Vutukuri Bala Nagamma vs Vutukuri Hanumanthu and Others

Subba Rao, J.—This second appeal is against the decree and judgment of the Court of the Subordinate Judge of Guntur confirming that of

the District Munsif of Gurzala in O. S. No. 262 of 1945, a suit filed by the managing trustee of Sree Sitaramaswamivaru for delivery of possession

of the plaint schedule property to the plaintiff or to the plaintiff and defendants 2 to 6 and subsequent mesne profits.

Hanumanthu, the plaintiff, Ealayya, the husband of the first defendant, Chinna Palayya and Kanaka Palayya, defendants 2 and 3 are the divided

sons of one Veerayya. Defendants . 4 and 5 are the sons-in-law of Veerayya. Defendant 6 is the grandson of Veerayya by his daughter. Veerayya

constructed a temple for God Sitaramaswamivaru and executed a will, Ex. P. 1. dated 22-8-1934 endowing certain properties to the temple and

also prescribing the machinery for its management. Under that will, his four sons were constituted trustees and his two sons-in-law and the

grandson were appointed trustee members. Palayya, his eldest son, was appointed managing trustee. After the death of Veerayya, the properties

endowed were managed in accordance with the directions given in his will. Palayya executed another will Ex. P. 3 dated 20-8-1941 endowing

other properties and also directing the person appointed as managing trustee for God Sree Sitaramaswamivaru after his lifetime to manage the

properties. The plaintiff, the present managing trustee, filed the aforesaid suit for delivery of possession of the plaint schedule property and for

mesne profits. The suit was decreed by the courts below.

It is not necessary to particularise all the contentions raised by the defendants and the findings of the courts as Mr. Ramanarasu confined his

argument only to one question. He argued that as Veerayya appointed the first defendant''s husband as one of the trustees without words of

express limitation, her husband acquired an estate of inheritance. I shall now proceed to consider the cases cited by him in support of his argument.

In Tripurari Pal v. Jagat Tarini Dasi'', 40 Cal. 274 , the facts were: A testator after declaring the properties to be debutter for the maintenance of

the family idol stated in his will that his son, on attaining majority, would personally conduct the work of the sheba, and if he died his (the testator''s)

widow would be the shebait and that after her, his daughters by her would be shebaits. The Judicial Committee in a short judgment held that under

the will there was an absolute gift of the shebaitship to the son and it was not cut down by anything that followed in the will. On the construction of

that will, their Lordships held that the son got an estate of inheritance in the shebaitship. This judgment was construed and relied upon by a Bench

of this Court consisting of Madhavan Nair and Stodart JJ. in the case of succession to the trusteeship -- Putti Ramachar and Others Vs. P.V.

Venkata Row and Others, . The right to succeed depended upon the construction of the will which was in the following terms:

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 V has been appointed to the management .....Whereas I have appointed V 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 ana conduct the said charity properly. My sons K, V and R shall have no right whatever in the properties

dedicated to the said charities.

The learned Judges held that the will conferred heritable trusteeship on V though in appointing him to the office, the testator did not make any

express provision for the succession after the son''s death. It is true that the learned Judges accepted the respondents'' case that where the deed

conferred trusteeship on the founder''s son without further words it does by implication make provision for the appointment of trustees to succeed

him. But the judgment cannot be understood to mean that the learned Judges overruled the general and well-accepted rule of construction that the

intention of the testator should be gathered from a reading of the entire document. Indeed, when ''Gopal Lal v. Purnachandra'', 49 Cal. 459 was

cited, they distinguished that case on the ground that they did not know more of the details of the will by which the trust was founded.

I would have followed that judgment, as I should do, if in this case the testator conferred the right of trusteeship on his son alone without any words

of limitation. The decision of the Judicial Committee in ''Gopal Lal v. Purnachandra'', 49 Cal. 459 is clear authority for the position that it is not an

inflexible rule of law or construction that whenever a trusteeship is conferred upon a person without words of limitation, the said person will get an

estate of inheritance. For, in that case, the Hindu testatrix appointed her grandson to perform the worship of certain family idols and directed that

he should be the person in charge of the worship. Their Lordships held that no heritable shebaitship was created. Mayne on Hindu Law 10th

edition summarises the law on the subject at page 940 as follows :

The devolution of the office of shebait of an idol or of Dharmakartha of a temple or manager of a charitable endowment, upon the death of

termination of office of the incumbent depends upon the terms upon which it was created, or usage of each particular institution, where no express

deed of trust or foundation exists. Where nothing is said in the grant as to the succession, the right of management passes by inheritance to the

natural heirs of the donee, according to the rule, that a grant without words of limitation conveys an estate of inheritance, unless such devolution is

inconsistent with, or opposed to the purpose the founder had in view in creating the trust or where the office is descendible to a single heir.

The following principles may be gathered from the aforesaid discussion of the Case law: The general and accepted rule of construction, namely,

that the express intention of a testator should be gathered from a reading of the entire will is paramount. But if the testator appointed a person as

sole trustee without words of limitation and there is no indication in the document to the contrary, the said grant conveys an estate of inheritance.

But the rule is not inflexible and in a case where the will contains other directions which are inconsistent with such intention, the court should give

effect to his real intention.

Applying these principles, I find it very difficult to hold on a fair reading of the entire will, Ex. P. 1, that the testator intended to confer on his

eldest son an estate of inheritance. Under the will the testator made a scheme providing for checks and counterchecks. He created three classes of

trustees - managing trustee, trustees and trustee members. The mode of devolution in the case of managing trustee was also provided by him. If the

eldest son Palayya should be removed from the managing trusteeship, one of his other three sons should be appointed managing trustee.

The provisions of the will also indicate that the testator had no confidence in women for he preferred his sons-in-law and his grandson to his

daughters. It could not have been his intention that the wife of any of his sons should take part in the management of the endowments to the temple.

This is not a simple case of a testator making an absolute gift of shebaitship or trusteeship to one of his sons without any words of limitation. I

would therefore hold on a construction of the provisions of the will that Palayya did not get an estate of inheritance under the will. The judgment of

the lower court is therefore correct. No other point was raised. This second appeal fails and is dismissed with costs.

No leave.