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

2. To start with the deed of partition, it appears, the properties of the family were ancestral and were partitioned amongst the five brothers reserving some to be enjoyed in common and allotting certain properties to charities to be administered by one of their brothers, Kailasam Pillai. Reading the entire document it appears that even after the partition Kailasam Pillai and Venkatachalam Pillai desired to enjoy their shares of the property jointly and were in great cordiality while the other three brothers lived and enjoyed their properties separately. It also appears that the second and the third brothers, Kailasam and Venkatachalam were given to piety or, at any rate, were perhaps considered as responsible and solvent persons, who could be entrusted to administer the charities indicated in the deed. There is also reference to family debts and other amicable adjustments amongst the brothers and also to voluntary relinquishment of a share by Sivaramakrishna Pillai. With this brief synopsis we may now extract some material provisions of the partition deed (Ex. A-1) which was written in Tamil and has been officially translated1 : "Out of the entire properties worth Rs. 28,000/- belonging to our family and mentioned in the schedules herein, excluding the properties situate in Rasavallipuram held in common as detailed in para 6 and mentioned in the sixth schedule here, excluding the charity properties as detailed in para 8 and mentioned in the eighth schedule excluding the other wet, dry (lands) gardens and all the properties situate in Kattampuliamanapadayur excluding the property, kept in common from October 1880 as detailed in para 7 and mentioned in the seventh schedule herein, situate in one crop cultivation village Gananthanparou, in the other properties, settled in favour of us in one month of September 1881, dry and wet lands, palmyra trees, etc. in Kilakadu situate in Alangulam Village attached to. Naranamalpuram Jamabandi area, whereas Sivaramakrishna Pillai has relinquished his share in favour of the other four persons as detailed in para 4 out of the aforesaid properties, excepting the properties held in common as detailed in para 11 and mentioned in the 10th schedule the other properties were divided among the other four persons with reference to good and bad by casting chits in the month of January 1882."Clause 2 refers to family houses which need not be quoted.Clause 3 : "As division was effected as detailed in paras 1 and 2, the first schedule properties fell to the share of Sivaramakrishna Pillai amongst us the second and third schedule properties to two persons Kailasam Pillai and Venkatachalam Pillai, the fourth schedule properties to Chidambaram Pillai and the fifth schedule properties to Namasivayam Pillai. Ever since the properties were allotted as aforesaid Kailasam Pillai and Venkatachalam Pillai were enjoying the two shares of their properties in common and the other three persons were enjoying all the other shares of properties separately. That is the second item of Kattampuli land mentioned in fourth schedule which fell to the share of Chidambaram Pillai and the second item of Kattampuli land mentioned in the fifth schedule which fell to the share of Namasivayam Pillai were enjoyed by Kailasam Pillai under usufructuary mortgage rights."Clause 6 : "As the Kulukuthurai Inam Palmyrah trees situate in Rasavallipuram mentioned in the sixth schedule here and one-third share belonging to us five persons could not be conveniently enjoyed by division, it was to be enjoyed in common and the income derived therefrom should be given to the early morning pooja of the seventh day festival in the month of "Thai" of Sabhapati Naicker deity in the Siva Temple situate in Rasavallipuram for expenses for Archana on the 4th Thai Friday every year."Clause 7: "The dry lands, palmyrah trees, gardens and other buildings situate in Gangathanparia mentioned in the 7th schedule herein should be enjoyed in common. The income from the said dry lands and Palmyrah grovers should be divided into five shares and two such shares should be enjoyed in common by Kailasam Pillai and Venkatachalam Pillai and the other three shares by the other three persons independently."Clause 8: "The properties mentioned in the 8th schedule herein and allotted for charity shall be administered in person by Kailsam Pillai and from out of the income of the first item property shall be given to mid-day offering of Thirumenjanam expenses in the Siva Temple in Rasavallipuram. From the second item properties the expenses for the evening pooja of the said temple shall be met, from the third item property the expenses for pooja of Lord Shiva at sepparai on "Ani" Uttiram day should be met and from the 4th item of the property. They shall feed four brahmins in the Siva Temple Sapparai during Dwadashi days.The next clause No. 9 which is the bone of contention between the parties may now be9 : "In the Sepparia Siva Temple established by our parents, for meeting expenses of lamp burning forever and one measure of rise for daily offering to God and Archana expenses, a sum of Rs. 45/- is spent annually. Out of this a sum of Rs. 5 per year which shall be paid by Sivaramakrishna Pillai, Namasivayam Pillai and a sum of Rs. 3 per year by Chidambaram Pillai to Kailasam Pillai and excluding the sum of Rs. 13/- as given in the three items aforesaid for the balance of Rs. 32 the dry land mentioned in the 9th schedule shall be administered in person by Kailasam Pillai and spent from out of the income of the said properties and from out of their own funds Kailasam Pillai and Venkatachalam Pillai shall perform the aforesaid charity without fail."Clause 12: "Kailasam Pillai and Venkatachalam Pillai shall in respect of their properties in common and the other three in respect of their respective properties separately and absolutely enjoy with powers of alienation by way of gift, exchange, sale etc. In the share of properties allotted to Kailasam Pillai and Venkatachalam Pillai the other sharers have no right and similarly in the shares of properties of the other shares the aforesaid two persons have no right. Likewise in the property held by the other three persons, in the property of which one of them the other have no manner of right.Then the schedules are given showing the properties that have fallen to the shares of different brothers. The ninth schedule property, which is the suit property, is described in Ext. A-1 asWetSurvey No.LetterAcres D.Wet866A-20.47The number of tamarind trees standing near the tank Bund of the aforesaid Village 72Dry890C-21.00343C0.30360D0.83376A-21.22Dry377A0.684289.37845B-61.21901C-20.35902A-20.409030.20.20In all wet and9th schedule situate within the jurisdiction of the aforesaid Sub-District Naranathanapuram Jamabandi attached to Alangulam village and Chilakadu Wet irrigated by well, tamarind trees, and dry and the particulars of these are as follows :This ninth schedule property is the suit property.It appears that Kailasam Pillai in the meantime died as is apparent from the partition deed (Ext. A-3] executed between Venkatachalam Pillai and Thirumalai Vadvammal widow of Kailasam Pillai on 21-1-87. Clause 19 of this deed may be quoted:Sivaramakrishna Pillai. Chidambram Pillai, Venkatachalam Pillai, son of Namasivaya Pillai, these persons were contributing a sum of Rs. 13/- every year to the said Kailasam Pillai for perpetual burning of lamp at Chepparaiswami Nataraja Sannathi. Hence forth the said Venkatachalam Pillai shall receive the said amount and perform the charity".In this partition deed, the properties of Kailasam Pillai and Venkatachalam Pillai were divided and Venkatachalam Pillai took the responsibility of performing the charities entrusted to Kailasam Pillai under clause 9 of the first partition deed of 1882. It appears from Ext B-1 dated 8-9-1937, which is a sale deed in favour of S.Srinivasa Iyengar, that on 8th November, 1921, the suit properties had been "usufructuarily mortgaged for Rs. 1100/- in favour of one Maragathammal by Gomathi Ammal for the purpose of discharging the family debts for a period of five years". The period was extended by a further usufructuary mortgage of the properties for a sum of Rs. 7350/- on 26th April, 1923. It also appears that the rights under the two usufructuary mortgage deeds were assigned to S. Srinivasa Iyengar by a deed of assignment in November, 1962, executed by the said Maragathammal for a consideration of Rupees 18350/- Since S. Srinivasa Iyengar made repeated demands for clearing up the debts due under the unufructuary mortagages the said properties along with some other land were sold to him by Kailasam Pillai (Jr.), Venkatachalam Pillai (Jr.) Gopalakrishna Pillai (defendant 6. briefly D-6- and Prianayagam Pillai (defendant 7, briefly D-7) for a consideration of Rupees 18350/-. So this sale in favour of Srinivasa Iyengar was in "discharge of the said othi (unufructuary mortgage) debts" and the properties which had already been in possession of Srinivasa Iyengar continued to remain in his possession now as owner of the properties with "power of alienation by way of gift, exchanges sales etc. absolutely".A third partition deed (Ext. A-10) had been executed on 19th October, 1936, amongst Kailasam Pillai (Jr.) Venkatachalam Pillai (Jr.), Gopalakrishna Pillai (D-6) and Prianayagam Pillai (D-7) in order to later facilitate absolute sale of the properties in favour of S. Srinivasa Iyengar in 1937. It was stated in this deed (Ext. A-10) that "from the property endowed to the temple of Sepparai Algiakootna we shall keep the eternal lamps burning, collect the sums which our grandfather endowned for our family and use special efforts to perform the charities". In clause 14 (1) of this deed it was stated as followsas much as sharer No. 1, Kalasam Pillai (reference to Kailasam Junior) has voluntarily relinquished in favour of the other 3 sharers the right to perform and administer the family charities and the properties endowed for the same; sharer No. 1 shall not have at any time any right to said charities oron 8th September, 1937, a sale deed for the suit property and other lands (Ext. B-1) was executed in favour of S. Srinivasa Iyengar Avergal by Kailasam Pillai (Jr.) Venkatachalam Pillai, (Jr.), Gopalakrishna Pillai (D-6) and Prianayagam Pillai (D-7) for a consideration of Rupees 18350/-. Srinivasa Iyengar also got his name recorded in the patta. On 10th June 1943. S Srinivasa Iyengar sold by Ext. B-2 the suit property, etc. to Sappani Ahmed Mohideen, father of the two appellants herein, for a consideration of Rs. 22600/-.Sappani Ahmed Mohideen got his name recorded in the patta in due course. The second appellant, who is the brother of the first appellant, sold some portion of the suit property to Defendants 3 to 5 on 7th April, 1960.This appears to be the history and background of the litigation.6. The plaintiffs (the first two respondents) herein are the great grandsons of Venkatachalam Pillai son of Subramania Pillai. They instituted a suit in the court of Munsif Tirunelveli on 5th September 1960, impleading the purchasers of the suit property as Defendants 1 to 5 and Gopalakrishna Pillai, uncle of the plaintiffs and Prianayagam Pillai, father of the 2nd plaintiff, as the defendants 6 and 7 respectively, praying for declaration that the suit properties belong to the trust and that all alienations in respect of them are not binding on the trust and for possession of the suit properties from defendants 1 to 5 to "the lawful trustees". One written statement was submitted on behalf of the defendants 1 to 5 and the suit proceeded ex parte against defendants 6 and 7, who were not even examined as witnesses in the trial.7. Two points were in dispute during the trial, namely, whether the suit was barred by limitation (issue No. 2) and whether the deed dated 3th May, 1882, creates an absolute dedication of the suit property or only a charge on the income of the said property (issue No. 3). The 1st plaintiff who was a young man of 28 years on the date of his giving evidence, examined himself and two other witnesses. The defendants examined only the first defendant. The trial court answered both the above issues in favour of the plaintiffs and decreed the suit. On appeal the Subordinate Judge, Tirunelveli, affirmed the finding of the Munsif on the question of limitation but reversed that relating to issue No. 2. He held that the entire income of the suit property was not sufficient even to meet a minute fraction of the expenses and, therefore, the question of absolute dedication of the property did not arise. It may be noted here that the trial court as well as the Subordinate Judge held that the income from the property was not sufficient to meet all the expenses of the charities directed to be performed. The value of the suit land in 1882 was found by the Subordinate Judge to be only Rs. 40/- after elaborate discussion of the value of the neighbouring properties which were subject matters of different sales at the relevant time. When the matter was taken to the Madras High Court in second appeal the High Court held that the family had divested itself of the ownership of the suit property and that the need of partition created an absolute endowment of the suit property for the purpose of performing the charities mentioned therein. It further held that the suit property was not allotted to Kailasam Pillais share and he was only made a trustee of the properties. In the view the High Court took, the second appeal was allowed and the trial courts decree was restored. Hence this appeal with special leave.

Court's reasoning:
.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.