1. This Letters Patent Appeal involves an interpretation of a trust deed executed on 16th March, 1919 by two brothers Lakshmana Iyer and Krishnaswamy Iyer who were coparceners of a Hindu Mitakshara joint family. The appellant is the defendant in O.S. No. 208 of 1970 on the file of the Additional Subordinate Judge, Madurai. Lakshmana Iyer and Krishnaswami Iyer were the sons of one Subbier. Subbier died in 1921. It is stated that Krishnaswami Iyer died issueless. We are not concerned in this appeal with Krishnaswami Iyer, Lakshmana Iyer died in 1970. The plaintiff Visalakshi Ammal who died subsequent to the filing of the suit is the daughter of the said Lakshmana Iyer and Sundaramier the defendant (the appellant herein) is the son of Lakshmana Iyer. The plaintiff has filed the suit for a declaration that she is entitled to the office of trustee for 'K. Subbier and Sons Charities', Madurai, for delivery of possession of the suit properties and for rendition of accounts by the defendant. The trial Court granted a decree in favour of the plaintiff. The defendant filed A.S. No. 341 of 1974 on the file of this Court which has been dismissed. Hence this Letters Patent Appeal by the defendant.
2. The question for consideration is whether the plaintiff is entitled to be the trustee under Exhibit A-1 dated 16th March, 1919, executed by Krishnaswami Iyer and Lakshmana Iyer, it may be mentioned that at the time the trust deed was executed, their father Subbier was alive and he died only in the year 1921. The trust deed recites that the executants along with their father had already set apart the properties for charities in connection with Prasanna Venkateswara of Krishnan Temple. It is further stated that the trust deed was being executed at the behest of their father Subbier Under the trust deed, the properties of the family valued at Rs. 16,500 have been dedicated for charities connected with the temple. The deity has to be brought to the coconut tope belonging to the family and pooja and naivedyam should be performed. There has to be a feeding of the devotees. Further there is a provision that some assistance has to be rendered to the poor students belonging to the Sourasatra community to the extent of a minimum of Rs. 500. There , is no controversy between the parties before us as regards the charities to be performed under the deed of trust. What we are concerned is only the devolution of the office of trustee in terms of the provisions contained in the deed of trust.
3. As regards the devolution of the office of trustee the trust deed constitutes Lakghmana Iyer as the first trustee. The mode of devolution of the office of trustee is described as follows : -
(Thus, the above charities must be carried out every year without interruption by Lakshmana Iyer and after him by Lakshmana Iyer's eldest 'varish' from generation to generation through 'Santati'. If the performance of the charities is not done properly, then Krishnaswami Iyer and after him his varish would be entitled to remove the eldest varish of Lakshmana Iyer and carry out the performance in a proper way.) Both the trial Court as well as the learned single Judge have taken the view that 'jeshtavarisu' would take in male as well as female heirs and consequently as the plaintiff, the daughter of Lakshmana Iyer, is elder to the defendant, the office of trustee would devolve on her.
4. Mr. M. R Narayanaswami, the learned Counsel for the defendant contends that in construing the above provision the Court should place itself in the arm-chair of the executants. Though the term 'varisu' on its literal sense would take in male as well as female heirs, normally it refers to only legal heirs. When a person governed by Hindu Mithakshara Law, in its pristine purity, executes a trust deed and states that the line of succession should be according to 'jeshtavarisu' it must necessarily mean only in the order of seniority of the male heirs. The learned Counsel further contends that as per the Mitakshara Law as it stood in 1919 a son would be the legal heir and consequently both Lakshmana Iyer and Krishnaswami Iyer must have only intended that the management of the trust created by the family should continue to vest with the family and only the eldest of the heirs in the male line, from time to time, should be the trustee. The learned Counsel seeks support to this argument from the fact that under the document Krishnaswami Iyer and his her is have been excluded from the line of succession and have been given a right only to intervene if the trustee did not perform the functions of the trust properly. The further argument of Mr. Narayanaswami is that if for any reason this Court does not accept his contention, then the office of trustee should devolve in terms of Section 7 of the Hindu Succession Act.
5. Mr T. R. Mani on behalf of the plaintiff contends that 'varisu' will take in both male as well as female heirs. Even under Hindu Mitakhsara Law as understood from very early times females were never considered to be disqualified from holding the office of trustee, that therefore it could not be said that Lakshmana Iyer and Krishnaswami Iyer would have deliberately excluded females from succeeding to the office of trustee and consequently the plaintiff being the eldest heir at law, when Lakshmana lyer died in 1970, would be entitled to become the trustee The learned Counsel further lays emphasis on the fact that, if really the brothers wanted trusteeship to remain only in the male line, there is no reason why they should have kept out Subbier from being the first trustee.
6. The words that call for interpretation in the trust deed are The word 'varisu' means an heir at law. The term 'waris' arose for interpretation in Jagdeo v. Dy. Commr. Partabgarh A.I.R. 1926 Oudh 431,, There, one Raja Ajit Singh had executed a will on 6th November, 1884 under which he provided that one Raja Partab Bahadur Singh would, after his death get all his properties and would be his 'waris' and 'janashin'. In construing the words 'waris' and 'janashin' Hasan, J, observed as follows:
The word 'waris' and 'janashin' are well-known words of limitation denoting and estate of inheritance; but this natural meaning may of course be displaced by the context as showing a different meaning. According to my judgment, however, there is nothing in the context to alter the natural and original meaning of these words. The literal translation of the word 'waris' is heir and of 'janashin locum tenens. Ordinarily a person does not take an estate in the character of an heir without possessing the quality of transmitting the inheritance to his future heirs according to law.
7. In Safdar Ali v. Maksudali it has been held : -'heirs' means both of male and female line unless otherwise restricted'.
8. In Dundoobai Anandrao v. Vithalrao Anandrao A.I.R. 1956 Bom. 182, the Bombay High Court was called upon to interpret a decree of 1894. The portion of the decree which gave some properties to one Nilkanthrao stated, he should accept the same and the permanent 'vashiwat' should continue with him and 1m 'heirs' (here the word used is waras). The question was whether the widow was the heir. The Bombay High Court held thus : -
But the word 'waras' which is used elsewhere is a general word which includes the widows.
9. In Indramani Devi v. Rathunath Bhanja : AIR1961Ori9 , it has been observed as follows : -
The expression 'varesh' is a Persian term which, according to Wilson's Glossary means 'heir' and would include a widow. .... In the Oriya Bhasba Kosh of Sri Gopal Chandhra Praharaj, the word 'varesh' (or Varish) has been given the following meanings : 'Hair. Successer to the property of a deceased person. Claimant to property.
It is thus clear that the word is not restricted to male heirs only Mr. Das ingeniously contended that the expression 'Varesh, occurring in Exhibit 1-a is an Oriya corruption of the Sanskrit expression 'aurasa' and as such it should be construed to mean male heirs only. I am unable to accept this interpretation. The Sanskrit expression 'Aurasha' is fundamentally different from the Persian expression 'Varesh' which has been used in the aforesaid document. Moreover, even in Sanskrit the expression 'Aurasa' is not restricted to male descendants. It would include any issue born of a person i. e. sprung from the loins of a person (literally produced from the breast) whether male or female.
In N. Krishnammal v. R. Ekambaram : 3SCR700 , the Supreme Court held as follows : -
Legal terms such as 'heirs' used in a will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator. The word 'heirs' cannot normally be limited to 'issues' only. It must mean all persons who are entitled to the property of another under the law of inheritance.
From the above it is clear that 'heirs (varisu) would mean both male and female who are entitled to the property of another under the law inheritance.
11. Another term used in the trust deed which requires to be considered is the word 'santati.' In Tamil Lexicon, published under the authority of the University of Madras, Vol. III, Part I, 1928 edition, at page 1262 the word 'santati' is given the following meaning:
Santati Descendant, heir.son. Lineage, pedigree,
12. In Indramani Devi v. Raghunath Bhanja : AIR1961Ori9 . The Orissa High Court had to consider the meaning of the expression 'hissantan' occurring in a document. On behalf of the appellant it was contended that 'santan' would mean issue whether male or female and consequently nissantan would mean issueless male or female. On the other hand, on behalf of the respondent it was contended that in the context of the facts of the case the word 'santan' should be limited to mean only male issues. Dealing with this question, the learned Chief Justice of the Orissa High Court observed as follows : -
There was acute controversy about the meaning of the expression 'nissantan' occurring in Exhibit 5. According to Mr. Mohanty santan means issue-whether male or female and consequently, nis-santan would mean issueless-male or female. Mr. Das contended that in the context, the word 'santan' must be limited to mean only male issues. In Sri G. C. Praharaj's Bhasha Kosh the expression 'santan' has been explained as being equivalent to 'santati' which expression also has been explained as meaning issue whether son or daughter. While dealing with the expression nis-santan the learned lexicographer pointed out that it means either issueless or sonless. 'Santan' is a Sanskrit expression whose ordinary meaning is 'progeny, offspring, issue' which may be either male or female. It is true that in a particular context it may be limited to male issues only.
13. The learned Chief Justice of the Orissa High Court then referred to the following passage from the judgment of the Privy Council in Buddha Singh v. Laltu Singh (1915)42 I. A. 208 : 1915 29 M.L.J. 434 : 21. W. 897 : A.I.R. 1915 P.C. 70.
The word 'descendants' in Mr, Colebrooke's translation is, in the original, 'Santana' which means race, lineage or posterity, and is still used among Hindus to mean male progeny without limitation. Mr. Justice Telang construes it as meaning 'continuation.' Other learned Sanskritists interpret it to mean an uninterrupted series of progeny or heirs. Their Lordships have no doubt that Vignaneswar used it in the sense of lineal male descendants.
The learned Chief Justice further observed
Similarly, in Chinnaswami v. Kunju ILR (1912) Mad. 152 : 21 M.L.J. 856, there is a reference to the opinion of Mr. Harrington, one of the Judges of the Sadar Dewani Adalat to the effect that the expression 'santan' should be understood as a generic term for male issue or descendants Rutcheputty Dutt v. Rajunder Narain ILR (1912) Mad 152; 21 M. L., J. 856. But the construction of the ex session 'santan' occurring in the Miiakshara cannot necessarily be a guide for construing that expression used in a village note like Exhibit 5 prepared in Oriya by a village officer in 1893. It was pointed out in Kumud Krishna Mandal v. Jogendra (1917) 26 Cal. L. J. 250, that the expression 'santan' used in Bengali document of the 19th or 20th century should be construed to mean issue generally, whether male or female, and that the observations of the Privy Council in Buddha Singh v. Laltu Singh 22 Cal. L. J. 481 : 29 M.L.J. 234 : 2 L.W. 897 : (1915) 421. A 208 A.I R. 1915 P.C. 70 based on its interpretation of that expression occurring in the Mitakshara of Vignaneswara, a Sanskrit work, would not be a guide. The Oriya meaning of the expression is also similar to the Bengali meaning as will be clear from the meaning given in Sri G. C. Praharaj's Bhasba Kosh.
It is thus clear that though expressions 'santan' (varish) according to their dictionary meaning connote all classes of issues or heirs, whether male or female, yet in a particular context they may be restricted to male heirs only (Italics supplied). To a similar effect is the decision reported in Perkashlal v. Rameshwaranath ILR (1904) Cal. 561 where it was pointed out that though etymologically the expression 'alaulad' may include female as well as male descendants in construing the expression in a grant in a particular part of the country, its meaning may be restricted to male descendants only on the basis of the custom proved to have prevailed at the time of the grant and subsequently in that part of the country. In the instant case, however, no such custom has been proved, nor is there anything in the context to justify the giving of a narrow meaning of the expression 'nis-santan' found in Exhibit 5.
It is clear from this decision of the Orissa High Court that according to Mitakshara as interpreted by Vignaneswara, the word 'santati' would mean only male issue-Further, though the expression 'santati', according to dictionary meaning connotest all classes of issues or heirs, whether male or female, yet in a particular context they may be restricted to male heirs only.
14. It is in the background of the meaning to be attached to the expressions 'varish' and 'santati' that we have to interpret the trust deed executed by Lakshmana Iyer and Krishnaswami Iyer. Prior to the introduction of the Hindu Succession Act, 1956, the Mitakshara system of law prevailed in Madras. The rules of inheritance under the Mitakshara Law were based on the text of Manu : 'sons take the property; to the nearest sapinda, the inheritance next belongs.' Mitakshara recognises two modes of succession-succession by survivorship and succession by inheritance. If a Hindu male died and at the time of his death he was a member of a Hindu undivided family, technically called coparcenary property devolved on his coparceners by survivorship. On the other hand, his separate property would devolve on his son, his grandson by a pre deceased son, and his greater and son whose father and grandfather are both deed, the grandson representing his father and the great grandson representing his grandfather. The female heirs would come in only after the sale heirs and they would take only a limited estate. It was only in 1937 by the Hindu Women's Rights to Property Act, 1937, that a widow of a deceased Hindu was brought in as an heir entitling her to succeed to the interest of her husband in the Hindu joint family property. However, the provisions of the Act made it clear that the interest which would devolve on a Hindu widow under the provisions of the Act would only be a limited interest known as Hindu woman's estate. Thereafter, only in 1956, the Hindu Succession Act came to be enacted conferring absolute rights on female members of the Hindu family. Consequently, when in 1919, a Hindu governed by Mitakshara law spoke of 'varish' and 'santati' one can naturally infer that he would have had in his mind only such persons who would be entitled in law to succeed to his property and who would be in a position to transmit the interest in the property to his heirs. When such a person stated that the trusteeship should devolve on his it could be presumed that the words 'jeshta varish and 'santhathi' were used in a restricted sense meaning only male heirs.
15. This is fortified by the principles settled by decisions of Courts in the matter of interpretation of deeds. In Narasimha v. Parthasarathy ILR (1914) Mad. 199 : 41 I.A. 51 : 1914 26 M.L.J. 411 one Narayya by his will empowered two of his wives, Pappamma and Chinnamma to adopt a son. Chinnamma died in 1881. Thereafter, the surviving widow Pappamma adopted one Venkataramayya. One of the grounds on which this adoption was challenged before the Privy Council was that under the terms of the will Narayya had given a joint power of adoption to his two wives to be exercised when they thought it desirable to adopt. Consequently, the adoption to be made pursuant to the power conferred on the wives under the will should have been the joint act of the two wives. In this view, it was contended that the power could not be exercised by the surviving wife after the death of one of the two wives, since thereafter there could be neither agreement nor joint action. On the other hand, it was contended, contra, that the Judicial Committee should not apply the rules of law prevailing in England with regard to joint donees of a power and should give effect to the intention of the testator. With respect to procuring for himself an heir by adoption who could perform the religious ceremonies. The Judicial Committee, speaking though Lord Moulton, stated that in the ordinary case of giving a joint power to two donees it should be exercised by the the donees jointly. However, Lord Moulton proceeded further and observed as follows : -
In all cases the primary duty of a Court is to ascertain from the language of the testator what were his intentions, i.e., to construe the will It is true that in so doing they are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particulars sense, and many other things which are often summed up in the somewhat picturesque figure. 'The Court is entitled to put itself into the testator's armchair'. Among such surrounding circumstances which the Court is bound to consider none would be more important than race and religious opinions, and the Court is bound to regard as presumably (and in many cases certainly) present to the mind of the testatory influences and aims arising therefrom. But all this is solety as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.... ....This fundamental principle does not clash with the principle that the Court will not necessarily apply English rules of construction to such a will as we have here to deal with. These rules of construction amount in many cases to nothing more than saying that a special phrase which may be used in more than one sense shall prima facie be deemed to be intended to bear one particular meaning, unless from the consideration of the context or the surrounding circumstances, the Court can come to the conclusion that it is there/used in a different sense... That native testators should be ignorant of the legal phrases proper to express their intentions, or of the legal steps necessary to carry them into effect, is one of the most important of the surrounding circumstances' which the Court must bear in mind, and it is justified in refusing to allow defects in expression in these matters to prevent the carrying out of the testator's true intentions. But these intentions must be ascertained by the proper construction of the words he uses and once ascertained they must not be departed from.
16. The above decision has been followed by a Bench of the Calcutta High Court in Sasanka Bhusan v Gopi Baldev : AIR1935Cal716 .
17. In Bimalabala v. Deb Binkar : AIR1932Pat267 , it is observed as follows:
But the directions given by the founder of a religious endowment as to bow the office of the she bait is to devolve are not to be construed on the same principle as the gift of property. The most obvious distinction is that the founder of a trust is generally concerned about the fitness of the person who is to carry on the trust after his death, but no such considerations generally arise in the case of a gift to a private individual. When the intention of the donor is clearly expressed there can obviously be no difficulty in construing the document and no extraneous evidence would be admissible for the purpose. Where however the words used in the document are not very clear, the intention of the executant may, I take it, be construed not only in the light of the surrounding circumstances, but also of such considerations as are generally present in the mind of a Hindu founder of a trust. In this view, Bose, J., was in my opinion quite justified in referring to the fact that a daughter who might be married anywhere cannot look after the debuttar properties so well as his son. To same effect are also the following observations made by Madgavkar, J., in Ranchtwd Mayaram v. Bai Jaijantip : AIR1926Bom309 , in the following passage:The respondent's claim really rests upon she right now in question being treated as a heritable right in exactly the same manner as ordinary property under Hindu Law. But both by reason of the grant being in favour of the Goddess and particularly the third condition of inalienability by way of gift or deed of inheritance, the right to officiate and to enjoy the net profits cannot be placed absolutely on a par with the rights to succession in ordinary Hindu property. The vahivat in the grant was in our opinion meant to be assigned to the family of Dayaram; and the moment any descendant passed out of the family, as for example by adoption or by marriage, the right ipso facto ceased. Any other view such as the one for which the respondents contend would not only widen the succession beyond undue bounds, but would give rise to difficulties in carrying out the worship for which in this particular case access to the joint family house is necessary.
18. In Lakshmana Nadar and Ors v. R. Ramier : 4SCR848 , the Supreme Court has observed thus:
The Court's primary duty in such cases is to ascertain from the language employed by the testator 'what were his intentions', keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc., in other words, to ascertain his wishes by putting itself, so to say, in his arm-chair.
Now let us turn to what some of the learned authors say on the subject. In Mulla's Principles of Hindu Law, 1982 Edition, page 491, the principle is stated thus:
In determining the construction of a will what we must look to, is the intention of the testator. The Hindu Law, no less that the English law, points to the intention, as the element by which we are to be guided in determining the effect of a testamentary disposition; nor... ...is there any difference between the one law and the other as to the materials from which the intention is to be collected. Primarily the words of the will are to be considered. They convey the expression of the testator's wishes, but the meaning to be attached to them may be affected by surrounding circumstances, and where this is the ease those circumstances no doubt must be regarded.
In all cases the primary duty of a Court is to ascertain from the language of the testator what were his intentions i. e., construe the will. It is true that in so doing they are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure;. The Court is entitled to put itself into the testator's arm-chair. Among such surrounding circumstances which the Court is bound to consider none would be more important than race and religious opinions---
In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution for property. The predelictions of the class to which the testator belongs may be kept in view. Where a testator gave certain properties to his daughters with a direction that they should enjoy the interest with their sons, grandsons etc. and that neither the daughters nor their sons or grandsons, etc., should be entitled to give, sell or mortgage the properties, it was held that the daughters and the daughters' sons took only life estates. In construing a will made after the coming into operation of the recent legislation and particularly the Hindu Succession Act, 1956, the Court may assume that the testator knew of the radical changes that have been brought about in the general law of inheritance and that women now, as a general rule, take absolute estates of Inheritance.
19. The principle of interpretation is found stated thus in Hindu Law by N. R. Raghavachariar, Vol. I, Page 468:
In all cases the primary duty of a Court is to ascertain from the language of the testator what were his intentions. The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. There is no difference between the English and Hindu Laws as to the materials from which the testator's intention is to be collected- Primarily the words Of the will are to be considered. In so doing the Court is entitled and bound to bear in mind other matters than merely the words used, such as the surrounding circumstances, the position of the testator, his family relationships and many other things which are often summed up in the somewhat picturesque figure. 'The Court is entitled to put itself into the testator's armchair.' Among such surrounding circumstances, none would be more important than race and religious opinions, and the Court is bound to regard as presumably, and in many cases certainly, present to the mind of the testator influences and aims arising therefrom.
20. The same principles are found stated in Mayne's Hindu Law and Usage by S.S. lyengar, 10th Edn, page 906:
As an aid and solely as an aid to arriving at a right construction of a particular will and to ascertain the meaning of the language used by the particular testator a Court is entitled and bound to bear in in mind the surrounding circumstances, the position of the testator, his family relationships, probability that he would use words in a particular sense and his social the cultural environment. In other words, the Court is entitled to put itself into the testator's arm-chair.
21. It is in the light of the above principles, the trust deed in question has to be interpreted. For the purpose of construction of this trust deed we have necessarily to go back to 1919 and put ourselves in the armchair of Lakshmana Iyer and Krishnaswami Iyer. Under the circumstances then prevailing and under the ordinary notions of persons governed by Mitakshara Law, the son, the grandson and the great-grandson were considered to be the legal heirs and competent to perform the oblations of a deceased Hindu. The females succeeded to the property of a male only in the absence of a male heir and they in turn took only a limited estate. That being the case, it would be natural to presume that the executants of the trust deed would have thought of only the male line while prescribing the devolution of the office of trustee. This should be particularly so because they were making an endowment for the performance of the worship in a Krishnan Koil, the deity being brought to the family coconut tope and special pooja being performed, in the light of this provision one can naturally expect that a devout Hindu should have thought that the Pooja should be performed by the eldest male member of the family. it is a matter of common knowledge that among Hindu families, particularly joint families, when religious ceremonies are performed, the eldest male member of the family is given importance. It is because of the importance attached to the eldest male member of a Hindu family the eldest male member or manager was given at the time of 'partition a larger share of the joint family (properties than that allowed to other coparceners on the ground that he would be entitled to what was called 'Jestabagam', which no doubt, has now become obsolete. If the contention urged by Mr. T. R. Mani, were to be accepted, then the trusteeship which necessarily took in the duties or performing the worship of the deity in the manner prescribed under the trust deed would have gone out of the family if Lakshmana Iyer and Krishnaswami Iyer which would have been far from their intention at the time when they executed the trust deed in 1919. We are therefore of the view that taking into account the surrounding circumstances, the notions of a Hindu that prevailed in 1919 and the fact that the executants of the trust deed were making provision for the performance of certain special poojas for the deity in the Krishnan Koil and that too at the joint, family property belonging to the family over which the female members could not have any right at that time, the intention of the executants would have been only to continue to kept the office of trustee in the male line. Therefore, when they used the words they could have only meant the eldest male member in the family of Lakshmana Iyer from time to time.
22. Then, there only remains for our consideration whether the conclusion reached by us are in any way of affected by the decision of the Supreme Court in Angurbala v. Debabrata : 2SCR1125 , and Chockalinga Sethuayar v. Arumanayakam : 1SCR874 , which have been relied upon by the learned single Judge, At this stage : we may make it clear that it was not disputed before us by Mr. T. R. Mani that it is only in cases where the founder of a trust has not prescribed any particular mode of devolution to the office of trustee would the question arise for consideration as to who should succeed to the office of trustee. In this case, both the counsel for the appellant and the respondent proceeded on the basis that the trust deed did prescribe a mode of devolution. However, they joined issue only on the question as regards the interpretation as to the particular mode of devolution prescribed in the document. In Angurbala v. Debabrata : 2SCR1125 , one of the questions that the Supreme Court was called upon to decide was whether 'shebaitship' was property. This case was heavily relied upon by Mr. T. R Mani for the observation made by the Supreme Court in paragraph 20 that the word 'heirs' cannot normally be limited to issue only it must mean all persons who are entitled to the property of another under the law of inheritance. In the said case, two persons N and M together executed a document by which certain properties were dedicated to a deity. The document provided for the performance of various rites, ceremonies and festivals and the manner in which the expenses had to be met. N constituted herself the first she bait. After her death, N was to become the she bait. After M his wife K and after K's death, the heirs M were to act as shebaits. The wife of N predeceased him and consequently on the death of M, the question arose who the heirs were at the time the succession opened. It was in this context that the meaning to be attached to the word 'heirs' arose for consideration before the Supreme Court. As rightly pointed out by Mr. Narayannswami the specification of the persons to become trustees came to an end with the death of M, his wife K having predeceased him. Beyond that point, the document did not particularly specify the persons who should become trustee, but merely stated that the office should devolve on 'the heirs' of M It was in this context, the Supreme Court observed that the expression 'heirs' has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law.
23. The same is the case with the decision in Chockalinga Sethurayar v. Arumanayakam : 1SCR874 , where one Rangayya executed a will in 1884 constituting a trust in respect of some of his properties for certain charitable purposes. He constituted his nephew Dharmalinga and his wife Karuthammal as trustees after his death. The will also provided that after the lifetime of these two individuals, the sons of Dharmalinga should be trustees, In their absence the 'vamsathar' of Dharmalings should continue to conduct the said charities. On the death of Rangayya without leaving issues in 1953, disputes arose over the succession to the truster ship. The Supreme Court after referring to the facts of the case observed as follows:
On a true reading of the will of Rangayya I, it is seen that the testator had prescribed a line of succession for the devolution of the trusteeship only upto a point and not beyond it. According to the will after the death of the testator his foster son and his wife should continue to be the trustees and after their lifetime the sons of Dharmalinga Sethurayar, if any, should succeed to the trusteeship and in their absence the 'vamsathar' of Dharmalinga Sethurayar should take over the trusteeship. The direction contained in the will as to the line of succession exhausted itself as soon as Rangayya II become the trustee. He remained as the trustee till his death in 1953. Therefore there is no question of the 'vamsathar' of Dharmalinga Sethurayar succeeding to the trusteeship. As soon as Rangayya II took over the trusteeship, the mode of succession prescribed in the will came to an end. Rangayyn II became a fresh stock of descent. Thereafter the succession is regulated by the ordinary rule of Mitakshara Law.
If can therefore be seen in the said case the Supreme Court was concerned with succession to the office of trustee, when the mode prescribed by the founder had come to an end. Undoubtedly, in such circumstances, different considerations would prevail. We are not faced with such a situation in this case. All that we have to consider is what is the mode of devolution prescribed for the office of trustee by the executants of the trust deed. We are not concerned who is entitled to succeed to the office of trustee on any hypothetical ground that the trust deed has not prescribed the mode of devolution of the office of trustee. Nor was the matter argued before us by the learned Counsel for the respondent on that basis. The learned single Judge, if we may say so with respect,, has merely proceeded on the wide meaning, to be given to the word 'yarish' which, in our opinion, cannot be applied to the facts of this case. We therefore hold that under the deed of trust the office of trustee has to devolve on the eldest male member in the male line of Lakshmana Iyer. In this view,, we hold that the plaintiff is not entitled to be the trustee. We set aside the judgment and decree of the learned single Judge which in turn confirmed that of the trial Court. We allow the appeal. The suit will stand dismissed, but under the circumstances of the case there will be no order as to costs throughout.