Posted On by &filed under High Court, Madras High Court.

Madras High Court
Swaminatha Pillai vs Duraisami Pillai on 10 December, 1926
Equivalent citations: AIR 1927 Mad 681, 101 Ind Cas 82
Author: Devadoss


Devadoss, J.

1. One Ganapathi Pillai by his Will dated 2nd October 1915, made a bequest in favour of his brother and his sister and a dependant and directed that out of the income of some items of property certain charities should be performed by his sister’s husband Doraisami Pillai. The question in this second appeal is whether Doraisami Pillai has a heritable interest in the property or whether there is an intestacy with regard to the surplus of the income of the items of property out of which he is directed to make certain payments. Both the lower Courts have held that the testator bequeathed the property to Doraisami Pillai burdened only with a trust and that he was entitled to enjoy the surplus income that may remain after making the payments directed by the Will. It is contended by the learned Advocate-General that the Subordinate Judge in construing the Will has given undue importance to the principle that in construing the provisions of a Will the Court should lean strongly against a construction which would involve a partial intestacy and has overlooked the equally important principle that an estate given by implication in a Will, if it be to the disinheriting of the heir-at-law, is not good if such implication be only constructive and not a necessary implication.

2. In construing a Will such as Ex, I, all the provisions in the Will should be considered before applying any canon of construction to any particular clause therein. The testator devised some property to his brother and made provision for the support of a dependant, Govindasami, and his descendants; he also bequeathed some property to his sister Yogammal and made provision for certain offerings for the Vinyagar of Kilatheruvu Pillai Koil and for the Gurukal’s salary in lieu of sradha ceremonies of his mother and father and directed that a samadhi should be built over his grave and that some pandaram should be appointed for making offerings to the lingam to be placed on the samadhi and that gurupuja should be performed on the date of the nakshatram of his death; and the expenses for the offerings to Vinayagar, etc., were to come out of the income of certain items of property. The direction in the Will is that Doraisami Pillai, brother-in-law of the testator, should make payments for the purpose above mentioned out of the income of certain items of property mentioned in the Will for that purpose. It is admitted that the income of the property is more than sufficient to meet the expenses mentioned in the Will. The contention of the appellant is that he as the heir of the testator is entitled to the surplus income inasmuch as the property in dispute was not bequeathed to Doraisami who was only directed to manage the property as trustee and is, therefore, not entitled to a heritable interest in the property and consequently not entitled to enjoy the surplus income, If Doraisami Pillai is only a trustee and nothing more, no doubt the appellant would be entitled as heir to the surplus income of the property. The question is whether the intention of the testator, as it appears from the Will, was to give Doraisami Pillai property burdened with trust or that he should be only a trustee in charge of the properties for the purpose of meeting the expenses mentioned in the Will. The portion relating to the devise of the property for charitable purposes is singularly defective inasmuch as certain words which ought to be there are absent. It may be that in writing involved sentences certain necessary words were overlooked. For instance, the expression in Tamil “Swayamakvavathu Kuthakaikavathu” would be meaningless unless the word “enjoy” or “manage” is added. In another place also there is an ostensible omission as regards enjoyment. Reading the clauses of the Will relating to the charitable bequest as a whole, one cannot resist the impression that the testator intended that Doraisami Pillai should enjoy the properties and pay out of their income the amounts mentioned in the Will. In other words, the testator bequeathed these properties to Doraisami Pillai burdened with a trust and not that he made him a bare trustee for performing certain things. This impression is strengthened by the clear direction in the Will that “the said Doraisami Pillai and his heirs shall do all acts conducive to convenience, such as “transfer of patta” etc. There is also the further fact that the appellant, brother of the testator, and his heirs are asked to be present at the time of the performance of the gurupuja to see that the same is properly conducted. If the intention of the testator was that the surplus income should go to Swaminatha Pillai it is difficult to see why he did not make a specific provision to that effect. Swaminatha Pillai, the appellant, is one of the legatee under the Will and he and his heirs are directed to be present at the performance of the gurupuja, The testator could not have overlooked the fact that the income of the properly devised to Doraisami Pillai was more than sufficient to meet the payments directed to be made for the purposes set out in the Will and the absence of any direction for the disposal of the surplus is a circumstance in favour of the respondent. If the appellant was not a legatee under the Will, it might be said that the testator did not want to disinherit him of the surplus that may remain after meeting the expenses, mentioned in the Will. As he and his heirs are asked to do everything for carrying out the directions as regards the payments mentioned therein and as the appellant has been asked to see that the gurupuja is properly performed, the only possible construction of the Will is that Doraisami Pillai was to get the property only burdened with a trust, in other words, the bequest is to Doraisami Pillai and his heirs.

3. In considering Hindu Wills the Court should not overlook the customs and habits and the predilections of the class to which the testator belonged. It is very common for Hindus as well as Muhammadans to set apart property ostensibly for charitable or religious purposes with a direction that out of the income of the property certain amount should be spent for charitable or religious purposes, but the real object in such cases is to benefit the person who is to manage the property set apart for such purposes by enabling him to enjoy income. The testator, a native of Tanjore, could not have been ignorant of such bequests for the support of the dependants and relations of wealthy persons. In this case the testatator has devised property to his brother and his sister and even to his dependants, and there is nothing unreasonable in making his sister’s husband, Doraisami Pillai, a legatee under the Will imposing a burden on the property devised to him.

4. In construing a Will where there are obvious omissions, the Court would be justified in supplying such omissions as the dispositions in the Will would justify. The principle which ought to guide the Court in such cases is laid down in a number of English cases. North, J., in delivering the judgmant in Mellor v. Daintree [1886] 33 Ch. D. 198 makes the following observations:

I may refer also to the observations of Vice-Chancellor Bacon in in re Redfern [1877] 6 Ch. D. 133 He said: I think that upon a reasonable construction of the words which the testator has used, the words which are suggested by the statement of claim ought to be read as if they were inserted in the Will. If I were to do otherwise I should be going against the canon cf construction, that I am to gather the meaning of the testator from the words in which he has expressed his meaning. I am not to be deterred by any accidental omission from putting the true signification on the Will, and I am not to substitute what some blundering attorney’s clerk or law stationer has written in this Will, and treat that blunder as if it was the intention of the testator. I do not hesitate in the slightest degree, therefore, to adopt the rule which Vice-Chancellor Hall expressed in Sweeting v. Prideaux [1876] 2 Ch. D. 413 that the testator must necessarily have meant what the mere letter of the Will does not express.

5. It Meller v. Daintree [1886] 33 Ch. D. 198 the Will of the testator made provision for certain moveable and immovable property being held in trust till the legatee attained the age of 25 years; provision was also made for the devolution of property in case the legatee, A. E. Bagley, died before he attained 25 years. But there was not specific provision as to what should be done if he lived after he attained 25 years. North, J., construed the Will as giving an absolute estate to A. E. Bagely after he attained 25 years. In this case, as I have already observed, there is an obvious omission as regards the enjoyment of property and on reading the whole Will it is clear that the omission is due to careless or hasty drafting. The case in Gopal Lal Sett v. Purna Chandra Basak A. I. R. 1922 P. C. 253 does not help the appellant. Where the property is given for trust and the legatee is only asked to manage the property he cannot claim a heritable interest in it. Lord Chancellor Eldon brings out the distinction between a bequest burdened with a trust and a bequest only in trust in King v. Denison [1813] 35 E. R. 102 At page 106* he observes:

If I give to A and his heirs all my real estate, charged with my debts, that is devised to him for a particular purpose, but not for that purpose only. If the devise is upon trust to pay my debts, that is a devise for a particular purpose, and nothing more, and the effect of those two modes admits just this difference. The former is a devise of an estate of inheritance for the purpose of giving the devisee the beneficial interest, subject to a particular purpose: the latter is a devise for a particular purpose; with no intention to give him any beneficial interest.

6. In this case the bequest is one which is burdened with a trust and Doraisami Pillai gets a heritable interest in the items of property out of the income of which certain payments are directed to be made.

7. The second appeal fails and is dismissed with costs.

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