ppeal No 147 of 1956
Appeal from the judgment and decree dated August 7 1952 of the Madras High Court in A section No 809 of 1947 arising out of the judgment and decree dated October 31 1947 of the Sub Judge Tenali in 0
section No 64 of 1944
K R Chaudri T section Venkataraman and K B Sharma for the appellants
N Subramanyam and T Satyanarayana for the respondent
January 15
The Judgment of the Court was delivered by KAPUR J
This is an appeal against the judgment and decree of the High Court of Madras varying the decree of the trial court
The appellants were the defendants in the trial court and the respondent was the plaintiff who was represented by the sole trustee appointed by the Hindu Religious Endowment Board
The suit was brought by the deity through the sole trustee for recovery of Rs 3480 towards the arrears of income of the property in trust for the years 1942 44 and for a direction for future payment at the rate of 160 bags of paddy per year or its equivalent ie Rs 1680
The plaintiff alleged that the property in dispute constituted a specific endowment for Kalyanotsavam of the deity and that the defendants who were trustees had committed default in carrying out the purpose of the trust
The prayer was for a decree for the recovery of expenses of Kalyanotsavam and of the feeding charges
The defence raised was 98 770 that the inam was a personal grant for driving the car of the deity on the festival days and that it was not a specific trust or an endowment for the benefit of the idol
In other words it was a grant of the inam burdened with service to the god
There were other pleas raised in regard to jurisdiction res judicata and adverse possession
The trial court held that the grant was a specific endowment for the Kalyanotsavam of the deity but the appellants were not bound to spend the whole income of the lands for the purpose
It decreed a sum of Rs 200 per year as adequate provision for the performance of the service of Kalyanotsavam
The other pleas raised were decided against the appellants
In the High Court the only point argued was regarding the nature of the grant and as in the opinion of that court a general trustee could not call upon a specific trustee to pay any money except on the ground of expending that amount and there was no proof of this expenditure the prayer as contained in the plaint was not granted and the High Court was also of the opinion that as all the facts had been pleaded and there were no new facts to be alleged and the parties were alive to the real nature of the dispute and had even the issues framed on that very question it allowed the plaint to be amended by the addition of the prayer for a declaration that the properties in the schedule and the income thereof formed a specific endowment for the due performance of the services of Kalyanotsavam of the deity and feeding charges and other expenses incidental thereto and the appellants were therefore liable to pay the entire income
It was also of the opinion that all the available evidence had been adduced by both the parties and that the prayer for declaration was only a formal relief which flowed from the allegations in the plaint
It neither involved a change of the cause of action nor did it require a fresh trail and therefore the petition for amendment was allowed by the addition of the prayer stated above
In this appeal counsel for the appellant has raised hreet points 1 that the suit wag not maintainable 771 2that the amendment should not have been allowed and 3 the grant was a personal grant to the appellants burdened with the provision for service and it was not a specific endowment
As far as the first question is concerned it has not been shown as to how the suit was not maintainable
The question of amendment in our opinion was rightly decided by the High Court
As held by that court all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants an issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was led by the parties
In this view of the matter the High Court was right in allowing the amendment by the addition of a prayer in the prayer clause
We then come to the question of the nature of grant which on a consideration of the documentary evidence and other evidence has been found by both the courts below to be a specific endowment for Kalyanotsavam
This finding was challenged by the appellant
For that purpose it is necessary to consider the inam papers which form the main and basic documentary evidence by the appellant
Inam registers have always been treated as evidence of the utmost importance
The first document to be considered is of the year 1859 60 which is a copy of the inam statement made by N Buchayya the ancestor of the present appellants
Column 1 of this document shows the names of the inamdars and the enjoyers to be  N Buchayya the present enjoyment is towards the Kalyanotsavam  of the deity
Columns 4  5 give the residence and name of the original inamdars
In Column 5 are given the particulars of the family of the then enjoyers and the entry is for the deity s Kalyanotsavam
In Column 6 is given the name of the grantor who gave the land to the grantee and  with the income therefrom he has been performing Sri Swami Varu s Kalyanotsavam from that time 
Columns 7 9 give the extent of the land
In Column 11 particulars relating to the present enjoyment are to be given and the entry was Sri Swami Varu s 772 Kalyanotsavam
In Column 12 it was shown that the grant was revenue free and the land was under the cultivation of Buchayya the income of which was Rs 11 per annum
The entries show that the inam was granted as a specific endowment for the Kalyanotsavam of the deity and the amount was spent in the services of the deity
The next document to be considered is a copy of the inam fair register of May 16 1860
The High Court finding that some of the entries in that document were not clear sent for the original register from the Collector s office and it was found that some of the entries were not in the original at all
In Column 8 the words driving the car  were not to be found and the remarks in Column 12 to the effect that the purpose for which the inam was granted is not stated  were not in the original register
In Column 2 of this document the general class to which the inam belonged is shown as religious endowment
Column 8 relates to the description of the inam and the entry is For service in the pagoda The service is performed 
Columns 9 11 relate to tenure
Column 12 has already been discussed
In Column 9 it is shown as free of tax
In Column 13 the name of the original grantee is shown to be the ancestor of the appellants
In Column 15 the entry is In fasli 1223 Viresalingam 0 8 8 In fasli 1236 Nanduri Vissanna Buchayya for service during the festival of the pagoda 0 8 O 
In Column 21 the entry contains the following To be confirmed and continued so long as the service is performed
In fasli 1216 the inamdar is entered as village servant but it is ascertained and is entered in fasli 1256 that service is performed from a long time in the pagoda 
In Column 22 it is stated confirmed  and below that is given the number of the title deed to be TD 243
From these documents and from the fact that neither the sanad nor the inam title deed was produced and taking into consideration some admissions of the predecessors of the appellants where it was admitted that they were dharmakartas of the Kalyanotsavam and had been performing that service the High Court came to the conclusion that the inam 773 lands in dispute were endowed for Kalyanotsavam and other purposes incidental thereto and constituted a specific trust and the appellants were trustees thereof
It was urged by counsel for that appellants that the words in the inam register that the grant was tocontinue as long as the service is performed were indicative of the fact that the grant was not to the deity but to them individually with the added obligation of spending from out of the income on the particular service to the deity
A combined reading of the two documents ie statement of the ancestor of the appellants and the inam register shows that the grant was a specific endowment and that the lands were endowed for the purpose of Kalyanotsavam and for other purposes incidental thereto and constituted a specific trust
The courts below have found this to be the nature of the trust and even if two inferences were possible from the reading of these two documents there is no reason why the view taken by the courts below should be interfered with particularly when there are admissions by the predecessors of the appellants which support the view of the courts below
Besides those words do not necessarily mean that the grant was to the individual with the added obligation to spend on the performance of service
In the present case it is not stated in the inam fair register that the grant was to be confirmed in favour of Buchayya and continue so long as the service was performed
This kind of language used in inam registers has been discussed in some decided cases in the Madras High Court eg Hindu Religious Endowments Madras vs Thadikonda Koteswara Rao1 where this distinction Was prominently brought out between the words  to be confirmed so long as the service is performed and  to be confirmed to the party so long as he continues the performance of the services
The latter was held to be a personal grant and the former was not so held
We are therefore of the opinion that the finding of the High Court that the grant was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellant with 1 774 the added obligation of spending on the service must be accepted to be correct
The next question for decision is as to what portion of the income of the inam lands is to be expended on the service to the deity
The courts below are not in accord on this point
The trial court held that Rs 200 out of the income should be adequate for the purpose and the High Court applied Cy Pres doctrine and held the whole income to be for the deity even though it exceeded the expenditure for the particular service
One of the facts which emerges from the inam register is that when the grant was made the specific charitable payments exhausted the income of the property and it is a fair inference to draw therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity Hindu Religious Endowments vs Thadikonda Kotesuwararao 1 Tudor
on Charities 5 Ed p 164 Laws of England Vol 4 para 624 p 303
The High Court was therefore justified in holding that the whole of the income was to go to deity thus varying the judgment of the trial court that only a portion of it was to be so employed
The High Court applied Cy pres doctrine relying on N Sankaranarayana Pillayan  Ors
vs The Board of Commissioners for Hindu Religious Endowments Madras 2
It was there held that where the grant is to the deity and the income is ear marked for the services for which the specific endowment is created if there is a surplus which cannot be spent on these services it would be a case for the application of the Cy pres doctrine
Taking into consideration that originally the inam income
was only Rs 11 the whole of which was to be and was expended on the service of deity ie Kalyanotsavam and considering the nature of the grant the High Court has rightly applied Cy pres doctrine
We are therefore of the opinion that the judgment of the High Court was right and we dismiss this appeal with costs
Appeal dismissed
1 2 1947 LR 74 IA 230


Summary:
A Hindu was found to be a lunatic when succession opened
It was claimed that under the texts lunacy must be congenital to exclude from inheritance
Held under the Hindu law lunacy as distinct from idiocy need not be congenital to exclude from inheritance if it existed when succession opened
Muthusami vs Meenammal  Wooma Parshad Roy vs Grish Chunker Prochundo Cal
639 and Deo Kishen vs Budh Prakash All 509 FBapproved
Murarji Gokuldas vs Parvatibai Bom
177 and Sanku vs Puttamma Mad 289 disapproved