MUTHULAKSHMI AMMAL Vs. THE THIRUGNANASAMBANA SWAMIGAL AATHEENAM MUTT THROUGH ITS AATHEENAKARTHA SRI LA SRI SOMASUNDARA SRI GNANASAMBANDA DESIKA PARAMACHARYA SWAMIGAL, MADURAI TOWN AND OTHERS

JUDGEMENT

(1.) This second appeal relates to the effect of a Will dated 26th March 1922, executed by one Duraiswami Pillai. By that Will, he provided that the suit properties were to be enjoyed after him by his mother and his widow, as well as his children, if there were any, and that after their lifetime, the plaintiff in this case was to take those properties, add them to the properties which had been given to the plaintiff as a trustee under another settlement deed executed on the same day by Duraiswami Pillai and his mother, to carry on the various ceremonies according to the settlement deed and from out of the balance of the income to arrange for Nalvarguru Pooja according to the plaintiff's pleasure and perform Maheswari Pooja in the very place where the Samadhi was. The settlement deed executed by Duraiswami Pillai and his mother is marked as Ex. A. 1. That settlement deed was purely for the purpose of the sawadhi of Duraiswami Pillai's maternal grandfather. It is therefore, obvious that when Doraiswami Pillai executed the Will Ex. A. 2 and directed that the properties bequeathed under the Will were to be added to the properties which had been settled in favour of the present plaintiff and to carry out the ceremonies mentioned in the settlement deed, one of the purposes of the Will at least was for the same purpose for which the settlement deed had been executed. The argument on behalf of the respondent is that this part of the Will merely means that though the plaintiff was to manage the properties bequeathed under the Will along with the properties settled under Ex. A. 1, the direction as to the performance of the ceremonies according to the settlement deed merely meant a direction to carry out the terms of the settlement deed and not that the properties bequeathed under the Will were also to be used for the purpose of carrying out the ceremonies mentioned in the settlement deed. I do not think that the Will lends itself to that interpretation. There may be something in this argument if the Will did not go on further to say that from out of the balance of the income, the plaintiff was to arrange for the Nalvarguru Pooja according to his pleasure. In respect of this, the argument on behalf the respondent is that it was the balance of the income from the properties settled under Ex. A. 1, that was to be used for Nalvarguru Pooja. I this is a farfetched interpretation. The balance of the income mentioned therein is really the balance of the income from the properties bequeathed under the Will. From out of the balance, Maheswari Pooja was to be done where the samadhi was. The question then is whether the Nalvarguru Pooja was something different and distinct from Maheswari Pooja. According to the appellant both are the same and according to the respondent they are distinct and different. Whatever the interpretation, it appears to me that the decision of the Privy Council in Subramania v/s. Draviyasundara, A.I.R. 1950 P.C. 37 would really govern the facts of this case. That was a decision on appeal from the decision of a Bench of this court in Draivyasundara Pillai v/s. Subramania Pillai : (1945) 1 M.L.J. 328 . In that case, one Kanakasabapathi Pillai had executed a Will, the most important clauses of which were Cls. 16 and 17. Under Cl. 16 a madam was directed to be constructed for the purpose of conducting the poor feeding and one temple for installing Vinayakar and Nataraja. Cl. 17 directed a madam to be constructed over the tomb. Cl. 18 gave a direction that the poor should be supplied with butter milk from the 1st April to the 1st June of each year. Following the judgment of this court in Kunhamutti v/s. Ahmed Musaliar, 68 M.L.J. 107 this court considered Cl. 17 alone as being void. On appeal, the Privy Council took the view that on construing the provisions of the Will, it must be held that the testator contemplated that he would be burried as Sanyasi in a Samadhi Matam and that the directions for dharmams in the later clauses of the Will were all part of the testator's scheme for keeping alive his memory and did not disclose any independent charitable intent and that as the testator never became a Yatra Sanyasi and was not buried in a Samadhi Matam it became impossible to give effect to the scheme of the Will and all the trusts declared by the Will failed.

(2.) Saraswathi Ammal v/s. Rajagopakmmal :A.I.R. 1953 S.C. 491 was concerned with a settlement deed under which provision was made for expenses in connection with (1) the daily pooja of the samadhi and the salary of the person conducting the daily pooja in the samadhi of the testator's husband (2) Gurupooja and Annadhanam to be performed annually at the samadhi on Thiruvona Nashatram day in Avani when he died, that is, the day of the annual sradh of late Kanakasabapathi and (3) any balance left over after meeting the above expenses to be spent for matters connected with education. Their Lordship held that there was enough in the settlement deed to show that the dominant motive of the dedication was that the Gurupooja and Aanadhanam on the sradh day were contemplated as being part of the worship at the tomb, that the inspiration and motive for the dedication therefore was the alleged desire of the husband that the properties and their income should be utilised for the kainkaryam (services) expenses relating to the said samadhi, that all the various item of expenses were contemplated as expenses for the samadhi kainkaryam and not for any other kind of religious or charitable purpose as such that the dedication was meant not for the annual sradh or education as such but only as part of the samadhi kainkaryam and that therefore the Validity or otherwise of the dedication must be determined on that footing and not as though it was a dedication for the performance of the annual sradh on a substantial scale or for Annadhanam as such, nor did it make any difference that the surplus was contemplated to be utilised for educational purposes as the surplus was contingent and definite as well as dependent on the uncontrolled discretion of the 2nd defendant therein as to the scale on which the choose to perform the samadhi kainkaryam. Here also the surplus is contingent and indefinite as well dependent on the uncontrolled discretion of the plaintiff as to the scale on which he chooses to perform the samadhi kainkaryam. It cannot therefore be considered, as the learned Subordinate Judge considered in this case, that the will discloses a general charitable intention and that, therefore, on the failure of the first bequest to the samadhi as not being valid, the whole of the property would be available for the next bequest for the Nalvargnru Pooja. The whole purpose well as the dominant intention of the testator is the worship in the samadhi and therefore the two decisions I have referred to above will govern the facts of this case. In this view, I hold that the judgment of the lower appellate court is not sustainable. This second appeal is therefore allowed and the suit will stand dismissed. The costs of both parties will come out of the estate that is, the suit property. Leave granted.