NEMATHANPATTI M M PL ANNADANA CHATRAM THROUGH ITS MANAGING TRUSTEE M M PL CHOKKALINGAM CHETTIAR Vs. PKPRMRAMAN CHETTIAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the appellant as the managing trustee of a certain charity known as "M.M. PL. Annadana Chatram" at Nemathanpatti, Bamnad district, for release of a certain land and building from attachment effected in execution of a decree, obtained by respondent 1 (hereinafter referred to as the respondent) against the legal representatives of one M.M. PL. Palaniappa; Chetty. Palaniappa Chetty was carrying on banking and money-lending business in various places in India and Burma with his headquarters at Nemathanpatti. In 1923 the-respondent brought a suit against Palaniappa and others in the DistrictCourt of; Pyapone in Burma for recovery of possession of certain lands and premises with mesne profits. During the pendency of the suit, Palaniappa died in 1925, having made a will dated 2 June, 1925 whereby he bequeathed the bulk of his separate properties-to various charities and appointed his two-sons, Chokbalingam Chetty, the appellant herein, and Kasi Chetty, executors under the will to carry out the directions contained therein. These executors were brought on record as the legal representatives of Palaniappa in the suit. Kasi died subsequently and his widow Alamelu Achi was substituted in his place. After a protracted trial the suit ended in a final decree, dated 16 October 1939, directing the appellant and Alamelu, Achi to pay to the plaintiff, the respondent in the present appeal, a sum of Rs. 83,131-13-0 for mesne profits and costs. This decree was-transferred to the Court of the Subordinate Judge of Devakottai for execution and among other properties the house property now in. question was attached by order of Court dated 81 January 1941. The appellant objected to the attachment of the suit property on the ground that it was "a choultry for poor feeding" having been dedicated by his, father to the said charity. The objection was overruled by order dated 1 April 1941. The appellant then filed a petition on 9tb April 1941 under Order 21, Rule 58, Civil P.C., on behalf of "Nemathanpatti Annadana Chatram" as the managing trustee thereof claiming that the building placed under attachment belonged to the Annadana Chatram charity started by his father, that he was feeding Brahmins and other persons every day in that building and that he had no other right therein except the right of a trustee. He accordingly prayed that the property should be declared to belong to Nemathanpatti M.M. PL. Annadana Chatram and released from the attachment. The claim was rejected by order dated 27 July 1941 and this suit was brought on 20th. November 1941 under Order 21, Rule 63 to establish, the right claimed by the appellant as the managing trustee for and on behalf of the charity to the property attached. The trial Court decreed the claim and raised the attachment, but the lower appellate Court k reversed the decree an dismissed the suit holding, among other things, that no dedication of the suit property to any charitable purpose was made out.

(2.) The main question for determination in this second appeal accordingly is whether there has been such a completed dedication of the suit building for the charitable purpose of free feeding of the poor that Palaniappa or his representatives could no longer claim property in it. Before considering the question, it will be convenient to state a few facts which form the background and as to which there has been no dispute before us. Palaniappa Chetty became divided from his sons and his brother's sons in 1919 and his first wife, the mother of the appellant, died in Karthigai of the Tamil year Dunmathi corresponding to November-December 1921. On the 16 day of her death, the concluding day of the funeral ceremonies, Palaniappa started in honour of her memory the charity of feeding the poor in an old building belonging to him in his native village Nemathanpatti. No fund, however, was set apart as an endowment for the purpose at the time. In or about September 1922, Palaniappa Ohetty began the construction of the salt building. The accounts maintained by Palaniappa Chetty between 1923 and 1,923 have been filed as Ex. P-3 and they show that Palaniappa was entering the sums spent for the construction of the building in a separate folio headed "Chatram building account." Before the construction was completed, he died, as already stated, in 1925, and the building was finished early in 1926. On its completion, an inscription carved in stone with the words "M.M. PL. Nemathanpatti Annadhana Dharmasala" in Tamil was fixed above the front doorway. The building as completed includes a small temple devoted to the deity, Sri Subrahmanya, built in the traditional style with a gopuram or turret above the roof, a stupi or flag post and a stone peacock, the emblem of the deity, in front. Within the compound of the premises are a small tank and a nandavanam or garden for the supply of flowers for worship in the temple. The building comprises a lecture hall and spacious pials, and the total cost of construction amounted to about 1 1/2 lakhs of rupees.

(3.) Turning now to the main question, the learned Advocate-General put the case for the appellant in two ways : The legal effect of the facts adverted to above, taken cumulatively, was to establish an appropriation, even during the lifetime of Palaniappa, of the land and the superstructure under construction to the charitable purpose of using the same when completed for feeding the poor. Alternatively, if there was no such appropriation during his life, the land and building were devised under his will to the ehatram charity. As reliance was placed on the recitals in the will in support of the first branch of the contention also, it will be convenient to set out here the relevant provisions in some detail. After referring to the members of the family, the partition of 1919, the state of his health, and the necessity for making arrangements in respect of the matters connected with the affair of charity, namely, my estate's private charities, which are being and have been till now conducted by me, the will proceeds as follows: In respect of the properties relating to charity out of my personal properties, an account is maintained in the name and style of PL. T. and in respect of other properties an account is maintained in the name and style of M.M. PL. Particulars are mentioned in the charity accounts as to what amounts have been set apart till now for the respective charities and what amounts have been set apart as funds therefor till now, what amounts have been spent till now in connexion with charities from the funds set apart therefor and what amounts have been given to others which are to be realised. Such amounts as are to be realised should be duly realised and added to the said fund. Apart from the already existing building, etc., set apart for Annadhana Chatram Charity founded in Nemathanpatti the building which is now under construction on the eastern side of the road and which is almost complete except for a small portion, should be completed and the said Annadhana charity should be properly conducted from out of the said charity funds. The charities, namely, Nandavanam (flower garden), Pasumadam (cow sheds), Vedaparayanam Patasalai temple kattalais, etc, started by me in Viralimalai should be properly conducted. The buildings situate in that village and the buildings set apart for the respective charities should be used for that charity only. The abovementioned charities should be well conducted according to the same dittam (established scale) as they have been conducted till now, having regard to circumstances, the then prevailing rates and prices, by increasing or decreasing their dittam according to discretion. Then follow certain bequests to his second wife and his daughter after which the will continues as follows: The funds remaining after meeting the expenses of these items which are to be met from my estate as aforesaid should be added to my private charity funds. Those who are holding the position of executors as mentioned below have authority to manage all matters connected with my private charities and my estate as aforesaid, to conduct all that should be duly conducted to maintain accounts properly in respect therefor, to sell or exchange, having regard to profit the circumstances and the necessity, all the movable and immovable properties except those buildings that have been ear-marked for the respective charities. As I have appointed my eldest son Muthukaruppan Chettiar alias Kasi Viswanathan Chittiar and Chokkalingam Chettiar as executors for conducting all the acts aforesaid they and after them, their eldest male heirs shall duly hold the position of the executors and they shall conduct all matters as mentioned above.