Constitution of deed of trust.

PADMANABHAN, J. :- This Letters Patent Appeal involves an interpretation of a trust deed executed on 16th March, 1919 by two brothers Lakshmana Iyer and Krishnasami Iyer who were coparceners of a Hindu Mitakshara joint family. The appellant is the defendant in O. S. 208 of 1970 on the file of the Additional Subordinate Judge, Madurai. Lakshmana Iyer and Krishnaswami Iyer were the sons of one Subbier. Subbier died in 1921. It is stated that Krishnaswami Iyer died issueless. We are not concerned in this appeal with Krishnaswami Iyer. Lakshmana Iyer died in 1970. The plaintiff Visalakshmi Ammal who died subsequent to the filing of the suit is the daughter of the said Lakshmana Iyer and Sundararmier, the defendant (the appellant herein) is the son of Lakshmana Iyer. The plaintiff has filed the suit for a declaration that she is entitled to the office of trustee for K.N. Subbier, and sons charities, Madurai for delivery of possession of the suit properties and for rendition of accounts by the defendant. The trial Court granted a nee in favour of the plaintiff. The defendant filed A. S. 341 of 1974 on the file of Court which has been dismissed Hence this Letters Patent Appeal by the defendant.

2. The question for consideration is whether the plaintiff is entitled to be trustee under. Ex. A-1 dated 16-3-1919 executed by Krishnaswami Iyer and Lakshmana Iyer. It may be mentioned that at the time the trust deed was executed, their father Subbier was alive and he died only in the year 1921. The trust deed recites that the executants along with their father had already set apart the properties for charities in connection with Prasanna Venkateswara of Krishnan temple. It is further stated that the trust deed was being executed at the behest of their father Subbier. Under the trust deed, the properties of the family valued at Rs. 16,500 have been dedicated for charities connected with the temple. The deity has to be brought to the coconut tope belonging to the family and pooja and neivedyam should be performed. There was to be a feeding of the devotees. Further, there is a provision that some assistance has to be rendered to the poor students belonging to the Sourashtra community to the extent of a minimum of Rs. 500. There is no controversy between the parties before us as regards the charities to be performed under the deed of trust. What we are concerned is only the devolution of the office of trustee in terms of the provisions contained in the deed of trust.

3. As regards the devolution of the office of trustee the trust deed consititutes Lakshmana Iyer as the first trustee. The mode of devolution of the office of trustee is described as follows:- (Thus, the above charities must be carried out every year without interruption by Lakshmana Iyer's eldest 'varish' from generation to generation through 'Santait'. If the performance of the charities is not done properly, then Krishnaswami Iyer and after the eldest Varish of Lakshmana Iyer and carry out the performance in a proper way). Both the trial Court as well as the learned single Judge have taken the view that 'jestavarisu' would take in male as well as female heirs and consequently as the plaintiff, the daughter of Lakshmana Iyer, is elder to the defendant, the office of trustee would devolve on her.

4. Mr. M.R. Narayanaswami, the learned counsel for the defendant contends that in construing the above provision the Court should place itself in the armchair, of the executants. Though the term 'varisu' on its literal sense would take in male as well as female heirs, normally it refers, to only legal heirs. When a person governed by Hindu Mitakshara law, in its pristine purity, executes a trust deed and states that the line of succession should be according to 'jestavarisu' it must necessarily mean only in the order of seniority of the male heirs. The learned counsel further contends that as per the Mitakshara law as it stood in 1919, a, son would be the legal heir and consequently