vil Appeal No 262 NC of 1976
From the Judgment and Order dated 2441975 of the Rajasthan High Court in DB Civil ITR No 45 of 1969
Mrs Anjali Verma for JBD  Co and DN Misra for the Appellant
OP Vaish section Rajappa Vinay Vaish SK Aggarwal and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by SINGH J
This appeal is directed against the judgment and order of the High Court of Rajasthan dated 2441975 answering the question referred to it by the Income Tax Appellate Tribunal in the negative in favour of the Revenue and against the assessee
The question referred to the High Court was as under Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the payment of Rs3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act
1961 The circumstances leading to the reference and the appeal was necessary to be stated
The Natural Science India Ltd predecessor ininterest of the assessee acquired a lease from the Maharaja of the 317 erstwhile Bikaner State on September 29 1948 for mining of gypsum for a period of 20 years over an area of 427 square miles at Jamsar
The lease was liable to be renewed after expiring of 20 years
The Natural Science India Ltd by a deed of assignment dated December 11 1948 assigned the rights under the lease to the Bikaner Gypsums Ltd a compa ny wherein the State Government owned 45 per cent share
The Bikaner Gypsums Ltd hereinafter referred to as the asses see carried on the business of mining gypsum in accordance with the terms of conditions stated in the lease
The asses see entered into an agreement with Sindri Fertilizers a Government of India Public Undertaking for the supply of gypsum of minimum of 835 per cent quality
Under the lease the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win work get raise convert and carry away the gypsum for its own benefits in the most economic convenient and beneficial manner and to treat the same by calcination and other proc esses
Clause 2 of Part II of the lease authorised the lessee to sink dig drive quarry make erect maintain and use in the said lands any borings pits shafts in clines drifts tunnels trenches levels water ways airways and other works and to use maintain deepen or extend any existing works of the like nature in the demised land for the purpose of winning and mining of the mineral
Clause 3 granted liberty to erect construction maintain and use on or under the land any engines machinery plant dressing floors furnaces brick kilns like kilns plaster kilns etc
Clause 4 conferred liberty on the lessee to make roads and ways and use existing roads and ways
Clause 7 granted liberty to the assessee to enter upon and use any part of parts of the surface of the said lands for the purpose of stacking heaping or depositing thereon any produce of the mines or works carried on and any earth materials and substance dug or raised under the liberties and powers
Clause 8 conferred liberty on the lessee to enter upon and occupy any of the surface lands within the demised lands other than such as are occupied by dwelling houses or farms and the offices gardens and yards
Clause 9 conferred power on the lessee to acquire take up and occupy such surface lands in the demised lands as were then in the occupation of any body other than the Government on payment of compensation and rent to such occupiers and if the lessee is unable to acquire such land from the tenants and occupiers the Government undertook to acquire such surface land for the lessee at the lessee s cost
Clause 15 of Part II conferred liberty and power on the lessee to do all things which may be necessary for winning working getting the said minerals and also for calcining smelting manufac turing converting and making merchantable
318 Part III of the lease contained restrictions and condi tions to the exercise of the liberties and powers and privi leges as contained in Part II of the lease
Clause 2 of Part III provided that the lessee shall not enter upon or occupy surface of any land in the occupation of any tenant or occupier without making reasonable compensation to such tenant or occupier
Clause 3 prescribed restriction on mining operation within 100 yards from any railway reser voir canal or other public works
It reads as under Clause 3 No mining operations or working shall be carried on or permitted to be carried on by the lessee in or under the said lands at or to any point within a distance of 100 yards from any railway reservoir canal or other public works or any buildings or inhabited site shown on the plan hereto annexed except with the previous permission in writ ing of the Minister or some officer authorised by him in that behalf or otherwise then in accordance with such in structions restrictions and conditions either general or special which may be attached to such permission
The said distance of 100 yards shall be measured in the case of a Railway Reservoir or canal horizontally from the outer of the bank or of outer edge of the cutting as the case may be and in the case of a building horizontally from the plinth thereof
 The above clause had been incorporated in the lease to protect the railway track and railway station which was situate within the area demised to the lessee
Clause 5 of Part VIII of the agreement stated as under Clause 5 If any underground or mineral rights in any lands or mines covered and leased to the lessee in accordance with the provisions of those presents be claimed by any Jagir dar  Pattedar  Talukdar  tenant or other person then and in all such cases the Government shall upon notice from the lessee forthwith put the lessee in possession of all such lands and mines free of all costs and charges to the lessee and any compensation required to be paid to any such Jagir dar Pattedar  Talukdar  tenant or other person claim ing to have any underground or mineral rights shall be paid by the Government The assessee company exclusively carried on the mining of 319 gypsum in the entire area demised to it
The Railway author ities extended the railway area by laying down fresh track providing for railway siding
The Railways further con structed quarters in the lease area without the permission of the assessee company
The assessee company filed a suit in civil court for ejecting the Railway from the encroached area but it failed in the suit
The assessee company there upon approached the Government of Rajasthan which had 45 per cent share of it and the Railway Board for negotiation to remove the Railway Station and track enabling the asses see to carry out the mining operation under the land occu pied by the Railways hereinafter referred to as the Rail way Area 
Since on research and survey the assessee company found that under the Railway Area a high quality of gypsum was available which was required as raw material by the Sindri Fertilizers
All the four parties namely Sindri Fertilizers Government of Rajasthan Railway Board and the assessee company negotiated the matter and ultimately the Railway Board agreed to shift the railway station track and yards to another place or area offered by the assessee
Under the agreement the Railway authorities agreed to shift the station and all its establishments to the alternative site offered by the assessee company and it was further agreed and all the four parties Sindri Fertilizers Govern ment of Rajasthan Indian Railway and the assessee company shall equally bear the total expenses of Rs 12 lakhs in curred by the Railways in shifting the railway station yards and the quarters
Pursuant to the agreement the assessee company paid a sum of Rs3 lakhs as its share to the Northern Railway towards the cost of shifting of the Railway Station and other constructions
In addition to that the assessee company further paid a sum of Rs7300 to the Railways as compensation for the surface rights of the leased land
On the shifting of the Railway track and Sta tion the assessee carried out mining in the erstwhile Rail way Area and it raised gypsum to the extent of 630390 tons and supplied the same to Sindri Fertilizers
The assessee company claimed deduction of Rs3 lakhs paid to the Northern Railway for the shifting of the Railway Station for the assessment year 1964 65
The Income Tax Officer rejected the assessee s claim on the ground that it was a capital expenditure
On appeal by the assessee the Appellate Assistant Commissioner confirmed the order of the Income Tax Officer
On further appeal by the assessee the Income Tax Appellate Tribunal held that the payment of Rs3 lakhs by the assessee company was not a capital expenditure instead it was a revenue expenditure
On an application made by the Revenue the Income Tax Appellate Tribunal hereinaf ter referred to as the 320 Tribunal referred the question as aforesaid to the High Court under section 256 of the Income Tax Act 1961
The High Court held that since on payment of Rs3 lakhs to the Rail way the assessee acquired a new asset which was attributable to capital of enduring nature the sum of Rs 3 lakhs was a capital expenditure and it could not be a revenue expendi ture
On these findings the High Court answered the question in the negative in favour of the Revenue against the asses see and it set aside the order of the Tribunal by the im pugned order
Learned counsel for the appellant contended that since the entire area had been leased out to the assessee for carrying out mining operations the assessee had right to win the minerals which lay under the Railway Area as that land had also been demised
to the assessee
Since the existence of railway station building and yard obstructed the mining operations the assessee paid the amount of Rs3 lakhs for removal of the same with a view to carry on its business profitably
The assessee did not acquire any new asset instead it merely spent money in removing the ob struction to facilitate the mining in a profitable manner
On the other hand learned counsel for the Revenue urged that in view of the restriction imposed by Clause 3 of Part III of the lease the assessee had no right to the surface of the land occupied by the Railways
The assessee acquired that right by paying Rs3 lakhs which resulted into an enduring benefit to it
It was a capital expenditure
Both the counsel referred to a number of decisions in support of their submissions
The question whether a particular expenditure incurred by the assessee is of Capital or Revenue nature is a vexed question which has always presented difficulty before the Courts
There are a number of decisions of this Court and other courts formulating tests for distinguishing the capi tal from revenue expenditure
But the tests so laid down are not exhaustive and it is not possible to reconcile the reasons given in all of them as each decision is rounded on its own facts and circumstances
Since in the instant case the facts are clear it is not necessary to consider each and every case in detail or to analyse the tests laid down in various decisions
However before we consider the facts and circumstances of the case it is necessary to refer to some of the leading cases laying down guidelines for deter mining the question
In Assam Bengal Cement Co Ltd vs The Commissioner of Income Tax West Bengal  this Court observed that in the great diversity of human affairs and the complicated nature of business opera tion it is difficult to lay down a test which would apply to all situations
One has therefore to apply the criteria from the business 320 point of view in order to determine whether on fair appreci ation of the whole situation the expenditure incurred for a particular matter is of the nature of capital expenditure or a revenue expenditure
The Court laid down a simple test for determining the nature of the expenditure
It observed the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring bene fit of the business it is properly attributable to capital and is of the nature of capital expenditure
If on the other hand it is made not for the purpose of bringing into exist ence any such asset or advantage but for running the busi ness or working it with a view to produce the profits it is a revenue expenditure
If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically
The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure
 In KTMTM Abdul Kayoom and Another vs Commissioner of Income Tax  this Court after consider ing a number of English and Indian authorities held that each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect
The Court observed that what is decisive is the nature of the business the nature of the expenditure the nature of the right acquired and their relation inter se and this is the only key to resolve the issue in the light of the general principles which are followed in such cases
In that case the assessee claimed deduction of Rs6 111 paid by it to the Government as lease money for the grant of exclusive rights liberty and authority to fish and carry away all chank shells in the sea off the coast line of a certain area specified in the lease for a period of three years
The Court held that the amount of Rs6111 was paid to obtain an enduring benefit in the shape of an exclusive right to fish the payment was not related to the chanks instead it was an amount spent in acquiring an asset from which it may collect its stockin trade
It was therefore an expenditure of a capital nature
In Bombay Steam Navigation Co Pvt Ltd vs Commissioner of Income Tax Bombay   the assessee pur chased
the 321 assets of another Company for purposes of carrying on pas senger and ferry services it paid part of the consideration leaving the balance unpaid
Under the agreement of sale the assessee had to pay interest on the unpaid balance of money
The assessee claimed deduction of the amount of interest paid by it under the contract of purchase from its income
The court held that the claim for deduction of amount of interest as revenue expenditure was not admissible
The Court observed that while considering the question the Court
should con  sider the nature and ordinary course of business and the object for which the expenditure is in curred
If the outgoing or expenditure is so related to the carrying on or conduct of the business that it may be regarded as an integral part of the profit earning process and not for acquisition of an asset or a right of a perma nent character the possession of which is a condition for the carrying on of the business the expenditure may be regarded as revenue expenditure
But on the facts of the case the Court held that the assessee s claim was not admissible as the expenditure was related to the acquisi tion of an asset or a right of a permanent character the possession of which was a condition for carrying the busi ness
The High Court has relied upon the decision of this Court in RB Seth Moolchand Suganchand vs Commissioner of Income Tax New Delhi  in rejecting the assessee s contention
In Suganchand s case the assessee was carrying on a mining business he had paid a sum of Rs 153800 to acquire lease of certain areas of land bearing mica for a period of 20 years
Those areas had already been worked for 15 years by other lessees
The assessee had paid a sum of Rs3200 as fee for a licence for prospecting for emerald for a period of one year
In addition to the fee the assessee had to pay royalty on the emerald excavated and sold
The assessee claimed the expenditure of Rs3200 paid by it as fee to the Government for prospecting licence as revenue expenditure
The assessee further claimed that the appropriate part of Rs 153800 paid by it as lease money was allow able as revenue expenditure
The Court held that while considering the question in relation to the mining leases an empirical test is that where minerals have to be won extracted and brought to surface by mining operations the expenditure incurred for acquiring such a right would be of a capital nature
But where the mineral has already been gotten and is on the surface then the expenditure incurred for obtaining the right to acquire the raw material would be a revenue expenditure
The Court held that since the payment of tender money was for acquisition of capital asset the same could not be treated as a revenue expenditure
As regards the claim relating to the prospecting licence 322 fee of Rs3200 the Court held that since the licence was for prospecting only and as the assessee had not started working a mine the payment was made to the Government with the object of initiating the business
The Court held that even though the amount of prospecting licence fee was for a period of one year it did not make any difference as the fee was paid to obtain a licence to investigate search and find the mineral with the object of conducting the business extracting ore from the earth necessary for initiating the business
The facts involved in that case are totally dif ferent from the instant case
The assessee in the instant case never claimed any deduction with regard to the licence fee or royalty paid by it instead the claim relates to the amount spent on the removal of a restriction which obstruct ed the carrying of the business of mining within a particu lar area in respect of which the assessee had already ac quired mining rights
The payment of Rs3 lakhs for shifting of the Railway track and Railway Station was not made for initiating the business of mining operations or for acquir ing any right instead the payment was made to remove ob struction to facilitate the business of mining
The princi ples laid down in Suganchand s case do not apply to the instant case
In British Insulated and Helsby Cables Ltd vs Atherton  Lord Cave laid down a test which has almost universely been accepted
Lord Cave observed  when an expenditure is made not only once and for all but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade I think that there is very good reason in the absence of special circum stances leading to an opposite conclusion for treating such an expenditure as properly attributable not to revenue out to capital This dictum has been followed and approval by this Court in the cases of Assam Bengal Cement Co Ltd supra Abdul Kayoom supra and Seth Suganchand supra and several other decisions of this Court
But the test laid down by Lord Cave has been explained in a number of cases which show that the tests for considering the expenditure for the purposes of bringing into existence as an asset or an advantage for the enduring benefit of a trade is not always true and perhaps Lord Cave himself had in mind that the test of enduring benefit of a trade would be a good test in the absence of special circumstances leading to an opposite conclusion
Therefore the test laid down by Lord Cave was not a conclusive one as Lord Cave himself did not regard his test 323 as a conclusive one and he recognised that special circum stances might very well lead to an opposite conclusion
In Gotan Lime Syndicate vs C I T Rajasthan  Delhi 18 the assessee which carried on the busi ness of manufacturing lime from limestone was granted the right to excavate limestone in certain areas under a lease
Under the lease the assessee had to pay royalty of Rs96000 per annum
The assessee claimed the payment of Rs96000 to the Government as a revenue expenditure
This Court after considering its earlier decision in Abdul Kayoom s case supra and also the decision of Lord Cave in British Insu lated supra held that the royalty paid by the assessee has to be allowed as revenue expenditure as it had relation to the raw materials to be excavated and extracted
The Court observed that the royalty payment including the dead rent had relation to the lime deposits
The Court observed although the assessee did derive an advantage and further even though the advantage lasted at least for a period of five years there was no payment made once for all
No lump sum payment was ever settled instead only an annual royal ty and dead rent was paid
The Court held that the royalty was not a direct payment for securing an enduring benefit instead it had relation to the raw materials to be obtained
In this decision expenditure for securing an advantage which was to last at least for a period of five years was not treated to have enduring benefit
In MA Jabbar vs CIT Andhra Pradesh Hyderabad   the assessee was carrying on the business of supplying lime and sand and for the purposes of acquiring sand he had obtained a lease of a river bed from the State Government for a period of 11 months
Under the lease he had to pay large amount of lease money for the grant of an exclusive right to carry away sand within under or upon the land
The assessee in proceedings for assessment of incometax claimed deduction with regard to the amount paid as lease money
The Court held that the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of permanent character instead the expenditure was for a specific object of ena bling the assessee to remove the sand lying on the surface of the land which was stock in trade of the business there fore the expenditure was a revenue expenditure
Whether payments made by an assessee for removal of any restriction or obstacle to its business would be in the nature of capital or revenue expenditure has been consid ered by courts
In Commissioner of Inland Revenue vs Carron Company 1966 69 45 Tax Cases 13 the assessee carried on the business of iron founders which was incor 325 porated by a Charter granted to it in 1773
By passage of time many of its features had become archaic and unsuited to modern conditions and the company s commercial performance was suffering a progressive decline
The Charter of the company placed restriction on the company s borrowing powers and it placed restriction on voting rights of certain mem bers
The company decided to petition for a supplementary Charter providing for the vesting of the management in Board of Directors and for the removal of the limitation on compa ny s borrowing powers and restrictions on the issue and transfer of shares
The company s petition was contested by dissenting share holders in court
The company settled the litigation under which it had to pay the cost of legal action and buy out the holdings of the dissenting share holders and in pursuance thereof a supplementary Charter was granted
In assessment proceedings the company claimed deduction of payments made by it towards the cost of obtain ing the Charter the amounts paid to the dissenting share holders and expensed in the action
The Special Commissioner held that the company was entitled to the deductions
On appeal the House of Lords held that since the object of the new Charter was to remove obstacle to profitable trading and the engagement of a competent Manager and the removal of restrictions on borrowing facilitated the day to day trading operation of the company the expenditure was on income account
The House of Lords considered the test laid down by Lord Cave LC in British Insulated Company s case and held that the payments made by the company were for the purpose of removing of disability of the company trading operation which prejudiced its operation
This was achieved without acquisition of any tangible or intangible asset or without creation of any new branch of trading activity
From a commercial and business point of view nothing in the nature of additional fixed capital was thereby achieved
The Court pointed out that there is a sharp distinction between the removal of a disability on one hand payment for which is a revenue payment and the bringing into existence of an advantage payment for which may be a capital payment
Since in the case before the Court the Company had made payments for removal of disabilities which confined their business under the out of date Charter of 1773 the expendi ture was on revenue account
In Empire Jute Company vs CI T 1980 124 ITR I this Court held that expenditure made by an assessee for the purpose of removing the restriction on the number of working hours with a view to increase its profits was in the nature of revenue expenditure
The Court observed that if the advantage consists merely in facilitat ing the assessee s trading operations of enabling the man agement and conduct of the assessee s business to be carried on more efficiently or more profitably while leaving 326 he fixed capital untouched the expenditure would be on revenue account even though the advantage may endure for an indefinite future
We agree with the view taken in the aforesaid two decisions
In our opinion where the assessee has an existing right to carry on a business any expendi ture made by it during the course of business for the pur pose of removal of any restriction or obstruction or disa bility would be on revenue account provided the expenditure does not acquire any capital asset
Payments made for remov al of restriction obstruction or disability may result in acquiring benefits to the business but that by itself would not acquire any capital asset
In the instant case the assessee had been granted mining lease in respect of 427 square miles at Jamsar under which he had right to sink dig drive quarry and extract mineral ie the gypsum and in that process he had right to dig the surface of the entire money licence fee and other charges for securing the right of mining in respect of the entire area of 427 square miles including the right to the miner als under the Railway Area
The High Court has held that on payment of Rs3 lakhs the assessee acquired capital asset of an enduring nature
The High Court failed to appreciate that Clause 3 was only restrictive in nature it did not destroy the assessee s right to the minerals found under the Railway Area
The restriction operated as an obstacle to the assessee s right to carry on business in a profitable man ner
The assesse paid a sum of Rs3 lakhs towards the cost of removal of the obstructions which enabled the assessee to carry on its business of mining in an area which had already been leased out to it for that purpose
There was there fore no acquisition of any capital asset
here is no dis pute that the assessee completed mining operations on the released land Railway Area within a period of 2 years in the circumstances the High Court s view that the benefit acquired by the assessee on the payment of the disputed amount was a benefit of an enduring nature is not sustain able in law
As already observed there may be circumstances where expenditure even if incurred for obtaining advantage of enduring benefit may not amount to acquisition of asset
The facts of each case have to be borne in mind in consider ing the question having regard to the nature of business its requirement and the nature of the advantage in commercial sense
In considering the cases of mining business the nature of the lease the purpose for which expenditure is made its relation to the carrying on of the business in a profitable manner should be considered
In the instant case existence of Railway Station yard and buildings on the surface of the demised land operated as an obstruction to 327 the assessee s business of mining
The Railway Authorities agreed to shift the Railway establishment to facilitate the assessee to carry on his business in a profitable manner and for the purposes the assessee paid a sum of Rs3 lakhs towards the cost of shifting the Railway construction
The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advan tage of an enduring nature
The Tribunal rightly allowed the expenditure on revenue account
The High Court in our opin ion failed to appreciate the true nature of the expenditure
We are therefore of the opinion that the High Court committed error in interfering with the findings recorded by the Income Tax Appellate Tribunal
We accordingly allow the appeal set aside the order of the High Court and re store the order of the Tribunal
The appellant is entitled to its costs
NVK Appeal allowed


Summary:
K bequeathed his properties describing them in five Schedules A B C D and E
In respect of the E  schedule properties he created an endowment stating that after his death it should be managed for construction of his own tomb or samadhi and for performing poojas and ceremonies thereat
Two of the legatees under the will filed a suit against the third legatee the manager of the trust for partition and possession of the E schedule properties as well as for rendition of accounts pertaining to the income from the said properties contending i that under Hindu Law the testator could not have created an endowment of properties for con struction of his own tomb or samadhi for performing poojas and ceremonies thereat ii since the testator had be queathed his properties for Samadhi Kainkaryam the Trust was invalid and that the said properties should be shared by the plaintiffs and the defendant under the residuary clause of the will as if they remained undisposed of by the testator
The defendant resisted the suit contending that Matam and the Samadhi were constructed for different purposes and it is only at the Matam that the ceremonies and Guru Pooja were performed with feeding the poor and distribution of saffron clothes and that these acts were distinctly and substantially religious and charitable purposes
The subordinate judge accepted the plaintiff s case declaring that the dedication of the E  schedule properties was invalid and accordingly he decreed the suit
236 On appeal the District Judge dismissed the suit with a direction to the defendant for rendition of accounts of the surplus income from the properties on the ground that dedi cation of properties by the testator was for charitable or religious in nature
On second appeal a single Judge of the High Court dismissed the suit for partition but affirmed the decree for accounting the surplus income from the properties referable to the Matam and charities by holding i that the trust in respect of the properties for construction of samadhi was not valid as it was not recognised under the Hindu Law II but the endowment and directions as to application of the property for construction of Matam and performance of cere monies and pooja were valid since they were religious and charitable in nature
On further appeal by Letters Patent the Division Bench of the High Court relying upon the decision of the Privy Council in N Subramania Pillai vs A Draviyasundaram Pil lai AIR 1950 PC 37 held that the entire endowment was invalid under Hindu Law
Hence this appeal
Allowing the appeal this Court HELD 1
The perpetual dedication of property for construction of a samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto is not recognised as charitable or religions purpose among the Hindus
But the Samadhi of a Saint stands on a different footing
Therefore the provision made by the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid
242A B Kunhamutty vs T Ahmad Musaliar  Ors ILR  A Draviyasundaram Pillai vs N Subramania Pillai ILR and Veluswami Goundan vs Dandapani  approved
Saraswati Ammal vs Rajagopal Ammal  and Nagu Reddiar  Ors
vs Banu Reddiar  Ors   referred to
It is one of the cardinal principles of construc tion of Wills that wherever it is possible effect should he given to every bequest of the testator unless it is opposed to law custom or practice
If the testator has set apart the property intended for endowment and disclosed his 237 charitable intent in any one of his directions such direc tion may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion or Hindu Law
Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved
242G H 21 In the instant case the scheduled properties have been endowed for construction of a Samadhi and Matam and for performing religious rites and charitable acts
The Samadhi and Matam are constructed in the same survey number but are independent of each other separated by a distance
The other provisions in the will relating to performance of annual ceremonies conducting Guru Pooja feeding the poor and distribution of saffron coloured clothes to medicants are independent and have no connection with the Samadhi
Consequently the entire dedication of the Scheduled proper ties will not fail
243A B N Subramania Pillai vs A Draviyasundram Pillai AIR  held inapplicable
In construing the validity of an endowment created under a Will the Court cannot be guided merely by the acts of the Manager or the manner in which the executor of the Will has understood the directions of the testator
The Court is required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will
31 A trust cannot be rendered invalid on the ground that the directions of the testator are in general terms and that there is no particular mention in the will as to whom Guru Pooja is required to be performed since no particular deity is named in the Will
It is for the Court to ascertain the presumed intention of the testator and given effect to it
Therefore where no deity is named in the deed of endow ment the Court should ascertain the sect to which the donor belonged the tenets which he held the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained
These are the safe guides
244E  F Veluswami Goundan vs Dandapani 1946 1 MLJ 354 AIR 1946 Mad 485 referred to 32 In the instant case there is no indication in the Will that Guru Pooja should be performed to the testator
On the other hand the terms 238 in the Will show that the testator was a great devotee of Lord Subramaniaswami
The evidence also indicates that Guru Pooja is being performed to Lord Subramanya followed by poor feeding and distribution of saffron coloured clothes
These terms of the will clearly specify the religious or charita ble purposes
Therefore the endowment with regard to these purposes is upheld
244E  G H 33 Annual Shradha or anniversary is a religious rite
The permanent dedication of properties for performance of annual ceremonies of the testator is equally valid
245A 4
The Division Bench of the High Court was therefore in error in invalidating the entire endowment
Accordingly the judgment of the Division Bench is reversed and the judgment and decree of the Single Judge are restored
245B C 5
In Hindu system there is no line of demarcation between religion and charity
On the other hand charity is regarded as a part of religion
But what are purely reli gious purposes and what religious purposes will be charita ble must be entirely decided according to Hindu Law and Hindu notions
241G H Hindu Law of Religious  Charitable Trusts by BK Mukherjea 5th Edn
p 11 Mayne s Hindu Law 11th Edn
p 912 referred to