has not altogether approved of the limitations placed in Umayal Achi v. Lakshmi Achi (1945-1 M.L.J. 108) This case
was considered by the Supreme Court in Angurbala v. Debabrata (A.I. R. 1951-S. C. 293) The fact'' of that case were these. One Mrityunjayan,
and his adoptive mother dedicated certain properties K the dicty The adoptive mother of Mrityunjayan had been performing the worship of the
deity, and the document executed jointly by Mrityunjayan and his adoptive mother provided for a remuneration of 25 percent of the net income of
the debutter property to the Shebeith or Shebeiths for the time being. The document provided that after the death of the adoptive mother, her son
Mrityunjayan shall become the Shebeith, after his death his wife and after her death, the heirs of Mrityunjayan were to be the Shebeiths. The wife
of Mrityunjayan dying, Mrityunjayan married the plaintiff, Angurbala, and she brought the suit claiming to be entitled to the Shebeithship jointly with
the defendant, her step-son, the son born to the first wife. As Mrityunjayan died in 1942 after the passing of the Hindu Women''s Rights to
property Act, she claimed to succeed along with her step-son as a co-heir under the provisions of that Act. The trial court in that case held that the
plaintiff was neither the sole Shebeith nor entitled to claim Shebeith rights jointly with the defendant and that the Hindu Women''s Rights to
Property Act was in-applicable to devolution of Shebeith rights. On appeal, a Bench of the Calcutta High Court relied on the decision of the
Federal Court in Umayal Achi v. Lakshmi Achi (1945-1 M.L.J. 108) and denied the right of the plaintiff to succeed to Shebelthiship. The principal
contention raised before their Lordships of the Supreme Court was that Shebeithiship being property, It would devolve under the above said Act
upon both the plaintiff and the defendant jointly. Even assuming that the expression ''property'' does not include Shebeith right, it was argued that
succession to Shebeithiship was governed by the ordinary rules of inheritance in respect of secular property under the Hindu Law, and since the
Hindu Women''s Rights to Property Act amended the general law of inheritance in certain matters, the same alteration should be recognised in
regard to succession to Shebeithship as well. For the other side, it was urged that the expression ''property'' in the Act was not used in a wide and
unlimited sense and that the Act could not have had in its constellation any rules of succession relating to the somewhat anomalous type of property
which Shebeithship amounted to Their Lordships of the Supreme Court had accordingly to consider whether the Act includes within its scope
property of such a character as Shebaithship. They refer to the several decisions which pronounced upon the character of Shebeithship. They point
out that Shebeithship may not be a mere office, for the Shebeith has not only duties to discharge but also a beneficial interest in the debutter
property. At this point, we may refer to the principal argument of Mr. Thruvenkatachari that this decision of the Supreme Court dealt with debutter
property in which the Shebeith has a beneficial interest and Whatever observations their Lordships of the Supreme Court may have made in
commenting upon Umayal Achi v. Lakshmi Achi (1940)1 M. L. J. 108 this decision must be confined only to such property in which the trustee
has a beneficial interest, while, in the present case, the trustee has no such interest. This is the point of distinction which Mr. Thruvenkatachari
seeks to establish in support of his contention that this decision has not affected the principal basis of the decision in Umayal Achi v. Lakshmi Achi
(1940)1 M. L. J. 108. But, their Lordships of the Supreme Court in this decision say:-
Even where no emoluments are attached to the office of Shebeith , he enjoys some sort of right or interest in the endowed property which partially
at least has the character of a proprietary right. Thus, in the conception of a Shebeith, both the elements of office and property and duties and
personal interest are mixed up and blended together and one of the elements cannot be detached from the other. It is presence of this personal or
beneficial interest In the endowed property which invests Shebeithship with the character of proprietary rights and attaches to it the legal incidence
of property.
Clearly then, this decision postulates the principle that it is not only beneficial interest in the trust property that makes it property but a personal
interest of the nature of a proprietary right, even in cases where no emoluments are attached to the office, that is to say, where the trustee is not
conferred with the right of taking for his personal benefit any part of the income of the debutter property. That a proprietory right exists even in the
absence of a beneficial interest in the debutter property and that this proprietary right is of the nature of property recognised by Hindu Law is
definitely stated by their Lordships herein.
They next deal with the Hindu Women''s Rights to Property Act and point out that Section 3 (1) of the Act abrogates the general rule of Hindu
Law according to which a widow succeeds to her deceased husband''s property only in default of male issue and gives her the same share as a son
along with or in default of male issue. Observing that Sec. 3(1) of the Act speaks of any property, they say that the expression ''prima facie''
includes all forms or types of interest answering to the description of property in law, such property bring heritable property. They repel the
argument that the creation of the limited interest known as the Hindu Woman''s, estate would be unmeaning in relation to Shebeithship. They point
out that where under the ordinary law of inheritance, a Shebeithi right devolves upon a female heir in the absence of any male issue, her rights
would be restricted in the same manner, that is to say, when a Hindu female heir succeeds to the property of a male propositus, she cannot transmit
the interest which she inherits to her own heir upon her death and the property would go after her death not to her heirs but to the heirs of the last
male owner. This limitation applies irrespective of whether the property is ordinary property or the property denoted by a Shebeithi right And
finally they conclude that there is nothing in any of the provisions of the Act from which an inference can be drawn that the expression property
used in S. 3(1) has a limited or restricted interpretation and is not applicable to Shebeithship which is recognised as property in Hindu Law.
Having reached the above conclusion on a consideration of the meaning of the expression of ''property'' in general and its implication in the light
of the provisions of the Act, they discuss the actual decision in Umayal Achi v. Lakshi Achi (1940)1 M. L. J. 108. Dealing with the view expressed
by Varacachariar, J., that this Act was intended to apply only to properties beneficially owned by the propositus and not to rights in the nature of
trusteeship, they say:
It seems to us that properly construed, this decision does not stand in the way of the appellant. In the first place, we do not know at all what the
nature of these trusts was. The learned Judge observed himself in his judgment that there was little or no evidence as to the terms of the foundations
in respect of any of the trusts ''managed'' by the deceased. This observation taken along with the terms of the documents referred to in the
judgment would go to show that the deceased was a mere manager of the trusts and in respect of some of them at least, he was the manager jointly
with others............Varadachariar, J., observed with reference to the documents relied upon.........that they only provided for management by his
heirs.
They only express what we feel amounts to a qualified approval of the observations of Varadachariar, J., and conclude that these observations
should be construed in the light of the facts and the actual decision in that case. They again say that trusteeship is not certainly equivalent to
Shebeithship and observe that if trusteeship, even it is regarded as property, carries with it no emoluments or beneficial interest for the trustee and
consists of nothing else but a bundle of obligations and duties, it might possibly be said that giving a share in such rights to a Hindu widow would
not in any way improve her position. Read however in the light of the earlier observation of their Lordships of the Supreme Court that the
expression ''property'' as used in the Act would include property in the nature of trusteeship, which does not take in any beneficial interest in the
debutter property, there is no reason to doubt the actual conclusion reached, namely, that the Act would take in such property as well. In fact, their
Lordships approve of a decision of a Bench of the Madras High Court in Panangipalli Suryanarayanacharyulu and Another Vs. Panagipalli
Seshamma (died) and Another, In that case, the High Court pointed out that the observations In Vmayal Achi v. Lakshmi Achi (1945) 1 M. L. J.
108 were somewhat wide a view which their Lordships of the Supreme Court concurred in.
We are unable to agree with the contention of Mr. Thiruvenkatachari that the decision in Imayml Achi v. Lakshmi Achi (1945) 1 M. L. J. 108
has been approved in full by the Supreme Court In Angurbala Mullick Vs. Debabrata Mullick, and that the Hindu Women''s Rights to Property
Act does not take in property of the nature involved in this case, namely a mere trusteeship with no emoluments attached thereto, or where the
trustee has no beneficial interest in the trust property. Even from first principles, if mere trusteeship is property recognised by the Hindu Law, a
view which is affirmed by their Lordships in Angurbala Mullick Vs. Debabrata Mullick, there is nothing in this Act which excludes it from the scope
of property which a Hindu female can inherit. Their Lordships clearly lay Gown that under the ordinary rules of inheritance, a female could succeed
to such property even in the absence of any beneficial Interest and the only limitation which the Hindu Law laid being that after the death of the
widow the heirs to the office would have to be found from among the heirs of the last male owner. We see no reason therefore to hold that
notwithstanding the absence of any beneficial interest in the trust property the widow could not succeed along with the male issue.
We also see no substance In the argument that, if at all, the widow could only claim to succeed under the Amendment Act of 1947 and that
this Act not being retrospective in operation, She could not claim such rights under the Act. By the 1947 Amendment of the Act what was done
was merely to make the Act applicable to agricultural lands. The 1937 Act being a piece of Central legislation could not legislate with regard to
agricultural lands and succession thereto and It was the abort-coming in that Act that was sought to be removed by the amendment in 1947. It
seems to us that this argument proceeds on the mistaken conception that the office itself can be equated to land which formed the debutter
property. As has been pointed out by the Supreme Court itself in Angurbal v. Debtbrata (3) the office itself without any regard to the beneficial
interest in the trust property would be in the nature of property in which the trustee can claim a proprietary right. The fact that the Act was
amended in 1947 does not affect the question that we have to consider. In our view, the office being distinct from the property, the amendment has
no effect upon the devolution.
We referred to the earlier decision of this Court in S. A. No. 905 of 1959. That Second appeal came to be filed by Bhagyathammal against
the decision of the courts below in the suit filed by Kartik Kone, the present defendant, for recovery of part of the trust properties from the
possession of Bhagyathammal, till the stage of the Second Appeal, Bhagyathammal had net put forward any claim to joint trusteeship. She even
questioned the validity of the trust and urged that the trust did not at all come into existence. This Court held in the second appeal that the trust bad
been validly created and was acted upon and proceeded to consider whether Bhagyathammal would be entitled to the management of the trust
estate along with the defendant Kartik Kone. This question was principally considered in the light of the Hindu Women''s Rights to Property Act
and the learned Judge came to the conclusion that the Hindu Women''s Rights to Property Act is applicable to the right of Management in the
nature of trusteeship and that Bhagyathammal would be entitled to joint management. The learned Judge in coming to that conclusion relied upon
the decision of the Madras High Court in Panangipalli Suryanarayanacharyulu and Another Vs. Panagipalli Seshamma (died) and Another, and of
the Supreme Court in Angurbala Mullick Vs. Debabrata Mullick, . It is the contention of Mr. M. S. Venkatarama Iyer that this question was put in
issue at the time of the hearing of the second appeal and the matter was argued by both sides and the above conclusion that Bhagyathammal was
entitled to joint management with Kartik Kone was reached. It is said accordingly to this decision operates as res judicata against the present
defendant and it is claimed that Kartik Kone cannot any longer question the right of Bhagyathammal so declared in the second appeal. For the
other side, it is contended that having regard to the stand takes by Bhagyathammal in the earlier stages of the litigation, these observations must be
regarded only as obiter and to have no binding force.
It seems to us that this Court undoubtedly embarked upon a determination of the question of title of Bhagyathammal and that question was in
the nature of a question of law. In Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, their Lordships point out that the test of res
judicata is the identity of title in the two litigations and that so long as the competency of the former court to try the subsequent suit cannot be
denied, the general role of res judicata applies. Even apart from this, the defendant Kartik Kons against whom the point was decided in the second
appeal, sought to have judgment of the court reviewed. Undoubtedly, Kartik Kone could have appealed against the decision, for otherwise it is
difficult to see how a review application could at all have been maintained. The learned Judge in dealing with the review application pointed out that
though the question was raised for the first time in the second appeal, at the time of the hearing as objection was raised, and as we said earlier,
both sides argued the question, before the learned Judge rendered his decision in the second appeal. We may further point out that far from the
observations of the learned Judge being in the nature of an obiter dicta, the actual decision on this point was incorporated In the decree to the
second appeal, the clause of the decree reading thus :
That the first defendant (Bhagyathammal) shall also be entitled to joint management along with the plaintiff (Kartik Kone) of the trust properties and
the first defendant shall be at liberty to take appropriate steps to work out her rights to joint management by way of separate proceedings.
There is accordingly a decree embodying the decision of the Court and it seems to us that it can no longer be maintained that the observations
are merely obiter dicta having no executable force. It is not open to Kartik Kone to question the decree unless he can say it is nullity which it
obviously is not. In Kolu Nambiar v. Chathu Nambiar 52 I.C. 258, this Court held that a matter could be in issue under S. 11 of the CPC even
though an express issue had not been framed. It would be in issue if the decision about it is necessary for the decree. They say further that if the
finding has been arrived on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in
spite of it, that matter cannot be said to have been substantially in issue between the parties and such finding would be more in the nature of obiter
dicta it follows that where the finding was incorporated in a decree, the position would clearly be otherwise. This has been emphasised in Sankara
Mahalinga Chettiar V. Muthulakshmi 33 M.L.J. 740, where it was held that though a finding might be unnecessary, yet if it is embodied in the
decree, it will operate as res judicata.
It seems to us accordingly that the contention of the appellant that the decree in the second appeal S.A. No. 905 of 1959-is not res judicata
and that in spite of that decree, he can still raise the question that Bhagyathammal is not entitled to joint rights of management has to be negatived.
It follows that the appeal fails and it is dismissed with costs.