MURUGESA MUTHU PILLAI Vs. ARUMUGATHAMMAL AND ANR.

JUDGEMENT

(1.) THE plaintiff is the appellant in the second appeal. One Eswaramurthi Pillai had a daughter Shanmughavadivu through his second wife. She is the 7th defendant in the action. One of her sons is the plaintiff, her other sons being defendants 8 to 11. Defendants 1 to 6 and defendants 12 and 13 are alienees claiming title under Shanmughavadivu aforesaid. This Eswaramurthi left a will, Exhibit A -1, of the year 1935 bequeathing all his properties to his daughter and also providing for the performance of certain charities. He also left a settlement deed, Exhibit A -2 of the year 1905 settling the properties upon his daughter, and also providing for the performance of certain other charities. In the second appeal we are concerned with two items of properties; one item is 68 cents which is item 21 of the B schedule to the will Exhibit A -1 and item 2, 62 cents, the property covered by the settlement Exhibit A -2. The plaintiff filed the action to recover possession of the suit property on the ground that there has been a complete outright dedication of these items towards the charities and that the 7th defendant, the daughter of Eswaramurthi had no right to alienate the properties in question. The case of the contesting defendants was that there was only a charge created over these properties and there was not an outright and complete dedication as claimed by the plaintiff. The trial Court upheld the contentions of the plaintiff and decreed the suit as prayed for, but on appeal, the lower appellate Court has come to a contrary conclusion.

(2.) BEFORE I proceed further, it is necessary to set out the substance of the arrangement provided in the will Exhibit A -1. The preamble portion of the will clearly manifests the predominant intention or object of the father (the testator) that all his properties, movables and immovables, should belong only to his daughter and nobody else shall have any right thereto. In clause 6 of the will, the testator has mentioned that out of the income from item I of A schedule and item 21 of the B schedule, the testator has been performing certain charities more fully set forth in schedule E appended to the will and that after his life -time his only daughter Shanmughavadivu and her issues shall perform the charity properly and regularly and without default. What is crucial for our present purpose is the recital in clause 6 that the testator was performing the charities out of the income from the properties and that the daughter too was to perform the charities out of the income in the manner in which it was being done by the father. Clause 11 contains a residuary provision that the properties not specifically mentioned in the will and properties which may come into existence later shall be taken by the testator's daughter after his life time and nobody else shall have any right or interest over these properties. The Lower Appellate Court has found on the evidence that the properties are valuable double crop nanja lands and that after meeting the specific items of expenditure in connection with the charity for which a scale has been laid down in the will, there will be substantial surplus in the hands of the daughter. The charities which are mentioned and the expenses to be incurred in connection therewith cannot be expanded. They merely consist of some pooja or worship to be performed in three temples, the total expenses thereof being limited to 11/4 kottahs of paddy and Rs. 10 per year. The finding of fact by the lower appellate Court that after meeting these items of expenditure there will be ample surplus in the hands of the daughter is supported by adequate evidence and does not call for interference in the second appeal and the only question is whether on a reading of the will as a whole could it be said that there has been a complete outright dedication of the properties or only a charge has been created for the expenses mentioned above.

(3.) IT is unnecessary to refer to the wealth of case law on this point bearing upon the determination of the character of the endowment and it is sufficient to refer to the following statement of law at pages 1128 and 1129 in the recent decision of the Supreme Court reported in Menakuru Dasardtharami Reddi v. Duddukuru Subba Rao : [1957]1SCR1122 . Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of feet to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word ' trust' or ' trustee ' is no doubt of some help in determining such intention but the mere use of the words cannot be treated as decisive of the matter. Is the private title over the property intended to be completely extinguished? Is the title in regard to the property intended to be completely transferred to the charity? The answer to these questions can be found not by concentrating on the significance of the use of the word ' trustee ' or ' trust ' alone but by gathering the true intent of the document considered as a whole. In some cases where documents purport to dedicate property in favour of public charity, provision is made for the maintenance of the worshipper who may well be a member of the family of the original owner of the property himself and in such cases the question often arises whether the provision for the maintenance of the manager or the worshipper from the income of the property indicates an intention that the property should retain its original character and should merely be burdened with an obligation in favour of the charity. If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. It will thus be seen that ultimately the solution to the problem depends upon the proper interpretation of the deed of endowment if there should be any. All the clauses of the deed of endowment will have to be read together and no clause should be read in isolation and detached from the rest of the document. The relevant considerations are (1) whether the charity is an expanding charity and whether the manager or the trustee who is to conduct the charity is enjoined to spend the entire income upon the charity. (2) Whether the charity would exhaust the entire income or whether there will be a substantial surplus or margin left after meeting all the expenses and (3) the provision as to the ultimate destination of the surplus. Bearing on the question of the ultimate disposition of the surplus reference may be made to the Bench decision of this Court in Kathan Muthirian v. Siva Baghiathammal (1916) 4 L.W. 105, in which the following observations are made at page 109: This is a clear expression that, even though there may be a gift to the idol, if the surplus income is given absolutely to the sons, the property would vest in the latter subject to the trust in favour of the idol. The case in Ashutosh Butt v. Doorga Churn Chatterjee I.L.R.(1880) Cal. 438, is the strongest on the point. There was a gift by a lady of certain lands for the support of the daily worship of an idol, and the deed contained a clause that in the event of there being a surplus after these uses had been satisfied out of the revenue of the said lands, it should be applied to the support of the family. There was also a direction in the will that the heirs should have no power of gift or sale over the property bequeathed. Notwithstanding this language, the Judicial Committee came to the conclusion that the property was only burdened with a trust, and that otherwise it vested absolutely in the legatees. In Mofassed Karin v. Mohammad (1905) 2 C. L.J. 166, which was a case of Muhammadan Wakf, Stephen and Mookerjee, JJ., held that the dedication of a, portion of the income for the purposes of a mosque created at best only a charge upon the land and that the property was heritable and transferable. To the same effect is the decision in Shookmoy Chunder pass v. Monohari Dassi I.L.R.(1881) Cal. 369. In Kulada Prosad v. Kali Das Naik I.L.R.(1915) Cal. 536 and Mahin Chandra Sarkar v. Hara Kumari Dasee I.L.R.(1915) Cal. 561, two different Benches of the Calcutta High Court recently construed documents granting the surplus income as conveying an absolute estate subject to a trust. The leaning of these cases is apparently towards vesting property in living persons and to enforce on them obligations to carry on the testator's wishes. It is inconsonance with the principles of Hindu Law and with the wishes of pious donors that their heirs should be the owners of the property and that they should maintain the family prestige by conducting the charities. Prima facie, a Hindu who desires to devote a portion of his property for religious purposes and who has near relations to whom he bequeaths the bulk of his property may be presumed to have granted only a charge on the estate to the charity. His primary intention will be that his descendants should have possession of the corpus and should maintain the traditions by conducting the charity. If reading the document as a whole it is clear that whatever remains, whether substantial or otherwise, after the charities are performed, it is not to form an accretion to the corpus but can be utilised and taken by the manager or the trustee as his own without any liability to render an account and with no obligation to hold it on behalf of the trust the endowment will not be an outright dedication but a charge only is created in favour of the charity for the expenses or dhittam specified in the deed of endowment. When these tests are applied, to the instant case there can be only one answer that the intention of the testator was only to provide for the continuance without break of the performance of the charities in the manner in which he himself was doing. During his lifetime he had not dedicated the property itself. But as clause 6 shows he was only utilising a small fraction of the income for the performance of the charities. The charities have been specified in schedule E. The limit of expenses also had been mentioned. Above all, there is a distinct provision in Clause 11, the residuary clause, (the clause relating to the ultimate destination of the surplus) which provides that the daughter alone shall take the property and none other. Reading all the clauses together it is clear that what the testator has done under his will is only to create a charge over the properties. The result is that the plaintiff is not entitled to question the alienation. The alienees however can take the property only subject to the burden of providing 11/4 kottahs of paddy and Rs. 10 per year which would be a charge upon the property in the hands of the alienee.