• . 814 €HOCKALINGA SETHURA YAR ' . ·v. ARUMANAYAKAM August 28 & Ors. v. Merus'!-vamiar

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 satis factory evidence to show that the respondent is sister of Rangayya II. That fact was specifically admitted by the appellant in the counter affidavit filed l;>y him in I.A. No. 171 It may be noted that this admission was made after 'of 1954. 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 appellant~ to the 'effect that the admission in quesvon was made under a wrong impression and the same was based on the in . formation 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 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 un able 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 CHOCKALINGA v. ARUMANAYAKAM (Hegde, I.) 877 • A remaining evidence conclusively establishes that the respondent is the sister of Rangayya II. It was not disputed before us This takes us to the next question whether she is entitled to succeed to the trusteeship. 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 succes sion to trusteeship of properties similar to the one before ~s follows the ordinary rule of Hindu Law, if there is no special In the instant case no special custom custom to the contrary. was either pleaded or proved. Therefore all that we have to as certain 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 In view of Hindu Law of Inheritance Amendment Act perwn. 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 individual properties of Rangayya II, the respondent is a nearer heir of his than the appellants. regards Before examining the respondent's claim to succud to 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 conse quently they are entitled to succeed to the trusteeship after 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 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 trustee ship and in their absence the "vamsathar' of Dhannalinga Sethu ravar 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 B c D E F G H -· St:PREME COt:RT RlPORTS [1969] J S.C R. • 8,78 his death in 1953. Therefore there is no question of the 'vam sathar' 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 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 v. Murugappa Chcttry(') ) is (Ramanathan Chetty 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 trustee ship 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 High Court in appeal on the ground that the Hindu Women's right to Property Act was inapplicable to devolution of shebait ship 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 It is the succession to ordinary or secular property. general law of succession that governs shebaitship as well. While the general law has now been changed by reason of Act XVJII of 193 7 succession (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 CHUCKALINGA v. ARU~!ANAYAKAM (Hegde, !.) 879• • A B C 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." 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. In the result this appeal fails and the same is dismissed with costs. Y.P. Appeal dismissed. . .