Case: Saraswathi Ammal And Another Vs. Rajagopal Ammal

The plaintiff and the 1st defendant are daughters of one Kanakasabapathi Pillai. The 2nd defendant is the husband of the 1st defendant. Kanakasabapathi was a self-made man and built up a flourishing motor bus service and also acquired substantial properties, movable and immovable. He died on the 24th August, 1942, without any male issue and left him surviving a widow, Gomathi Ammal, and two daughters, the plaintiff and the 1st defendant. His widow continued the motor service and managed the other properties with the help of the 2nd defendant as her manager and died on the 7th March, 1940. The 1st defendant and her husband were throughout living with her mother. On her mothers death they both got into possession of all the properties including the motor service. The plaintiff accordingly brought the present suit originally as one for administration but later amended it as one for partition and separate possession of her half shall share in the properties. Both the courts below have decreed partition with ancillary reliefs. There are some minor variations in the decree of the High Court from that of the Subordinate Judge, details of which it is not necessary to notice. The defendants are the appellants beforebefore her death, the widow, Gomathi Ammal, executed two documents both on the same day, namely the 4th November, 1940, (1) a sale deed by which she conveyed the entire bus service as a going concern to the 2nd defendant for consideration of Rs. 80, 000/- (vide Exhibit D-6); and (2) a settlement deed by which she dedicated some immovable properties worth about Rs. 27, 000/- for the performance of certain services purporting to be of a religious and charitable character (Vide Exhibit D-8). The main dispute between the parties was as to the validity of these two deeds, apart from certain minor contest as to whether some of the suit properties were part of Kanakasabapathis estate and liable for partition. As regards the sale deed (Exhibit D-6) both the courts below have concurrently found that it was executed for grossly inadequate consideration and brought about by undue influence and fraud of the 2nd defendant. The sale deed was accordingly set aside. With reference to the dispute as regards the individual items of property, the Subordinate Judge found that item 25 of Schedule II, item 6 of Schedule III-C and item 5 of Schedule IV did not form part of the estate of Kanakasabapathi and that all the other items belonged to the said estate. This finding also has been confirmed by the High Court. There is no further appeal to this court as regards these matters.

Reasoning: From the recitals in the settlement deed set out above, it will be seen that items 1 to 6 are vacant sites, and that the samadhi is in item 1, while items 2 to 6 have been set apart along with item 1 for the benefit of and free access to the samadhi. All the other items 7 to 25 have been dedicated in order that the income thereof may be utilised for the following(1) Expenses in connection with the daily pooja of the said samadhi and the salary of the person conducting the daily pooja; (2) Gurupooja and annadhanam to be performed annually at the samadhi on Thiruvona Nakshathram day in Avani when he died, that is, the day of the annual sradh of late Kanakasabapathi; and (3) any balance left over after meeting the above expenses to be spent for matters connected with education. Learned counsel for the appellants points out that the recitals in the deed show that only a sum of Rs. 200 had been spent by the widow in connection with the expenses of daily pooja and that as much as Rs. 1, 000 had been spent for Gurupooja and Annadhanam on the day of annual sradh, and that it was to enable the Gurupooja and annual sradh to be performed regularly on more or less the same scale that items 7 to 25 of Schedule II to the plaint with their income has been dedicated. It is urged, therefore, that the performance of the pooja and the feeding at the annual sradh on a substantial scale and the utilisation of the balance, if any, for educational purposes, were the main destination of the income and hence the main object of the settlement and that accordingly the dedication is valid. We are unable to accede to this contention. There is no evidence in the case as to what "Gurupooja" contemplated in the deed consists of any whether it is not merely worship of the deceased entombed in the samadhi. Though the word "Guru" ordinarily refers to a preceptor, it is not inapplicable to an ancestor considered as Guru. However that may be there is enough in the settlement deed to show what the dominant motive of the dedication is. A careful perusal of the document shows that Gurupooja and annadhanam on the sradh day were contemplated as being parts of the worship at the tomb. There can be no doubt about at least so far as items 1 to 10 are concerned which fetch only a small income. The inspiration and motive for the dedication therefor is the alleged desire of the husband that the properties and their income are to be utilised for the kainkariyam (services) expenses relating to the said samadhi. The dedication of additional items 11 to 25 is only in pursuance of the same impulse. It is recited that during the first year after her husbands death she herself got the daily pooja as well as Gurupooja and annadhanam on the sradh day conducted and spent for the same. Her spending as much as Rs. 1, 000 for Gurupooja and annadhanam on the day of sradh was clearly as part of the samadhi kainkariyam which she had undertaken. It is for the continuance of the samadhi kainkariyam on the same scale that she endowed additional properties over and above what was said to have been endowed at the desire of her husband. It is clear, therefore, that all these various items of expenses are contemplated as expenses for the samadhi kainkariyam and not for any other kind of religious or charitable purpose aswas held in the Madras decisions above noticed that the building of a samadhi or a tomb over the remains of a person and the making of provision for the purpose of Gurupooja and other ceremonies in connection with the same cannot be recognized as charitable or religious purpose according to Hindu law. This is not on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of superstitious uses as such has no application to India. The ground of the Madras decisions is that a trust of the kind can claim exemption from the rule against perpetuity only if it is for a religious and charitable purpose recognised as such by Hindu law and that Hindu law does not recognise dedication for a tomb as a religious or charitable purpose. It is, however, strenuously argued by the learned counsel for the appellants that the perpetual dedication of property in the present case, as in the Madras cases above referred to, must be taken to have been made under the belief that it is productive of spiritual benefit to the deceased and as being somewhat analogous to worship of ancestors at a sradh. It is urged, therefore, that they are for religious purposes and hencedoubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. If such beliefs are to be accepted by courts as being sufficient for valid perpetual dedication of property therefor without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But is cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modernlearned Judges of the Madras High Court appear to have made the Full Bench reference above noticed on an argument before them that erection of tombs for deceased persons and endowment of properties for the upkeep thereof and for the performance of worship threat were common amongst Hindus of certain communities and that it is believed by them to redound to their spiritual benefit, and that the validity of such endowments have been recognized by theit may be assumed that such a practice is not likely to grow up amongst Hindus where cremation and not burial of the dead is the normal practice, except probably as regards sannyasis and in certain dissident communities. We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus.