Salakshi Ammal vs Doraimanikka Nadan and Others

Kumaraswami Sastri, J.—This appeal arises out of a suit which relates to the trusteeship of a charity founded under the will of one

Sappanimuthu Nadan who died leaving two sons. The material portion of the will so far as it relates to the trust properties runs as follows:

The lands mentioned herein as relating to the said charities should not in any way be alienated by the abovementioned two persons or their heirs by

means of sale, otti, hypothecation, security, partition, etc., but they should enjoy them hereditarily and conduct the abovementioned charities.

After the death of the testator his two sons were conducting the charities. One of the sons died leaving a minor son who died leaving the plaintiff,

his mother as his heir. This suit is filed by the plaintiff who was the widow of one. of the deceased sons and whose right is as mother of her son for

a declaration that she is jointly entitled as trustee to conduct the management of these properties.

The defence is that on the death of her son the 1st defend-ant, who was the only male member of the undivided family, was entitled to the office

and that plaintiff has no right to succession.

The Subordinate judge dismissed the suit on the preliminary ground that the plaintiff had no right as the office was a joint office and that the 1st

defendant was entitled on the death of his brother and brother''s son. After the testator''s death there was a partition, deed executed between the

two sons which it is necessary to consider before dealing with the contentions raised. This deed refers to properties which they got under the will

and so far as the trust properties are concerned the only reference to them is in Clause 6 which runs as follows:

In respect of the properties mentioned in the D Schedule we shall act in common as stated in the will.

5.The question is, having regard to the terms of the will, whether the two sons of the testator took the trusteeship and the management as members

of a joint family or whether each of them took separate interests in it as tenant-in-common. So far as gifts by a father of self-acquired property to

his sons by will are concerned, the decisions of this Court are to the effect that in the absence of a contrary intention expressed or implied from the

terms of the will the sons must be presumed to take the property as joint tenants. The reason is that in the case of a grant to two persons who form

members of a joint family the ordinary presumption is that the grant to them is as coparceners. I may refer to Nagalingam Pillai v. Ramachandra

Tevar ILR (1901) M 429. Ethirajulu Naidu v. Mukundu Naidu ILR (1905) M 363. Venkataramiah Pantulu v. Subramaniam Pillai (1912) 16 MLT

Indoji Jithaji v. Kothapalli Ramacharlu (1919) 10 L W 498 and Rajah of Ratnnad v. Sundara Pandiaswami Tevar (1914) 37 MLJ 694.

There is no doubt a conflict of authority between the various High Courts on this question. The view taken in Allahabad and in Bombay is that,

where property is given to persons without stating what interest they are to take, they are to take as tenants-in-common. This question as to the

presumption to be raised in cases of gifts by a father to his sons recently came before the Privy Council in the case of Lal Ram Singh v. Deputy

Commissioner of Partabgarh ILR (1923) A 596 and their Lordships state the rulings of the various High Courts. As regards Madras authorities

this is what their Lordships say: ""In Madras upon the whole the view seems to be that the father can determine whether the property which he has

so bequeathed shall be ancestral or self-acquired on the principle of huges es dasi huges es disponeri and that unless there is an expression of his

wish that it should be deemed self-acquired, it is ancestral."" The Privy Council summarised the Madras decision as stating that, where the father

does not state that the sons shall take the property as if it was self-acquired property of the sons, it is to be deemed to be ancestral in their hands;

or, in other words, that, unless a tenancy-in-common can be inferred from the grant, the presumption is that they are joint tenants. I do not think

that on this state of the authorities I can go behind the decisions though my attention has been drawn to a recent decision in O.S. No. 56 of 1922

where Mr. Justice Ramesam seems to doubt the correctness of Nagalingam Pillai v. Ramachandra Tevar ILR (1901) M 429. It was an obiter

dictum so far as Madras is concerned the question can be set at rest except by a decision of the Privy Council. The question is how far the

doctrine in these cases which relates to property bequeathed by a father to his sons would apply to cases where the father creates a trust and

appoint his sons as trustees with hereditary rights. On principle I can see very little difference between the conferring of the office of trustee as

regards a trust founded by the father by dedication of properties and the gift of properties to the sons. No authority has been cited which creates a

difference merely by reason of the difference in the powers of the donees. In the case of properties given to them absolutely, of course they will

have full powers of alienation; in the case of a trust they would have such powers as the law gives the trustee. The nature of the estate taken either

in property or in the trust must in my opinion be the same; And I may also say that in the case of a trust the leaning of English authorities is in favor

of joint tenancy. Trustees are treated as joint tenants with rights of survivor-ship. This is the principle enunciated in the Trust Act. So far as the

present will is concerned, reading the will as a whole, I find there is nothing to show that that testator intended his sons to take the office of trustee

as tenants-in-common. On the contrary, the words in the will that they should not partition, or sell the properties but they should enjoy them

hereditarily suggest that he wanted them to take them with all the incidents of joint family property.

As regards the partition it seems to me that the two brothers when they divided did not intend to divide the office; they expressly leave the office

to be controlled by the will and, if they wanted to divide the office to the extent to which the law allows a division, they would certainly have fixed

some turns of management, each brother managing it by turns. The question as to what the rights and liabilities of the brothers or their heirs Would

have been had there been such a division of management is not free from difficulty. But it is unnecessary for us to go into the question, because in

the present case there has not been such a division and we are to look to the will to see what their rights are. Returning to the will, they take the.

right to management as joint tenants. There has been no partition between the brothers of this office nor is there any suggestion in the pleadings that

after the death of one of the brothers there has been such a severance either by conduct or otherwise between the widow and the 1st defendant,

the surviving brother. It is therefore unnecessary to go into, the question whether Minakshi Achi v. Somasuridaram Pillai ILR (1920) M 205. which

has been referred to by Mr. T.M. Krishnaswami Aiyar rightly lays down the law if there was a partition. As there has been no partition of the office

and as the 1st defendant is the sole surviving male member of the family, I think the plain-tiff has no right to manage the property along with the 1st

defendant. The right survives to him alone. In the view I take the learned Subordinate Judge was right in dismissing the suit. The appeal fails and is

dismissed with costs.

Krishnan, J.

This appeal refers to a charitable trust founded by one Sappanimuthu Nadar. The trust has been created by a will which has been filed in the

case as Ex. A. Under that will he made his two sons who were the only other members of the joint family of himself and his sons the trustee of the

trust. The words ""creating the trust"" are cited in the judgment of my learned brother just now delivered and I need not refer to that again. There is

an express provision there that the properties are not to be alienated or even partitioned but that the two brothers were to take the properties

jointly and enjoy them jointly and carry out the provisions of the trust which are set out. Subsequent to the death of Sappani-muthu Nadar there

was a partition between the two brothers, and that partition is evidenced by Ex. B which has also been filed in the case. One of the brothers

Kandaswami Nadar died subsequently leaving a minor son called Rajappa Nadar. He also died and the plaintiff Salakshi Ammal who is his mother

and the widow of Kandaswami Nadar succeeded to a woman''s estate in the properties which had fallen to the share of Kanda-swami. She has

brought this suit to have it declared that she was entitled jointly with the 1st defendant, the surviving brother, to manage this trust estate. The

Subordinate Judge before whom the case came on for hearing had dismissed the suit without taking any evidence except the two documents al-

ready referred to, Ex. A and B. He has held that the 1st defendant is the sole surviving trustee now and that the plain-tiff has no right to manage the

trust. The plaintiff has appealed to us.

8.It has been argued before us very strenuously by Mr. T.M. Krishnaswami Aiyar that this decision is erroneous, that the right of trusteeship was

vested in the brothers as tenants-in-cornmon and that on the death of one of the brothers his right passed to his heirs, first to his son and then to

that son''s mother, the plaintiff. It is that question we have to consider in this appeal.

9.The partition deed, Ex. B, which has been referred to, has really no bearing on the cast; because, when partitioning the family properties between

the two brothers by Ex. B, they expressly reserved the trust properties from the partition, for they say in para. 6 ""in respect of the charity

properties mentioned in the D schedule, (that is the charity properties dealt with in the will), we shall act in common as stated in the will."" So that,

as far as the partition deed was concerned, the arrangement in the will was left intact although the parties divided their family estate otherwise. For

the disposal of this case there-fore we have only to look to the will and see what arrangement has been made under the will for the purpose of

carrying on the trust after the death of one of the persons named in the trust. The question therefore whether Minakshi Achi v. Somasundaram Pillai

ILR (1920) M 205 . is rightly decided or not is not before us at all. It would have been before us if the two brothers had attempted by their

partition deed to divide the trust office or made some arrangement regarding it between themselves. Such a thing not having been done, we need

not consider the question as to whether a trust office is particle at all between the trustees. Turning now to the wording of the will, it seems to me

quite clear that on the words of the will the two brothers were constituted trustees of this charity as joint tenants and not as tenants-in-common as

argued by Mr. T.M. Krishnaswami Aiyar. The ordinary presumption as regards trustees is that they are joint tenants; for, both under the English

Law and u/s 44 of the Indian Trusts Act, on the death of one trustee all the rights of the trustees rest in the surviving trustees. As pointed out by my

learned brother, the cases that he has referred to show that in Madras the view is taken that, when a father makes a gift of or bequeaths self-

acquired property of his to his children who are members of a joint family, the ordinary presumption is that they take that property as joint tenants

and not as tenants-in-common. It was suggested that this view was not a correct view but it has been followed in so many cases that until the Privy

Council decide to the contrary I am inclined to think that we should follow that view. It is true that Mr. Justice Ramesam has expressed a doubt

about the correctness of the ruling in Nagalingam Pillai v. Ramachardra Tevar ILR (1901) M 429. in his judgment in O.S.A. No. 56 of 1922 but

that is not a sufficient basis for us to refer the question to a Full Bench as after all that doubt is expressed as an obiter dictum. Assuming them that,

in the case of a gift by a Hindu father, who has sons who are members of a joint family, the presumption will be that the property is taken by the

sons jointly. The presumption will be all the greater in the case of trust property as trustees are ordinarily to be treated as joint tenants. Here in this

will it is clear that the author of the trust, the father, intended that the charity property should be kept intact and be enjoyed jointly by the trustees

and their heirs. In these circumstances there is no difficulty in holding that the rule of succession as regards joint property in a Hindu family must

apply, and that when one trustee dies the members of the joint family will take the trusteeship according to the law of survivorship. That will

exclude the claim put forward by the plaintiff who is only a female member of the joint family. I therefore agree with my learned brother in thinking

that the Subordinate Judge was right in the view he has taken of this case and that the plaintiff''s appeal fails and must be dismissed with costs.