Sivaswami Aiyar vs Tirumudi Chettiar and Others

Odgers, J.—This was a suit for a declaration that a certain mortgage dated 14th December, 1903, executed by one Venkatarama Aiyar,

deceased, in favour of one Sattayappa Chetti and the decree in O.S. No. 472 of 1916 on the file of the District Munsif''s Court of Mayavaram

obtained thereon were not binding on the trust properties and for an injunction restraining the defendants 1 to 3 from executing the said decree

against the trust. It is contended that the plaint properties originally belonged to the plaintiff''s maternal uncle Panchanadha Aiyar and that by his

will, dated 8th January, 1898, he created a trust. This will is Ex. A in, the case and its construction is the first point raised.

The 1st defendant contended inter alia that Venkatarama Aiyar got the properties as heir and not as trustee under the will, i.e., that he took the

properties as the beneficial owner burdened with a trust to perform the charity therein mentioned. The District Munsif gave the plaintiff the

declaration that he asked for. On appeal to the Subordinate Judge, he held that the suit was barred by limitation under Article 134 of the Limitation

Act. In this he is clearly wrong, and it is agreed by both sides that the matter is concluded by the ruling in Seetikutti v. Kunhi Pathumma ILR

(1917) M 1040. On the construction of the will, both Courts held that the will is genuine and that the suit properties were not dedicated to charity

but only the income thereof. Turning to Ex. A the words are:

Deducting these, the balance of 7 mahs 25 kuzhies of nanja lands my nephew Venkataraman shall permanently enjoy and with the income derived

out of those lands and with the income of the interest of Rs. 500, the capital I have reserved for the purpose, the said Venkataraman is, as he likes,

to be feeding at least ten Brahmins on each Dwadesi in his house at Mayavaram.... For ever, the said Venkataraman shall by himself get all these

done, and, after him, Sivaswami, his younger brother, should conduct them.

This is the important portion of Ex. A and I have had it re-translated by the Chief Interpreter and his translation is as follows:

Barring these, the remaining wet and dry lands measuring 7 mahs and 25 kulies, my sister''s son Venkataraman shall enjoy permanently, and, with

the income of the said land and with the interest derivable from the capital amount of Rs. 500 kept by me therefor, the said Venkatarama Aiyar

shall, on every Dwadesi day, feed not less than ten Brahmins, in Mayavaram, at his own house, according to his pleasure.

In the last sentence the more accurate translation is: ""For ever the said Venkatarama Aiyar having by himself got all these done, after him

Sivaswami, his younger brother should conduct them."" Mr. Bhashyam Aiyangar for the appellant points out that as there is no disposition of the

surplus income in this case, that is a strong indication that the whole property was devoted to the trust and that the trust is not merely a charge. He

quoted a number of cases, but they really all come down to this that each case must stand on its own footing and on the construction of its own

document. He relied among other cases on Vaithianatha Aiyar v. Thyagaraja Aiyar (1919) 41 MLJ 20 which laid down that gift of the whole

income was equivalent to a gift of the corpus. But I am not satisfied that the whole income is necessarily to be devoted to the charity in this case.

He has to feed not less than ten Brahmins in Mayavaram at his own house according to his pleasure. Supposing the income were insufficient to

feed 20 or 30 Brahmins the trust would be adequately carried out by his feeding only ten. There would then be a surplus income which, as I

construe Ex. A, would be his to do as he likes with as it is said that he shall permanently enjoy the nunja and punja lands. This is a will ; and in

Rajamanicka Chettiar and Another Vs. A. Manickam Chettiar (died) and Others, had occasion to examine the meaning of the word ""enjoy"" in a

Hindu will. Of course, as I have already said, each case must stand on its own facts. But it seems to me that there is nothing in the document before

me at present to restrict the word ""enjoy"" to either a life-estate in the lands or to the income thereof. I therefore think that the words ""shall

permanently enjoy"" gave what in the English Law we would call a fee simple to Venkatarama Aiyar. It is also to be observed that there is no

disposition of the corpus after Venkataraman''s death and after him Sivaswami, his younger brother, is only to conduct the charities. There is, to my

mind, nothing to show, as 1 have pointed out above, that the whole income of the land is necessarily to be devoted to this feeding and even if this

were so, I think the words do not mean a dedication of the corpus. Taking these points into consideration I am of opinion that the Subordinate

Judge was right in coming to the conclusion that the properties were not constituted as trust for the purpose of the charity. No further question

arises in this view of the case. I am therefore of opinion that the second appeal must fail and is accordingly dismissed with costs.