VENKATACHALAPATHI AIYAR Vs. CHINA MUNA CHAKRAPANI AIYAR

JUDGEMENT

(1.) I agree with the judgment which my learned brother is about to deliver and have nothing to add. Krishnan, J.

(2.) The first question we have to decide in this Second Appeal is whether a trust has been created by the parties with reference to the Rs. 300 and interest dealt with in Ex. A, The lower courts have held that no trust was created but the respondent's vakil has tried to support the decree of the lower appellate court by arguing that in reality a trust was created.

(3.) The question has to be decided entirely on the wording of Ex. A, the agreement between the parties, for there is no other evidence bearing on it, That document says in one portion of it "Rs. 300/- with balance of interest which has been allotted for Dwadasi charity out of the balance still due, shall be allotted for that chanty and a dharmasasanam be executed, and again in another party the sum of Rs. 300/ -with balance of interest relating to the said charity shall not remain with both of us but we shall abide by the advice of mediators and conduct the charity".! It seems to me that the lower courts are right in holding that the parties contemplated taking the advice of mediators in settling the details of the trust they desired to create and embodying those terms in a dharmasasanam or formal deed of trust before the trust was to be taken as created The language of Ex. A in saying "shall be allotted and a dharma sasanam be executed" seems clearly to point to a trust to be created in the future by a proper deed. No doubt Ex. A uses the expression "which has been allotted" with reference to the Rs. 300--but that must be read with what follows and I think it only means "which we have agreed to allot". in my opinion Ex. A only evidences an agreement between the plaintiff and the defendant to so allot the money by a proper deed of trust to be executed thereafter and as no such deed has yet been executed the matter has not passed beyond the stage of agreement into the stage of a completed trust or dedication to charity. If the money had already been dedicated to charity it would not be open to the parties to revoke that dedication or resile from the arrangement. But I think in the present case there are no words in Ex. A to show that that position has been reached, for I consider that under it, it will still be open to the plaintiff and the defendant jointly to abandon their agreement if they so desire and to take the, money themselves. Plaintiff or defendant perhaps could not by himself give up the arrangement against the wishes of the other but they could I think by mutual consent do so. There is no trust impressed on the money yet, nor have any rights been created in any of the intended beneficiaries, the Brahmins, who are to be fed on Dwadasi days, to insist on the trust being carried out. In fact it seems to me that the parties have not parted with the ownership of the money. They have only agreed to do so in the future,