K.S. Ramamurti, J.
1. The plaintiffs have instituted this proceeding for the construction of the will of the late Narayana Guruviah Chetty, dated 12th October, 1915, marked as Exhibit P-1, by which amongst other things the testator had created certain religious and charitable endowments, and the point on which the decision of this Court is sought relates to the question whether house and ground bearing Municipal door No. 133, Audiappa Naicken Street (more fully described in the schedule appended to the plaint) still forms part of the trust estate as being covered by the terms of the will.
2. Late Narayana Guruviah Chetty amassed large properties as his self-acquisitions by his own exertions and the trade that he was carrying on. His wife was one Narayana Ethirajamma and they had no issues. Guruviah Chetty had adopted a son who predeceased the adoptive father, leaving a widow. The will left behind by Guruviah Chetty was a detailed and an elaborate one prepared under the instructions and with the assistance of a lawyer and contains 95 paragraphs. Under this will the testator made several bequests and legacies in favour of his near relatives and substantial portions of the properties have been endowed for religious and charitable trusts. Guruviah Chetty died on 28th October, 1915, i.e., about a fortnight after the execution of the will aforesaid. Under the will the testator had appointed the following eight persons, including his wife as trustees to his estate and also to act as executors to get probate of the will and carry out the directions contained in the will : (1) Wife, Narayana Ethirajamma; (2) Prathy Kanniah Chetty; (3) Pabbichetty Bashyakarloo Chetty; (4) Pabbichetty Venkatramiah Chetty; (5) Vemulapatti Rangiah; (6) Vutukuri Narayana Chetty; (7) Pabbichetty Basaviah Chetty and (8) Pabbichetty, Ramanujam Chetty. The widow, Narayana Ethirajamma died on 25th July, 1964 leaving behind her a will under which she had bequeathed her properties including House No. 133 Audiappa Naicken Street to the second defendant, her sister's son. Of the eight trustees appointed under the will of the testator, all are dead except the first defendant, P. Ramanujam Chetty. In the vacancies caused by the death of the other trustees the plaintiffs and the second defendant have been chosen and appointed as trustees for administering the trusts. The point which is in controversy turning upon the true construction of the will, Exhibit P-1, with particular reference to the conduct of the testator even during his lifetime and the uniform course of conduct and actings of the trustees for about fifty years past is whether this property, door No. 133, Audiappa Naicken Street, is trust property or whether this property has been excluded from the will and is the separate property of the widow, Narayana Ethirajamma and therefore validly conveyed to the second defendant under her will. The contention of the present trustees, the plaintiffs, is that as per the provisions of the will the widow Ethirajamma is only entitled to a right of residence in the house No. 133, Audiappa Naicken Street, and that on her death trustees are entitled to take possession of the same for and on behalf of the trusts. The contention of the second defendant, in which he is fully supported by the first defendant (the only surviving trustee out of the board of trustees appointed by he testator), is that the disputed property has been excluded from the operation of the will, that even during the testator's lifetime he had gifted this property to his wife, Ethirajamma, and had also handed over to her all the title deeds relating thereto as part and parcel of the transaction of gift, that throughout, all the trustees and executors have acted (during this unbroken period of fifty years) on the footing that the property is excluded from the operation of the will, and that the same has been gifted by the testator to his wife even during his lifetime, and that the widow Narayana Ethirajamma obtained possession of the property and has been in enjoyment in her own right for about 50 years de hors the will, and that in any event she had perfected her title to the property by adverse possession for over the statutory period. The first defendant has filed a written statement completely supporting this case of the second defendant.
3. Application No. 1341 of 1965 has been filed by the second defendant for filing a supplemental written statement. The plaintiffs have also filed their objections as to why the supplemental written statement should not be received. The points that are raised in the additional written statement are all obvious points and well within the knowledge of the plaintiffs. In one sense it is an elaboration of the stand taken up by the second defendant in the written statement already filed by him. The questions of law that are raised in the supplemental written statement are questions which arise out of facts which are not in dispute and about which there can be no doubt or controversy and I am satisfied that this is a case in which the additional Written statement should be received.
4. The following relevant provisions in 'he will may first be extracted:
Para. 7 : I think it important that after my lifetime the whole of my remaining estate after excluding the properties which are hereinafter mentioned as those that should go to my wife Narayana Ethirajamma should be utilised for charities and appointed these eight persons, namely, 1. My wife Narayana Ethirajamma, 2. Prathy Kanniah Chetty, 3. Pabbichetty Bashyakarloo Chetty, 4. Pabbichetti Venkatramiah Chetty; 5. Vemulapati Rangiah; 6. Vutukur Narayana Chetty; 7. Pabbichetti Basaviah Chetty and 8. Pabbichetti Ramanujam Chetty as trustees to my estate after my lifetime. These alone shall also act as executors to get probate of this Will and to conduct after my funeral ceremonies and such other acts and carry out the presents, rewards, gifs and all such other charitable services which are mentioned here a below.
8. The above mentioned trustees should after my lifetime take possession of all the immoveable properties belonging to my estate, collect and recover the outstandings etc., due to my estate as per my account books, augment the money remaining in hand by lending it at interest either on the mortgage of immoveable properties or on the mortgage of jewels or also on demand promissory notes to such loan seekers as may be considered to be proper and honest persons, let the immoveable properties on rent, add the rents and interest to be received thereby to my estate, secure such money in my house when there is no demand for the money, purchase such landed properties as may be considered to be beneficial, sell such landed properties as may be considered to be not yielding suitable profit, and sell such ornaments or other things as may be considered to be unnecessary and add the money received thereby to my estate.
9. All the expenses to be incurred for the repairs and for the improvements, if they have to be made of the landed properties belonging to my estate, for the assessment, quit-rent, income-tax and such other taxes for the salaries of gumastas and servants, etc., for Court suits, and for such other matter as may happen from time to time and all carriage expenses and travelling expenses, etc. shall be debited and paid out of my estate.
* * * *19. The money and documents, as well as important account books belonging to my estate shall remain in safe iron chest in my house in possession of my wife Ethirajamma and Prathy Kanniah Chetty. When necessary the other trustees also shall meet and be checking them.
20. All these persons, namely, Prathy Kanniah Chetty, Pabbichetty Venkatramiah Chetty and Pabbichetty Ramanujam Chetty with their respective wives and sons, Bachu Perindevi Thayarmma, my mother-in-law and mother of my elder wife and Pabbichetty Manavala Chetty, the brother of my deceased adopted son should live in my house amicably with and by way of assistance to my wife Ethirajamma, and all of them should so long as my wife lives be messing together in my house itself. The aforesaid house No. 133 in Audiappa Naicken Street shall remain in the possession of wife.
21. For the food expenses of the above mentioned people and of those that come to my house, the trustees shall during the lifetime of my wife be paying every month out of my estate at the rate of Rs. 150 per mensem. No payment need be made after the lifetime of my wife.
* * * *24. Further my wife Ethirajamma should retain in her possession and enjoyment such ornaments of the value of rupees 20,000 twenty thousands as my wife likes out of the ornaments which I have made and given my wife. In respect of these ornaments my wife Ethirajamma shall have all rights and powers. So my wife should at the end of her life make gifts and presents of these abovementioned ornaments to such persons as she likes.
* * * *92. I have personally instructed and caused all the matters mentioned upto this in this Will to be written considering them as far as I could think of. If there be anything inconsistent in the abovementioned matters and any inconvenience may thereby be felt in the conduct of the trust affairs or if any matters which I have not mentioned in this Will may hereafter turn up, all powers are given to the trustees so-that all the trustees may without inconvenience arising thereby to the affairs of my estate, meet together, deeply consider the advantages and disadvantages in regard to the aforesaid matters, decide the same in the manner they think reasonable and carry on the affairs as they think proper. Further, as this namely, that the good services of gifts and charities should be conducted permanently and properly is alone my chief object, all powers are given to the trustees so that they may if all the trustees think fit conduct, within the income but not exceeding the income of my estate, not only those which I have mentioned in this Will but also any such other good services of various gifts and charities as may be found to be eminent and excellent, and make suitable arrangements in respect of any of the charitable services mentioned in this will if the same may have to be altered.
5. Before I proceed further it is necessary to refer to certain important events in their sequences. After the death of the testator the first meeting of the board of all the eight trustees took place on 4 h December, 1915 and the minute book marked as Exhibit D-9 contains a record of the proceedings. The same has been completely reproduced in para. 5 of the plaint and it is on these terms:
The first trust meeting would appear to have been held on the 4th December, 1915 in the house No. 133, Audiappa Naick Street, Madras-1. In the proceedings passed at the meeting as recorded in the minutes book and the resolution book for the trust the following is found : 'May Sri Rama help.' 4th December, 1915. At the house bearing No. 133, Audiappa Naicken Street, Peddunaickenpettah, Madras. Proceedings passed at the meeting after consideration by us, namely, (1) Narayana Ethirajamma Garu, (2) Pra hi Gunniah Chetty Garu, (3) Pabbisetti Bashyakarloo Chetty Garu, (4) Pabbisetti Venkataramiah Chetty Garu, (5) Vemulapati Rangiah Garu, (6) Vootukoori Narayana Chetty, (7) Pabbisetti Basaviah Chetti Garu and (8) Pabbisetti Ramanujam Chetty Garu, the executors trustees appointed under the will of the late Narayana Guruviah Chetty Garu, who executed the will on the 12th of October, 1915 and died on the 28th of October, 1915.
(1) The original will which had been left in the custody of Vemulapati Rangiah of us was read.
(2) Resolved that all of us should join in filing a petition for probate of the said original will within a week, engaging V. Viswanatha Sastri, High Court vakil.
(3) In paragraph 24 of the said will it is stated that out of the jewels made by Guruviah Chetty and given to his wife Ethirajamma, she should out of them, take with absolute rights jewels of the value of Rs. 20,000 and again it is stated in paragraph 8 of the said will that the executors shall sell such jewels as are necessary to be sold and aid the proceeds so realised to his estate. Subsequently when Ethirajamma Garu asked him about it, Guruviah Chetti Garu sent for all of us on the 21st of October of the said year. At that time E hirajamma Garu said to him that she should herself take all the jewels made and given to her, that after all the value of the jewels remaining after those whose value was specified in the will was not much, and that it is not fit and proper that, out of the jewels made and given to her solely, he should intend to take away some and add them to the estate and give her only some of them. Thereupon Guruviah Chetty acceded to her request. He sent for the jewels that were in her possession and gave them away to her along with the jewels that she had then been wearing to be enjoyed by her as she liked wish absolute rights.
(4) As regards house No. 133, Audiappa Naicken Street, it was the intention of Guruviah Chetty when he excluded it from out of the properties set apart by him for charities that it should be in the possession of his wife Ethirajamma and he has expressly staged to us that it was his intention that she should enjoy the said house as she liked with absolute rights of gift, sale, etc., without her heirs after her and the trustees, having anything to do with it and he handed over to Ethirajamma the title deeds of the said house.
(5) Resolved therefore that after excluding the aforesaid properties, a list of all the other properties should as soon as possible be prepared and got ready for the probate.
(Sd.) the eight persons.
The proceedings read as if that the testator subsequently gave away all the jewels to his wife on the 21st October, 1915 in the presence of the trustees and would appear also to have purported to give the house 133, Audiappa Naicken Street, Madras, to her and handed over the title deeds thereof to the lady.
From this minutes it will be clear beyond doubt that even during the lifetime of the testator, on 21st October, 1915, the testator had sent word to all the trustees and in heir presence clearly told them that he had excluded the disputed house No. 133, Audiappa Naicken Street from the operation of the will, and that he had given the same even during his lifetime to Ethirajamma, his wife, with a clear intention of his that she should enjoy the said house as she liked, with absolute rights of gift, sale etc., neither the testator's heirs nor the trustees having anything to do with that house, and that by way of implementation of the gift that he made and the exclusion of the disputed house from the operation of the will, the testator singled out and selected the title deeds relating to the disputed house and handed over the same to his wife in the presence of the trustees. The minutes show that with respect to the provision for the jewels the testator made an alteration to the effect that his wife, Ethirajamma should take with absolute rights jewels of the value of Rs. 20,000. The executors thereafter took steps to obtain probate of the will and filed O.P. No. 91 of 1916 on 12th July, 1916, and obtained probate on 3rd November, 1916. Even at that stage some misunderstandings had arisen between the widow, Eihirajamma, and some of the executors and as a matter of fact the application for probate was made by the widow and two executors, Vemulapati Rangiah Chetty and Vutikuri Narayana Chetty. On 31st July, 1916 the other five executors filed an affidavit to the effect that there was no misunderstanding between the executors and the probate may be granted. What is significant to notice is that in para. 7 of this affidavit, Exhibit D-10, filed by the five executors they have stated that the house in dispute No. 133 Audiappa Naicken Street was gifted away by the testator to his wife absolutely even during his lifetime and that the testator himself had handed over the title deeds relating to this property to his wife in the presence of all the trustees, but that as there was no document in writing evidencing the gift they proposed obtaining orders of Court. The minutes, Exhibit D-9, and the affidavit, Exhibit D-10, contain the version of the trustees (immediately after the death of the testator) as to what the testator did in their presence and as to what the testator actually told the trustees. This affidavit, Exhibit D-10, was filed particularly when misunderstandings had arisen between the widow and the majority of the executors, and it is clear beyond a shadow of doubt that what the executors have stated then represented absolute truth and there was no motive nor any occasion whatsoever for them to state so, if it were otherwise. As I proceed, it will be seen that the statement by the testator to the Board of Trustees that he has excluded the suit house from the operation of the will followed by his contemporaneous conduct of handing over the title deeds to his wife will have a great and vital significance on the question of the true and proper construction or interpretation of the will, Exhibit P-1. Along with the application for probate the applicants had filed an affidavit containing a list of the assets marked as Exhibit D-l which contains all the particulars including their value, income etc., Item 1 (f) while referring to the jewels in the list specially mentioned that the jewels were gifted away by the deceased to the first petitioner, meaning the widow Ethirajamma. The immoveable properties are set out in item III. In respect of all the items (b) to (k) in III there is reference to the income accruing from the property as forming part of the estate. But so far as the disputed house is concerned, the statement is entirely different. The income is not included and it is mentioned that the house was gifted away by the testator to his wife, Ethirajamma, the first petitioner, and that she is in actual possession and no rent is received. It is necessary to extract that portion containing the reference to the house:
Immoveable property : (a) House and ground No. 133 situate in Audiappa Naicken Street, Peddunaickenpetta, Georgetown, Madras, bearing Survey No. 5920 and G.G. No. 6592 annual assessed value is Rs. 780. The market value thereof is 15 times the assessed value... Rs. 11,700. This house also was gifted away by the deceased to the 1st petitioner. The 1st petitioner herself is in actual possession and no rent is accrued.
Exhibit D-2, dated 13th July, 1917 shows that the patta for the suit property was issued by the Tahsildar of Madras to the widow Ethirajamma. The relationship between the widow and the executors was by no means cordial, the complaint of the latter being that the misunderstandings were due to the instigation of the father of Ethirajamma. Dispute arose regarding the access to the building, door No. 134, Audiappa Naicken Street and the custody of the title deeds and the facilities for opening the iron safe in which the title deeds were kept. The controversy centred round the question whether door No. 134 was an independent house or whether it formed an inseparable portion of door No. 133 the house in the present dispute. In that connection Ethirajamma filed an affidavit Exhibit D-3 in which she took up the position that she was entitled to door No. 133 by reason of the gift in her favour. This controversy regarding door No. 134, Audiappa Naicken Street resulted in the suit, G.S. 486 of 1918 filed by the seven executors against the widow in the City Civil Court. The plaint dated 26th November, 1918 has been marked as Exhibit D-4 while the written statement filed by Ethirajamma on 30ih January, 1919 has been marked as Exhibit D-5. In para. 7 of the plaint, Exhibit D-4, it was stated that the widow Ethirajamma was given interest in door No. 133 for her life, and that she had no right to claim possession or occupation of door No. 134. This statement of the executors in the plaint, Exhibit D-4 that the widow Ethirajamma was only entitled to a life interest, in the house was promptly protested by her in paragraph 3 of her written statement Exhibit D-5 in which she had stated that she was the absolute owner thereof. The judgment in the case, dated 30th July, 1920 has been marked as Exhibit D-6. In that judgment it was held that the portion marked A, B and C the rooms in the plan attached to the plaint are part of premises No. 134 Audiappa Naicken Street and that the widow was not entitled to any right over the same. What is important to notice in this judgment is that in para. 6 there is a specific reference to this episode of the testator calling for a conference of the executors even during his lifetime and handing over the title deeds of door No. 133 to his wife in the circumstances narrated above. In para. 6 it is also stated that both sides, i.e., the executors and the widow, agreed that so far as door No. 133 the house in dispute was concerned, the widow was absolutely entitled to the same by reason of the gift made by her husband. Exhibit D-7 is the ledger folio in the account books of the second defendant Narayana Chetty & Co. It is not disputed before me that Exhibit D-7 (pages 45 - 63 of the typed papers) is a true copy of the ledger folio of Eihirajamma and that the account book has been maintained in the regular course of business. A perusal of those entries shows that Ethirajamma has been paying the property tax, quit-rent, incurring the expenses for whitewashing, repairs etc., and that throughout this unbroken period of about fifty years the executors had nothing to do with this house, and that everything was done solely and exclusively by Ethirajamma herself on the obvious footing that Ethirajamma was the sole and absolute owner thereof, the trust estate or the trustees having no claim or right whatsoever over the same. Exhibit D-8 is the extract from the Corporation register which also shows that the house has been registered in the name of Ethirajamma a the owner.
6. From the foregoing it will be obvious that everybody concerned, the testator himself during his lifetime, Ethirajamma during her husband's lifetime and thereafter all thoroughout, and the executors all proceeded on the footing that this property has been excluded from the operation of the will and that Ethirajamma was the sole and absolute owner thereof. I shall advert a little later to the legal aspect turning upon the omission of the testator to execute a registered deed of gift in favour of his wife.
7. The points or arguments pressed by learned Counsel for the plaintiffs may be briefly set forth. The will of the testator (even though no schedule of properties has been attached thereto) comprises and operates upon al the properties of the testator, moveable, immoveable, cash, out-standings etc., except the jewellery which has been given to his wife. A restricted right, a right of residence, alone has been given to the wife in respect of door No. 133 Audiappa Naicken Street under paragraph 20 of the will, so that the widow can remain in possession of that house along with the relatives of the testator mentioned therein, and on her death the right to possession of the house passes to the trust estate. In other words, the corpus of this disputed house has been bequeathed to the trust under the will and a limited right, right of residence during her life lime, alone, had been carved out in favour of the wife. The widow got possession of the house only in pursuance of the right created in her favour under Clause 20, a mere right to remain in possession of the house, and that the widow could not therefore set up or prescribe for an adverse title whatever, may be the period of her enjoyment, she having obtained possession of the house in a permissive character and under a derivative title. The provisions of the will are quite clear, specific and unambiguous and no extrinsic evidence is admissible even if it be this testator's own declarations us leading to an inference of any intention different from what the express words of the testator used in the will disclose as his intentions. Even if the testator had made a gift of the house to his wife during his lifetime it is useless, ineffective in law and would avail his widow nothing as no deed of gift has been executed and registered in accordance with the provisions of the Transfer of Property Act. The legal title to the property still inhered and continued to vest in the testator and therefore was carried away by the will as part and parcel of the trust estate. On the same reasoning even if the testator had willed the house to his wife orally it would serve no purpose and would not confer any title upon her as the law requires a will to be in writing and duly attested by witnesses. In the probate proceedings the executors including the wife had shown this house as belonging to the trust estate and duty has also been paid on the value of the house which has been taken into account in the total valuation of the assets. In Exhibit D-10 the affidavit filed by five of the executors in the probate proceedings they have specially adverted to this aspect that the gift was not evidenced by a document in writing, thereby emphasising that all the executors rightly thought that the house formed part of the trust estate. Both by reason of Section 14 of the Trusts Act and the general principles underlying the same the widow for herself, and all the executors as a body, cannot set up or recognise any title in the widow adverse to the interests of the trust. Both factually and in law all the trustees or the executors and the widow in particular suffer under a total legal disability from putting forward any hostile title or adverse claim to the property in dispute. One of the trustees, the widow, by being in possession of the suit property for over the statutory period cannot acquire title as against the o her trustees or the trust, claiming right by adverse possession, as the possession to start with was permissive in character and the widow cannot change the permissive character of that possession by her own unilateral declaration that she was holding the property in her own right and in derogation of the claim or right of the trust. When the will took effect it was open to the widow to disclaim the trusteeship and assert her own private rights, if any, in regard to the house in dispute. The law does not permit a trustee to accept the trusteeship in part and disclaim the other part; if the trustee accepts any portion of the trust in law it amounts to the acceptance of the entirety of the trust obligations. In this case, admittedly the widow had acted as a trustee in pursuance of the terms and conditions contained in the will with regard to the rest of the properties and as a trustee she suffers under a disability from putting forward a hostile or adverse claim against the trust estate. Section 14(1) of the Hindu Succession Act has no application; this is a case which is governed by Section 14(2) as the will has prescribed a restricted estate in favour of the wife with regard to the house, i.e., a mere right of residence during her lifetime.
8. I am not setting forth separately the points pressed by Mr. Thyagaraja Iyer, on behalf of the second defendant as the same will be referred to while dealing with the above points raised on behalf of the plaintiffs.
9. I shall first take up for consideration the question whether the house, door No. 133, Audiappa Naicken Street (hereinafter referred to as the family house) has been carried away by the provisions of the will, and the precise nature of the right of Ethirajamma in regard thereto. The answer to this question depends upon the true and correct interpretation of the will with such assistance or light thrown by the testator's own declaration and his conduct immediately after the execution of the will during his lifetime, within the limits which the law permits such declarations and conduct of the testator to be teken note of. In other words, in arriving at the correct interpretation of the several clauses in the will, the provisions of the Indian Succession Act, Chapter VI Sections 74 to 89, will have to be borne in mind. Sections 91 to 97 of the Evidence Act contain similar rules touching the admissibility of evidence of collateral circumstances; but Section 100 of the Evidence Act expressly provides that the provisions of Chapter VI of that Act shall not be taken to affect any of the provisions of the Indian Succession Act as to the construction of wills. No schedule of properties has been attached to the will, and the question has to be decided on reading all the clauses of the will together and in particular, Clauses 7, 8, 19, 20 and 24. As regards the true intentions of the testator, there is no doubt whatsoever, and the matter is put beyond any shadow of doubt by the declaration made by the testator during his lifetime, as set forth in the minutes of the executors, Exhibit D-9, dated 4th December, 1915. The testator had excluded this family house from the scope of the will with the deliberate object that his wife should take the same absolutely with all powers of gift and sale, neither the reversioners nor the trustees having any concern thereto, and the connected title deeds alone were picked out and handed over to the wife. The crucial question is whether the testator has manifested this intention in his will in such a manner as to enable the Court to effectuate his avowed intention or object. It is the obvious duty of the Court to ascertain and give effect to the true intentions of the testator and also avoid any construction of the will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the Court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however powerful it may be, can be given in a Court of construction in order to complete an incomplete will, or project back a valid will, if the terms and conditions of the written will are useless and in-effective to amount to a valid bequest, or to prove any intension or wish of the testator not found in the will. The testator's declarations or evidence of collateral circumstances cannot control the operation of the clear provisions of the will. The provisions of the Indian Succession Act referred to earlier indicate the limits of the Court's power to take note of the testator's declarations and the surroundings circumstances, i.e., evidence of collateral circumstances.
10. Sections 75, 77, 80 and 83 of the Succession Act have an important bearing on the interpretation of the will in the instant case. The rule of construction underlying Section 75 is that a Court has a right to ascertain all the facts which were known to the testator at the time he made his will, and thus to place itself in the testator's position, in order to ascertain the bearing and application of the language which he uses, and in order to ascertain whether there exists any person or thing to which the whole description given in the will can be reasonably and with sufficient certainty applied. Observations of Lord Cairns in Charter v. Charter L.R. 7 H.L. 364, The Court is entitled to enquire into every material fact (the subject of disposition, the circumstances of the testator and of his family) to determine the question as to what property is denoted by any words used in the will. In the instant case, the true meaning of the words in Clause 7 'the whole of my remaining estate', and the words 'belonging to my estate' in Clauses 8 and. 9 of the will, will have to be ascertained by applying the rule of construction in Section 75. For the same put pose the rule in Section 80 also would apply. From this it will be seen that evidence is, therefore, admissible to show facts and circumstances corresponding, as far as possible, with those referred to in the will, for example, to show that persons or property actually exist as described. In Halsbury's Laws of England, Volume 39, paragraph 1463, page 965, the law is stated in these terms:
Where the words of the will have no reasonable application to the circumstances proved, further evidence of the surrounding circumstances is admissible to discover the meaning of the words which will give the will full effect In all such cases, for the purpose of determining the object of the testator's bounty, or the subject-matter disposed of, or the quantity of interest intended to be given, or the other persons and things described by the will, and the facts and circumstances there referred to, a Court of construction may, and must, inquire into every material fact relating to the person or thing said to be identified by that description. For this purpose evidence is admissible to enable the Court to ascertain all the persons and facts which were known to the testator at this time when he made his will, and thus to place itself in the testator's position. The Court, it is said, puts itself into the testator's arm-chair.
The object of admitting evidence of surrounding circumstances is not for the purpose of speculating upon what the testator's intention may have been, but of ascertaining whether the circumstances by which he was surrounded afford any certain indication of his intention. Such evidence is not likely to be of assistance where the subject-matter in dispute was not in existence at the date of the will, or where, upon the construction of the will as a whole, it appears that no gift was intended by the words used.
11. Section 80 of the Succession Act embodies the well-established rule that in the case of a latent ambiguity the same may be removed by evidence of collateral circumstances to establish to what property the will relates or what exactly the subject of disposition is. Of course, this cannot be done in the case of a patent ambiguity, i.e., which appears on the face of the will. In this connection, reference may also be made to the statement of law in Halsbury's Laws of England, Vol. 39, page 971, paragraph 1470, to the effect that where there is latent ambiguity in the description of the thing bequeathed under the will, evidence is admissible to prove the testator's declarations of his intention as to which of the things so described was meant by him and that such declarations need not be contemporaneous with the will, but may be of prior or later date. In a particular context, the particular word or words used by the testator may have several meanings, and in such a situation it is obvious that the Court would adopt, and must adopt, that, meaning of the words which the testator would have meant by the use of the words, taking into account the general scope of the will and the general purpose of the testator. (Vide Williams on Wills, Second Edition, page 361).
12. The words 'the whole of my remaining estate, after excluding the properties which are hereinafter mentioned as those that should go to my wife Narayana Ethirajamma', read in the light of Clauses 8 and 20 of the will in the context, would not take in the family house. I am unable to accept the argument on behalf of the plaintiffs that these words would only mean the jewels which have been given to Ethirajamma. There is a specific provision, and the necessary details are contained, in Clause 24 of the will with regard to the jewels given to the wife. There is also a specific provision in Clause 20 of the will that the testator's wife shall remain in possession of the family house. I accept the argument of Mr. V. Thiagarajan, learned Counsel for the defendants, that if the intention of the testator was that the wife should merely have a right of residence for her lifetime, without any powers of alienation, the testator would have employed entirely different language. Further, if such a restricted estate had been created in favour of the wife under the will, a distinct and separate provision would have been made in Clause 20 of the will as to what should happen to the house after the death of the wife. Again, Clause 8, which contains the provision for the trustees taking possession of the properties and collecting the rents and out-standings, would have been worded differently, if the family house also had been dealt with, under the will. Further, decisive light is thrown by Clause 19 of the will, which, says that amongst other things the documents of title relating to the testator's estate (meaning thereby the estate dealt with under the will) shall remain in the iron safe which was in the house and that the trustees shall, whenever necessary, meet and examine the title deeds for the purpose of checking and verification. If the title deeds that were ultimately left behind by the testator do not relate to the family house but they have been deliberately picked up and taken out of the bundle of title deeds by the testator himself, the inference is clear that under Clause 19 the estate that is dealt with is the rest of the property of the testator excluding the family residential house. My conclusion, therefore, is that, reading all the clauses together, the intention of the testator was to exclude the family house from the operation of the will.
13. In any event, I am clear in my mind that the words employed by the testator in the several clauses of the will undoubtedly disclose a latent ambiguity permitting the Court to take note of the surrounding circumstances and other relevant considerations, including the testator's own conduct and declarations, for the purpose of determining his true intentions. In the case on hand, such collateral evidence is taken into account, not for the purpose of controlling, varying or altering the will of the testator, but for the limited purpose of enabling the Court to declare the intentions of the testator according to the words in which the intention is expressed.
14. While emphasising that it is the duty of the Court to effectuate the testator's declared intentions, and that in that process the same words, may bear different meanings in different context in different wills, Lord Blackburn in The River Wear Commissioners v. William Adamson (1876) L.R. 2 A.C. 743 , observes as follows:
In the case of wills the testator is speaking of and concerning all his affairs; and therefore evidence is admissible to show all that he knew, and then the Court has to say what is the intention indicated by the words when used with reference to these extrinsic facts, for the same words used in two wills may express one intention when used with reference to the state of one testator's affairs and family, and quite a different one when used with reference to the state of the other testator's affairs and family.
15. The words 'remaining estate' in Clause 7, all the properties belonging to my estate in Clause 8, the documents referred to in Clause 19, and the provision in Clause 20 that the family house shall remain in the possession of the wife of the testator, will have to be given their proper meaning, taking into account the intentions of the testator.
16. I have said enough to indicate, that, at any rate, there is sufficient context in the will and the words referred to earlier, which bear more than one meaning, entitle the Court to take into account the general scope of the will and the purpose of the testator and his declarations and conduct to arrive at the true and correct interpretation of the will. Vide - Halsbury's Laws of England, Volume 39, page 976, paragraph 1478, and page 986,., paragraph 1493.
17. I may in this connection refer to the decisions of the Privy Council in Rameshwar Baksh v. Balraj Kuar , in which it was held that, where the language used in the body of a will threw some doubt about the proper interpretation of the several provisions of the will, the testator's own interpretation of the language used by him in his will must be treated as authoritative as to the meaning of the words employed by him.
18. No useful purpose will be served by referring to the judicial decisions, as the decisions in each case depends upon the particular language employed in the will in question, and two wills seldom contain the same identical language. It is sufficient if I refer to the statement of the law in Jarman on Wills, Eighth Edition, Volume 1, pages 510, 522 and 530, where the learned author deals with the question as to the circumstances under which evidence of collateral circumstances was admitted to clear up latent ambiguities upon the face of the will, and where the words were interpreted not in their primary sense, but connoting a different meaning in the particular context of the will. The learned author refers, at page 510, to an interesting case in Doed. Gore v. Langton 2 B. & Ad. 680, in which the words 'thereunto belonging' in the will in question came up for consideration. The Court held that in the light of the other clauses of the will the testator had not used the disputed words in their primary sense, and that extrinsic evidence was therefore admissible to show in what sense the testator had used them.
19. In the alternative, it was contended by Mr. V. Thiagarajan that even if it should be held that the family house is dealt with under the will, the testator's widow became the full and absolute owner of the house under Section 14 of the Hindu Succession Act, (XXX of 1956), or that, in any event, with regard to the rest of the interest or right in the house (after carving out a right of residence for the wife), no provision having been made by the testator, the residuary estate vested in the widow as the husband's heir on his death on 12th October, 1915, and again by reason of Section 14 of the Hindu Succession Act, she became the absolute owner, there having been a merger in the same person, the widow, of the right of residence and all other rights in the house. I accept both the limbs of this argument. As observed earlier, Clause 20 of the will simply provides that the family house shall remain in the possession of the testator's wife. It says nothing about the powers of alienation. It says nothing as to what should happen to the house after the death of the wife. The executors representing the trust estate cannot claim the house after the death of the wife, as there is no provision to that effect in favour of the trust. The inference is clear that the testator had died intestate with regard to this property except to the limited extent of the right of residence carved out in favour of his wife. When the document is silent, containing no express provision as to what should happen to the property after the death of the wife, evidence of the testator's intentions and his conduct are undoubtedly admissible, as such evidence is obviously not to contradict or vary the provisions of the will. The testator's intention, as observed earlier, is clearly to the effect that the executors of the trust estate were not to get the house. The result can be only one of two things : either the testator has given away the house to the wife, though ineffectively, the transaction of gill not being evidence by a registered deed of gift; or the testator had died intestate with respect to the house, except with regard to the right of residence of his wife. The legal consequence, therefore, is that the wife would take as the testator's heir whatever property he has died intestate, and by reason of the merger of both the interests in the wife, and by reason of sec ion 14 of the Hindu Succession Act, the wife had become the sole and absolute owner of the same.
20. My attention was drawn by Mr. V. Thiagarajan to a recent Bench decision of the Pana High Court in Mohanlal v. Habibullah : AIR1963Pat430 , in which under somewhat similar circumstances, the testator in his will had made a bequest of certain properties to two ladies for their lives only for maintenance, and the testator did not say as to what should happen to the shares of these two ladies after their death. It was held that the testator must be deemed to have died intestate with regard to these properties, except to the right of maintenance created in favour of the two ladies and that the properties shall be taken by the heirs of the testator. The principle of this decision clearly applies to the instant case inasmuch as in -this case too the testator has not made any express provision as to what should happen to the house after the death of the wife.
21. Even otherwise I am clear in my mind that under Section 14(1) of the Hindu Succession Act the widow became the sole and full owner of the property. One of the most important changes brought about under the Hindu Succession Act is the one contained in Section 14(1) of the Act by which the Hindu women's limited estate is abolished, and any property possessed by a female Hindu, howsoever acquired, is now held by her as her absolute property, and she will have full power to deal with it in any manner she likes. The restraint and limitations on her power of alienation have ceased to exist in respect of any property in her possession at the commencement of the Act. The avowed object of Section 14 is embodied in the section itself in its express declaration in Sub-section (1), that after the commencement of the Act, all property possessed by a Hindu female, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof. The Explanation to Section 14(1) gives the meaning of the word 'property' dealt with in Section 14(1). Sub-section (2) contains a provision in the nature of a proviso or exception that nothing contained in Sub-section (1) shall apply to any properly acquired by way of a gift or under a will or any other instrument or under a decree or order of a civil Court or under an award, where the terms of the gif, will or other instrument, or the decree or order or award prescribe a restricted estate in such property. Section 14(2) being in the nature of an exception or proviso to the main provision of Section 14(1), unless a case comes strictly and literally within the terms of Sub-section (2), Section 14(1) will have its overriding effect and full operation. In other words, the main provision is Section 14(1) which is in very wide terms and covers every description of property in the possession of a Hindu female, and the same will have full operation in every case, except to the limited extent to which the case is strictly covered by Sub-section (2) of Section 14. Sub-section (2) being in the nature of a proviso or exception, it should not be interpreted so as to have greater effect than the strict construction of the proviso renders it necessary. Vide - Maxwell on The Interpretation of Statutes, Eleventh Edition, page 156. See also the observations of Lord Greene M.R. in In re Tabrisky (1947) 1 Ch. 565 . I may also refer to the Bench decision of this Court in Periehiappa v. Kachiappan : AIR1932Mad46 , in which, the relative application of sections 109 and 110, came up for decision. While regarding Section 110, Civil Procedure Code, as a proviso to Section 109, this Court observed that it is a rule of law that a proviso should receive a strict construction, it is not open to the Court to add words to a proviso with a view to enlarge the scope of the proviso and that it must be restricted to the scope reasonably conveyed by the words used therein. Section 14(2) cannot be divorced from Section 14(1) and it must necessarily be construed harmoniously with the latter. In order to attract Section 14(2) it is necessary that the property should have been acquired in any one of the methods provided therein, and that, at the same time, it must be evidenced by a document, and the terms of the document should prescribe a restricted estate in such property. The fact that before the commencement of the Act a Hindu female has been and is in possession of the properly for a particular purpose, either as a right of residence or towards maintenance, would not amount to the prescribing of a restricted estate within the meaning of Section 14(2). It must be something more than that, as otherwise the operation of Section 14(1) would be rendered nugatory and useless in a vast majority of cases, resulting in the defeating of the very object for which the section was enacted. The significance of the use of the word 'any' in Section 14(1) should not be lost sight of. The word 'any' is of general import and excludes limitation or qualification and is all inclusive. It negatives qualification and affirms wide generality. Wherever the word 'any' is used in a statute, it is equivalent to, and has the force of 'every' and 'all'. Vide the observations of Fry, L.J. in Duck v. Bates (1884) 13 Q.B.D. 843 .
22. I accept Mr. V. Thiagarajan's argument that in order to attract Section 14(2) two conditions must be concurrently satisfied : (a) the property must have been acquired in any one of the modes specified in Section 14(2); and (b) the document itself, by its express terms, should prescribe a restricted estate in such property. If any one of these conditions is absent, then Section 14(2) will have no operation, and Section 14(1) will have its full sway.
23. Applying this rule of construction, it is clear that the will in question, in terms, does not prescribe a restricted estate. It simply says that the wife shall remain in possession of the house. The will does not even prescribe any point of time. The situation clearly is that at the time when the Act came into force, the wife was in possession of the family house without any conditions attached thereto and she became the sole and absolute owner of the same under Section 14(1). It only remains to deal with that portion of the arguments based upon the doctrine of estoppel and disclaimer of trusteeship. In this connection, it is necessary to reiterate the following significant and important facts. The title deeds concerning the family house were handed over to the wife by the testator even during his lifetime, and at that time the executors were told that this house had been given away to the wife, the trust estate having no kind of right whatsoever thereto. The wife's possession and enjoyment of the house from the moment of the death of the testator was clearly not in pursuance of any right under the will, but de hors the will, in her own independent right under a grant by her husband, though it may be ineffectual in law to clothe her with any legal title. The important point to remember is that the possession of the house originated in her own right and not under the will. Next, the executors themselves never thought that this house formed part of the trust estate. In the probate proceedings, in more places than one, it has been emphasised that the house has been gifted away to the wife and that therefore the rent from the house was not included. The fact that the value of the house has been included for determining the total probate duty is of no significance when it is remembered that in that list itself there is an important statement that the house has been gifted away to the wife. Further, even the jewellery which has been given to the wife has been taken into account for the purpose of probabte duty.
24. On behalf of the plaintiffs, considerable reliance was placed upon the decision of the Privy Council in Srinivasa Moorthy v. Venkata Varada Aiyangar , to the effect that no person, who has accepted the position of a trustee and has acquired property in that capacity, can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself. Reliance was also placed on a recent Bench decision of this Court (to which I was a party) in Venkatarama Naidu v. Jayammal (1963) 76 L.W. 619, in which the principle of the decision of the Privy Council referred to above was applied. The principle of these decisions has no application to the instant case, as the essential foundation of facts is lacking. In Srinivasa Moorthy v. Venkata Varada Aiyangar , the testator (the father) executed a will appointing the son as the executor. The son applied for and obtained probate of the will, realised the assets and administered the estate in accordance with the provisions of the will-for a considerable time, and later, on raised the objection that the will was invalid and inoperative under Hindu Law, alleging that the properties dealt with thereunder were joint family properties and that on the death of his fa1 her the entire properties became his individual properties by right of survivorship. The High Court in Srinivasa Moorthy v. Venkata Varada Ayangar : (1906)16MLJ238 , as well as the Privy Council rejeced this contention, holding that, on the peculiar facts in that case, the son by his own conduct was estopped from putting forward that contention. On the facts also it was found that the properties were the self-acquired properties of the father.
25. At this stage it is necessary to refer to the two leading decisions in England, which have dealt with this particular aspect of the doctrine of estoppel. Reference may first be made to Board v. Board L.R. 9 Q.B. 48. In that case the testator (who, it turned out, had no right to device the property by a will) executed a will appointing trustees for his daughter Rebecca for life with remainder to his grandson William. Upon the death of the testator, Rebecca entered into possession of the premises purported to be devised and also paid for some year the annuities charged by the will upon the premises and she was in possession of the property for more than twenty years. William, who was entitled to the remainder, conveyed the same to the plaintiff, and Rebecca the daughter, after she had been in possession for more than twenty years, conveyed the property in fee to the defendant, who, upon the death of Rebecca, took possession. The plaintiff, the assignee of William, brought the suit in ejectment, and it was held that the defendant, who was claiming through. Rebecca, was estopped as against the remainder man and persons claiming title through him from disputing the validity of the will. Blackburn, J., put the matter thus (at page 53):
The case is like that of a tenant coming in under a landlord the is estopped from denying his landlord's title. As to the point that Robert, being only a tenant by the courtesy, had nothing to devise, it may be said that in many instances the landlord has only an equitable title, and yet the tenant is estopped from disputing such title. I think if the law were otherwise the consequences would be disastrous, for how unjust it would be if a person who comes in under a will as tenant for life, and continues in possession until twenty years have elapsed, could say there was a latent defect in the title of his predecessor, and the estate devised really belonged to the heir-at-law, and his title being barred, he, the tenant for life, is entitled to the property in fee simple. It is contrary to the law of estoppel that he who has obtained possession under and in furtherance of the title of a devisor should say that such title is defective. My brother Martin, in Anstee v. Nelms 1 H. & N. 232 : 26 L.J. 8 says that the Statute of Limitations can never be so construed that a person claiming a life estate under a will shall enter and then say that such possession was unlawful so as to give to his heir a right against a remainderman. That seems directly in point. It is good sense and good law. All we have to decide here is that Rebecca, having entered under the will, William, the remainderman under the same will, has a right to say that she and all those claiming through her are estopped from denying that the will was valid.
Mellor, J., dealt with the matter in the following manner:
Rebecca enters into possession under the will, taking a life estate, and during the continuance of that estate effects a sale adversely to the interests of the remainderman under the will. Now, Rebecca having accepted the estate under the will, and having acted under the will, treating the will as a perfectly valid will, cannot defeat the title of the remainderman under the will by alleging that the devisor had no title. It would be contrary to the wholesome doctrine of estoppel to allow a person who takes a limited interest under the will, to convert her limited interest into a fee.
26. From the observations extracted above, it will be seen that in order to attract this doctrine of estoppel it is necessary that the person estopped, must have obtained possession and entered into possession in pursuance of the will.
27. The principle of this decision was applied and followed in the next leading decision in Dalton v. Fitzgerald (1897) 2 Ch. 86. It is sufficient to set out the head note of this case to bring out the ratio of the decision:
Where a grantor, who has no title, purports, by deed to convey a piece of land to A for life with remainders over, and A enters upon the land under the deed, and afterwards acquires a good title by possession against the true owner, A and his privies are respectively estopped, as against the remaindermen, from disputing the validity of the deed....
The doctrine of Board v. Board L.R. 9 Q.B. 48 is no part of the law of wills, and applies to estates taken under instruments of whatever character.
28. This aspect, i.e., the essential condition, that the person estopped must have obtained possession under the will, was dealt with by Lopes, L.J., in these terms (at page 93):
If a person obtains possession of land, claiming under a will or a deed, he cannot afterwards set up another title to the land, against the will or deed, though the deed or will did not operate to pass the land in question.
It is said the property passed by the will and not by the deed. But how can this be said about the Bulk lands? They were not included in the will, but were settled, or, at any rate, were purported to be settled, by the deed. A person having no title to land settles it on A for life with remainder to B. A enters and takes possession and deals with the property as tenant for life; that person is estopped from telling the truth - his mouth is shut; he has availed himself of the settlement for the purpose of obtaining possession of the land, and he cannot afterwards seek to invalidate that which enabled him to obtain possession, and this though subsequently he may have acquired a good title. If a man ob aim possession of land claiming under a deed or will, he cannot afterwards set up another title to the land against the will or deed though it did not operate to pass the land in question; and if he remains in possession till twelve years have elapsed and the title of the testator's heir is extinguished, he cannot claim by possession an interest in the property different from that which he would have taken if the property had passed by the will or deed.
29. The significance of the observations of Lopes, L.J., in the case cited above, came up for decision in a Bench decision of this Court in Venkatarayudu v. Narayanayya : AIR1941Mad430 . In that case the widow had executed a deed of surrender of the entire estate of the husband, in favour of the then nearest reversioners and, by way of abundant caution and in order to obviate any objection that the surrender was only partial and not of the entirety of the estate, some properties belonging to one of the surrenderees were also included, and the question arose whether that surrenderee was estopped or precluded from putting forward his independent title to the properties, and it was held that as the surrenderee had not obtained possession of the properties in pursuance of the deed of surrender, the necessary condition for the application of the rule of estoppel, enunciated in the two leading English decisions, had no application. Krishnaswami Aiyangar, J., delivering the judgment of the Bench, emphasised this crucial aspect in these terms:
From this statement of the law, it is plain that it is an essential condition for the application of the doctrine, that the person sought to be estopped or his predecessor-in-interest must have obtained possession of the property, under the deed. It is also plain that both in Dalton v. Fitzgerald (1897) L.R. 2 Ch. 86 and in Board v. Board L.R. 9 Q.B. 48, which was cited in it with approval, the party estopped did not have and did not profess to have any title to the property other than the title-he derived from the deed. But the facts of the case before us are wholly different. Veeraraghavayya did not obtain his title under the deed of surrender. Neither did he derive his possession from it. Therefore, we consider that the necessary conditions for the application of the rule of estoppel enunciated in Dalton v. Fitzgerald (1897) L.R. 2 Ch. 86 are here absent. As we understand his judgment, Patanjali Sastri, J. appears to consider that because Veeraraghavayya had approbated the transaction by receiving a substantial benefit under the deed, in the shape of a share in the admitted properties of the estate, he should not be permitted to reprobate it in so far as it purported to convey the suit property even though that property was really his own. But this is a principle different from that which formed the basis of the decision in Dalton v. Fdzgerald1, in which the estoppel was held to arise in respect of the very property received under the grant, and not belonging to the claimant otherwise.
30. I may also refer to a decision of the Privy Council in Nisar Ali Khan v. Mohammad Ali Khan (1897) L.R. 2 Ch. 86 and the observations (at pp. 345, 346) referring to Board v. Board L.R. 9 Q.B. 48 and Dalton v. Fatzgerald (1897) L.R. 2 Ch. 86. This Privy Council decision is also clear authority for the position that in order to attract this doctrine of estoppel, possession must have been obtained under the document, and that it would be open to a person even to rely upon his possession as a squatter. In the instant case, as the widow did not acquire possession under the will, but in her own independent right, she would not be estopped, even if her possession should be regarded as that of a squatter or trespasser, because no registered deed had been executed in her favour. The observations of the Privy Council at page 346 clearly apply to the facts of the instant case which is a fortiari as the widows' possession was something more than that of a mere squatter.
31. My attention was also drawn to a Bench decision of the Calcutta High Court in Suboduchandra v. Bhubalika Dasee : AIR1934Cal356 in which again, following the principle of the En-jlkh decisions cited above, it was held that there was no estoppel, as the person sought to be estopped had not obtained possession under the will, and that if a person had possessory right that right would not be affected and the doctrine of estoppel would not be attracted merely because a probate was obtained.
32. Reference may also be made to the statement of the law in Rustomji on Limitation, Six h Edition, at page 120, where the learned author dealing with the topic 'trustee cannot plead adverse title against his own cestui que trust', observes that if a person is already in possession and insists upon holding the property in his own behalf, the doctrine of 'no lapse of time' would not apply.
33. The decision m Venkatarama Naidu v. Jayammal (1963) 76 L.W. 619, relied upon by Mr. Gopalswami Iyengar, itself contains reference to and quotations from the two leading decisions in Attorney-General v. Munro 2 De G. & Sm. 122 and Stone v. Godfrey 5 De Gex Mac. Gor.'s Rep. 76 which advert to the important condition that, the person sought to be estopped must have knowingly and expressly acquired possession as a trustee.
34. I may wind up the discussion on this portion of the case by referring to the statement of the law in Halsbury's Laws of England, Volume 38, page 873, paragraph 1470, in which this aspect, that he trustee must have taken possession of the trust property 'as such', is emphasised:
Where a trustee has 'as such', taken possession of trust property, he cannot hold it adversely to a cestui que trust after his estate as trustee has determined; but his continuance in possession is deemed that of the cestui que trust.
35. The point about disclaimer does not need elaboration, as it is settled law that a trustee is not bound to accept the office of trusteeship, but that if he accepts the office he becomes trustee of the entirety of the estate, and that it is not open to him to disclaim the trusteeship with regard to a portion of the trust estate and accept the trusteeship with regard to the other portion. Vide, for the statement of the law - Underhill's Law of Trusts and Trustees, Eleventh Edition, page 222, Article 34; and Lewin on Trusts, Fifteenth Edition, page, 170.
36. This question arose for direct decision in the leading decision in In re Lord and Fullerton's Contract L.R. (1896) 1 Ch. 228. In that case the testator having real and personal property in England, and abroad left his residuary estate to trustees upon trust for sale. One of the trustees disclaimed the trust comprised in the will with regard to the properties in England, but accepted the trusteeship only with regard to the properties in the United States of America. The remaining three trustees entered into a contract to sell the property (land) of the testator in England but the purchaser declined to complete the transaction on the ground that the disclaiming trustee also should be a necessary party to the conveyance. This objection was upheld holding that the trustee cannot accept a portion of the trust and disclaim the other portion, and that he must disclaim in toto or otherwise he remains a trustee as to the entirety of the property. The fact that the widow and all the seven executors accepted the trusteeship as a body is beyond dispute. It only means that they have become trustees of the properties which constituted the trust estate. If, as observed earlier, this property was never regarded as forming part of the trust estate, and the trustees never obtained possession of this property 'as such', this doctrine of disclaimer does not affect the legal position. I am unable to accept the argument that if the widow intended to assert and retain her supposed individual right to the property in question, she ought to have disclaimed the trusteeship altogether, leaving the trust to be administered by the remaining seven trustees, and that if she accepted the trusteeship' she did so on peril of losing her separate right or title to the property in dispute. The acceptance of such a contention would lead to startling results.
37. After the trusteeship has been accepted, the question as to what properties belong to the trust estate will have to be decided on totally different considerations. The doctrine of election, embodied in Section 35 of the Transfer of Property Act, can have no application 10 such cases, as there is no question of taking away the trustee's property and including it in the trust estate, and giving some other property in lieu thereof to 1 he trustee.
38. I think it is unnecessary to express my final opinion as to how far the trustees acting under Clause 92 of the will under the guise of clearing up difficulties in the administration of the trust, can finally render a decision binding upon the trust estate as to whether or not the property belongs to the trust estate. A perusal of the decision in Re Wynn's Will Trusts (1952) 1 All E.R. 341, shows that such a provision in a will, leaving to the trustees to determine all questions or matters of doubt arising in the execution of the trusts of the will would be opposed to public policy as being an attempt to oust the jurisdiction of the Court to construe the will and control the administration of the testator's estate.
39. I see no substance in the argument that Ethirajammal being one of the trustees, obtained possession of the property along with 7 trustees in a permissive character, and therefore could not acquire title by adverse possession. For the reasons discussed earlier in this judgment, there is no basis either factual or legal to apply this rule of law. Ethirajammal never obtained possession of the property in a fiduciary capacity under any derivative title. She obtained possession in her own right and held the property adversely for over the statutory period. It is clear therefore that she had perfected title by adverse possession.
40. For all these reasons, I hold that the property in dispute, door No. 133, Audiappa Naicken Street, never was, nor is, the property of Narayana Guruviah Chetty Charities, and the suit is accordingly dismissed.
41. I have the satisfaction that the conclusion that I have reached is in complete consonance with the express intentions and avowed declarations of the late Narayana Guruviah Chetty, the owner of the property, and is also in accord with the uniform course of conduct of all the parties concerned for a long period of fifty years. I see no justification whatever for agitating this matter at this distance of time, when all the trustees have acted according to the dictates and wishes of the testator. The inference is irresistible that the trustees themselves could not be labouring under any bona fide doubt about the character of the property, and the present attempt to rake up this question is due to recent misunderstandings and dissensions amongst the trustees. Costs Rs. 2,000 out of the estate to be paid to defendant 2. Costs Rs. 1,000 out of the estate for defendant 1. Plaintiffs' costs Rs. 2,500 in all to come out of the estate.