Swaminatha Aiyar and Another vs Ramaswami Aiyar

Kumaraswami Sastri, J.—The only question argued in this second appeal is whether, on a proper construction of the deed of partition dated

the 19th November 1887, the right to manage the family charity vests in the eldest member of all the four branches of the family or in the eldest

member of the senior line.

The founder of the charity was one Annavier, who died leaving four sons Subramania Iyer, Muthusami Iyer, the father of defendants 1 and 2,

Ramasami Iyer, the plaintiff, and Vengappier. The sons divided the family properties by the deed of partition dated 19th November 1887, (Ex. 1).

As regards the family charity the deed provides that Subramania Iyer who was the eldest member should exercise supervision and perform the acts

therein mentioned. The deed then states:

After Subramania Iyer above named, those that come next in the order of seniority should take the charity property in due course and manage the

charity properly.

Both the Munsif and the District Judge are of opinion that under the terms of the deed of partition the management vests in the senior of the four

brothers and after them in the senior member of the four branches and not in the senior member of the first branch alone. I am of opinion that they

are right. The charity is admittedly one founded by their father and on his death it would be a joint family charity in which all the four brothers were

interested. In a suit for partition provision would ordinarily have been made for management by turns as there is nothing special in this case which

would take it out of the principle enunciated in Ramanathan Chetty v. Murugappa Chetty [1901] 27 Mad. 192 There is nothing in the deed of

partition to suggest that the three brothers gave up all their rights in favour of the eldest member and his descendants. It would require clear words

to that effect to shut them out. The words jeshta varisai kramapadiki irukkiravargal would ordinarily include the eldest of the four branches. The

word varisai kramam is applicable equally to the four brothers in succession as to the descendant of the eldest branch.

I may point out that in the prior litigation between the members of the family relating to this charity it was conceded by all parties that the

management of the charity was to go to the four brothers in succession on the death of the elder: see Exs. 6 and 7, the judgments of Munsif and

Subordinate Judge.

Reference has been made by Mr. Venkatachariar for the appellant to the decision in Appeal No. 57 of 1919 and second Appeal No. 517 of

1920 as supporting the view that the succession should be confined to the senior members of the senior line. The language in the deeds in question

is not identical with that in the present deed and, I do not think that the construction placed on the terms of one document would afford a safe

guide in construing a document differently worded.

I can see nothing in the deed of partition, Ex. 1, on the facts of the case, which indicate any intention to confine the management to the line of the

eldest brother.

The second appeal fails and is dismissed with costs.