1. This was a suit for a declaration that a certain mortgage dated 14th December 1903 executed by one Venkatarama Iyer deceased in favour of one Satayyappa Chetti, and the decree in O.S. No. 472 of 1916 on the file of the District Munsif's Court of Mayavaram obtained thereon were not binding on the trust properties and for an injunction restraining the defendants Nos. 1 to 3 from executing the said decree against the trust. It is contended that the plaint properties originally belonged to the plaintiff's maternal uncle Panchanadha Iyer and that by his Will dated 8th January 1898 he created a trust. This Will is Ex. A in the case and its construction is the first point raised.
2. The first defendant contended inter alia that Venkatarama Iyer got the properties as heir and not as trustee under the Will, i.e., that he took the properties as the beneficial owner burdened with a trust to perform the charity therein mentioned. The District Munsif gave the plaintiff the declaration that he asked for. On appeal the Subordinate Judge has held that the suit was barred by limitation, under Article 134 of the Limitation Act. In this he is clearly wrong and it is argued by both sides that the matter is concluded by the ruling in Mulla Vittil Seeti Kutti v. Kunhi Pathumma 43 Ind. Cas. 31 : 40 M. 1010 : . On the construction of the Will, both Courts held that the Will is genuine and that the suit properties were not dedicated to charity but only the income thereof. Turning to Ex. A the words are: 'Deducting these, the balance of 7 mahs and 25 kuzhis of nanja and punja lands my nephew Venkataraman shall permanently enjoy and with the income derived out of those lands and with the income of the interest of Rs. 500, the capital I have reserved for the purpose the said Venkataraman is to be feeding at least 10 brahmins on each dwadesi in his house at Mayavaram * * * * For ever, the said Venkataraman shall by himself get all these done, and after him, Sivaswami, his younger brother should conduct them.' This is the important portion of Ex. A and I have had it re-translated by the Chief Interpreter and his translation is as follows: 'Barring these, the remaining wet and dry lands measuring 7 mahs and 45 kulis, my sister's son Venkataraman shall enjoy permanently, and, with the income of the said land and with the interest derivable from the capital amount of Rs. 500 kept by me therefor, the said Venkatarama Iyer shall, on every dwadesi day, feed not less than 10 brahmins, in Mayavaram, at his own house according to his pleasure.' In the last sentence the more accurate translation is 'For ever the said Venkataramier having by himself get all these done, after him Sivaswami, his younger brother should conduct them.'
3. Mr. Bhashyam Iyengar for the appellant points out that as there is no disposition of the surplus income in this case, that is a strong indication that the whole property was devoted to the trust and that the trust is not merely a charge. He quoted a number of cases, but they really all come down to this that each case must stand on its own footing and on the construction of its own document. He relied among other cases of Vaithinatha Aiyar v. Theyagaraja Aiyar 68 Ind. Cas. 631 : 41 M.L.J. 20 which laid down that a gift of the whole income was equivalent to a gift of the corpus. But I am not satisfied that the whole income is necessarily to be devoted to the charity in this case. He has to feed not less than 10 brahmins at Mayavaram at his own house according to his pleasure supposing the income were sufficient to feed 20 or 30 brahmins the trust would be adequately carried out by his feeding only 10. There would then be a surplus income which I construe Ex. A, would be to do as he likes with as it is said that he shall permanently enjoy the nanja and punja lands. This is a Will; and in Raja Manicka Chettiar v. Manikam Chettiar 84 Ind. Cas. 902 : 20 L.W. 672 I had occasion to examine the meaning of the word 'enjoy' in a Hindu Will. Of course, as I have already said, each case must stand on its own facts. But it seems to me that there is nothing in the document before me at present to restrict the word 'enjoy' to either a life-estate in the lands or to the income thereof. I, therefore, think that the words 'shall permanently enjoy' gave what in the English Law we would call a fee simple to Venkatarama Iyer. It is also to be observed that there is no disposition of the corpus after Venkataraman's death and after him Siva swami, his younger brother, is only to con duct the charities. There is, to my mind, nothing to show, as I have pointed out above, that the whole income of the land is necessarily to be devoted to this feeding and even if this Were so, I think the words do not mean a dedication of the corpus. Taking these points into consideration, I am of opinion, that the Subordinate Judge was right in coming to the conclusion that the properties were not constituted as trust' for the purpose of the charity. No further question arises in this view of the case. I am, therefore, of opinion that the second appeal must fail and is accordingly dismissed with costs.