]anuat'y Ij.

SUPREME COURT REPORTS [1960(2)]

NANDURIYOGANANDA

LAKSHMINARASIMACHARI AND ORS.

SRI AGASTHESW ARASW AMI V ARU OF

KOL AKAL UR

(J. L. KAPUR. P. B. GAJENDRAGADKAR AND K. c. DAS GUPTA, JJ.)

Grant-Inam-Intention-Spccified charitable payments exhausting income at date of grant~Intention is to denote tfJhole income to charity-Plaint-Prayer portion-If and when can be allowed to be amended-Documents-The interpretation possible-Supreme Conrt not to intervene with view taken by the courts below. The sole trustee of a deity in a suit prayed for a decree for the recovery of the arrears of income of a property alleging that the property in dispute constituted a specified endowment for Kalyanotsavam of the deity and the appellants who were trustees of the said property had committed defanlt in carrying out the purpose of the trust; but there was no formal prayer for the declaration that the said properties and income thereof formed a specific endowment for the said due performance of the services of Kalyanotsovam of the deity and feeding charges, and other expenses.

The defence raised was that Inam was a personal grant bnrdened with service of the deity and that it was not a specific trust or an endowment for the benefit of the idol.

The High Conrt after allowing the respondents to amend the plaint by adding a formal prayer for declaration stating that the properties and income thereof formed a specific endowment for the dne performance of the services of Kalyanotsavam of the deity held in favour of the respondents and further; observed that the appellants were liable to pay the_ entire income to the deity. On appeal to the Supreme Court it was contended for the appellants inter alia (r) that the grant was a personal grant, burdened with the provision for service and it was not a specific grant.

(2) that High Court should not have allowed the amendment of the plaint.

Held, that in the instant case the grant, was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellants with the added obligation of spending on the service.

In considering the question of the nature of a grant, the inam registers have always been treated as evidence of the utmost importance particularly where Sanad & Inam title deeds are not produced, and when two inferences are possible from the reading of documents there is no reason why the Supreme Court will interfere with the view taken by the courts below.

When at the time of a grant the specific charitable payments exhaust the income of the prpperty, it is a fair inference to draw

therefrom that the intention was to devote the whole income to 19fio charity and any subsequent increase in the value of the property accrues to the charity and the courts would be right to apply the Nanduri doctrine of Cy-pres.

Yogananda Held, further, that where necessary allegations had been Lakshin1narasimamade in a plaint and the requisite pleas raised and issues framed chari and Ors. on the question and the parties were fully cognizant on the points v. in controversy and necessary evidence led by them, the courts Sri would be right in allowing the amendment by the addition of a Agastheswaraswami • prayer in the prayer clause, which was in the nature of formal Varu of Kolakalur relief which flowed from the allegation in the plaint.

CIVIL APPEL.ATE JURISDICTION: Civil Appeal No. 147 of 1956.

AppeaJ from the judgment and decree dated August 7, HJ52, mf the Madras High Court in A. S. No. 809 of 194 7; arising out of the judgment and decree dated October 31, 1947, of the Sub Judge, Tenali in 0. S. No. 64 of 1944.

K. R. Chaudri, T. S. Venkataraman and K. R.

Sharma, for the appellants.

N. Subramanyam and T. Satyanarayana for the respondent.

1960. 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 li:ndowment Board.

The suit was brought by the deity through the sole trustee for recovery of Rs. 3,480 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 i.e. Rs. 1,680. 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 char.ges. The defence raised wat; i

Kapur J.

z960 that the inam was a personal grant for driving the car of the deity on the festival days and that it was

YNanduna not a specific trust or an endowment for the benefit of ogonan a h 'd 1 I ] d . f h .

Laf.shniinara.iniat e l

O • n ot ier wor sit was a grant o t e inam chari and o,,. burdened with service to the god. There were other v.. pleas raised in regard to jurisdiction, res judicata and 5" adverse possession.

The trial court held that the A [lastheswaraswatni "fi d f h K l vru of Kolakalurgrant wa~ a spe01 IC en owment or t e a yanotsavam of the deity but the appellants were not bound to Kapur J. 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 n, ppeal counsel for the appellant has raised hrnet points : (I) that the suit was not maintainable;

(2) that the amendment should not have been 1 960 allowed and (3) the grant was a personal grant to the . appellants burdened with the provision for service and YNandu•d• . 'fi d

A £ h fi oganan a it was not a spec1 c en owment. s ar as t e rst Lakshminarasima question is concerned it has not been shown as to how chari and ors. the suit was not maintainable. The question of v. amendment, in our opinion, was rightly decided by the Sri .

High Court. As held by that court all the necessary :gasthw; rs:m• allegations had been made in the plaint and the aru

0 0

a a ur requisite pleas had been raised by the appellants; an Kapur J. 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 tlre 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 enjoment 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 frqm 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

'960 Halyanotsavam. In Column 12 it wa• shown that the Nandnri grant was revenue-free and the land was under the Yogananda cultivation of Buchayya the income of which was Lahshmin"'asima- Rs. 11 per annum. The entries show that the inam chari and Ors. was granted as a specific endowment for the Kalya- ;; i notsa:vam of the dity and the amount was spent in the

A ga.; theswaraswami servICeS of the deity.

Varu 0! Kolakalur The next document to be considered is a copy of

J<apur J. 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 origina.I 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 0-8-0'. 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 T.D. 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

' -

lands in dispute were endowed for Kalyanotsavam and other purposes incidental thereto and constituted a specific trust and the appellants were trustees thereof.

}., Tanduri Yogananda It was urged by counsel for that appellants that Lafishminarasimah d . h . . h h chart and Ors. t e wor s rn t e inam register t at t e grant was to v. continue as long as the service is performed were Sri indicative of the fact that the grant was not to the A gastl.eswaraswami deity but to them individually with the added obliga- Varu 01 l<olakalur tion of spending from out of the income on the particular service to the deity.

A combined reading of the two documents i.e. 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 tho 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 i.s 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 dis cussed in some decided cases in the Madras High

Court e.g.

Hindu Religious Endowments, Madras v.

Thadikonda Koteswara Rao(1) where this distinction was prominently brought out between the words "to be confirmed so long as tho service is pel'formed" 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 trnst and not a grant to the appellant with

(r) A.IR. 1937 Mad. 852

J<apur ].

'>6° the added obligation of spending on the service must be accepted to be correct.

Nanduri Th t t" c d · t h t Yogananda • e nex q.ues ron 1or ecs1on is as . o w a Lak.<hminamsimaportwn of the mcome of the mam lands IS to be

chori and Ors. expended on the service to the deity. The courts

v. below are not in accord on this point. The trial court Sri held that Rs. 200 out of the income should be Avgasthe:w1 a(ralskwa1mi adequate for the purpose and the High Court applied aru O; o a a ur d . d h ld h h 1 • b f' vy-pres ocLrme an e t e w o e mcome to e or • J<apur J. 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 kiference 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 v. Thadikonda Koteswararao ('); 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. Sanka.ranarayana Pillayan & (ks. v. The Board of Commissioners for Hindu Religious Endowments, Madras('). It was there held that where the gramt is to the deity andthe income is ear-marked for the services for which the specific endowment is created, if there is a surplus l 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 i.e.

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.

(r) A.l.R. r937 Mad. 852.

Appeal dismissed.

(2) (r947) L.R. 74 I.A. 230.