1. This appeal which has been preferred by the plaintiffs is a useless one and devoid of substance. The plaintiffs-appellants instituted the suit. O. S. No. 65 of 1964 on the file of the Sub-Court of Tanjore to establish their joint right of management along with the defendant in respect of certain charitable trust and its properties. The following genealogical tree shows the relationship between the parties:--
(For genealogical tree see next page)
Jambugaramalingam (hereinafter referred to as the founder) founded a trust consisting of several charities like feeding of Brahmins running a water-pandal etc. under a registered Will dated 19-6-1880 (the certified copy of which is marked as Exhibit A-1). He constituted his son, Subbu Pillai, who was then a minor aged about six years, as trustee, with a provision that during his minority Subbu Pillai's maternal grandfather should be the guardian of Subbu Pillai and manage the trust and its properties and hand over the management to Subbu Pillai on his becoming major. The founder died in the same year very shortly after this Will. Pancharathnam the maternal grandfather of Subbu Pillai appeared to have managed the trust and its properties during the minority of Subbu Pillai and when the latter became a major, he took over the management, but he died issueless very shortly thereafter, leaving him surviving his widow and sole heir, Thayyamuthu.
ANCESTOR|_______________________________________| |Founder-Jambuga Ramalingam Janbuga Narayanan(Left a will on 19-6-1880 (Ex A-1) |and died the same year) ____________________________| || Jambuga Ganapathy SabapathySabbu Pillai | |(became major in 1893) Muthukumaraswamy Pillai ____________________= (Adopted son (died in 1944)) | |Thayyamuthu Ammal (wife) = Meenakshi Jambulingam(died in 1915) 1st wife 2nd wife (died in 1962) (Predeceased| | his father)Ganesan __________________(Defendant) | |Thiagarajan Rathnasabapathy(1st Plaintiff) (2nd Plaintiff)
Exhibit B-1 dated 18-3-1898, a compromise decree in O. S. No. 7 of 1897 Sub-Court Tanjore, shows that immediately after the death of Subbu Pillai, disputes arose between Thayyamuthu (his widow) on the one side and the reversioners of Subbu Pillai, the lineal descendants of Jambuga Narayanan, the brother of the founder, on the other. The compromise decree shows that Jambuga Ganapathy and Sabhapathy are brothers, being sons of Jambuga Narayanan, and Sabhapathy's son is Jambulingam, and compromise decree also shows that the compromise was entered into between Thayamuthu on the one side and Jambuga Ganapathy Sabhapathy and Jambulingam on the other. Exhibit B-1 represents a family arrangement between the widow on the one side and the male heirs on the other (i.e. the reversioners of Subbu Pillai). Under this family arrangement, Thayyamuthu alone was to be in possession of the trust properties as managing trustee and to manage the same and after her lifetime, the right of management of the charities and the properties was to devolve upon the descendants, Jambuga Ganapathy and Sabhapathy or any member of their branch who is the seniormost in the line. The actual provision in the compromise is as follows :
(The original in Tamil omitted-Ed.)
The compromise contains other provisions like filing of accounts (into the Court) every year in the month of April, and safeguards for the due and proper performance of the charities. Thus, it is virtually a scheme settled between the parties (in pursuance of a family arrangement) providing for proper and efficient performance of the charities and management of the properties as well as providing for the devolution of the trusteeship in the members of the family of the founder. No stranger to the family is introduced in the compromise and no right is conferred upon any stranger; there is no notion of any transfer or sale or bartering away of the management of the properties for any price or any consideration so as to make it a commercial bargain. It was just a family dispute which was resolved in the manner aforesaid to secure peace and harmony in the family, at the same time keeping in mind the paramount interests of the charity i.e. the performance of the charity, the management of its properties and the rule of devolution of the trusteeship. After this long distance of time, five decades and more during which period this arrangement has been acted upon by all concerned, the Court has to presume the existence of every circumstance which would justify the parties entering into this family arrangement so as to be binding upon the parties as well as their heirs as being for the benefit of the trust in the sense that it ensures the due performance of the charities and also provides for the devolution of the trusteeship in the family.
The founder has appointed his son as trustee for the charities and in the Will it is not stated that it is only for the lifetime of the son. Again, it is not expressly (note expressly) stated that the trusteeship is conferred upon the son absolutely with the result that there was a total divestiture of all rights so far as the founder was concerned and it is for the son of the founder (when the Will took effect) to be the trustee and also to designate or nominate the trustees after his lifetime and/on to lay down the rule of devolution. Again the Will does not specify expressly that the trusteeship is conferred upon the son and his heirs his heirs not being words of limitation, but words of purchase i.e. the heirs of Subbu Pillai in succession being entitled to function as trustees. In other words, the Will does not contain any words to indicate that on Subbu Pillai's death the line of devolution is the heirs of Subbu Pillai. Further, in the then prevailing state of law in 1895-1898, there were serious doubts entertained whether a female can be a trustee in respect of a trust comprising charitable and religious endowments. The situation, therefore was (if one can speculate), there was some controversy about the scope of the Will in so far as the constitution of the trustee was concerned, the right of Thayyamuthu as against the rights asserted by Jambuga Ganapathy and others. One thing, however, is clear that Jambuga Ganapathy and the members of his branch were not fighting the personal individual rights of their own, but they were fighting Thayyamuthu for the purpose of ensuring the due performance of the charities and also to secure a proper line of devolution so that there wouldn't be any gap. Jambuga Ganapathy his brother and his son were actuated only with the predominant object of establishing or placing the charity in a firm footing so that there wouldn't be the recurrence of such a dispute in future.
It is necessary to emphasize, even at this stage, one important aspect of the compromise which has been overlooked by counsel for the appellants. The widow, Thayyamuthu (after the death of her husband) should have asserted a right, that under the Will an absolute heritable trusteeship was conferred upon her husband, that no vestige of right whatever was either retained by or reserved with the founder and on the death of her husband the entire right devolved upon her, she just stepping into the shoes of her husband and that in that capacity she had a right to be the trustee during her lifetime and also nominate her successor and lay down a rule of devolution of the trusteeship. If the suit O. S. 7/1897 had not been compromised and if she had fought and asserted this right in the course of that litigation and succeeded in establishing that right the members of the other branch. Ganapathy and Sabhapathy ran a risk of being totally excluded and Thayyamuthu nominating some other person and also laying down a rule of devolution in which Ganapathy and others would have no place. Reference may be made to the classical statement of the law in the oft-quoted passage in the decision of the Privy Council reported in Khunni Lal v. Govind Krishna Narain, ILR (1911) 33 All 356 in which the Privy Council quoted with approval the law laid down by the High Court of North-West Frontier Provinces in a very early case :
'The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than falling to his share and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light rather than as conferring a new distinct title on each other that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement.'
This enunciation of the law by the Privy Council emphasizing acknowledgment and recognition of the rights of both parties was followed by the Supreme Court in Sahu Madho Das v. Mukand Ram : AIR1955SC481 the Supreme Court observed as follows:
'But before doing that we will pause to distinguish Rani Mewa Kuwar v. Rani Kulas Kuwar, (1874) 1 Ind App 157 ; ILR (1911) All 356 and Ramasumran Prasad v. Shyam Kumari, 44 MLJ 751AIR 1922 PC 356. It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that is each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to him or her share is concerned and therefore no conveyance is necessary.'
From the above it will be seen that the effect and the validity of the compromise, Exhibit B-1, will have to be adjudged, not on what the Court today thinks the rights of the two parties are, but on the basis that one party acknowledged and accepted the other party to bargain and fix the terms of the compromise as set out in Exhibit B-1. Reference will be made again to this aspect little later.
2. Proceeding with the narrative Thayyamuthu got possession of all the properties from her husband's agnates and, managed the charities till her death in 1915. There is no evidence as to when Sabhapathy and his son Jambulingam died. But there is evidence, and it is not disputed, that Jambuga Ganapathy was in possession of the charity properties and managed the same till his death and after the death of Jambuga Ganapathy, his adopted son Muthukumaraswamy, in his turn, was functioning as trustee and managing the properties till his death in 1944. When he died, his son the defendant, through the senior wife, and the plaintiffs in this case, sons through the second wife, were minors and his Junior widow, Ranganayaki was in possession of the charity properties and in management thereof. In 1953, the plaintiff and the defendant, entered into a partition arrangement under Ex. B-2 dated 9-3-1953 dividing all their family properties, but there was no provision made for the management of the charity and its properties. The case of the defendant is that the charity properties did not from the subject-matter of that partition arrangement and the defendant alone was allowed to be in possession and management of the charity and its properties in pursuance of the compromise, Exhibit B-1, which provided for the management of trust properties by the male descendant according to the law of lineal primogeniture, i.e. the seniormost male member in the family. The defendant's further contention is that throughout he has been in management of the charity and its properties and that the suit in 1964 was filed by the plaintiffs claiming joint trusteeship on account of some recent misunderstandings in the family. On behalf of the plaintiffs both in the trial Court as well as here, it was contended that the trusteeship of the charity founded by Jambuga Ramalingam should devolve upon the heirs in succession one after another and that on the death of Muthukumaraswami, the right devolved jointly upon his three sons, the defendant and the two plaintiffs, that the plaintiffs are entitled to manage the charity jointly along with the defendant and the compromise, Exhibit B-1, will not affect their rights so far as it purported to deprive the plaintiffs of a right to a joint management but provided for the devolution of the right in the senior-most line. In substance the contention of the plaintiffs is that the founder should be deemed to have laid down a rule of devolution that the trusteeship should devolve upon Subbu Pillai's heirs for the time being whenever a vacancy arose and that it was not open to Jambuga Ganapathy, Sabhapathy and Jambulingam to enter into a compromise which would prejudice the plaintiffs and would also have the right of laying down a rule of devolution totally different from the one laid down by the founder. There is no reference to the compromise. Exhibit B-1, in the plaint in O. S. No 7 of 1897 and this attack against the validity of the compromise was put forward only when the same was relied upon by the defendant in his defense. The learned Subordinate Judge dismissed the plaintiff's suit negativing their contentions.
3. In our opinion, the matter is simple and, looked at from any point of view, the plaintiff's claim cannot be upheld. Learned counsel for the appellants could not and did not formulate any precise definite legal basis in support of the plaintiffs' claim to a joint management and arguments of counsel were simply drifting from one position to another. The main bone of contention of learned counsel for the appellants is that on the death of Jambuga Ramalingam, whether under the Will of Ramalingam or in his own right. Subbu Pillai became the trustee, and on his death, the trusteeship would devolve only upon his heirs and that will be the rule of devolution governing the charities and no person, whether functioning as a trustee or whether having any contingent right could enter into a compromise of this description deviating from the ordinary law of inheritance and succession.
4. Let us now consider the various alternative constructions or interpretations of the Will. Ramalinga, while appointing Subbu Pillai as trustee, conferred an absolute and heritable right of trusteeship upon Subbu Pillai, there was a total divestiture of all rights of Ramalinga as founder and there was no question of any reverter of any right from the trustee on his death so far as Ramalinga was concerned and the appointment of trustees in future or laying down the rule of devolution was the exclusive right of Subbu Pillai. When once the Will took effect. Subbu Pillai became the trustee and it is his exclusive privilege or right to constitute a trustee to succeed him or to lay down the rule of devolution. The result was that as soon as Subbu Pillai died. Thayyumuthu became entitled to be the trustee functioned as such trustee and she had also the right to nominate a trustee to succeed her and/or to lay down the rule of devolution of trusteeship. Subbu Pillai, during his lifetime, had two right : (1) the right to be the trustee; (where there is no beneficial interest in any of the trust properties, it is really a trust solely burdened with duties and obligations) and (2) the sole right or the privilege to appoint his successor and /or to lay down the rule of devolution of the trusteeship. On Subbu Pillai's death both the rights devolved upon Thayyamuthu and therefore, she had full competence to appoint her successor and /or to lay down the rule of devolution of trusteeship to function in future. Under this compromise, Exhibit B-1 she had nominated her successor or successors and also laid down the rule of devolution on the death of the trustee for the time being. At the time when Ramalinga executed the Will Subbu Pillai his only son, was the sole owner and it will be an unnatural reading of the will to hold that Ramalinga reserved for himself any right as founder to lay down the rule of devolution and merely appointed Subbu Pillai as trustee during his lifetime. The provision which the founder has made for the management of the properties during the minority of Subbu Pillai coupled with the provision that on his attainment of majority the guardian must hand over possession of the entire properties to Subbu Pillai to function as trustee thereafter, shows that Ramalinga's intention was to confer an absolute heritable trusteeship upon Subbu Pillai. In the environment and set-up of the family, if Ramalinga intended to delimit the trusteeship upto the lifetime of Subbu Pillai, Ramalinga would certainly have laid down the provision with regard to further devolution. There is the further important fact that the Will itself does not delimit the duration of the trusteeship upto Subbu Pillai's lifetime. in which case some problem may arise as to the right of the founder or his heirs to nominate successors or to enter into arrangements altering the rule. Under the Will Subbu Pillai has been appointed trustee and there is no other or further provision. If the intention of the founder was that it is merely an appointment delimited to the lifetime of Subbu Pillai the founder would have made some provision after that contingency. Nothing of the kind was done, but, on the other hand. Subbu Pillai was appointed trustee. which, in law, amounts to conferring an absolute heritable trusteeship upon Subbu Pillai. As observed already, the circumstances of the family, the fact that Ramalinga was very old at the time of the Will and Subbu Pillai was his only son and was deeply attached to him lends considerable support to this view that Ramalinga did not think of any other aspect concerning the devolution of trusteeship and he was content to confer an absolute heritable trusteeship upon Subbu Pillai. In other words, we are clearly of the view that there is absolutely nothing in the surrounding circumstances of the case and in the language of the Will to warrant an interpretation that Ramalinga merely appointed Subbu Pillai delimiting the trusteeship to his lifetime and not making any provision as to reserve the power for himself to lay down the further rule of devolution. At that time he was very old and it will be unnatural in the extreme if we introduce the notion that Ramalinga reserved and retained for himself any further power to lay down the rule of devolution.
5. We may refer to the decision of the Privy Council reported in Tripurari Pal v. Jagat Tarini Dasi. ILR (1913)Cal 274. In that case the founder the grandfather founded a trust and executed a Will that his son will be shebait for the performance of certain ceremonies. The Will also contained a provision that if the testator died during the minority of the son. the second wife of the testator was to be the shebait as guardian of the minor son and that on the son's attaining majority, the son would personally conduct the work of the sheba. The Will contained the further provision that if, during the lifetime or after the death of the testator the son died, then the testator's widow would be the shebait and after her, her daughters. The Privy Council held that, on a true construction of the Will there was absolute gift of the shebaitship to the son on his attaining majority and was not cut down by anything that followed in the Will. The High Court took the view that under the Will the son had only a right to the shebaitship for his life. But the Privy Council on appeal did not agree with this view. In other words the clause in the Will, 'My present begotten son Mukunda Murari Will be shebait for the performance of those ceremonies.' was held by the Privy Council as conferring an absolute gift of Shebaitship on Mukunda Murari. The problem that if the shebait appointed by the founder died without exercising the power of appointing a successor the right would revert back to the founder would arise only if the founder had reserved such a right a reverter. The normal rule, that if for any reason, the term of the office of the shebaits appointed by the testator comes to an end, the rule of Hindu law gives the office of shebait to the heirs of the founder would apply only in the absence of a context to the contrary in the terms of the Will and the surrounding circumstances of the particular case.
6. In the instant case even assuming that the founder had appointed his son, Subbu Pillai as trustee only for the duration of his lifetime and there was a consequent reverter to the founder or his heirs or his nominees, the situation would not make any difference. This well settled right of reverter could accrue at the time when a vacancy occurred by the death, removal or otherwise of the trustee for the time being. Even if we construe the Will as constituting an appointment of Subbu Pillai as trustee only for his lifetime the power to appoint the successor throughout inhered and vested in Jambuga Ramalinga, the founder, on his death in 1880 that power to nominate the successor would devolve upon his heirs, and in the instant case, upon Subbu Pillai himself. The result is Subbu Pillai is the trustee for his lifetime in one capacity and he is also the inheritor of the right to appoint or nominate a successor or lay down the rule of devolution as the heir and the only son of the founder. When both the rights coalesce in the same person, the result will be that from the moment of the death of Jambuga Ramalinga, Subbu Pillai has become entitled to an absolute trusteeship, in the sense that he can appoint or nominate his successor and/or also to lay down the rule of devolution. We may refer to the following statement of the law in N. R. Raghavachariar's Hindu Law (Sixth (1970) Edition) at page 677:
'If on the other hand, the founder has parted with his right only in a partial manner for the lifetime of the grantee the reside still remains in him and his heirs and on the death of the grantee the heir of the founder living at the time is entitled to shebaitship. If the grantee in such cases happens to be the sole heir of the founder upon whom the residuary right devolves on the death of the founder and he becomes the shebait under law as well, then, his position is that of an absolute shebait whose right devolves upon his heirs at his death and not upon the then heirs of the founder. If there was no grant in his favor he would have been entitled to an estate of inheritance under law as regards the shebaiti and the fact that there is a grant in his favor of a limited right cannot make his position worse, and take away from him the higher rights which he had irrespective of the grant. Hence where a Hindu who had established certain family idols and dedicated considerable properties directed by his deed of dedication that after him, his son should be the shebait in his stead, and the further provisions in that deed regarding succession to the son in the shebait were to no effect in law it was held that on the death of the son, who had survived the founder, the shebaitship should go to the son's heirs, and not to heirs of the father.'
Vide:also the statement of the law to the same effect in Mayne's Hindu Law (Eleventh Edition) at pages 946 and 947. The law is stated in these terms in Mukherjea's Hindu Law of Religious and Charitable Trusts (Latest (Third) Edition--1970) at page 162:
'It must be taken to be settled by the decision of the Privy Council that when the founder makes only a limited grant of shebaitship, the residue still remains in him and his heirs as an estate of inheritance. When the limited shebaitship ends, the next shebait would be the person in whom this residuary estate of the founder was vested at the time of the termination of the limited shebaitship.'
At this stage, we may refer to the decision of the Privy Council in Bhabatarini Debi v. Ashalata Debi , on which the above statement of the law in the leading text books rests. In that case, the founder S. appointed his only son. P. as the trustee and made other provisions on the death of S., but those provisions became illegal and ineffective and the Privy Council held that the interest given to P, the son, did not defeat his heritable right and did not exclude his heirs. The following head-note brings out the principle underlying this decision i.e. so far as the bare right to trusteeship is concerned, the law of succession that is applied is the ordinary law of inheritance:
'The shebaiti is property. It is not a catena of successive life estates but is heritable-heritable property which in the first instance, is vested in the founder. The founder may direct that a designated person should hold the office during that person's life either immediately or on the death of a previous holder. Such direction-subject to the relevant conditions as to perpetuity, whether these may be--will be good although it carries no right to the heirs of the grantee and does not amount to a complete disposal of the shebaiti. On the death of the grantee the shebaiti goes to the founder or his heirs, because the right of the founder is heritable and he has not completely disposed of the interest which he has therein. It is impossible to represent this as a spes successionis. It is a right in the founder and his heirs. It is the same estate of inheritance as the founder held at the date of the grant. The grant did not exhaust it or terminate the founder's interest. On the death of the grantee the shebaiti 'reverts' because the heritable interest of the founder has ceased to be qualified by the grant. The fact that the shebait in office completely represents the idol and its property, does not prevent the recognition of any other person as having a vested interest in remainder; and thus preventing any interest in the shebaiti from being carried along the straight line of inheritance from the founder during the time that the office is held by any person to whom the founder has granted the shebaiti but not absolutely or so as devolve upon his heirs.'
Applying the principle of this decision to this case, it is clear that the moment the founder Jambuga Ramalinga died, the right to appoint or nominate the successor or the right to lay down the rule of devolution devolved and became vested in Subbu Pillai as an absolute heritable right and thereafter, there is no question of the reverter of the right to Jambuga Ramalinga. On Subbu Pillai's death this right would devolve upon Thayyamuthu: there is no scope for any argument of any reverter of right to Jambuga Ramalinga. We may also refer to the Bench decision of this Court reported in Putti Ramachar v. Venkata Raw : AIR1938Mad661 which was referred to in the course of the hearing. In that case, the testator-founder had three sons. He established a charity and appointed his second son. V. to be the trustee. He also provided that if the charities were not conducted properly the leading persons in the village should intervene and conduct such charities properly. It was also mentioned that his sons would have no right whatever in the properties dedicated to the charities. The second son, the trustee appointed under the Will. i.e. V died in 1924 and on his death disputes arose. The sons of V claimed to be the trustees while the sons of the other two sons of the testator also claimed joint right to the trusteeship. The contention of the latter was that the appointment of V as trustee was only for his lifetime and that on his death, the right reverted to the founder and all grand-children of the founder would be entitled to be the trustee and not merely the sons of V. This argument was not accepted by the Court. The Bench held that the surrounding circumstances of the Will and the provisions thereof showed that it was not the intention of the founder that the other two sons or their heirs should have anything to do with the trust (virtually it amounted to an exclusion or disinheritance of the two sons and their heirs) and in the background of the intentions of the testator it should be held that the trusteeship which was constituted by the testator vested in V and his heirs. A perusal of the decision shows that the Bench took the view, that V's heirs would become entitled to be trustees not as words of limitation, but as words of purchase in the sense that even though in the Will, the trusteeship was conferred only upon V., the founder intended that after V. his heirs should be the trustees in succession as distinct and separate objects of the testator's bounty. In effect the Bench construed the Will as the testator himself laying down the rule of devolution to the effect that on the death of V., V's heirs should be the trustees. The facts of that case are clearly distinguishable from the instant case because there it was clear that the testator was very particular that the other two sons and their heirs should not have anything to do with the management or the conduct of the charities. The position in this case is entirely different. Jambuga Ramalinga was deeply attached to his son. Subbu Pillai and made a provision for the management of the properties during the minority of Subbu Pillai and thereafter, Subbu Pillai to be the trustee. As observed already, we hold that an absolute heritable trusteeship was conferred upon Subbu Pillai. We are unable to see how this Bench decision helps the appellants, because the utmost that the appellants can claim is that this Bench decision is authority only to the limited extent that if a founder appoints X as trustee without any further directions, the founder must be deemed to have prescribed a line of succession in that X and his heirs (note : not the founder's heirs) although he does not make any provision for succession after the death of that X. In the instant case, Thayyamuthu will be the heir to Subbu Pillai and nobody claiming as a heir to the founder will have a competing right. The recent decision of the Supreme Court has held that bare trusteeship without any beneficial interest in the property of the trust and which consists of exclusively duties and obligations is not property though right to the trusteeship is hereditary and may be a cherished privilege. It is a bare office without any perquisites and there is no property in it in the Hindu sense of the term. Vide : K. A. Samajam v. Commr., H. R. & C. E. Hyderabad : 2SCR878 . Vide also observations of Natesan, J. in Manathunainatha Desikar v. Sundaralingam : (1970)2MLJ156 observations at pages 164 and 166). Even so, the Supreme Court has held that the right to succession to trusteeship which is merely a question of duties and obligations without any beneficial interest to any property will be governed by the ordinary rule of intestate succession. Vide : C. Sethurayar v. Arumanayakam : 1SCR874 .
7. Let us consider what the legal consequence would be even if the contention of the appellants is accepted that on Subbu Pillai's death in 1893 and thereafter, the right to trusteeship reverted back to the founder's heirs, that Thayyamuthu had no claim whatever and the descendants of Jambuga Narayanan alone would be entitled to be the trustees. In other words, Jambuga Ganapathy, Sabhapathy and Jamubulingam who alone were then alive would be the heirs. The problem cannot be solved in the abstract determination of the rights of Jambuga Ganapathy etc. Undoubtedly, Thayyamuthu was a member of the family and she was making a claim in the right of her husband traceable to his own right of inheritance and right traceable to the Will of the founder. The rival claimants, Jambuga Ganapathy and others, were equally members of the same family. If there was a family settlement it would be binding upon the entire family and no member of the family, either present then or who comes into being later on can question the validity and the binding nature of the family settlement. If the family settlement had not been entered into, there was every likelihood of Thayyamuthu having succeeded and completely excluded Jambuga Ganapathy and others. It is settled law that in order to avoid confusion and unseemly scramble and disputes the members of a family can enter into a family arrangement for the due discharge of the functions belonging to the office in turn or in some other settled order of sequence, so long as there is no bartering away of the rights for a consideration like sale etc. Vide : Mukherjea's Hindu Law of Religious and Charitable Trusts (Third Edition--1970) page 189. The principle which apply to family settlements in general would equally apply to family arrangements with regard to this bare right to the trusteeship and it is too late to question the principle. The off quoted decision of the Privy Council in Ramanathan Chetty v. Murugappa Chetti ILR (1906) 29 Mad 283 and the decisions subsequent thereto have clearly established that there can be a family arrangement entered into by the several branches of the family with regard to the arrangement for the trusteeship of a trust and the rule of devolution so long as the interests of the trust are not imperilled and there is no question of a sale or a bargain for a consideration. It is sufficient to refer to the decision of this Court in Alasinga Bhattar v. Venkatasundrana Bhattar : AIR1936Mad294 which contains an elaborate discussion of this aspect of the matter. In the instant case, as in : AIR1936Mad294 , the members of the family had acted upon the arrangement for nearly half a century, and there is absolutely no reason why the arrangement should not be held to be binding on the representatives of the various branches. We may also refer to the Bench decision of Varadachariar, J. and Stodard, J. in the same volume 70 MLJ AIR 1936 Mad14. Nilamani Poricha v. Appanna Poricha. It is sufficient to extract the following head-note which brings out the principle that the peculiar doctrine of family settlements would apply to arrangements concerning the right to the office of trusteeship and the devolution of the trusteeship amongst the members of the family:
'Such arrangements, if they were conductive to the interests of smooth administration of the affairs of the trust were really in the nature of schemes framed for the management of the trust and would be binding upon the parties thereto and their representatives till modified either by common consent or in some manner known to law.'
No member of the family which has enjoyed the benefits secured under the family arrangement of 1898 under Exhibit B-1, and in particular after the death of Thayyamuthu in 1914, will be entitled to put forward any claim contrary to the family arrangement. When a compromise is entered into between a Hindu widow on the one side and the reversioners on the others, it will be binding upon the entire body of reversioners provided the compromise is honest bona fide and proper and is not actuated by any personal consideration of any individual person. Jambulinga Ganapathy, Sabhapathy and Jambulinga put forward and resisted the claim of the rival claimant. Thayyamuthu, on their own behalf and on behalf of every successor in the line of succession; the fight on their side was on behalf of the entire body of reversioners the lineal descendants of Jambuga Narayana, as against the common enemy Thayyamuthu who put forward a paramount claim to the trusteeship in the right of her husband, which can by no means be said to be frivolous or unfounded, but really substantial. Vide : Khunni Lal v. Govind Krishna Narain, ILR (1911)All 356 and Sahu Madho Das v. Mukand Ram : AIR1955SC481 . As observed by the Privy Council and the Supreme Court the basic principle underlying a family arrangement is based upon the assumption of the necessary antecedent title of some sort already inhering in both parties and a mutual recognition and acknowledgment of the competing rights put forward in the course of the family settlement so that the rights created thereunder rest upon this mutual acknowledgment of rights inhering in both the parties. Thereafter it will not be open to either of the parties to put the other side to the proof of the tenability and the existence of valid rights as prescribed in the course of the family settlement. For instance, the members of the branch of Jambuga Narayana cannot at any time after the compromise of 1898 put Thayyamuthu or the members claiming title through Thayyamuthu to prove that either factually or legally Thayyamuthu was entitled to the right then put forward by her. Again, similarly, Thayyamuthu and her heirs cannot raise a dispute and call upon the members of the branch of Jambuga Narayana to prove their claim. To recognize any such right in either of the branches to attack the arrangement as invalid thereby putting either of the parties to the necessity of establishing their right virtually putting them back to their position at the time of the suit of 1897 with retrospective effect, would cut at the very root of the principle underlying the doctrine of family settlement which is one of the important branches of Hindu Law. The object of the family settlement is to put final seal to the controversy and dispute which then arose and to agree upon something, and matters settled, are once for all settled and cannot be reopened. Considerable portion of the argument of learned counsel for the appellants was devoted to reopen the entire issue, i.e. the true interpretation of the Will the rights of the founder, the nature of the estate of trusteeship conferred upon Subbu Pillai the nature of the right of Thayyamuthu and the competing claims of Jambuga Ganapathy and others, as though this Court is now disposing of the suit. O. S. No. 7 of 1897. Such a process would be a complete reversal of the doctrine of family settlement. We are clearly of the view that the suit must fail on this simple ground i.e. the doctrine of a family settlement (independently of any other consideration).
8. The two decisions referred to above : AIR1936Mad294 and 70 MLJ 262 AIR 1936 Mad 14 show that even amongst members of a branch there can be a family settlement. In other words, even if the trusteeship ultimately inhered in the heirs or the descendants of Jambuga Narayana, the brother of the founder, there is nothing in law which prevents the heirs to enter into a family arrangement so that future scramble and dispute may be avoided when the number of heirs becomes unwieldy. The law does not insist that all the heirs (every one of them) should enjoy the right of management at one and same time. When the number of heirs increases by passage of time and by succession, their number would become unmanageable and there would be frequent friction and misunderstanding in the management of the trust thus jeopardizing its interests leading to mismanagement and inefficiency. So long as the arrangement is bona fide, and secures due performance of the charities and preserves the charity properties, it is competent to the heirs themselves who happen to be trustees at that moment to enter into a family arrangement laying down the rule of devolution. If disputes arise between the heirs and they go to a Court of law, it cannot be denied that the Court had undoubted power to settle a scheme and what can be done by a Court in a suit can be agreed to between the heirs themselves, which would avoid confusion or any unseemly scramble; the parties interested can arrange among themselves for the due discharge of the functions belonging to the office in turn or in some other settled order of sequence, the only and the paramount consideration being that the interests of the trust should not be imperilled. Vide observations of Natesan, J. in the Full Bench decision in : (1970)2MLJ156 (referred to above) as well as the statement of the law in Mukherjea's Hindu Law of Religious and Charitable Trusts (already referred to) at page 189. We do not find anything in Hindu Law to compel us to hold that ad infinitum and eternally all the heirs must function and act as trustees whatever may be the unwieldy number, on which the trusteeship has devolved at a particular moment. Both common sense and convenience and the interest of efficient management of the trust require that such a right should be recognized in the body of heirs to enter into a family arrangement so long as it is bona fide. The arrangement in the instant case providing for the senior-most member in the line even if it be according to the rule of lineal primogeniture is valid as being in conformity with Hindu notions. Succession by the operation of the rule of lineal primogeniture is a well known conception in Hindu law (and other systems of jurisprudence as well). We may refer to the following observations of Ramachandra Iyer, C. J. in Arnutham v. Yagappa, (1964) 77 MLW 656:
'What the testator intended is a hereditary succession where the rule of primogeniture is to be applied. Hereditary succession is succession by the heir to a deceased under the law : it is the law that fixes up the successor of the heir and not the terms of the document. This is therefore a plain case of succession by primogeniture, where if the last owner dies leaving sons, his eldest son will be entitled to succeed. Lineal primogeniture is a rule of inheritance under certain systems of jurisprudence; it is not unknown to the customary Hindu law..........
If the contentions were to be accepted it would mean that the trusteeship would not be successive but ambulatory in the sense of going up and down the genealogical tree of the family.............
The acceptance of the contention would mean that the testator intended a college to be created as it were from which the senior-most should be selected--such college consisting of the male descendants of the testator's family' In the Secretary of State for India in Council v. Syed Ahmed Badsha. 14 MLW 188 AIR 1921 Mad 248 a Bench of this Court has held that where no line is indicated by the founder, the law of lineal primogeniture would be the convenient working rule. In view of the Full Bench decision of this Court reported in : (1970)2MLJ156 (already referred to). no argument laying down the law of devolution of trusteeship would be invalid as offending the rule in Tagore's case. The Full Bench has held that with regard to bare trusteeship which is bare office without any perquisites there is no property in it in the Hindu sense of the term and the rule in Tagore's case would not apply to bare offices which are not property. The conduct of the plaintiffs also shows that this claim is a pure afterthought because, in the family partition of 1953 between the plaintiffs and the defendant there was no reservation though it was the plaintiffs' mother who was managing the trust during the minority of the defendant and was fully aware of the charity and for over a decade the defendant alone was in sole possession and enjoyment of the charity and its properties. For all these reasons the appeal fails and is dismissed. Under the circumstances, there shall be no costs in this Court.
9. Appeal dismissed.