Case: Sappani Mohamed Mohideen &amp; Anr Vs. R. V. Sethusubramania Pillai &amp; Ors

long usage as to the application of trust funds, the court will not where there is no ambiguity, accept an erroneous interpretation though consistent with usage, so as to sanction a manifest breach of trust".12. Our attention was drawn to a decision of the House of Lords in The Attorney-General v. The Master, Wardens, etc., of the Wax Chandlers Co. (1873) LR 6 HL 1 (at p. 19) wherein it was held:"There is one well-known class of authorities of this sort. A testator devises to a corporate body or to an individual, landed property, and he affixes to that devise a condition that the corporation or the individual shall at their or his own peril, and if necessary out of their own funds, make certain payments, or a certain payment, to some object of his bounty. In a case of that kind the devisee is said to take the land upon condition. If the devise is accepted, the condition must be fulfilled, and the money must be paid, whether the land devised is, or is not, adequate to make the payment. The very statement of a case of that kind implies that the land is the land of the devisee, and that every accretion to the value of the land belongs to the devisee; and that the person or the charity which has the benefit of the condition, which receives the payment mentioned in the condition, has a right to nothing more than that payment"This case meets the requirements of the present case before us. To the same effect there is a passage in Halsburys Laws of England, third edition, volume 4, at page 306:"Speaking generally, the increase will belong to the donee, first, if the gift be to the donee subject to certain payments to others; secondly, if the gift be upon condition of making certain payments subject to a forfeiture upon non-performance of the condition; or, thirdly, if the donee might be a loser by the insufficiency of the fund, (1846) 12 Cl. and Fin 812 H.L. 828 per Lord Cottenham".The case referred to in Halsbury is Jack v. Burnett (1846) 12 Cl. and Fin 812 = 8 ER 1632 wherefrom the following passage is apposite:"In searching for the intention of a donor which is the standard to govern the construction of a deed of gift, the facts, first, that the gift is subject to the condition of making certain payments to others, - secondly, that forfeiture will be incurred by non-performance of that condition, - and, thirdly, that the donee may be subjected to loss by the performance of that condition, are sufficient to raise the presumption that in case of the increase of the fund, the donor intended to give to the donee the benefit of that increase".It was held by the House of Lords in that case "that this was a grant upon condition, and not a mere trust, and that the Principal and Professors were entitled, after satisfying the conditions of the deed of gift, to appropriate to themselves any surplus arising from the land thus given."13. Argument was addressed at the bar with regard to the surplus income from the suit property since with progress of time the value of the property has increased and necessarily its income. We are, however, of the view that for the reasons already discussed in this particular case we will not be required to examine the rule of surplus income in charities for the purpose of discovering the intention of the parties at the time of initial partition.14. The principles that emerge from the above decisions so far as appropriate to the case at hand may briefly be stated.Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case. As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in clause 8 of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in clause 9 of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of clause 9 read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the temple or for the charities as claimed by the plaintiffs-respondents. We may, however, add that the conclusion we have reached from that intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties.To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.15. Having regard to the principles set out above. it is clear that in the present case there was no absolute endowment of the suit property to the temple or the trust.The property, however, is impressed with the obligation or charge of performing the three Kattalais mentioned in clause 9 of the partition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds].There is no reference in clause 9 that this land shall be "allotted for charity" whereas those words clearly appear in clause 8 of the deed. In the entire scheme of the deed there must be a legitimate justification for not allotting the lands mentioned in the ninth schedule for charity. Besides, it is clear on the findings of the courts below that the value of the property in 1882 was inconsiderable and the income out of it was not sufficient to meet the expenses for the charities.A device had, therefore, to be made to keep alive the sacred memory of their parents who were keen to continue these charities out of the ancestral property. Having divided the properties in the manner done in the partition deed, each of the brothers contributed according to his capacity and by mutual adjustment a very substantial share of the expenses was to be borne by Kailasam Pillai and Venkatachalam Pillai, who were entrusted to perform the charities without fail. if necessary, which was even inevitable at the time, out of their own funds. Since it is a common ground that the charities have been performed for years, the burden of the liability must have fallen on Kailasam Pillai and thereafter on Venkatachalam Pillai. It is because of this feature in keeping alive the three charities mentioned in clause 9 that the lands in the ninth schedule were allotted to Kailasam Pillai and Venkatachalam Pillai so that they may get some recompense out of the income of the property if it may somehow or some day be forthcoming.The entire income from the property was little or nil and was not absolutely dedicated to the Temple for the charities. We have got to look at the matter from what the founders intended in the year 1882 and no construction can be given to the document which would frustrate the intention of the founders to keep alive the charities by appropriate performance.If these dry and then barren properties of the ninth schedule were absolutely dedicated to the Temple for performance of the three Kattalais the intention of the founders would have been defeated. It would have been nobodys business income being little or nil. We are therefore clearly of opinion that there is not ambiguity about any of the provisions of this deed which clearly go to show that there was no intendment to create an absolute endowment of the suit property to the Temple or the trust.9. The present value of the property and the present income therefrom will, in our view, not be relevant nor a safe aid to gather the intention of the parties in 1882. We are unable to agree with the High Court that "the wording" of the deed makes it clear beyond doubt that there is an absolute endowment of the property. We are also unable to hold, as the High Court has done, that "the family has divested itself of the ownership and Kailasam has been created trustee therefor". Ext. A-3 on which the High Court relied to reach its conclusion does not, in our opinion, make any departure from the nature of the transaction nor from the original intention of the parties, particularly in view of clause 19 thereof already quoted above. Similarly Ext. A-10 executed in 1936 on which the High Court relied does not unerringly point to any different intention even of the succeeding generation. The first extract quoted earlier from Ext. A-10 does not, in our opinion, relate to the ninth schedule property when the charity has been specifically endowed in the eighth schedule to Ext. A-1. Again the second extract from Ext. A-10, namely, clause 14 (1), earlier set out, does not, in our view, run counter to the original intention of their ancestors. The initial intention to be gathered from an ancient document when the provisions are reasonably clear cannot be readily altered to suit changing conditions over the years. Even so, if somehow it is possible to hold that the subsequent dealing with the property is consistent with the intention of the original parties to the document, as interpreted by us on the terms of the original deed, that course has to be preferred by the court.Besides, in interpreting ancient documents courts have to be cautious to guard against warping of the issue by reference to subsequent conduct of parties or their representatives which may vary for imponderable reasons, bona fide or otherwise.Argument was addressed at the bar with regard to the surplus income from the suit property since with progress of time the value of the property has increased and necessarily its income. We are, however, of the view that for the reasons already discussed in this particular case we will not be required to examine the rule of surplus income in charities for the purpose of discovering the intention of the parties at the time of initial partition.14. The principles that emerge from the above decisions so far as appropriate to the case at hand may briefly be stated.Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case. As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in clause 8 of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in clause 9 of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of clause 9 read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the temple or for the charities as claimed by the plaintiffs-respondents. We may, however, add that the conclusion we have reached from that intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties.To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.15. Having regard to the principles set out above. it is clear that in the present case there was no absolute endowment of the suit property to the temple or the trust.The property, however, is impressed with the obligation or charge of performing the three Kattalais mentioned in clause 9 of the partition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.