1. The decision of this case is dependent upon the construction to be placed upon a will, Ex. A, executed by one Venkatarama Ayyar in 1902 bequeathing certain properties to his sister Parvati, who died in February 1923, Parvati was the mother of defendant 1 and of Sitarama Sestri, who died in March 1924 and whose widow is the plaintiff. Together the two brothers formed a co-parcenary. Defendant 1 resists the plaintiff's claim to partition of the properties devised by the will firstly on the ground that it created a trust; and secondly, if that contention does not succeed, upon a claim of survivorship, it being argued that the brothers took the property as joint tenants and not as tenants-in-common. The learned Subordinate Judge of Tiruvarur has held in favour of the plaintiff upon both points and defendant 1 appeals.
2. We think the lower Court is correct in holding that the provisions of the will did not constitute a trust, and that Parvati took the devised property subject to charges in favour of certain charities and of an allowance for maintenance. Our attention has been drawn to two cases decided by the Privy Council, Sonatun Bysack v. Juggutsoondaree Dossee (1859-61) 8 M.I.A 66 and Ashutosh Dutt v. Doorga Churn (1880) 5 Cal 438, in which it was held to be sufficient to rebut the construction of a trust that the instrument in question contained a bequest of surplus property for the use and benefit of private persons. In the latter of these two cases a Hindu lady left certain lands to her sons by will to support the daily worship of an idol and to defray the expenses of certain other religious ceremonies, with a provision that in the event of there being a surplus after these uses had been satisfied out of the revenue of the said lands, such surplus should be applied to the support of the family. Their Lordships held that the property was therefore not wholly de-butter and that appears to have been the ground upon which they rejected the contention that it was trust property. We cite these cases to make it clear that the principles of construction to be applied in the case of a will or a gift deed executed by a Hindu are quite different from those which are appropriate in the case of a wakf, some attempt having been made before us to apply such a case as Ramanathan Chettiar v. Levvai Marakkayar AIR 1916 PC 86, which expressly applies the Mahomedan law relating to trusts that character. An instance of a trust created by a Hindu deed of endowment is furnished by Jadu Nath Singh v. Thakur Sita Ramji A.I.R.1917P.C.177, which will be found referred to and distinguished by the Privy Council in Har Narayan v. Surja Kunwari AIR 1921 PC 20. In the last mentioned case it was observed that in determining whether the will of a Hindu gives the testator's estate to an idol subject to a charge in favour of heirs or makes the gift to the idol a charge upon the estate, there is no fixed rule depending upon the use of particular terms in the will; the question depends upon the construction of the will as a whole.
3. Applying these principles to the will Ex. A we find that it provides at the beginning that the testator's sister Parvati shall enjoy the immovable property and from its income shall expend annually certain quantities of paddy and of cash towards the upkeep of the specified ceremonies and charities. She is also to give the testator's wife Alamelu a certain quantity of paddy for maintenance. The learned Subordinate Judge estimates the yield of the property at not less than 350 kalams of paddy per annum. Of this the charities, etc., would absorb 95, and the widow Alamelu another 75, leaving 180 kalams as balance at the disposal of the beneficiary. This calculation omits a certain undefined quantity to be devoted annually to the feeding of Brahmins, but it is not probable that this would amount to a very substantial figure. Accordingly the amount to be devoted to religious and charitable purposes is only about one half as great as the surplus available from the property. It can scarcely be said therefore that the predominant purpose of the testator was to endow these charities, even if, as has been argued for the appellant, such a test would be appropriate. After making these dispositions the will continues:
In this manner my sister Parvati and her male heirs and their descendants from generation to generation shall defray the aforesaid expenses and take the balance of the income for themselves,
and concludes by naming certain of the lands as security, firstly, for the conduct of the charities and, secondly, for the payment of the maintenance to Alamelu. It seems therefore to have been the testator's intention to place these two charges upon the same footing, and this in itself affords a strong argument against the view that he was desirous of creating a trust. We agree with the lower Court in the view it has taken that the will bequeathed the property to Parvati subject to the charges specified. It seems clear further that on Parvati's death the two brothers inherited the property as tenants-in-common and that would be so whether the will gave Parvati an absolute estate or only a life interest. The question of the nature of the estate taken in such cases has been very fully discussed by Kumaraswamy Sastri and Krishnan, JJ., in Janakiram Chetty v. Nagamony Mudaliar : AIR1926Mad273 . The learned Judges except the case where the donees in the absence of any testamentary disposition, would have taken the property as ancestral property, and hold that in all other cases they would take as tenants-in-common, unless a contrary intention was shown by the testator. Krishnan, J., puts it in this way, that if the property was in terms given to a joint Hindu family the family will take it with all the incidents of ancestral or joint family property; but if the gift is not to a joint family but to members of it individually, they would take it in severalty. It is pointed out that even in a case where a life estate is interposed the property will be taken by the eventual donees as tenants-in-common and not as joint tenants. The principles upon which this case was decided may be compared with those which influenced the Pull Bench in Karuppai Nachiar v. Sankaranarayanan Chetty (1904) 27 Mad 300 (FB), in deciding that the sons, although forming an undivided Hindu family, take their mother's stridhanam property as tenants-in-common without the benefit of survivorship.
4. It is then said that, granting this to be so, the suit property was blended with their joint family property by the two brothers. The authorities which have been cited before us upon this question are of little assistance, because they all deal with the blending of property exclusively owned by one member of a coparcenary. In such cases where property which would ordinarily be enjoyed separately is thrown into the common stock, the intention becomes clear enough. But in the present instance, in spite of the technical difference of title, the incidents of possession of the property would be the same whether the tenancy is in common or joint. As has been held in Rajani Kanta v. Bashiram : AIR1929Cal636 and Mayandi Servai v. Santhanam Servai : AIR1925Mad303 , the onus of establishing a clear intention to waive the separate rights to the property is upon the party who asserts it and it is clear that there is no sufficient evidence for such a conclusion in the present case. Sitarama Sastri only survived his mother by one year and no accounts have been produced to show how the property was treated during that period. Defendant 1 asserts that the income from all their property was kept together, but even if that be true, such a course is hardly incompatible with the nature of the ownership. We agree with the learned Subordinate Judge that the letters produced throw no light upon this question and in general that there are no grounds for holding that the property, acquired in severalty, was converted into joint property.
5. We accordingly dismiss the appeal with costs. (Cross-objections were also dismissed).