# S'ethuramaswcmiar v. Merus'!-vamiar, L.R. 45 I.A. 1, applied

- **Citation:** [1969] 1 S.C.R. 874
- **Court:** Supreme Court of India
- **Decided:** 1968-08-28
- **Case number:** Civil Appeal No. 1162 of 1965
- **Bench:** S. M. S!Kri, R. S. Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-ethuramaswcmiar-v-merus-vamiar-l-r-45-i-a-1-applied-4534
- **Pages:** 6

## Headnote

Hindu Law Inheritance Amendment Act (2 of 1929) Succession to
trusteeship.
\
HindU Law-Will-Vamsathar-Scope.
A Hindu governed by the Mitakshara law died leaving behind hls wife
K and a foster son D.
He had executed a will constituting a
private
trllst.
Under the will, K and D were constituted as trustees after the
testator's death and after the death of K
and D the sons of D
were
to be trustees, and in their ·absence the 'Vamsathar' of D were to the
trustees.
D predeceased It. After K's death R became the trustee.
R
died issuele.ss, and the respondent (whO was the 'Sister of R) claimed the
trusteeship; on the othor hand the appellants (who we're the grand-sons of
paternal uncle of R) pressed their claim for trustee"ship on the ground
that they belonged to the 'vamsa' of R. The trial court •accepted the appellant's claim, but in appeal the High Court held that the trusteCllhip devolved on the respondent. Dismissing the appeal, this Court;
HELD : The respondent was entitled to succeed to the trusteeship
previously held by her brother R.
A
B:
c
D
A true reading of the will, shows that the testator had prescribed a line
, E
of succession for !he devolution of the trusteeship only upto a point and
not beyond it.
According to the will after the death of the testator his
wife and foster son were to be the trustees and after their life.time the
sons of D, if any., should succeed to the trusteeship aad in their absence
the 'vamsathar' of D should ·lake over the lrusteeship. The direction contained in the will as' to the line of succession. ex:hausted itself as soon as
R became the trustee. He remained as the trustee till hls death.
Therefore there was no question of the 'vamsathar' of R succeeding to the
.F
trusteeship.
As soon as R~ took over the trusteeship, the mode of succession presCribcd in the will came to an end.
R became a fresh stock of
desce!1t.
Thereafter the succession "'.'as, regulated by the ordinary rule
df Mital;shara law. [877 G-878 BJ
Under the Hindu Law Inheritance Amendment Act, 1929 (2 of 1929),
the sister is given a higher pl~ce i.n the line of succession than what she
had under the customary law in respect of properties of her brother not
G
held by him in coparcenary and not disposed of by him by wiJI. In view
of that Act, as regards the individual properties of D, the respondent was a
nearer heir than the appellants.
Even if the expression 'property~ used in
Act 2 of 1929 docs not include a trusteeship right, still it is a well established proposition of law that succession to trusteeship similar to the one in
this case is governed by the ordinary rules of inheritance under the Hindu
Jaw.
Act 2 of 1929 has amended the general •Jaw of inheritance in certain
respects and the same alteration must be recognised in regard to succession
H
to trusteeship as well. [877 C-D; 878 DJ
S'ethuramaswcmiar v. Merus'!-vamiar, L.R. 45 I.A. 1, applied.
•
/
•
CHOCKALINGA V, ARUMANAYAKAM (Hegde, l.) .
875
A
Ramanathan Chetty v. Murugappa Chetzy, I.L.R. 27 Mad. 192 and
Angurbala Mullick v. Debabrata Mullick, [1951] S.C.R, 1125, followed.

## Text

• . 814
€HOCKALINGA SETHURA YAR & ORS.
'
.
·v.
ARUMANAYAKAM
August 28, 1968
[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.J
Hindu Law Inheritance Amendment Act (2 of 1929) Succession to
trusteeship.
\
HindU Law-Will-Vamsathar-Scope.
A Hindu governed by the Mitakshara law died leaving behind hls wife
K and a foster son D.
He had executed a will constituting a
private
trllst.
Under the will, K and D were constituted as trustees after the
testator's death and after the death of K
and D the sons of D
were
to be trustees, and in their ·absence the 'Vamsathar' of D were to the
trustees.
D predeceased It. After K's death R became the trustee.
R
died issuele.ss, and the respondent (whO was the 'Sister of R) claimed the
trusteeship; on the othor hand the appellants (who we're the grand-sons of
paternal uncle of R) pressed their claim for trustee"ship on the ground
that they belonged to the 'vamsa' of R. The trial court •accepted the appellant's claim, but in appeal the High Court held that the trusteCllhip devolved on the respondent. Dismissing the appeal, this Court;
HELD : The respondent was entitled to succeed to the trusteeship
previously held by her brother R.
A
B:
c
D
A true reading of the will, shows that the testator had prescribed a line
, E
of succession for !he devolution of the trusteeship only upto a point and
not beyond it.
According to the will after the death of the testator his
wife and foster son were to be the trustees and after their life.time the
sons of D, if any., should succeed to the trusteeship aad in their absence
the 'vamsathar' of D should ·lake over the lrusteeship. The direction contained in the will as' to the line of succession. ex:hausted itself as soon as
R became the trustee. He remained as the trustee till hls death.
Therefore there was no question of the 'vamsathar' of R succeeding to the
.F
trusteeship.
As soon as R~ took over the trusteeship, the mode of succession presCribcd in the will came to an end.
R became a fresh stock of
desce!1t.
Thereafter the succession "'.'as, regulated by the ordinary rule
df Mital;shara law. [877 G-878 BJ
Under the Hindu Law Inheritance Amendment Act, 1929 (2 of 1929),
the sister is given a higher pl~ce i.n the line of succession than what she
had under the customary law in respect of properties of her brother not
G
held by him in coparcenary and not disposed of by him by wiJI. In view
of that Act, as regards the individual properties of D, the respondent was a
nearer heir than the appellants.
Even if the expression 'property~ used in
Act 2 of 1929 docs not include a trusteeship right, still it is a well established proposition of law that succession to trusteeship similar to the one in
this case is governed by the ordinary rules of inheritance under the Hindu
Jaw.
Act 2 of 1929 has amended the general •Jaw of inheritance in certain
respects and the same alteration must be recognised in regard to succession
H
to trusteeship as well. [877 C-D; 878 DJ
S'ethuramaswcmiar v. Merus'!-vamiar, L.R. 45 I.A. 1, applied.
•
/
•
CHOCKALINGA V, ARUMANAYAKAM (Hegde, l.) .
875
A
Ramanathan Chetty v. Murugappa Chetzy, I.L.R. 27 Mad. 192 and
Angurbala Mullick v. Debabrata Mullick, [1951] S.C.R, 1125, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1162
of 1965.
Appeal by special leave from the judgment and order dated
B
November 3, 1959 of the Madras High Court in Appeal No. 276
c
. D
E
F
G
H
of 1955. -
G. L. Sanghi for the appellants.
R. Thiagarajan, for the respondent.
The Judgment of the Court was delivered by
Hegde, J.
This appeal by certificate is directed against the
decision of the High Court of Madras in A.S. No. 276 of 1955.
The question that arises for decision herein is whether the appellants or the respondent should be held to be the trustees of the
suit trust.
The Trial Court upheld the claim of the appellants
whereas the High Court in appeal came to the conclusion that
the trusteeship has devolved on .the respondent .
For the purpose of deciding the controversy' before us it is
not necessary to refer to the various facts that were placed before the Trial Court or the High Court. The facts material for
our present purpose are these :
One Rangayya Sethurayar (who will hereinafter be referred
to as ltangayya I) was a well to do person. He died in the year
i 886 leaving behind him his wife Karuthammal.
He had no
issues but he was bringing up his brother's
son
Dharmalinga
Sethurayar as his foster son.
He executed a will on June 25,
1884 (Exh. A-1) under which he constituted a trust in respect
of some of his properties for the purpose of carrying on the
water supply charity and Dwadesi
Kattalai charity in the
choultry built by him.
Under the said will he constituted Dharmalinga Sethurayar and his wife Karuthammal as the trustees
of the trust in question after his death.
The will also provides
that after the life time of the aforementioned two persons the
sons of Dharmalinga Sethurayar should be the trustees and in
their absence the 'vamsathar' of Dharmalinga Sethurayar should
continue to conduct the said charities. Dharmalinga Sethurayar
died in 1907 but Karuthammal continued to live till 1932. After
the death of Dharmalinga Sethurayar, KaruthaIQmal continued
as the sole trustee of the trust in question till her death. Thereafter Rangayya Sethurayar (to be hereinafter referred to
as
Rangayya II) took over the trusteeship and continued to manage
the trust till his death on 9-5-1953.
The said Rangayya died
~sueless. The respondent claims to be the
sister of said
Rangayya and as such claims to be trustee of the suit trust. On
•
•
876
SUPREME COURT REPORTS
[1969) J S.C.R.
the other hand the appellants who arc the grand-sons of the
A
paternal uncle of Rangayya II are pressing their claim for the
trusteeship on the ground that they belong to the 'Vamsa'
of
Rangayya II.
The respondent's claim that she is the sister of Rangayya II
1s contested by the appellants as mentioned earlier.
The Trial
Court held that the respondent has failed to prove that she is
the sister of Rangayya 11 but the High Court upheld her claim.
We agree with the High Court .in its finding that there is satisfactory evidence to show that the respondent is
the sister of
Rangayya II.
That fact was specifically admitted by the
first
appellant in the counter affidavit filed l;>y him in I.A. No. 171
'of 1954.
It may be noted that this admission was made after
the dispute bcrween the parties had commenced.
At that stage
the only plea advanced by the appellant~ was that though the
respond!!nt was the sister of Rangayya II, she was not entitled
to succeed to the trusteeship under law.
The High Court has
rightly discarded the subsequent version put forward
by the
appellant~ to the 'effect that the admission in quesvon was made
under a wrong impression and the same was based on the in-
. formation
supplied
by
one
Subbanna
Nattar.
The said
Subbanna Nattar has not been examined as witness in the CBSll.
That apart the appellants and the respondent arc near relations
and hence the pica of the appellants that they did not know the
exact relationship between the respondent and Rangayya II is
unacceptable.
Further if they did not know the
relationship
they would not have admitted that she was the sister of Rangayya
II.
This admission is a very important piece nf evidence.
It
cannot be brushed aside lightly as the learned Trial Judge hlls
done.
That admission is further supported by
the witnesses
examined on behalf of the respondent, whose evidence has been
believed hy the High Court.
The contrary evidence given by
D.W. I 0 has not been believed by the High Court for very good
rea~ons. There was convincing proof before the Trial Court to
support the respondent's claim.
The reasons given by the Trial
Court for not accepting that evidence are far from convincing.
In addition to the evidence adduced in the Trial Court, certain
additional documentary evidence was adduced before the High
Court.
The deposition of Rangayya II in a criminal case was
placed before the High Court wherein he had clearly admitted
that the respondent was his sister.
Mr. Sanghi learned Counsel
for the appellants contended that the High Comt was not ju~ti
hcd in receiving additional evidence as no case was made out
under Order 41, rule 27, Code of Civil Procedure.
We are unable to examine the correctness of that contention as the order
impugned was neither printed nor made available to us. Ewn
if we exclude that piece of evidence from consideration still the
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
CHOCKALINGA v. ARUMANAYAKAM (Hegde, I.)
877 •
remaining evidence conclusively establishes that the respondent
is the sister of Rangayya II.
This takes us to the next question whether she is entitled to
succeed to the trusteeship. It was not disputed before us that
the trusteeship in question is hereditary trusteeship and it relates
to a private charity. The trustee is the legal owner of the trust
properties though the entire income of the trust properties has to
be utilized for charity. It was conceded before us that succession to trusteeship of properties similar to the one before
~s
follows the ordinary rule of Hindu Law, if there is no special
custom to the contrary. In the instant case no special custom
was either pleaded or proved. Therefore all that we have to ascertain is the mode of succession to the same in accordance with
the ordinary rule of Hindu Law. The parties are governed by
Mitakshra Law under which a sister is one of the heirs of a male
perwn. In view of Hindu Law of Inheritance Amendment Act
1929 (Act II of 1929), the sister is given a higher place in the
line of succession than what she had under the customary law in
respect of 'properties of her brother not held by him in coparcenary
and not disposed of by him by' will. It is true that Act II of 192 9
applies only to properties of males not held in coparcenary and
not disposed of by will but in view of that Act, as regards
the
individual properties of Rangayya II, the respondent is a nearer
heir of his than the appellants.
Before examining the respondent's claim to succud to the
trusteeship we have to first dispose of another contention of the
appellants.
According to them under the will of Rangayya
I
whenever a trustee dies leaving behind him no sons the trusteeship
should go to the 'vamsathar' of the last trustee; the· respondent
cannot be held to be a 'vamsathar' of Rangayya II as she had
been married into a different family and consequently had become
a 'vamsathar' of her husband's family; but they being the nephews
of Rangayya II must be considered as his 'vamsathar' and consequently they are entitled to succeed to the trusteeship after the
death of Rangayya IL There was considerable debate before us
as to what is meant by that expression 'vamsathar'.· We do not
think that question is relevant for our present_ purpose.
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
t~steeship 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 life time the sons
of Dharmalinga Sethurayar, if any, should succeed to the trusteeship and in their absence the "vamsathar' of Dhannalinga Sethuravar should take over the trusteeship. The direction contained
4n the will as to the line of 'succescin" exhausted itself as soon as
Rangayya II became the trustee. He remained as the trustee till
-·
•
8,78
St:PREME COt:RT RlPORTS
[1969] J S.C R.
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.
Rangayya II
became a fresh stock of descent.
Thereafter the succession
is
regulated by the ordinary rule of Mitakshara Law.
As observed
by the Privy Cotmci/ in Scthurama.nvamiar v. Mer11.11vamiar(') :
"With regard to what arc called
private charities
such as endowments for the support of the family idol,
the law as laid down by various decisions in India and
apparent accepted in one case by the Privy Council
(Ramanathan Chetty
v.
Murugappa Chcttry(') ) is
that if there is no contrary provision in original grant the
right of management passes to the natural heirs of the
original grantee."
Assuming without deciding that the expression 'property'
used
in Act II of 1929 does not include a trusteeship right still it is a
well established proposition of law that succession to trusteeship
similar to the one before us is governed by the ordinary rules of
inheritance under the Hindu Law.
Act II of 1929 has amended
the general law of inheritance in certain respects and the same
alteration must be recognised in regard to succession to trusteeship as well.
This view finds support from the decision of this
Court in Angurbala Mullick v. Debabrata Mullick('). Therein
this Court was concerned with the claim of a Hindu wife to the
shebaitship of a temple which was originally held by her deceased
husband. She advanced her claim on the basis of s. 3(1) of the
Hindu Women's Rights to Property Act (XVIII of 1937). That
claim was rejected both by the Trial Court as well as by the
High Court in appeal on the ground that the Hindu Women's
right to Property Act was inapplicable to devolution of shebaitship rights.
This Court overruled that conclusion.
In so doing
it observed thus :
"Assuming that the word "property" in Act XVJII
of 1937 is to be interpreted to mean
property in its
common and ordinarily accepted sense and is not to be
extended to any special or peculiar type of property
even then we think that the other contention of Mr. Tek
Chand is perfectlv sound.
Succession to shebaitship.
even though there is an ingredient of office in it follows
succession to ordinary or secular property.
It is the
general law of succession that governs succession
to
shebaitship as well.
While the general law has now
been changed by reason of Act XVJII of 193 7
there
(I) L.R. 45 I.A. I.
C!)
1.l..R. 27 Mad. 19~. •
13)
Jl951) S.C.R. 1125.
A
B
c
D
E
F
G
H
A
B
CHUCKALINGA v. ARU~!ANAYAKAM (Hegde, !.)
does not appear to be any cogent reason why. the law as
it stands at present should not be made applicable in
the case of devolution of shebaitship."
879•
•
The same reasoning applies with full force to the facts of the·
present case. For the said reasons we hold that the respondent
is entitled to succeed to the trusteeship previously held by her
brother.
In view of our above conclusion, it is not necessary for us to
consider whether a hereditary trusteeship is "property" within
the meaning of Act TI of 1929 and if so, succession· to the same
is governed by the provisions of that Act.
C
In the result this appeal fails and the same is dismissed with
costs.
Y.P.
Appeal dismissed.
. .