The main legal point established in the judgment is the application of Hindu law and principles from previous cases to determine the construction of a will, the existence of a trust, and the nature of the estate inherited by the brothers.

Curgenven, J.

1. The decision of this case is dependent upon the construction to be placed upon a will, Ex. A, executed by one Venkatarama Ayyar in 1902 bequeathing certain properties to his sister Parvati, who died in February 1923, Parvati was the mother of defendant 1 and of Sitarama Sestri, who died in March 1924 and whose widow is the plaintiff. Together the two brothers formed a co-parcenary. Defendant 1 resists the plaintiffs claim to partition of the properties devised by the will firstly on the ground that it created a trust; and secondly, if that contention does not succeed, upon a claim of survivorship, it being argued that the brothers took the property as joint tenants and not as tenants-in-common. The learned Subordinate Judge of Tiruvarur has held in favour of the plaintiff upon both points and defendant 1 appeals.

2. We think the lower Court is correct in holding that the provisions of the will did not constitute a trust, and that Parvati took the devised property subject to charges in favour of certain charities and of an allowance for maintenance. Our attention has been drawn to two cases decided by the Privy Council, Sonatun Bysack v. Juggutsoondaree Dossee (1859-61) 8 M.I.A 66 and Ashutosh Dutt v. Doorga Churn (1880) 5 Cal 438, in which it was held to be sufficient to rebut the construction of a trust that the instrument in question contained a bequest of surplus property for the use and benefit of private persons. In the latter of these two cases a Hindu lady left certain lands to her sons by will to support the daily worship of an idol and to defray the expenses of certain other religious ceremonies, with a provision that in the event of there being a surplus after these uses had been satisfied out of the revenue of the said lands, such surplus should be applied to the support of the family. Their Lordships held that the property was therefore not wholly de-butter and that appears to have been the ground upon which they rejected the contention that it was trust property. We cite these cases to make it clear that the principles of construction to be applied in the case of a will or a gift deed executed by a Hindu are quite different from those which are appropriate in the case of a wakf, some attempt having been made before us to apply such a case as Ramanathan Chettiar v. Levvai Marakkayar AIR 1916 PC 86, which expressly applies the Mahomedan law relating to trusts that character. An instance of a trust created by a Hindu deed of endowment is furnished by Jadu Nath Singh v. Thakur Sita Ramji A.I.R.1917P.C.177, which will be found referred to and distinguished by the Privy Council in Har Narayan v. Surja Kunwari AIR 1921 PC 20. In the last mentioned case it was observed that in determining whether the will of a Hindu gives the testators estate to an idol subject to a charge in favour of heirs or makes the gift to the idol a charge upon the estate, there is no fixed rule depending upon the use of particular terms in the will; the question depends upon the construction of the will as a whole.

3. Applying these principles to the will Ex. A we find that it provides at the beginning that the testators sister Parvati shall enjoy the immovable property and from its income shall expend annually certain quantities of paddy and of cash towards the upkeep of the specified ceremonies and charities. She is also to give the testators wife Alamelu a certain quantity of paddy for maintenance. The learned Subordinate Judge estimates the yield of the property at not less than 350 kalams of paddy per annum. Of this the charities, etc., would absorb 95, and the widow Alamelu another 75, leaving 180 kalams as balance at the disposal of the beneficiary. This calculation omits a certain undefined quantity to be devoted annually to the feeding of Brahmins, but it is not probable that this would amount to a very substantial figure. Accordingly the amount to be devoted to religious and charitable purposes is only about one hal