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PETITIONER: AL. PR.  RANGANATHAN CHETTIAR

       Vs.

RESPONDENT: AL. PR.  AL.  PERIAKARUPPAN CHETTIAR(and connected appeal)

DATE OF JUDGMENT: 24/05/1957

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. SINHA, BHUVNESHWAR P. MENON, P. GOVINDA

CITATION:  1957 AIR  815            1958 SCR  218

ACT: Will-Constyuction-Disposition  to adopted  son,  R--Adoption invalid-Whether R takes Property as persona designata. Deed- Construction-Trust,   Whether   created-Language   of   deed ambiguous-Subsequent conduct of Parties-Burden of proof.

HEADNOTE: P adopted A in 1914 but on account of the acute  differences which arose between them later, he made a second adoption of the  first  appellant in 1926 on the footing  that  such  an adoption  was  permitted by special  custom  in  Nattukottai Chetti  families.   In  the partition suit filed  by  A  for himself   and  on  behalf  of  his  minor  son,  the   first respondent,   the  validity  of  the  second  adoption   was challenged,  but  the matter was compromised by  a  Rajinama under which P was directed to pay the plaintiffs therein Rs. 75,000 each separately in lieu of their right to  partition. Under  the  terms of para 3 of the Rajinama  and  the  hundi executed by P in favour of the first respondent, the  amount was  to  be paid to the order of three  persons,  viz.,  the father  and  mother of the first respondent and C,  and  the amount  itself was to be invested in the name of  the  first respondent in Chetti firms to the order of P and C who  were to  be in management.  In 1929 P executed a will whereby  he made arrangements for certain religious gifts and  charities and  gave  the residue of the property to his wife  for  her life  and  thereafter to his second adopted son,  the  first appellant.    On  attaining  majority  in  1943  the   first respondent  filed two suits.  The first was on  the  footing that  the amount of Rs. 75,000 which was given to him  under the Rajinama was constituted a trust for his benefit  during his  minority  under the trusteeship of P and  C,  that  the money  was  wrongfully appropriated by C,  contrary  to  the terms of the Rajinama, and that P as a co-trustee with C was equally  responsible  for C’s breach of trust and  that  the first respondent was entitled to have the amount paid out of the estate of P in the hands of the appellants.  The  second suit  was for the recovery of the entire properties of P  on the ground that the second adoption was invalid and that the will  executed by P was ineffective.  It was found that  the adoption  of  the first appellant was invalid and  that  the

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customary adoption set up by P was made for temporal  rather than  spiritual  purposes,  and the  question  was  whether, notwithstanding his description as adopted son in, the  will in several places, the intention was that he was to take the property as Persona designata.  As regards the terms of para 3 of the 215 Rajinama the language used was ambiguous, whether the  power of investment was vested in both P and C, but looking at the subsequent conduct of the parties it was found that it was C who was authorised to collect the amount of the hundi and to arrange for the investment of the same on the responsibility of the father and mother of the first respondent. Held:(1)  The question whether a disposition to a person  is intended as a Persona designata or by reason of his  filling particular  legal  status  which turns out  to  be  invalid, depends  on  the  facts of the case and  the  terms  of  the particular  document containing the disposition, and in  the instant  case,  in  view of the  exclusion  of  the  validly adopted son and his heirs from succession and the conduct of the  parties  for  over  14  years  in  allowing  the  first appellant to retain the property, taking an overall  picture of the various provisions of the will, it was clear that the first  appellant  was intended by the testator to  take  the property  as  persona  designata  and  that  the  will   was therefore effective to convey title to him. Nidhoomoni Debya v. Saroda Pershad Mookerjee, (1876) L.R.  3 I.A.  253  and Fanindra Deb Raikat v. Rajeswar  Das,  (1884) L.R. 12 I.A. 72, referred to. (2)Trusteeship  is  a position which is to be imputed  to  a person  on  clear  and conclusive evidence  of  transfer  of ownership and of the liability attached to such ownership on account of confidence reposed, and on such liability  having been  accepted  by the alleged trustee, and in  the  present case  there  was no proof that P became a  trustee  for  the minor’s fund and incurred liability for C’s breach of trust.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 104 of 1954 and 169 of 1956. Appeal  by special leave from the judgment and decree  dated November 13, 1950, of the Madras High Court in A. S. No. 484 of  1947  arising  out  of the  judgment  and  decree  dated December  21, 1946, of the Court of the  Subordinate  Judge, Devakottai in Original Suit No. 156 of 1944 and Appeal  from the judgment and decree dated September 17, 1952 and October 24,  1952, of the Madras High Court in A.S. No. 243 of  1947 arising out of the judgment and decree dated December 21, in Original  Suit No. 164 of the Subordinate Judge,  Devakottai in Original Suit No. 164. A.V.  Vishwanatha  Sastri  and M. S. K.  Aiyangar,  for  the appellants in C.A. No. 104 of 1954. 216 A.V.  Vishwanatha  Sastri  and  U. S.  K.  Sastri,  for  the appellants in C.A. No. 169 of 1956. K.S.  Krishnaswamy  Iyengar  and  R.  Ganapathy  Iyer,   for respondent No. 1 (in both the appeals). 1957.   May  24.  The judgment of Jagannadhadas  and  B.  P. Sinha JJ. was delivered by Jagannadhadas J. Govinda Menon J. delivered a separate judgment. JAGANNADHADAS J.-These two are appeals against two  separate decrees  of  the High Court of Madras arising,  out  of  two suits as between the same contesting parties with  reference

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to  a connected set of facts.  Civil Appeal No. 104 of  1954 is  before  us by virtue of special leave  granted  by  this Court  under Art. 136(1) of the Constitution.  Civil  Appeal No. 169 of 1956 has come up by reason of certificate granted by the High Court under Art. 133(1)(a) of the  Constitution. The  parties to the litigation are Nattukottai  Chetties,  a wealthy  banking community in South India who, at the  time, were  having large banking transactions in Burma  and  other places  in  South-East  Asia.  One  AL.   PR.  Periakaruppan Chettiar (hereinafter referred to as Periakaruppa) owned and possessed considerable properties.  He adopted one AL.   PR. Alaska  Chettiar (hereinafter, referred to as Alaska) in  or about the year 1914.  ’there arose acute differences between them from about the year 1924 owing to the alleged  wasteful habits of Alagappa who ran into debts.  This led to criminal complaints  between them, each against the other,  in  1926. (See  Exs.   P-5  and D-12).  One  of  Alagappa’s  creditors obtained  a decree against him and attached Alagappa’s  half share in the family residential house including the site  on which  it was situated.  This resulted in a regular suit  in which  the  question  at  issue was  whether  the  site  was ancestral   site   and  whether  the   super-structure   was constructed  out of the ancestral funds.  It was found  that the  site  was ancestral Periakaruppa  maintained  that  the super-  structure  which was substantial in  value  compared with  the site was built out of his self-acquired funds  and was  not  joint  family property,  while  Alagappa  and  the attaching 217 creditor contended to the contrary.  The litigation went  up to the High Court and the High Court accepted the contention of  Periakaruppa  and made a declaration that the  site  was ancestral  and  that  the  super-structure  was  the   self- acquisition of Periakaruppa.  The judgment of the High Court was dated November 19, 1926, and is reported in   Periakarappan v. Arunachalam (1).  During the pendency of this  litigation in  the High Court the adopted son Alagappa filed a suit  on September 9, 1926, on behalf of himself and his minor son by name AL.  PR.  AL.  Periakaruppan Chettiar (hereinafter, for distinction, referred to as junior Periakaruppa) represented by  his mother and next friend by name Mutbayi Act.  It  has to be mentioned that in or about June 27, 1926, Periakaruppa purported to make a second adoption of a ’young boy by  name AL.   PR.  Ranganathan Chettiar (hereinafter referred to  as Ranganatha)  on  the  footing  that  such  an  adoption  was permitted by special custom in Nattukottai Chetti  families. The  suit  O.S. No. 114 of 1926 filed by  Alagappa  and  his minor  son,  junior  Periakaruppa, was  therefore  filed  as against Periakaruppa and his second adopted son  Ranganatha, who at the time was also a minor.  It was for delivery of  a half  share of the properties of the family on  the  footing that all the properties were joint family properties and for a  declaration  that the second adoption was  invalid.   The first  defendant  therein, Periakaruppa,-  filed  a  written statement  contesting both these matters and  claiming  that all  the  suit properties in their entirety were  his  self- acquisition and that the plaintiffs had absolutely no rights therein  and  also asserting that the  second  adoption  was valid.  Before the suit proceeded to the stage of issues and trial, the dispute between the parties was compromised by  a Rajinama  brought about by four Panchayatdars, who were  all respectable  members  of the Nattukottai  Chetti  community. Some  of  the questions that arise in  the  present  appeals centre round the proper construction of some of the terms of this.   Rajinama,  which  will  be  noticed  later.   It  is

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sufficient to state at this stage that by that Rajinama  the two plaintiffs, Alagappa and his (1)  (1926) I.L.R. 50 Mad. 582, 28 218 minor son, junior Periakaruppa, obtained Rs. 75,000 each and Alagappa’s  wife Muthayi Achi, the mother of the  minor  son and  his  next friend in the suit, was to get a sum  of  Rs. 14,000 as her Stridhan, These amounts were paid by means  of four  hundis,  Rs. 25,000 and Rs. 50,000 for  Alagappa,  Rs. 75,000  for  junior  Periakaruppa and  Rs.  14,000  for  the mother,  Muthayi  Achi,  on Nattukottai  Chetti  bankers  of Periakaruppa  in Burma.  It was one of the express terms  of the Rajinama that all the properties mentioned in the plaint in  that  suit and other properties belonging to  the  first defendant,  Periakaruppa,  were  admitted to  be  his  self- acquisitions  and that the plaintiffs therein had. no  right and connection whatsoever in any of them or in the charities founded  by  Periakaruppa and in  the  properties  belonging thereto  or  their  management, either in  the  lifetime  of Periakaruppa or subsequent thereto.  It was also one of  the specific  terms of the Rajinama that the  plaintiffs  should remove  themselves  from  the family house  with  all  their belongings and that the possession of the aforesaid house be delivered to Periakaruppa.  It was also expressly stipulated that  the petition then pending for leave to appeal  to  the Privy Council against the judgment reported in Periakaruppan v. Arunachalam (1) was to be withdrawn.  This compromise was certified  to  be  for the benefit of  the  minor  plaintiff concerned, as also of the minor defendant Ranganatha and was accepted by the Subordinate Judge before whom the compromise petition  was  filed.   As  a  result,  the  compromise  was accepted  by the court on August 15, 1927, and the suit  was dismissed  in terms thereof on the same date.  About a  year and  a half later Periakaruppa executed a will on  April  4, 1929.  The genuineness and due execution thereof are not  in question.   But the effect of that will is also one  of  the main  points  in  dispute.  Periakaruppa  died  about  three months  later  i.e. on July 14, 1929, and his  wife  Lakshmi Achi  died within a year thereof on March 11, 1930.  By  the will,  broadly speaking, Periakaruppa made arrangements  for certain religious gifts and (1)  (1926) I.L.R. 50 Mad. 582. 219 charities  and made arrangements for the management  thereof and  gave  the residue of the property to his  wife  Lakshmi Achi  for her life and thereafter to his second adopted  son Ranganatha.  Ranganatha, who, some time in or about the date of  Lakshmi Achi’s death in 1930, appears to  have  attained majority, has been in undisputed possession and enjoyment of Periakaruppa’s  properties  ever since till  late  in  1944. Alagappa’s  son  junior Periakaruppa  attained  majority  in December, 1943, and filed two suits on November 11, 1944, in the Subordinate Judge’s Court of Devakottai, one numbered as O.S.  156 of 1944 and the other as O.S. 160 of  1944.   O.S. No. 156 of 1944 was on the footing that Rs. 75,000 which was given to him under the above mentioned Rajinama of the  year 1927,  was, under the terms thereof constituted a trust  for his  benefit  during his minority under the  trusteeship  of Periakaruppa   himself   and  another  person   A.   P.   S. Chockalingam Chettiar of Athangudi, (hereinafter referred to as  Chockalingam) the junior paternal uncle of  the  minor’s mother,  Muthayi  Achi,  and  that  the  money  was  wrongly appropriated  by  Chockalingam  owing  to  his  straightened circumstances.   His  case was that Periakaruppa  as  a  co-

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trustee with Chockalingam was equally responsible for breach of the trust and that therefore he was entitled to have  the moneys  found  due  on account, paid out of  the  estate  of Periakaruppa in the hands of Ranganatha as well as from  the estate of Chockalingam in the hands of his son.  The  second suit  O.S. No. 164 of 1944 was a suit to recover the  entire properties  of Periakaruppa in the possession of  Ranganatha for  himself and his father Alagappa who was made the  first defendant  in  the  suit, on the  ground  that  Ranganatha’s adoption  was  invalid, that the will  of  Periakaruppa  was ineffective and that the properties devolved on himself  and his  father Alagappa.  It may be noticed that so far as  the father  Alagappa is concerned the suit would prima facie  be time-  barred since it has been filed about 15  years  after the   death   of   Periakaruppa.    The   plaintiff   junior Periakaruppa  however filed the suit on the footing that  in view  of  his minority for all this period  until  December, 1943, 220 the suit was not barred.  Hereinafter, for convenience,  the first  suit O.S. No. 156 of 1944 will be referred to as  the trust suit, and the second suit O.S. No. 164 of 1944 will be referred to as the succession suit, In  the  succession suit the main questions that  arose  for decision were: (1)  whether the adoption of Ranganatha as a second  adopted son was valid; (2)  if  not, whether the will was effective to  convey  the property  of Periakaruppa to Ranganatha after the  death  of his wife Lakshmi Achi, notwithstanding the invalidity of his adoption; (3)  whether,   in  case  the  will  was   ineffective   the properties of Periakaruppa devolved on both Alagappa and his son junior Periakaruppa together or on Alagappa alone to the exclusion of junior Periakaruppa ; (4)  if-the  devolution  was on both together,  whether  the rights of junior Periakaruppa were barred by reason of s.  7 of  the Indian Limitation Act, 1908 (Act IX of 1908).   This involved the further questions: (a)  whether by and under the Rajinama Alagappa and his  son became  divided  in  status  inter se so as  to  make  s.  7 inapplicable. (b)  whether in case the devolution was on both together  as members  of  a  joint family, s. 7 had  application  to  the factual situation in the family.    So  far as the adoption of Ranganatha was concerned  both the courts below, while holding that the adoption as a  fact was  proved,  have  found against existence  of  the  custom pleaded as to its validity and hence concurrently found  the adoption  to  be invalid.  That conclusion is no  longer  in dispute in this Court.  As regards the will both the  courts held  that  the will was ineffective to vest  any  title  in Ranganatha though on slightly different grounds.  As regards question  No. 4 relating to limitation, the two courts  came to  different  conclusions with the result  that  the  trial court dismissed the suit as barred by limitation, while  the High  Court  reversed it and granted a decree for  the  half share of 221 Periakaruppa’s  properties in favour of junior  Periakaruppa holding  that in respect of the other half share the  rights of  Alagappa  were barred and that Ranganatha  acquired  the same by his adverse possession.  As regards question No. (3) and  the subordinate questions (a) and (b) of  question  No. (4),  there appears to have been no serious question  raised

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in  the trial court by the defendant as to the exclusion  of junior Periakaruppa by Alagappa in the matter of  succession to  Periakaruppa’s  properties,  or  any  serious  questions raised by the plaintiff as to the Rajinama bringing about  a partition inter se between the father Alagappa and his minor son  junior  Periakarpppa and of Alagappa not being  the  de facto  manager of the family.  It was accordingly  found  by the  trial court that both of them succeeded as  members  of the  joint  family  and that  therefore  the  minor,  junior Periakaruppa, was barred by virtue of s. 7 of the Limitation Act.  When the matter came up on appeal to the High Court, a question  was  raised that s. 7 would not be  applicable  in this  case  unless it was further made out that  the  father Alagappa  was the de facto manager of the family  consisting of  himself and his minor son of which it is  alleged  there was no proof or finding.  Both the Judges allowed this point to  be  raised  and  called upon the  trial  court  to  take evidence and submit a finding in respect of that contention. The trial court accordingly took evidence in regard  thereto and returned a finding that on the evidence, both the father and  the minor son were living as members of a joint  family and that the father was in fact the de facto guardian.  When the matter was rehear by the same Bench of the High Court on the  return  of the finding, the Bench did not go  into  the correctness  or otherwise of this finding, on the view  that this  finding was of no consequence, if it is found that  by virtue  of  the Rajinama both the father and the  minor  son became divided inter se.  The learned Judges while realising that the finding was called for on the undisputed assumption that  the father and the son were undivided in status,  were of  the opinion that there was nothing to prevent them  from reopening 222 the same and held on a construction of the Rajinama that  it brought  about  divided status inter se between  the  father Alagappa  and  his minor son junior Periakaruppa.-  In  that view  they  found  s.  7  of  the  limitation  Act  had   no application to the case and same to the conclusion that  the succession  suit  by junior Periakaruppa was not  barred  by limitation  in so far as it related to his own share  though barred in respect of Alagappa’s share.  Hence the succession suit ended in favour of junior Periakaruppa in respect of  a half share of the properties left by Periakaruppa. As regards the trust suit the contentions raised were : (1)that   under   the   Rajinama   both   Periakaruppa   and Chockalingam  became trustees in respect of the sum  of  Rs. 75,000  to  be invested in Chetti firms as provided  in  the Rajinama; (2)that as a fact the amount was invested with Chockalingam, one of the trustees themselves, contrary to the law; (3)that  such investment itself constituted breach of  trust for which Periakaruppa was also responsible.  It appeared on the  evidence  that out of the trust amount, a  sum  of  Rs. 30,000/-  was  invested  in  the  purchase  of  a  house  at Athangudi in South India (the place of Chocklingam) and that Alagappa and his minor son, the junior Periakaruppa, and his family have been since that purchase on July 23,1928, living in that house.  At the trial, therefore, credit was given to this amount as being proper investment of the trust funds in the matter of account-taking by concession of the lawyer for junior  Periakaruppa.  The defendant Ranganatha in  addition to contending that no trust was created, also contended that as  a result of subsequent transactions junior  Periakaruppa got the benefit not only of the purchase of the house  above referred  to  but also of a mortgage executed in  favour  of

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himself  and another by Chockalingam in 1930 for a  lakh  of rupees of which Rs. 70,000 was his, of which he obtained the benefit, and that therefore the alleged breach of trust must be  taken  to have been waived and that in any case  he  was entitled to have 223 the  mortgage document as much as the purchase of the  house to be taken into consideration for reducing his liability in respect  of the alleged breach of trust.  These  contentions were negatived by both the courts with the result that there was a decree against Ranganatha and his minor son in respect of half the loss occasioned by the breach of trust,  payable out of the half share of Periakaruppa’s properties in  their hands.  The result of the two judgments of the High Court in both  the  suits was against Ranganatha and  hence  the  two present appeals before us by him.    It  will  now  be convenient to take up  first  the  con- sideration  of  the succession appeal.  The  points  arising therein  have  already  been  set  out  in  the  preliminary narration  and need no repetition.  The main  points  argued before us on this appeal are- (1)The  conclusion  of  the  High Court  that  the  will  of Periakaruppa  was  ineffective is erroneous  and  Ranganatha took  under the will as persona designata.    (2)  In case the  will is held to be ineffective  and  in the  view taken by the High Court that Alagappa  and  junior Periakaruppa became divided in status under the Rajinama the property  of  Periakaruppa  devolved  on  Alagappa  to   the exclusion of junior Periakaruppa and hence the plaintiff has no right to sue.     (3)The  conclusion of the High Court that  the  Rajinama brought  about  divided status inter se between  the  father Alagappa and the minor son junior Periakaruppa is  erroneous and  hence  the  suit is barred by virtue of  s.  7  of  the Limitation Act.    A  few other minor points have been raised on both  sides which, after consideration, appeared to be unsubstantial and we intimated our view at the hearing and it is not necessary to  refer to and deal with them any further.  We have  heard elaborate arguments on the above three points and have given our  careful  consideration  to them.  It  is  obvious  that having  regard  to  the  course of  events  in  this  family narrated  earlier the primary question for consideration  is whether  or  not the will left by Periakaruppa  has  brought about an effective disposition of his properties 224 in  favour  of Ranganatha.  It is only if  that  has  become ineffective  that  the other questions argued before  us  on this  appeal as set out above arise for  consideration.   In view  of  the fact that the genuineness of the will  is  not disputed and no question arises as to the disposing capacity of   Periakaruppa,  the  plaintiff  in  this  case,   junior Periakaruppa, can succeed only if he displaces the will.  He has accordingly raised three contentions. 1.That there is no effective dispositive clause in the will. 2.That  the  disposition, if any, in  favour  of  Ranganatha under  the will was an attempt to create an estate in  tail- male and hence invalid. 3.The  disposition in favour of Ranganatha was by reason  of and  on  account  of,  his having  been  considered  by  the testator as his duly adopted son, i.e., the validity of  the adoption   was   the  basis  and  the  condition   for   the disposition.   Since that has now been found to be  invalid, the disposition fails. Of these three questions the first two though upheld by  the

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trial court have been rejected by the High Court.  We  agree with the reasoning of the High Court on these two points and they  do  not call for any further  consideration.   We  are satisfied  that there is no substance in these  contentions. The real question that arises on a consideration of the will is  whether  the  disposition of the residue  in  favour  of Ranganatha  contained  therein  was to  him  as  a  _persona designata  or is dependent on his being a duly  and  validly adopted son. For a proper appreciation of this contention on both  sides, it is necessary to set out the relevant clauses in the will. "(1) I am now 68 years of age, taking into consideration the fact  that  I have been in indifferent health  for  sometime past I have decided to make an arrangement after my lifetime in  regard to my properties and in regard to  the  charities established by me and accordingly I have executed this  will wholeheartedly. (2)All the immovable and movable properties entirely,  which belong to me as my own and which are 225 in my possession are my self-acquired properties.  Excepting myself no other person has any interest or right whatever in the said properties. (3)...............................................................  (4)Sometime back I took as my foster (son), Alagappan,  son of Nachandupatti Chidambaram Chettiar, and brought him up in my  house  and  also got him  married.   But  the  aforesaid Alagappan  conducted  himself in immoral ways and  had  evil intentions and further fell into bad company and after being duped  brought into existence several documents falsely  and colourfully  by making it appear that he had borrowed  debts to  the  tune of about one lakh of rupees  and  also  caused decrees   to   be  passed  in  respect  of   some   of   the abovementioned  debts and estranged my feelings  and  became inimical  towards  me,  and left my family  and  was  living separately  for  the  past about 10 years and  he  was  also living in. his father-in-law’s house. (5)Thereafter  while the aforesaid person had  instituted  a suit  O.S.  No. 114 of 1926 against me in the  Sub-Court  of Devakotta  for his share in the properties which were in  my possession,  some  of  our community  people  acted  as  the panchayatdars  and  gave an award in the above  suit  and  a razinama  was filed in the Court, and all the amounts  which were  payable  by  me according to the  said  razinama  were already paid by me entirely.  Neither the aforesaid Alagappa Chetti  nor  his  heirs shall have any manner  of  right  or interest  whatever  in the properties which are  now  in  my possession  and  in the properties which might  be  acquired hereafter. (6)Subsequently I took in adoption Nachandupatti  Ramanathan Chettiar’s  son,  namely,  Ranganathan, aged  about  17  1/2 years, and he is living with me. (7)to (12).............................................. (13)My  adopted  son Ranganathan and his  male  heirs  shall after the lifetime of my wife Lakshmi Achi properly  conduct the  aforesaid  charities.  In order to  supervise  and  see whether Ranganathan conducts the charities properly  without any defect whatever, I have  29 226 appointed  the following persons as the  executors,  namely, (1)  my  son-in-law Arunachalam Chettiar, son  of  Alagapuri Alagappa  Chettiar  who  is interested in  both  myself  and Ranganathan,  the two sons of Kanadukathan AL.   K.  Chandra Mouli  Chettiar,  namely,  (2) Karuppan  Chetty,  (3)  Peria

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Karuppan Chetty, and (4) Murugappan, son of Konapattu Subra- manian   Chettiar.   The  said  persons  shall   accordingly supervise  (the  performance of the charities) in  a  proper manner.   (14)    I am entertaining a desire that I should spend  my lifetime  and die at Tiruvarur alone.  My body shall not  be cremated according to our caste custom, and a samadhi (tomb) shall  be  erected for me, and a lamp shall be  lit  therein daily and a person shall be appointed to perform Neivedhiyam (by  preparing  food) with 1/4 measure of rice  by  the  big measure daily.  Guru pooja shall be performed once a year in the  Star  in  which  I die, by  distributing  food  to  the mendicants,  and by spending an amount to the extent of  Rs. 250 (Rupees two hundred and fifty) every year by inviting my relations.   A sum of Rs. 15,000 (rupees  fifteen  thousand) shall be sent for and obtained from the Saigon firm from out of my own funds for the aforesaid Tirupani (service) in  the temple  and  my wife shall conduct the  aforesaid  Tirupani. The  daily expenses of the Samadhi aforesaid and Guru  pooja etc.,  shall  be  met from the Patasala  charity  funds  and conducted.    (15)   Apart  from  the properties which  have  been  set apart  for the abovementioned charities and  the  properties which have to be newly purchased hereafter for the same,  as my  adopted son Ranganathan and his male heirs have to  take all the immovable and movable properties belonging to me and as  the  aforesaid adopted son namely Ranganathan is  now  a minor  the said Ranganathan shall after he attains  majority and if he is of good behaviour (take in his possession)  the aforesaid  properties  after  my  lifetime  and  after   the lifetime of my wife Lakshmi Achi and enjoy them.     (16)  In case the aforesaid Ranganathan does not conduct himself properly or if my wife Lakshmi Achi 227 does not like, the following two persons, namely, (1) K. AS. P.  Rm.   Ramaswami Chettiar, son  of  Athangudi  Palaniappa Chettiar,  and  (2) PL.  T. Rm.  Ramasami Chettiar,  son  of Karaikudi Thenappa Chettiar shall manage my properties after the lifetime of my wife Lakshmi Achi till Ranganathan  comes of  good behaviour.  The amount which may be found just  for family  expenses  shall  be paid till  such  time  when  the aforesaid Ranganathan begins to conduct himself properly and when the properties are delivered in his possession. (17).............................................................. (18) For the expenses of the maintenance right, etc., of  my wife  Lakshmi  Achi  and  for  the  necessary  expenses   of pilgrimage  to  sacred places a sum of Rs.  15,000  (fifteen thousand)  dollars  has  been credited in her  name  in  the Saigon firm, and she shall send for and obtain the amount of interest alone got for the said amount every year and  spend it  according to her pleasure.  My adopted  son  Ranganathan and his male heirs shall take the principal amount. (19)............................................................... (20)As regards the substantial tiled building which  belongs to me and which is in my own place and which I am  residing, and one bungalow building built by me in the Therodam veedhi (street in which the chariot is drawn) in the said place, my wife  shall  enjoy them after my lifetime and after  her  my adopted son Ranganathan and his male heirs shall permanently and for ever enjoy the said buildings.  Apart from  enjoying the  abovementioned two buildings, none of them  shall  have any right to alienate them in any manner. (21)If apart from the matters specified by me herein, it  is necessary   that  any  documents  should  be  brought   into existence  after my lifetime during the lifetime of my  wife

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regarding  the properties belonging to me and regarding  the charity properties and regarding the family maintenance from time  to  time  I have hereby given  authority  to  my  wife Lakshmi  Achi  mentioned  above to  execute  such  documents regarding 228 the  same.   My adopted son Ranganathan  shall  perform  the funeral obsequies for myself and for my wife. (22 and 23).............................  (Sd.) A.L. P.R. Periakaruppan Chetty." In  order to understand the background of this will,  it  is necessary to recapitulate the previous family history  which has  already  been adverted to at the commencement  of  this judgment.    That  is  as  follows.   Periakaruppa   adopted Alagappa in or about 1914.  He apparently was a  spendthrift in his habits and incurred many debts.  There developed ill- feeling between them which led to mutual criminal complaints against each other in 1926.  One of his creditors obtained a decree   and  attached  the  family  house.   This  led   to litigation  in which Periakaruppa asserted and succeeded  in establishing  that the super-structure of the family  house, which  was  a  costly one, was  his  own  self  acquisition. During the pendency of this litigation Periakaruppa  adopted for the second time, Ranganatha, claiming to do so by way of custom  in the Nattukottai Chetti community.  This led to  a suit  for partition by Alagappa claiming all the  properties to be joint properties and for a declaration that the second adoption was in valid.  This suit was at a very early  stage compromised  on the terms that Alagappa and his son were  to take  away  as between themselves a sum of Rs.  1,50,000  in cash  and  would  have no claim of any kind to  any  of  the properties in the possession of Periakaruppa and no claim to interfere  in  any  manner with the  various  charities  and religious endowments which Periakaruppa made The  properties were   all   admitted  to  be   the   self-acquisitions   of Periakaruppa and his right to alienate the property by  will was specifically recognised.  Alagappa with his wife and son was  to  clear  out  of the  family  house  with  all  their belongings.   Alagappa got his share of the cash  under  the Rajinama  by  means  of two hundis one for  Rs.  25,000  and another  for Rs. 50,000.  They were  specifically  delivered over,  as recited in one of the terms of, the  Rajinama,  to one  Chockalingam who was made responsible to discharge  all the  encumbered debts so far incurred by Alagappa, from  out of the moneys 229 of  those  two hundis so as to make sure that  no  liability would arise out of the debts previously incurred by Alagappa which  might  affect Periakaruppa.  It is in  evidence  that after this compromise Alagappa and his family consisting  of his  wife and son cleared out of the original  family  house built  by  Periakaruppa and that they were  living  separate from Periakaruppa.  Periakaruppa and his second adopted  son Ranganatha were presumably living together in that  original family  house as stated in the will.  This Rajinama  was  on August 15, 1927, and the will was executed on April 4, 1929, i.e., a year and eight months thereafter.  It may be noticed at  this stage that the Rajinama while it admits one of  the points  in controversy in suit, viz., that the  property  is self-acquired property of Periakaruppan, is silent about the other  question  at issue, viz., as to the validity  of  the second  adoption  and in fact the suit was terminated  by  a formal  dismissal thereof presumably leaving  this  disputed question at large.     The  will starts with an assertion that all the  movable

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and  immovable  properties in his possession are  his  self- acquired  properties  and that excepting  himself  no  other person  has any interest or right therein.  It asserts  that Alagappa  conducted himself in immoral ways, fell  into  bad company, brought into existence several false and colourable documents and borrowed debts to the tune of about a lakh  of rupees  and caused decrees to be passed in some of them  and became inimical towards him.  It asserts that Alagappa  left his family and was living separately for the past about  ten years.   Notwithstanding that he was an  undisputed  adopted son,  he  referred  to him in the  will  as  ’Abhimanaputra’ (foster-son).    In  contrast  with  this  he  states   that Ramganatha was taken in adoption by him, that Ranganatha was at  the time of the will about 17 1/2 years old and that  he was  liviny with him.  Clauses 7 to 14 of the will refer  to various  religious  and charitable endowments which  he  had made  and  the properties which he gave to  them.   It  also enumerates the arrangements for their management.  By cl.  8 he makes provision for the construction and maintenance of 230 Brahmana  Veda  Patasala attached to the temple of  Sri  Sri Theagarajaswami  in Thiruvarur.  Clauses 8 and 9  set  apart certain  properties  for  the due maintenance  of  the  said Patasala.   Clause 10 relates to the establishment of  three charities  in addition to the above Patasala charity, to  be conducted  and  maintained  out of the income  of  the  same properties as have been set apart for the Patasala  charity. In  cl. 11 he states that no person shall have any right  to alienate  or  encumber  the properties  set  apart  for  the charities.   By cl. 12 he appoints his wife Lakshmi Achi  as the  manager  to  conduct  the  above  charities  after  his lifetime.  By  el.  13  he directs  that  his  adopted  son’ Ranganatha  and his male heirs shall after the  lifetime  of his  wife  Lakshmi  Achi  properly  conduct  the  above-said charities.   He  appoints  three  persons  as  executors  to supervise  the  management by ’Ranganatha’.  By  cl.  14  he expresses  a  desire to spend the rest of  his  lifetime  at Thiruvarur  and die there.  He says that his body shall  not be  cremated according to custom but that a  samadhi  (tomb) should be erected for him and that a lamp is to be lit there daily  and  that  a person should be  appointed  to  perform Neivedhiyam daily, of a specified quantity of rice.  By  the same  clause  he  also enjoins that  Guru  pooja  should  be performed  once  ail year in the star in which  he  dies  by distributing  food  to the mendicants by  spending  Rs.  250 every  year.   He does not specifically indicate who  is  to perform  the Guru pooja.  The context may well be  taken  to indicate that the paid employee was to do it.  He  indicates that a sum of Rs. 15,000 was set apart for the above purpose in a Saigon firm and that it should be sent for and utilised by  his  wife  for the aforesaid  Tirupani.   This,  in  the context, seems to refer to the construction of the  Samadhi. He also says that the daily expenses of the samadhi and  the Guru pooja expenses should be met from the Patasala  charity funds.   Thereafter come the various provisions relating  to the disposition of the residue of his property.  The  effect of  these  provisions in cls. 15 and 16 is  that  after  his lifetime his wife, Lakshmi Achi should enjoy the residue and that thereafter the "adopted son Ranganatha" is to take them 231 into  his  possession  and enjoy them (after  the  death  of himself and his wife) on his attaining majority and if he is of  good behaviour.  It is specifically provided that  if  " the aforesaid Ranganatha " does not conduct himself properly or  if  his  wife  Lakshmi Achi  does  not  like  (him)  two

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specified persons, K.AS.P.Rm. Ramaswamy Chettiar and PL.  T. Rm.   Ramasami Chettiar should manage the  properties  after the lifetime of Lakshmi Achi till "Ranganatha" comes of good behaviour and that he should be paid by them just enough for his  family  expenses -till such time  when  ’the  aforesaid Ranganatha’ begins to conduct himself properly and that  the properties  are  to be delivered into his  possession  then. Under  el. 18 the ’adopted son Ranganatha’ should  take  the principal  amount  of  Rs. 15,000 set  apart  for  his  wife Lakshmi  Achi after her death.  There is also el.  20  which provides  that the substantial tiled building  belonging  to him  which is in his own place and in which he was  residing and  one bungalow built by him in the Therodum  Veedhi  (Car Street) shall be enjoyed by his wife after his own  lifetime and that after her lifetime "his adopted son Ranganatha" and his male heirs shall permanently and for ever enjoy the said buildings.   There area few other specific legacies in  cls. 17  and 18 which require no notice.  The scheme of the  will is  clear,  viz., that Periakaruppa wanted his own  wife  to enjoy the properties and to manage the charities so long  as she was alive and that the adopted son Ranganatha should  do the  same after her death, that in respect of the  charities he  set  up a committee of supervision over  his  management (but  not  in  respect of his wife’s  management)  while  as respects   enjoyment  of  the  properties  he   specifically provided  that the adopted son Ranganatha should  enjoy  his properties  after be attains majority only if he is of  good behaviour  and that so long as he was not of good  behaviour or  his  wife’  did not like him, he was to  get  only  some maintenance  out  of the properties.  These  provisions  are reminiscent  of his past experience with the  first  adopted son Alagappa and are obviously inspired by the experience of bad conduct and wasteful 232 ways  which he thought the first adopted son was guilty  of. In the will he refers to "adopted son Ranganatha" in quite a number  of  places and to "aforesaid Ranganatha "  or  to  " Ranganatha " in some places.  There is no doubt that in what may be taken to be the dispositive clause, el. 15, he refers to  him  as "my adopted son Ranganatha" though in  the  next connected  clause,  cl. 16, he refers to him  as  ,aforesaid Ranganatha  "  or  as  "  Ranganatha  ".  The  question  for consideration  is whether the validity of adoption  was  the condition for the effectiveness of these dispositions. The question as to whether a disposition in such terms is to the  person  intended therein as a persona designata  or  by reason of his filling a particular legal status which  turns out  to  be invalid is one of some difficulty and  has  been considered  by the courts in quite a large number of  cases, some  of  which  have been cited before  us.   An  elaborate consideration   of  these  various  cases   cannot   finally determine  the  question that arises  in  individual  cases, which must ultimately depend on its own facts and the  terms of  the particular document containing the disposition.   It is  enough to refer to two cases of the Privy Council  cited before   us,  viz.,  Nidhoomoni  Debya  v.  Saroda   Pershad Mookerjee (1) and Fanindra Deb Raikat v. Rajeshwar Das (2 ). As  pointed out in the first case the question in  all  such cases is whether the gift of the property by the testator to a  person who is referred to as having been adopted  is  one which is dependent on whether all the requisites of a  valid adoption  have  been  complied with or whether it  is  to  a designated  person notwithstanding that it was  desired  and expected  that  the  requisites for a  valid  adoption  were complied  with.   As pointed out by their Lordships  in  the

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second  case  "the distinction between what  is  description only  and what is the reason or motive of a gift or  bequest may  often be very fine, but it is a distinction which  must be  drawn  from  a consideration of  the  language  and  the surrounding  circumstances".  In that case  their  Lordships gave an illustration which is very apt for the present case. It is as follows: (1) (1876) L.R. 3 I.A. 253. (2) (1884) L.R. 12 I.A. 72, 89. 233 " If a man makes a bequest to his "wife A.B.", believing the person  named  to be his lawful wife, and he  has  not  been imposed  upon  by her, and falsely led to  believe  that  he could lawfully marry her, and it afterwards appears that the marriage was not lawful, it may be that the legality of  the marriage  is  not  essential to the validity  of  the  gift. Whether the marriage was lawful or not may be considered  to make no difference in the intention of the testator."    Now  in  the present case learned counsel  for  the  res- pondent  very strongly relies on the repeated  reference  to Ranganatha  in  the will in the dispositive clauses  as  the adopted  son and says that the disposition was made  in  his favour by reason of the fact that he was adopted and that he was believed to be duly and validly adopted.  He points  out that  Periakaruppa  was apparently a religious man  as  seen from the various charitable and religious endowments he  had made in the will itself.  He also placed stress on the  fact that  by virtue of cl. 21 of the will, he directs  that  his adopted  son shall perform the Putra krutyangal  (ceremonies to  be performed by a son) for-himself and his  wife  (after their  respective deaths).  It is said that the  performance of  the various ceremonies after death by a person  who  was not  a son in the eye of sastras would be abhorrent  to  any devout Hindu which Periakaruppa clearly appears to be.  This contention  is  not without force.  But  taking  an  overall picture of the provisions in the will and the background  of the previous history, it is not possible to say in this case that  the  validity  of the  adoption  was  contemplated  by Periakaruppa  as  the  condition on which  the  validity  of disposition  should depend.  As has been previously  pointed out  the  will has been clearly in-spired  by  his  previous experience  with  his  first  adopted  son  Alagappa.   When Alagappa  did in fact challenge the validity of  the  second adoption in the suit which he filed and asked for a specific declaration in respect thereof by his plaint, that suit  was allowed to be merely dismissed and there was no reference to the  validity  or otherwise of the second  adoption  in  the Rajinama.   Apparently it left the question at  large.   The will having been executed only within about one  30 234 year  and eight months after the Rajinama in the  suit,  the testator  Periakaruppa must have been conscious of the  fact that the second adoption was open to serious challenge.   In this context the reference to Ranganatha as the adopted  son in  the will as against the reference to Alagappa as a  mere Abhimanaputra  may  indicate no more than that  testator  is anxious  to  make it quite clear that he  would  acknowledge Ranganatha as his adopted son in preference to Alagappa  and is indicative of his clear intention that he desires him  to get  his  properties to the exclusion of  Alagappa  and  his minor  son.  That her is desirous of excluding by  his  will Alagappa  and his son is apparent from his very  categorical statement  in cl. 5 of the will that neither  the  aforesaid Alagappa  nor  his heirs shall have any manner of  right  or

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interest  whatever in the properties which were then in  his possession   and  any  properties  which  may  be   acquired thereafter.   The  will  itself  is,  therefore,   obviously intended  to exclude them from succeeding to  his  property. Being  aware  of the likelihood of the challenge as  to  the validity  of  adoption  of  Ranganatha  he  could  not  have intended the’ disposition to fail in the contingency of  the second  adoption being held invalid thereby letting  in  the very  persons whom he wanted to exclude.  The provisions  in the  will which give the property to Ranganatha, only if  he is  of  good  behaviour  seem rather  to  indicate  that  he attached  greater  importance to the character  of  the  boy rather  than to his legal status as an adopted son.   It  is true that he contemplated ceremonies to himself and his wife after  their  death  being  performed  by  the  adopted  son Ranganatha.   But it is noteworthy that he chose the  course of  having his body enshrined in a tomb after his death  and making  arrangements for worship being conducted  every  day and Guru pooja on the day of his own annual sradh day.  This may  well have been felt by him to be a substitute  for  the regular  annual sradh by an undisputedly valid  adopted  son whom  he did not like.  It is also noteworthy that there  is no indication that he contemplated the Guru pooja as  having to be done by Ranganatha, after the death of his wife.   How exactly the testator viewed the second adoption of 235 Ranganatha  and the alleged custom enabling him  there  unto may  well be gathered from para. 8 of his written  statement in O. S. 114 of 1926 which is as follows:    "The allegations in paragraph 11 of the plaint are false. This  defendant  has  really  taken  in  adoption  the   2nd defendant.   The aforesaid adoption is valid  in  accordance with  the custom of Nattukottai Chettiars.  There  are  many differences  in the matter of adoption  between  Nattukottai Chettiars  and  other caste people as stated  below.   Their custom alone can prevail in the matter of the adoption taken by  them and neither the law nor the Sastras can bind  them. As  adoption is made among Nattukottai Chettiars  only  with the  intention that the adopted son should render them  help and assistance (1) those who make adoption pay money to  the parents  Vagaira as price for the adopted boy.  (2)  Neither Dattaka  Chandrika or Dattaka Mimamsa can bind them. (3)  If one person has two wives, the two wives adopt two sons.  (4) If  the son of a person dies leaving his widow,  the  father takes  a  boy  in  adoption for  himself,  and  the  widowed daughter-inlaw  takes  another  boy in adoption.  (5)  If  a grandson by son is born to one person and the son dies,  the aforesaid  person  takes  a boy in adoption  even  when  the aforesaid  grand-son is living.  The customs with regard  to adoption  among  Nattukottai Chettiars are in  existence  as stated above. (6) As the aforesaid Chettiars are traders,  a person can take in adoption another boy, if the adopted  son acts  against  the  will  of  the  adoptive  father  without improving the property." This  seems  to indicate that in his view such  a  customary adoption  was  made for temporal rather than  for  spiritual reasons.    Taking  an  overall  picture  of   the   various provisions  in the will, it appears to be  reasonably  clear that  Ranganatha notwithstanding his description as  adopted son  in  the  will in several places, was  intended  by  the testator to take the property as persona designata and  that the  will was therefore effective to convey title to him  to residue of properties left by Periakaruppa after his death, 236 No  question has been raised that the condition in the  will

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that  Ranganatha  is to take the property only if he  is  of good  conduct  and behaviour, has operated  to  prevent  the title  vesting  in him and it may be doubtful whether  if  a clear  intention  of the testator can be gathered  from  the will,  to  bequeath  the residue to  Ranganatha  as  persona designata the condition of good conduct and behaviour  would be valid to prevent the vesting of the title. We  have,  therefore,  come  to  a  clear  conclusion   that Ranganatha obtained title to the properties of  Periakaruppa under  the  will.   This is in accord with  the  conduct  of Alagappa  for over 14 years after the death of  Periakaruppa and  his wife, in keeping silent and allowing Ranganatha  to enjoy  the.  properties  without laying  any  claim  to  the property on the ground of the invalidity of the will and the invalidity  of  the  adoption,  thereby  indicating  how  he understood  the  will.   In this view  the  other  questions raised in this appeal do not call for consideration. This  appeal,  i.e.,  Civil  Appeal  No.  169  of  1956,  is accordingly   allowed   with  costs   throughout   and   the plaintiff’s suit dismissed. The  questions that arise for decision in the  trust  appeal may now be taken up for consideration.  The plaintiff in the trust  suit  also is junior Periakaruppa.  There  were  five defendants  in  the suit.  First and second  defendants  are Ranganatha  and his minor son.  The third defendant  is  the son  of Chockalingam.  The fourth and fifth  defendants  are the  father,  Alagappa and Muthayi Achi,  mother  of  junior Periakaruppa.  The plaintiff’s case as set out in the plaint is  that by the terms of the compromise in O.S. No.  114  of 1926  on the file of the Subordinate Judge of  Devakottai  " Periakaruppa   and  Chockalingam  were   constituted   joint trustees for himself who was then a minor and that they were enjoined the duty of having the amount invested from time to time  in Cheyenne firms, that the above terms were  accepted by all the parties concerned including Periakaruppa and that consequently both Periakaruppa and Chockalingam accepted the position  of  joint  trustees for  the  plaintiff  for  duly safeguarding and improving 237 his  moneys."  He  alleges that  the  "said  trustees  were, therefore, bound to see to the proper investment of the said moneys  in  reliable and sound Chetti firms  and  for  their accumulation  with accrued interest during  the  plaintiff’s minority  and to pay the *accumulation to the  plaintiff  on his  demand on his attaining majority." He says  further  in the plaint that he learned after attaining majority that the entire   amount   was  appropriated  by   Chockalingam   for discharging  his  own  personal debts and that  he  made  it appear  as  if he had credited the trust amount in  his  own firm,   that  eventually  when  his  firm  became   involved (financially) he (Chockalingam) appears to have executed  of his  own accord a simple mortgage dated May 3, 1930,  (i.e., during the minority of junior Periakaruppa) of his house  at Athangudi  (in  South India) together with a small  item  of property  in  Burma in favour of the plaintiff  and  another creditor  for a sum of Rs. 1,00,000 of which Rs. 70,000  was intended  to  be  the plaintiff’s money and  the  other  Rs. 30,000 of the other creditor.  The plaintiff further says in his  plaint  that  the  house which was  the  main  item  of security  in the mortgage had no marketable value, that  the mortgage  was a one-sided affair and that he repudiates  the same.    He  claims  accordingly  that  both  the   trustees Periakaruppa and Chockalingam were bound to render to him an account  of  the trust amount and if they had  not  properly invested  it  they were bound to repay it to  the  plaintiff

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with  interest.  He alleges that the trustees were bound  to invest  the amount in securities authorised by law and  that they  were bound to invest the moneys in sound  third  party Chetti firms.  He also alleges that Periakaruppa knew at the time the involved circumstances of his co-trustee and either colluded  with  him  or failed in his duty  to  protect  the plaintiff’s  interests.  He accordingly claims  that  Peria- karuppa jointly with Chockalingam were liable for the  gross breach  of trust in respect of the said amount.  He  further alleged that on the, death of Periakaruppa on July  14,1929, and  of  Chookalingam in September/ October,  1934,  he  the plaintiff was entitled to recover the amount due to him from the estate of Periakaruppa 238 in  the hands of defendant No. I and of Chockalingam in  the hands of defendant No. 3. The  first  defendant filed, along with his  minor  son  the second   defendant,  an  elaborate  written  statement   the substance,   of   which  was  that  Periakaruppa   was   not constituted  a  trustee  nor did he  accept  or  assume  the position  of  or  acted as a trustee for  the  plaintiff  in respect  of  the sums mentioned in the  plaint.   He  states that, on the other hand, the only persons who were competent to act on behalf of the plaintiff were his guardians or  his parents and the Rajinama conferred no right on  Periakaruppa to override any acts done by play Dtiff’s legal guardians on behalf of the plaintiff’s moneys.  It is further stated that there was nothing improper on the part of Chockalingam along with  the  plaintiff’s father and mother  in  realising  the ,same  under  the  hundi  (for  Rs.  75,000  due  to  junior Periakaruppa)  and  handing it over to Rangoon  A.P.S.  Firm (Chockalingam’s firm) for being invested.  He further states that  the  said  firm  was  in  a  flourishing  and  solvent condition  then  and during all the  time  Periakaruppa  was alive,  and  that  there was  absolutely  no  negligence  or improper motive on the part of any body in entrusting to the said  firm for investment or in investing in the said  firm, the money realised for the said hundi drawn by Periakaruppa. It  was  further  stated that the  first  defendant  therein understood  that out of the said moneys with  Chockalingam’s firm  a sum of Rs. 30,000 was withdrawn by the  parents  and guardians  of the plaintiff and invested the same bona  fide in the purchase of a house for the benefit of the  plaintiff on July 23,1928, which was proved to be in the possession of the plaintiff and continued to be so and that the  plaintiff must  be  taken  to have ratified the  said  purchase.   The written statement also states that in or about the year 1930 after the death of Periakaruppa there were some disturbances in  Burma  and  that  the  parents  and  guardians  of   the plaintiff,  with a view to safeguard the interests  ,of  the plaintiff  completely and effectively, wanted from the  said Chockalingam  security of landed property and thus  obtained the mortgage referred to in the plaint of his residential 239 house and bungalow at Athangudi and of the business premises of  Chockalingam at Bogale in Burma.  The written  statement proceeds  to say that the plaintiff is bound by the acts  of his   parents  and  guardians  in  entering  into  such   an arrangement made in his interest and for his benefit.  It is also further stated that on February 17, 1936, the house and bungalow of Cbockalingam at Athangudi which was the  subject matter  of the mortgage above mentioned, were  purchased  in court auction by Alagappa the father of junior  Periakaruppa for  a  small sum of Rs. 1,000 subject to the  mortgage  and that  this  course was adopted as a means of  realising  the

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amount due to the plaintiff on the mortgage deed without the necessity to incur any costs of a suit.  It is thus  claimed that  the  mortgage as well as the  subsequent  purchase  of equity  of redemption were all transactions by Alagappa  for the benefit of his minor son and acting for him and that the plaintiff  is not entitled to repudiate these  transactions. The  third  defendant,  son of Chockalingam,  also  filed  a written statement denying that there was any trusteeship  or acceptance thereof by his father, that the relations between the minor represented by his mother and father on one  side, and  Chockalingam  on the other side, with whom  the  moneys were kept was solely one of creditor and debtor and that the minor’s  money was properly invested with  Chockalingam  and that  by  then he was in a flourishing condition,  that  the hypothecation  of May 3, 1930, was more than  sufficient  to cover  the debt due and that the Properties covered  by  the mortgage  were brought to sale in court auction  subject  to the  mortgage and were purchased by the  plaintiff’s  father acting  in  his  interest, that one  of  the  properties  so purchased has been resold and the sale proceeds realised  by the   plaintiff,  that  the  other  property  is  still   in possession and enjoyment of the plaintiff and that therefore there  was  no loan outstanding.  He further says  that  the remedy, if any, of the plaintiff was against his father  and mother and not against himself. The  suit  was  decreed  in  the  trial  court  by  ordering defendants  1  to 3 to pay a sum of Rs.  1,39,672-13-6  with interest from out of the assets of Periakaruppa 240 and  Chockalingam in their hands.  Now, it does  not  appear that the third defendant appealed against this decree either to  the  High Court or to this Court.  His  liability  under that  decree is not, therefore, in any way affected  by  the subsequent proceedings on appeal to the High Court and  this Court and it is unnecessary to refer to him or his liability in what follows. The contention of the plaintiff’s counsel that  Periakaruppa and  Chockalingam constituted joint trustees for the sum  of Rs. 75,000 payable to him under the compromise dated  August 15,  1927,  is  one  that is founded on  the  terms  of  the compromise.   It  is  necessary therefore  to  set  out  the relevant terms thereof. "1.As settled by the four Panchayatdars, viz (1)N.     AR. Arunachalam Chettiar of A. Muthupattanam, (2)     SP.    AR. S. Chidambaram Chettiar of Athangudi, (3)    M.T.A.M. Muthiah  Chettiar  of Kottaiyur, and (4) RM.  AL.   Alagappa Chettiar  of A. Muthupattanam directing the first  defendant to pay to the plaintiffs separately in respect of the  right claimed  by  the  plaintiffs  in  the  suit  filed  by   the plaintiffs herein for partition on the ground that they  are also entitled to a share in the properties mentioned in  the plaint  in  this suit, the first defendant  has  executed  3 hundis  mentioned  hereunder  and issued on  the  29th  Ani, Prabhava (13th July 1927) in the names of the plaintiffs for Rs.  1,50,000, i.e., Rs. 75,000 to the first  plaintiff  and 75,000   to  the  second  plaintiff  with  instructions   to separately  pay to the aforesaid plaintiffs and  accordingly the  plaintiffs  have, at any time hereafter, no  right  and future   connection  whatever  either  in   the   properties mentioned  in  the  plaint in this suit,  or  in  any  other property in the possession of the first defendant, or in any property  that the first defendant shall hereafter  acquire. The  first  defendant alone shall, as he pleases,  enjoy  as usual  the aforesaid entire properties, as  hisself-acquired properties  with  all Swatantrani and right  and  powers  of

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alienation  such  as gift, exchange, sale, etc.   The  first defendant  has  the  right also to  alienate  the  aforesaid entire properties either by a will or otherwise. 241 2.   The first defendant shall for the hundis Nos.  1 and  2 out of the 3 hundis for Rs. 1,50,000 mentioned in  paragraph I  herein,  pay  the principal of Rs.  75,000  and  interest within Purattasi of this Prabhava year (16th October  1927). The principal of Rs. 75,000 under the remaining hundi No.  3 shall  be paid within the 30th Panguni of the year  Prabhava (11th April 1928). 3.   The  Sridhanam amount of Rs. 14,000 of  Muthayi  Achi., mother  of the second plaintiff, and the second  plaintiff’s amount  of  Rs. 75,000 out of the aforesaid  amount  of  Rs. 1,50,000  under  the  hundis, shall be  invested  in  Chetti houses  in the name of the second plaintiff to the order  of Periakaruppan  Chettiar,  the first defendant,  and  to  the order  of  A.P.S. Chockalingam Chettiar  of  Athangudi,  the junior paternal uncle of the aforesaid Muthayi Achi, and the aforesaid two persons shall be in management.  The signature letters  and  accounts pertaining to the  aforesaid  amounts shall be with the aforesaid Chockalingam Chettiar. 4 to 9.............................. 10.  As  A.P.S.  Chockalingam  Chettiar is  liable  for  the discharge of the encumbrances that have been created by  the first  plaintiff  as mentioned in paragraph  4  herein,  the first  plaintiff  Alagappa  Chettiar  has  endorsed  on  the undermentioned first and second hundis that they are payable to the order of the aforesaid Chockalingam Chettiar and they have been delivered to the aforesaid Chockalingam Chettiar. It  is  therefore prayed that the Court may  be  pleased  to record  the  razinamah  in  the suit  and  to  dismiss  this suit.Details of the hundis. 1.   The hundi for Rs. 50,000 issued on the 29th Ani of  the year Prabhava (13th-July, 1927) directing Rangoon  Thamappan PL.   T.  RM.  Karuppan Chettiar to pay money  with  Rangoon nadappu interest. 2.   The hundi for Rs. 25,000 issued on the 29th Ani of  the year  Prabhava (13th July, 1927) directing Rangoon M. A.  M. S.  Meiyappa  Chettiar  to pay money  with  Rangoon  nadappu interest, 242 3.   Hundi for Rs. 75,000 issued on the 29th Ani of the year Prabhava  (13th  July, 1927) directing Rangoon  RM.   P.  A. Muthiah   Chettiar  to  pay  money  with   Rangoon   nadappu interest." The  whole  argument  for  the plaintiff  is  based  on  the provision contained in para 3 that the Sridhanam  amount  of Rs.  14,000 of Muthayi Achi, mother of the second  plaintiff (which,  it  is said, has been given up by  the  plaintiff’s mother  in his favour) and the second plaintiff’s amount  of Rs.  75,000 out of Rs. 1,50,000 under the hundis,  shall  be invested  in  Chetti  houses  in  the  name  of  the  second plaintiff  to the order of Periakaruppa Chettiar and to  the order of A. P. S. Chockalingam Chettiar of Athangudi.   This provision-it  is contended, shows that the money  under  the hundi  meant  for the minor was to be  invested,  by  Peria- karuppa and Chockalingam in Chetti houses in the name of the plaintiff but to their order.  It is said that the amount so invested  was, therefore, payable to themselves or to  their order  and  that they were charged with the duty  of  seeing that  the  money was properly invested by operating  on  the minor’s  deposit  in  their joint  names  and  changing  the investments  when  found  necessary.   It  is  urged   that, therefore,  both  of them were constituted  thereby  as  the

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legal  owners  of  the  amount,  the  beneficial   ownership remaining  with the minor and that to this  legal  ownership was  attached  the  obligation  of  seeing  to  the   proper investment of the money and the augmentation of fund by  the addition  of substantial interest obtainable  from  reliable Chetti firms.  In order to determine whether this contention is  correct,  it  is necessary to notice the  terms  of  the relevant  hundi of the same date as the Rajinama.  This  and other hundis issued by reason of the Rajinama must be  taken to be part of the Rajinama inasmuch as they were referred to therein  by  description under the heading "Details  of  the hundis".    Learned  counsel  for  the  respondent,   junior Periakaruppa, urges that for this purpose it is the Rajinama alone  that has to be looked into but not the terms  of  the hundi.   We  are unable to agree with this  contention.   We have  no  doubt  that  the  Rajinama  and  the  hundis   are integrally 243 one  and must be read together.  The hundi dated August  15, 1927, for Rs. 75,000 issued by Periakaruppa for the  benefit of  junior  Periakaruppa  as  part of  the  Rajinama  is  as follows: "Credit  to  minor  Periakaruppa  Chetti,  son  of  AL.  PR. Alagappa  Chetti  of  A. Muthupattanam--Debit  to  AL.   PR. Periakaruppan Chettiar. Out  of the sum of Rs. 1,50,000 payable by me  according  to the  razinamah entered into in 0. S. No. 114 of 1926 of  the file  of the Sub-Court, Devakotta, on the 29th Ani  of  this year  (13th  July, 1927).......................  the  amount towards  your  share  for  improving  the  same  by   making investments in Chetti firms for interest in your name and to my order and to the order of Athangudi A. P. S. Chockalingam Chettiar, is Rs. 75,000.  Rangoon RM.  P. A. Muthiah  Chetti shall,  on  demand,  pay money for this sum  of  Rs.  75,000 together with Rangoon nadappu interest from the 29th Ani  of this year (13th July, 1927) to the order of the three  viz., (1) AL.  PR.  Alagappa Chetti, (2) Muthayi Achi, mother  and guardian of minor Periakaruppan Chetti, son of the aforesaid person, and (3) A. P. S. Chockalingam Chettiar of Athangudi, and debit it in my account with endorsement of payment  made herein. Sd.  AL.  PR.  Periakaruppan Chettiar." Now  taking para 3 of the Rajinama and this hundi  together, it  is clear that the banker of Periakaruppa one  RM.   P.A. Muthiah  Chetti  of Rangoon was to pay this  amount  to  the order  of  the three persons, Alagappa,  Muthayi  Achi,  and Chockalingam and that the said amount was to be invested  in the  name  of  the minor in Chetti firms  to  the  order  of Periakaruppa and Chockalingam.  Now it is the contention  of the  learned counsel for junior Periakaruppa that  the  word ’order’ used in both these places has the same meaning as in the  Negotiable Instruments Act, 1881, (XX VI of 188 1)  and that therefore what is contemplated is that the money  under the  hundi  was  in the first instance  payable  by  Muthiah Chetti  on whom it was drawn on the joint signatures of  all the three persons named in the hundi 244 i.e., Alagappa, Muthayi Achi and Chockalingam and that  what is  further contemplated is the investment of that money  by Periakaruppa and Chockalingam in Chetti firms in the name of junior Periakaruppa to the joint order of both of them.   On this view, it is said that both these persons have the power to draw the money so invested whenever they choose and  have the  control of the money and in that sense have  the  legal ownership of the money vested in themselves  notwithstanding

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that  the  amount is invested in the name of  the  minor  to indicate his beneficiary ownership.  Learned counsel for the appellant  Ranganatha contends that this is not  the  proper interpretation of the word ’ order’ as used in reference  to the joint names of Periakaruppa and Chockalingam.  He refers us  to  certain  cases  of  the  Madras  High  Court   which recognised  the practice of Chetti firms receiving  deposits in  the name of a particular person to the maral of  certain other person or persons and that the idea of maral is merely to  indicate  that the change of investment was to  be  made with  the  consent  of  the  maraldar  without  in  any  way affecting  the  ownership of the person in  whose  name  the money  is  deposited.  According to the cases  on  which  he relies, the maraldar has no right to operate on the  account and  withdraw the money.  It has been pointed out to  us  on the  other side that the material word used in this  context both in para 3 of the Rajinama and in the hundi itself is  " order’ and not maral ’. It is also urged that the word maral has  acquired  no  such settled meaning,  as  the  appellant ascribes  to  it.   There are  decisions  showing  that  the question  as to what the word maral means is one  that  must depend on the proof in each particular case of usage of that word  by the Nattukottai Chetti firms.  This has  been  laid down by the Privy Council in Arunachalam v. Vairavan (1) and in Muthuraman v. Periannan (2).  In view of these  decisions and  the  fact to which our attention has  been  drawn  that there  is no pleading in this case as to the meaning of  the word ’maral’ or that the word ’order’ in the context of this case has been used in the sense (1)  A.I.R. 1929 P.C. 254, 256.  (2) A.I.R, 1934  Mad.  621, 622. 245 of maral, we are not prepared to uphold the contention  that the  word  ’ order’ in this case can be  given  the  meaning which is attributed to the word ’maral’ in some of the cases which have been cited to us for the appellant.  It does not, however,  follow that the word ’ order’ in this case in  its application to the two persons     Periakaruppa          and Chockalingam, is used in the sense which  it has  under  the Negotiable Instruments,Act.   Learned   counsel   for    the respondent,   junior  Periakaruppa,  relies  on  s.   13(1), Explanation  (iii),  taken  with ss. 8, 9,  and  78  of  the Negotiable Instruments Act.  He urges that in the case of  a negotiable  instrument the person who is indicated as the  ’ orderer ’ (if that word may be used in this context) is  the holder thereof and is the person who is entitled to  receive the  amount  thereunder and to give a discharge  in  respect thereof and that, therefore, he is virtually the legal owner thereof.   If, as held in Krishnashet bin Ganshet Shetye  v. Hari  Valjibhatye (1), the Negotiable Instruments  Act,  (in the  absence of any local usage to the contrary) applies  to hundis,  what is urged above may well be applicable  to  the money of the original hundi for Rs. 75,000 drawn on  Muthiah Chetti  and specifically payable on demand to the  order  of the three persons, Alagappa, Muthayi Achi and  Chockalingam. But  the  position as regards the amount so  collected,  and thereafter  invested in the name of junior Periakaruppa,  is not  necessarily  the same.  It is true that para 3  of  the Rajinama  and  the narration in the relevant  hundi  clearly show  that  the  amount  of  the  hundi  (apparently   after realisation  thereof) is to be invested in Chetti  firms  in the  name of minor Periakaruppa and that such investment  is to  be to the order of both Periakaruppa  and  Chockalingam. This is obviously nothing more than a deposit in the name of the  minor  after  such collection.   The  investment  would

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presumably be covered by an ordinary deposit receipt in  the name of the minor.  A deposit receipt of that kind does  not fall within the definition of ’negotiable instrument’  under s.  13  of  the Negotiable Instruments  Act.   There  is  no authority for showing that such a deposit receipt is a# (1) (1895) I.L.R. 20 Bom. 488. 246 document to which the notions of Negotiable Instruments  Act as to the use of the word order’ and the legal  implications thereof  would  be  applicable.  On  the  other  hand  there appears  to,  be authority to the contrary.  See  Sethna  v. Hemmingway(1) and In re Travancore National and Quilon  Bank Ltd.(1). Both these cases indicate that a deposit receipt is not  a  negotiable  instrument.   It is  true  that  in  the language  of the hundi, at both places, i.e., (1) where  the hundi  is to be cashed, and (2) at the place where the  cash so  collected  is to be invested, the same word  ’order’  is used  with reference to different sets of persons.   It  is, therefore, suggested that they have to be understood in  the same  sense.  But the hundi, though intended for  the  minor and credited to him, is not drawn specifically in favour  of the,   minor  but  only  to  the  order  of  certain   named individuals, while the investment is to be made specifically in  the  name of the minor indicating that he is  the  owner thereof.   It would be begging the question to say that  the orderdars  in  this context are the legal  owners  and  that hence  this  indicates only his  beneficial  ownership.   It appears to us reasonably clear that merely because para 3 of the  Rajinama and the narration in the relevant  hundi  both contemplate  the  amount  of  hundi  on  realisation  to  be invested  in  Chetti firms in the name of the minor  to  the order of both Periakaruppa and Chockalinga, it does not ipso facto  follow  as  a matter of law that  both  of  them  are authorised  to  operate  on it in the sense  that  they  can withdraw  the money and have the control of it in  the  same way  as  a person, to whose. order a bill of exchange  or  a cheque  is  payable, can have.  While it is  true  that  the appellant Ranganatha has not made out that the word  ’order’ is  used  in  the ,sense of the word  ’maral’  and  has  not pleaded  or proved what maral or order in this  case  means, the plaintiff has not equally made out that the word ’order’ in para 3 of the Rajinama in its application to Periakaruppa and  Chockalingam in the context, authorises them to  obtain absolute  control of the money deposited.  But it  is  urged that this is implicit (1) A.I.R. 1914 BOM. 286, 287. (2) A.I.R. 1940 Mad. 157, 159. 247 in  the  language of para 3 which refers to  investment  and management.  Undoubtedly under the terms of the Rajinama the amount is to be invested in Chetti firms in the name of  the second  plaintiff  and  the two  persons,  Periakaruppa  and Chockalingam,  are to be associated with the investment,  by its being designated as being to their order, whatever  that may mean, and they are also enjoined and associated with  it in the following terms. " Iruvarghalum mel parthu varavendiyadu This  clause which is in Tamil language has been  translated in  the official translation as " the aforesaid two  persons shall  be  in management." Two out of us in this  Bench  who have  a fairly working acquaintance with Tamil language  are not satisfied that ’ management is a correct translation for the  word ’mel parthu ’. What the clause contemplates  is  ’ mel parve ’ which literally means ’over-seeing’.  It conveys the  idea of ,;supervision’ and does not imply the  capacity

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to  operate  on the deposit.  But it is suggested  that  the relevant  clause  taken  as  a  whole  indicates  that  both together  have the power of investment and  reinvestment  as indicated by the use of the phrase in Tamil, viz.,  ’koduthu vangi’, which means ’giving and taking’, i.e., ’lending  and taking  back.’  This phrase is generally  used  to  indicate ’investing.’  But it is not very clear in the  structure  of the sentence in which this phrase occurs that it is the  two persons  Periakaruppa and Chockalingam that are to  do  this ’investing.’ The word ’iruvarkalum’ in this sentence follows ’koduthu vangi’ and precedes ’mel parthu varavendiyathu‘ and indicates rather that their joint responsibility relates  to only  ’mel  parvai’ and not ’koduthu vangal’.  In  a  matter like this, however, relating not merely to the meaning of  a particular  word such as ’ mel parthu’ as above but  to  the contextual meaning of an entire clause in which a particular phrase like ’koduthu vangi’ is used, we do not wish to  base the decision on our own impression as to the implication  of that  phrase  in the context and would prefer to go  by  the official English translation which is as follows; 248 "The  amount................  shall be  invested  in  Chetti houses in the name of the second plaintiff, to the order  of Periakaruppan  Chettiar,  the first defendant,  and  to  the order  of  A.P.S. Chockalingam Chettiar  of  Athangudi,  the junior paternal uncle of the aforesaid Muthayi Achi, and the aforesaid two persons shall be in management." But even this does not indicate that the power of investment is  vested in them but only ’mel parve’ which, in our  view, has  been  wrongly translated as  ’management.’  Taking  the whole of this clause carefully we are not satisfied that the language  clearly indicates that the power of  operating  in respect of the deposit by way of withdrawing the amount  and being  in  control  thereof is vested  in  Periakaruppa  and Chockalingam.    All  that  the  language   indicates   with certainty  is that these two persons are specially  enjoined to supervise the investments and that they are  "orderdars," whose  meaning has not been made out.  In such an  ambiguous situation  as  to  the, meaning of the words  used  and  the intention of the parties thereto, it is permissible to  look into  and consider what the contemporaneous actings  of  the parties  are which may be treated as virtually part  of  the same transaction. The  hundi  for  Rs.  75,000  for  the  benefit  of   junior Periakaruppa dated August 15, 1927, was, according to para 2 of  the  Rajinama, payable by April 11, 1928.  There  is  an endorsement  on the hundi signed by Alagappa,  Muthayi  Achi and Chockalingam dated May 31, 1928, to the effect that  the money due under that hundi is to be paid to Rangoon A. P. S. Firm   (which  means  Chockalingam’s  firm)  together   with interest  thereon.  On the terms of the hundi  the  interest was   payable  from  July  13,  1927,  on  which  date   the Panchayatdars  appear  to  have settled  the  terms  of  the Rajinama.  This shows that the amount was actually drawn  on the  signatures of the three persons and was intended to  be collected by Chockalingam’s firm at Rangoon.  The hundi also bears  a  note  signed by Chockalingara’s agent,  A.  P.  S. Somasundaram,  that the principal and interest of the  hundi amounting  to Rs. 80,726-15-3 was received  through  another banker 249 named  KM.   CN.   Somasundaram  Chetti  as  per  letter  of Periakaruppa  to KM.  CN.  Somasundaram Chetti on April  10, 1928.  It is in the evidence of this A. P. S.  Somasundaram, clerk  of  Chockalingam,  who  was examined  as  P.W.  2  on

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commission, that after its withdrawal the money was in  fact credited on or about June 19, 1928, in the accounts of A. P. S.  Firm at Rangoon in the name of junior  Periakaruppa,  to the order of (senior) Periakaruppa and Chocklingam under the directions  of  Chockalingam.  It is the  evidence  of  this Somasundaram  that Chockalingam directed him to  invest  the amount  in  Rs.  4,000 or Rs. 5,000 in  reliable  and  sound Chetti  firms, presumably meaning thereby that the idea  was to keep the money in the A.P.S. Firm provisionally until  he was able to invest the money safely by distributing it  over several  reliable Chetti firms in comparatively small  sums. That  this was the real intention of everybody concerned  in entrusting the money to the A.P.S. Firm is confirmed by what is  narrated  in  Ex.  P-4, a receipt issued  in  favour  of Periakaruppa,  for the total sum of Rs. 75,000 collected  in respect of the two hundies for the amounts of Rs. 50,000 and Rs.  25,000  respectively, belonging to Alagappa  under  the compromise.   That receipt shows the collection of a sum  of Rs.  76,274-1-9 being the principal and interest of the  two hundies, and recites also some other matters.  It ends  with the following significant narration : "We shall obtain money for the hundi for Rs. 75,000 of minor Periakaruppan  Chettiar  and for the hundi  for  Rs.  14,000 credit  it  in the firm of Rangoon A.P.S. invest it  in  our Nattukottai Chetti firms for thavani to the order of (1) AL. PR.   Periakaruppan  Chetti  of A.  Muthupattanam,  and  (2) A.P.S.  Chockalingam  Chetti of Athangudi, and  deliver  the copy  of the aforesaid debit and credit account, and  copies of the signature letters." This is signed by A.P.S. Chockalingam Chettiar as the  power agent  of  AL.   PR.  AL.  Alagappa  Chettiar  and  also  by Muthayi Achi for herself and for minor Periakaruppan Chetti. This narration in the receipt 32 250 indicates  quite  clearly  that it was the  father  and  the mother   of   the   junior  Periakaruppa   that   took   the responsibility of authorising the A.P.S. firm to collect the hundi amount and of investing it in other Nattukottai Chetti firms  for  thavanai.  The intention clearly appears  to  be that it is Chockalingam that was to collect the money on the hundi  and it was Chockalingam that was to arrange  for  the investment  of  the  same (on the  legal  responsibility  of Alagappa  and  Muthayi Achi, the natural  guardians  of  the minor).   This  is  exactly what is borne  out  as  to  what happened thereafter as appears from the evidence of  Chocka- lingam’s clerk, Somasundaram, P. W. 2. This seems really  to indicate that what the parties throughout intended was  that while-the collection of the money under the hundi was to  be under  the  signature  of all  the  three,  viz.,  Alagappa, Muthayi  Achi  and  Chockalingam,  the  agency  actually  to collect was to be the firm of Chockalingam in Rangoon and it is that firm that was to arrange for distributing the  money over  various other Nattukottai Chetti firms by way of  safe and good investments on the implied authority of the natural guardians,  viz.,  the father and  mother.   This  obviously would  take  some time and during this  time  Chockalingam’s firm would naturally have to be in charge of the funds.   It appears   reasonably  clear,  however,  that  a  long term investment   in   Chockalingam’s  firm  as  such   was   not contemplated.  This may be inferred from the wording in para 3 of the Rajinama which says that "the signature letters and accounts  pertaining to the aforesaid amount shall  be  with the  aforesaid Chockalingam Chettiar.  In the  context  this obviously means that the deposit receipt and the  periodical

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accounts  relating  to that deposit by way  of  addition  of interest  and  so  forth  were  to  be  in  the  custody  of Chockalingam.   Thus Chockalingam was the  person  primarily intended  to  collect the money and to be in charge  of  the investment,  that pending final investment Chockalingam  was to  have temporary custody of the amount.  The point  to  be noted about this subsequent conduct of the persons concerned is that in respect of these various matters Periakaruppa 251 does not at all come into the picture.  The narration in the receipt,  Ex.  P-4, which recites under the  two  signatures thereto,  of Chockalingam as agent of Alagappa  and  Muthayi Achi as guardian, is that they undertake to obtain the money and invest it in Nattukottai Chetti firms for thavanai.   It does  not  indicate  that  it will be  so  invested  on  the instructions  or  consent also of  Periakaruppa.   Nor  does Somasundaram,  P.W. 2, in his evidence give  any  indication that  the  collection by and investment  in,  Chockalingam’s firm   was   actually  done  under   the   instructions   of Periakaruppa or that it was thereafter contemplated that  in splitting the amount into smaller sums, it would have to  be under  instructions  of  Periakaruppa  also.   There  is  no evidence  that  Chockalingam sent his  instructions  to  his clerk  Somasundaram  with  the  knowledge  and  consent   of Periakaruppa  or  in  collaboration with him.   It  is  also significant that the only further act of reinvestment  which was made during Periakaruppa’s lifetime, viz., the  purchase of a house for Rs. 30,000 at Athangudi in the name of junior Periakaruppa  and of which the minor is admittedly  enjoying the  benefit,  does  not.  appear  to  have  been  with  the knowledge  or consent of Periakaruppa.  Thus looking at  the actings  of the parties concerned, there is nothing to  show that  the  parties  understood the term in  para  3  of  the Rajinama  as  laying on Periakaruppa the  responsibility  of actually  making  investments  and  reinvestment  for   that purpose to operate and withdraw the amounts from the  banker or bankers with whom the hundi money after collection was to be invested. Learned Judges of the High Court were greatly influenced  by the assumption that it could not have been the intention  of Periakaruppa to allow a spendthrift like Alagappa to  handle the funds of the minor for purposes of investment or  change of investment, and that therefore it must have been intended that both the persons Periakaruppa and Chockalingam were  to have  that  power  and  that this  was  what  was  meant  by directing  that the minor’s money must be invested " to  the order  of Periakaruppa and Chockalingam ". It is  true  that the handling of the minor’s funds by his 252 father   Alagappa  alone  was  not  likely  to   have   been contemplated.   But  that  does not  necessarily  mean  that Periakaruppa  took upon himself the responsibility for  such handling either by himself or jointly with Chockalingam.  On the  other hand it looks as though that it was  Chockalingam that  took  such  responsibility.   Though  not  himself   a panchayatdar  he  must  have  helped  to  bring  about   the compromise on the side of Alagappa, Muthayi Achi and  junior Periakaruppa.   This is indicated by his having  signed  the Rajinama  as a witness thereto.  The entire set- up  of  the Rajinama  and  the  subsequent actings  show  that  all  the parties  concerned including Periakaruppa himself  had  con- fidence  in Chockalingam who was no other than the  paternal uncle  of  Muthayi Achi, the mother of the minor.   In  fact even  as regards the sum of Rs. 75,000/payable  to  Alagappa himself under the two hundies it was Chockalingam alone that

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was  constituted  virtually the trustee for  collecting  the said  hundi amounts and paying thereout the debts which  had by  then been incurred by Alagappa.  This is clear from  the fact  appearing in paras 4 and 10 of the Rajinama.  Para  10 says  that  the plaintiff Alagappa has endorsed on  the  two hundies belonging to him that they are payable to the  order of Chockalingam and it further recites that the hundies have been  delivered  to  the  aforesaid  Chockalingam.   It   is specifically  stated  in  that para  that  Chockalingam  was liable  for  the discharge of encumbrances  that  have  been created by the first plaintiff therein (Alagappa).  This was reiteration  of  what was stated in para 4 which  says  that whatever be the encumbrances created by the first  plaintiff in  respect of any property mentioned in the plaint  in  the suit,  the  aforesaid  Chockalingam  shall  discharge   them without  any liability whatever to the first defendant.   It is clear that Periakaruppa was willing to trust  Chocklingam completely even in respect of a matter which would  directly affect him, viz., the discharge of Alagappa’s debts incurred by  way  of  encumbrances, so as to  relieve  him  from  all liabilities for such debts.  It is unreasonable,  therefore, to   assume   that  he  was  not  prepared  to   leave   the responsibility for the collection 253 and  investment of the minor’s funds also with  Chockalingam but  that  he undertook a joint responsibility with  him  in respect  of  the same.  Undoubtedly para 3 of  the  Rajinama indicates  that the amount was to be deposited to the  order of Periakaruppa as also Chockalingam and that both  together are to have ’mel parve’ (supervision).  But whatever may  be the connotation of this provision, it does not appear to us, with great respect to the learned Judges of the High  Court, reasonable  to attribute to Periakaruppa the undertaking  of the  responsibility of a trustee on its basis.   Trusteeship is  a position which is to be imputed to a person  on  clear and conclusive evidence of transfer of ownership and of  the liability   attached  to  such  ownership  on   account   of confidence  reposed,  and  on  such  liability  having  been accepted  by  the alleged trustee.  There is  no  clear  and conclusive  proof  of any of these elements in  the  present case so far as Periakaruppa is concerned. Learned  counsel for the respondent has also relied  upon  a statement in the affidavit of Muthayi Achi,mother of  junior Periakaruppa  dated  August  6,  1927,  in  respect  of  the application  for compromise the litigation on behalf of  the minor in which it is stated as follows: "  The  first defendant (meaning Periakaruppa) has  given  a hundi  for Rs. 75,000 to my junior paternal uncle A.  P.  S. Chockalingam  Chettiar on behalf of the minor 2nd  plaintiff in  accordance with the award of the Panchayatdars.  It  has been settled that the aforesaid amount of Rs. 75,000  should be  deposited in Chetti firms in the name of  the  aforesaid minor,  to the order of the 1st defendant and the  aforesaid A. P. S. Chockalingam Chettiar and improved." It is urged that when the hundi itself has been handed  over to  Chockalingam,  as  this affidavit  indicates,  the  very property  belonging to the minor must be taken to have  been delivered over to Chockalingam as one of the two persons  in whose order the money was to be deposited and that this,  in law,  amounts to transfer of ownership to one, on behalf  of both,  with the obligation attached and that the  acceptance thereof 254 must  be assumed in view of the fact that the whole  of  the Rajinama  including this term was agreed to by  Periakaruppa

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along with the others.  It is quite clear, however, in  this case  that  the mere delivery of the hundi  to  Chockalingam cannot  be  treated as itself transfer of ownership  of  the money which was to be collected in respect thereof.  Paras 1 and 2 of the Rajinama itself are in substance as follows: "  That  the  Panchayadars  directed  the  first   defendant (Periakaruppa) to pay to the plaintiffs a total of 1,50,000, and  that  the first defendant  accordingly  executed  three hundies  in the names of the plaintiffs." Thus by virtue  of the  direction to pay, the compromise brought about  between Periakaruppa   on   one  side  and   Alagappa   and   junior Periakaruppa  on  the other the relationship of  debtor  and creditor.  It is obvious that until the hundies are realised that  relation  would  continue.  There is  no  transfer  of ownership  till  then.  (See In  re  Beaumont,  Beaumont  v. Ewbank(1).  Further, as has already been noticed, the  hundi issued  by Periakaruppa in respect of junior  Periakaruppa’s share  of  Rs.  75,000 was originally  issued  upon  Muthiah Chettiar  of Burma but was ultimately realised  through  one KM.   CN.   Somasundaram  Chetti  on  a  letter  written  by Periakaruppa to him.  This indicates that for some reason or other  the hundi could not be cashed on the original  banker and  had  to be realised through another  banker.   In  this state  of  facts  it is not feasible to say  that  the  mere handing over to Chockalingam of the original hundi drawn  on Muthiah  Chettiar on the date of the compromise  itself  (as mentioned  in the affidavit of Muthayi Achi) can be  treated as  transfer to Chockalingam of the very property of  junior Periakaruppa  under the Rajinama.  The trust, therefore,  if any,  in  respect  of that amount  must  attach  only  after realisation of the amount and by reason of the acting of the parties  subsequent  thereto  implying  acceptance  of   the obligations   under   the  trust.   The   more   fact   that Periakaruppa  agreed to all the terms of the  Rajinama  does not  constitute  such  acceptance.   It  is  at  best   only indication  of  a  prospective willingness  to  accept.   As already stated there is absolutely no evidence of an (1)  [1902] 1 Ch. 889. 255 actual acceptance after the hundi was cashed and the  amount was in fact treated by Chockalingam as an investment in  his firm.  Indeed even if it be assumed that Periakaruppa became a  joint trustee with Chockalingam in respect of the  amount belonging to the minor it does not follow that  Periakaruppa was  responsible  for  the breach of  trust  in  this  case, committed  obviously  by  Chockalingam  only.   As   already stated’ it appears quite clearly that collection by  Chocka- lingam of the minor’s hundi and his keeping custody  thereof in  his own firm until the amount is regularly  invested  in other Chetti firms was a matter which was under the  initial contemplation  of everybody concerned and in  particular  of the  father  and the mother who are his  natural  guardians. That  this was the position as late as July, 1928, is  quite clear   from   the   evidence   of   Chockalingam’s   clerk, Somasundaram,  P.  W. 2. Periakaruppa died  in  July,  1929, about  an  year  later.   There  is  absolutely  nothing  to indicate  that ’the provisional retention of the  amount  in Chockalingam’s  firm  for that period, was  unreasonable  or that  Periakaruppa  had  any notion  that  Chockalingam  was financially  in embarrassed circumstances and that  he  made use  of  the  funds.   It  is  true  that,  under  law,  the investment  of  funds  by  a  trustee  with  himself   would constitute breach of trust.  But before a co-trustee can  be made liable therefor some kind of knowledge or connivance or gross negligence or the like contributing factor on his part

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has got to be made out. It  may  be that in this case the minor’s  funds  have  been frittered   away   by  the  embarrassed   circumstances   of Chockalingam  in  whom  everybody  seems  to  have   reposed confidence.   If that was in fact what happened, it  may  be unfortunate  for the minor.  But that cannot be  any  reason for affecting Periakaruppa or his estate with the  liability for Chockalingam’s breach on an assumed construction of what appears  at best to be equivocal and ambiguous  language  in the  Rajinama.   The  burden is  on  the  plaintiff,  junior Periakaruppa,  to  make  out clearly that  by  the  Rajinama Periakaruppa  became  a  trustee for the  minor’s  fund  and incurred 256 liability therefor for his co-trustee’s breach.  At the time of the compromise the minor was less than two years in  age. Periakaruppa  was  more  anxious  to  get  rid  of  all  his liabilities arising from his son’s past and wanted his son’s family  to clear out bag and baggage from the family  house. In  such a situation if he was anxious for the  minor  boy’s welfare to the extent of taking responsibility for his money on  himself though it be jointly with Chockalingam,  clearer and  decisive language was to be expected.  In  our  opinion this  has  not  been  made out.   Hence  this  suit  of  the plaintiff,   junior   Periakaruppa,  also   fails,   against Ranganatha and his minor son. The appeal is accordingly allowed and the suit is  dismissed as against defendants 1 and 2 with costs throughout. GOVINDA  MENON  J.-I  am  in  perfect  agreement  with   the reasoning  and conclusions contained in the judgment  of  my learned brother B. Jagannadhadas J. in Civil Appeal No.  169 of 1956, and I agree that the appeal be allowed with costs. In  Appeal  No.  104 of 1954,  1  have  considerable  doubts regarding  the construction of cl. (3) of Exhibit P.  1.  If Periakaruppa  and Chockalingam were entrusted with the  duty of investment, there can be no doubt whatever that they  are constituted   trustees.   The  Tamil  expression   ’Koduthu- Vanghi’  clearly signifies investment, but the  question  is who  is  to  make  the  investment.   If  Periakaruppa   and Chockalingam have merely to supervise the investment, as the Tamil expression ’Mel-Parthu’ means, and not actually invest the  amount  then the view taken by my learned  brothers  is right.   I am inclined to think that the duty of  investment is  cast on Periakaruppa and Chockalingam, but as this is  a matter which is not free from doubt, not without hesitation, I agree with the order passed by my learned brothers. Appeals allowed. 257