1. One Ramalingam Pillai died on 1-10-1917 leaving behind him his last will and testament dated 27-9-1917. It is not necessary to set out in detail the several provisions of the will. It suffices to state he appointed one Audiappa Naidu as the person to carry out his directions. He is referred to as the trustee but there can be no doubt whatever from a perusal of the several provisions of the will that Audiappa Naidu was also appointed executor. After payment of the debts of the testator, the trustee Audiappa Naidu is directed to do renovation work in certain temples for different amounts, make arrangements for the performance of Pooja in certain temples and make certain other disbursements to his relations and out of the surplus income provide for the education of poor boys of the High School and give them free boarding and lodging. The will then goes on to say that should there be still any surplus income, the trustee shall do other good charities according to his discretion. Then comes the passage which is material for the disposal of the case before us. It runs thus:
'For performing my obsequies, after my lifetime, I have affectionately chosen one Shanmagasundaram, son by the second wife of my dayadi Karumabayiram Pillai, residing at Kottapattar tops. So, the trustee Audiappa Naidu, shall after my death, get the said Shanmughasundararn to perform the obsequies with the aforesaid funds and shall in return for that give the said Shanmughasundaram some such property as he, i.e., the said Audiappa Naidu, may choose.'
It is common ground that Shanmughasundaram Pillai (defendant l) performed the obsequies of the testator. But Audiappa Naidu did not make any gift as contemplated by the above provision in the will. Audiappa Naidu died on 8-4-1934 and defendant 2 as heir Audiappa Naidu succeeded to the office of trustee and executor. On 11-6-1941 defendant 2 executed a deed of gift in favour of defendant 1 conveying to him an extent of 16 acres 66 cents. The gift purported to be in pursuance of the direction contained in the will above mentioned. The recital is:
'As you have performed the funeral obsequies of the said Bamalingam Pillai, and of Rathnathachi, the widow of Swaminatha Pillai, elder brother of the said Ramalingam Pillai, and in view of the fact that you have to perform the funeral obsequies of the others mentioned in the said will, according to the wishes of the said Bamalingam Piilai, as it is mentioned in the will that you should be given properties, from and out of the properties belonging to the said estate, I hereby make a gift to you of 16 acres 66 cents of land.'
2. The plaintiff is the grandson of the testator's paternal uncle. Admittedly he is not one of the legatees under the will; nor is he directly interested in any of the charities specifically mentioned in the will. The only interest which he has got is set out in para. 5 of the plaint, namely, that he is a permanent resident of the village where several of the charities are to be performed and is likely to be benefited by the proper ad ministration of the trust estate. He also stated that as he came from the family of the testator, he was interested in the proper administration of the trust estate. He used in this capacity for a declaration that the aforesaid gift was not binding on the trust created by the will of the testator. The main grounds, on which he challenged the validity of the gift were that the material provision in the will contemplated an exercise of discretion by Audiappa Naidu personally and such discretion could not be exercised by Audiappa Naidu's successor in office. The power was personal and limited to Audiappa Naidu in whom the testator had special confidence. The other ground was that the claim, if any, of defendant 1 had become barred by limitation and a gift made 24 years after the date of the death of the testator was neither valid nor bona fide.
3. The learned District Judge of East Tanjore held that defendant 2 had authority and power to make the gift. He considered that the power and discretion were given to the trustee as such and not to Audiappa Naidu personally. He also held that though the gift was made many years after the obsequies of the testator it was not invalid on that ground. He therefore dismissed the suit and the plaintiff is the appellant before us.
4. Mr. Muthukrishna Aiyar, the learned counsel for the appellant, again pressed before us the above two grounds. So far as the first ground is concerned, out decision must rest entirely on a construction of the actual words used by the testator in this behalf. We have no hesitation in holding that the later reference to Audiappa Naidu is to him as trustee. At the opening of the sentence the testator refers to Audiappa Naidu as 'the trustee Audiappa Naidu' It is this trustee Audiappa Naidu who is enjoined to get defendant 1 to perform the obsequies. In the same sentence the testator also provides that in return for this service of defendant the should be given some property. It does not specify the extent of the property, but leaves it to Audiappa Naidu. In this context it is clear to us that the reference to Audiappa Naidu is a reference to him as trustee. It is undoubtedly true that the testator did not contemplate that Audiappa Naidu would not make a gift soon after the performance of the obsequies and that his successor should make the gift. The question, however, is whether the language compels us to hold that it is only Audiappa Naidu personally who could make the gift and that his successor would not have such power. In our opinion, the power and discretion conferred by this provision were on Audiappa Naidu as trustee and they could also be exercised by his successor, defendant 2.
5. It is quite true that the gift was executed a very long time after the performance of the obsequies. We shall even assume that if defendant l had tried to enforce his claim in Court, he might have been met by a plea of limitation, but that is not a sufficient reason to say that an executor or a person in the position of defendant 2 would be guilty of devastavit if in accordance with the desire of the testator expressed in the will, he makes a gift or distributes a legacy or pays a debt, even though such gift or legacy or debt may not be enforceable on account of the bar of limitation. Vide Lewin on Trust, Edn. 14 p. 306. If soon after the obsequies were performed, it happened that Audiappa Naidu died, surely, it could not be contended that defendant 1 would lose all rights to obtain some property from out of the estate of the testator. That would be defeating the express intention of the testator. If Audiappa Naidu himself filled in his duty we see no reason, why defendant 2 should not have performed it. It appears that defendant 1 on the date of the will was a very young boy about 4 or 5 years old and this fact may be another and sufficient reason for the late execution of the gift deed in his favour. In any event we are not convinced that there is substance in either of the contentions of the learned counsel for the appellant.
6. We may mention that we are not convinced of the bona fides of the plaintiff in instituting this suit. It is difficult to see how the plaintiff is in any way directly or indirectly interested in any of the charities set out in the will, but we are not disposing of the appeal on the ground that the plaintiff's suit itself was unsustainable.
7. The appeal fails and is dismissed with costs of respondent 1. Respondent 2 will take his costs from the estate.