Mahadeva Iyer and Another vs Sankarasubramania Iyer

By a registered deed, Exh. A, one Ponnu Sankara Subbaiyer settled certain Immovable property on certain charitable trusts and appointed

himself as hukdar for life and provided that, after his death, his grandson Sankara Subramania Iyer, should succeed him as hukdar, and that such

grandson and every successive hukdar should in turn select a successor in like manner. Subsequently, the settlor executed two deeds Exhs. B and

C by one of which he purported to cancel the appointment of Sankara Subramania Aiyar as hukdar, while by the other, he appointed the present

plaintiffs. On the settlor''s death, the plaintiffs took possession in proceedings u/s 145, Cr.P.C., and then instituted the present suit. The District

Munsif decided in his favour, but the lower appellate Court dismissed the suit on the ground that the settlor had no power to revoke the

appointment, under Exh. A, of the defendant. For the appellant, it is contended that part of Exh. A which appoints the defendant must be regarded

as being of a testamentary character and so revocable. We are unable to accept this contention. It is not contended that the whole of Exh. A is

revocable, and we see no reason why one portion of the deed should be held revocable rather than another. Further, it is well settled that if an

instrument is a deed in form, in order to hold it testamentary or in the nature of a will, there must be something very special in the case, and that

unless there are circumstances which compel the Court to treat an instrument, in the form of a deed, as a will, the-Court will not do so Patch v.

Shore (1857) 2 Dr. Sm. 589. There are no such circumstances in the present case. The deed appears to create a vested right in the defendant to

take effect in possession on the death of the settlor. The provisions as to the succession after the defendant death may be open to objection, but

tins cannot affect the provisions as to the defendant''s succession to which no objection can be urged. It was, of course, open to the defendant as

to any other trustee to disclaim the trust conferred on him, but he did not do so; and, under these circumstances, we are of opinion that the right to

the trusteeship which became vested in him at the date of the deed took effect in possession at the death of the settlor.

The second appeal is dismissed with costs.