Case ID: 6611

Judgment:
ION: Civil Appeal No. 140 of 1977. From the Judgment and Decree dated 31.1. 1973 of the Madras High Court in L.P.A. No. 6 of 1965. A.T.M. Sampat and P.N. Ramalingam for the Appellants. Ms. Lily Thomas for the Respondents. The facts leading to the institution of the suit are as follows: On 3 239 March 1942	 one Karuppanna Pillai (hereinafter referred to as "testator") executed his last Will and testament Ext. Thereunder he disposed of all his properties described in five schedules	 A	 B	 C	 D and E. He directed that the properties under A	 B .and C schedules shall be respectively taken and be in the possession of the defendant	 the first plaintiff and the second plaintiff. In respect of E schedule properties	 he has made a bequest creating an endowment that after his life time	 it should be managed for the purpose and in the manner mentioned therein. The dispute in the suit was as to the validity of the endowment. One Palaniammal and Chellammal are the sisters of the plaintiffs and the defend ant. The testator created a life estate in favour of those sisters in respect of D schedule properties with a direction that after their lifetime the properties shall be dealt with in the same manner as the E schedule properties. We are not concerned in the present litigation with any of the proper ties in schedules A to D. We are concerned only with the validity of the disposition of E schedule properties. The Will is in Tamil but we are helpfully provided with the English translation of the relevant portion. It is also found incorporated in the judgment of the District Judge. It runs as follows: "After my lifetime	 the aforesaid three persons	 Ponnuswami Pillai	 Malayalam Pillai and Thangavelu Pillai	 shall take and manage the E schedule properties	 from out of the income from the said properties pay the kist for the aforesaid E schedule properties	 and out of the balance of income for the salvation of my soul after my lifetime	 shall enter mY body	 after my life is extinct	 in the land S.F. No. 68/B	 Punjai Thottakurichi Village pertaining to the aforesaid E schedule	 build structure therefore and put up light every day shall plant flower plants in the said land and grow them	 shall construct a Matam for annual ceremonies	 install pictures therein	 put up light in the Matam every day	 conduct Guru Pooja	 distribute saffron coloured clothes and on that day	 shall feed the poor. Since the aforesaid Pon nuswami Pillai is the eldest of the sons	 he shall be the Manager	 to conduct the above matters. The surplus income shall be taken in the shares of 2/4 by Ponnuswami Pillai	 1/4 by Malayalam Pillai	 and 1/4 by Thangavelu Pillai. After the said Ponnuswami Pillai 's life	 out of his make heirs	 the eldest son shall conduct in the same manner as above and the surplus income shall be taken by the said eldest son. " 240 There then follows a residuary clause which is as under: "The movable and immovable properties belonging to me and not mentioned herein shall be taken and enjoyed by the aforesaid three persons after my lifetime." The plaintiff 's case has been that the testator could not have created on endowment of properties for construction of his own tomb or Samadhi and for performing Pooja and ceremonies thereat. Since the testator has bequeathed E schedule properties for "Samadhi Kainkaryam"	 the trust would be invalid and the said properties should be shared by the plaintiffs and defendant under the residuary clause in the Will as if they remain undisposed of by the testator. The suit is also for account from the defendant regarding the income of the E schedule properties. The defendant has resisted the suit and sought to justi fy the creation of the trust and its purposes. It was con tended inter alia	 that the Matam and the Samadhi were constructed for different purposes. They are separated by a respectable distance. At the Samadhi	 there is no perform ance of pooja. It is only at the Matam	 the ceremonies and Guru Pooja are performed with feeding the poor and distribu tion of saffron clothes. These acts are distinctly and substantially religious and charitable purposes. It was also contended that the plaintiffs in any event are not entitled to claim partition and separate possession of the Schedule properties. At the trial	 learned Subordinate Judge accepted the plaintiff 's case declaring that the dedication of the E Schedule property for purposes enumerated under the Will was invalid and accordingly he decreed the suit as prayed for. In appeal	 the District Judge took a different view. He held that the purposes for which the E Schedule properties have been dedicated were charitable or religious in nature. He dismissed the suit but gave certain directions to the de fendant for rendition of accounts of the surplus income from the properties which the defendant as a manager is obliged to do. In second appeal to the High Court	 the learned single Judge expressed the view that the Trust in respect of the properties for construction of the Samadhi with raising flower garden and lighting up would not be valid as it is not recognised under the Hindu Law. That part of E Schedule properties referable to the Samadhi and its maintenance should remain as the property undisposed of by the Will. 241 Neither the plaintiffs nor the defendants will be entitled to it under the terms of the Will. He however	 held that the endowment and directions as to application of the property for construction of the Matam and performance of ceremonies and pooja would be valid since they are religious and char itable in nature. He dismissed the suit for partition while at the same time affirmed the decree for accounting the surplus income from the properties referable to the Matam and charities. In the Letters Patent Appeal	 the Division Bench has disagreed with the views expressed by learned Single Judge. It has been observed that the Matam is close to the Samadhi and the former has been built for the purpose of providing a convenient place for the purpose of offering worship and performing ceremonies connected with the Samadhi and Matam are covered by one scheme	 and therefore	 the entire trust must fail. In support of the conclusion	 the Division Bench largely relied upon the decision of the Privy Council in N. Subramania Pillai vs A. Draviyasundaratn Pillai	 AIR 1950 PC 37. In the Privy Council case referred above	 the testator by name 'Kanakasabhapathy ' in his Will constituted a Trust of his properties with certain directions as to its applica tion. He directed that "his body should be buried in a Sa madhi and at the same place where the Samadhi is made	 a Matam should be built with a stone inscription in the front portion of the Matam as Kanakesabhapathi Samadhi Matam '. He also directed that regular worship should be conducted with Guru Pooja and poor feeding. Construing the terms of the Will	 the Privy Council observed that the directions given by the testator were embodied in a single scheme and they were primarily intended to keep his memory alive and to enhance his own posthumous reputation. Feeding the poor was to be conducted during the daily pooja to be performed in connection with the burial place and it did not provide for any charity apart from the ceremonies to be conducted at his own burial place and therefore the trust must fail. In Hindu system there is no life of demarcation between religion and charity. On the other hand	 Charity is regarded as a part of religion. Hindu Law of Religious & Charitable Trusts	 by B.K. Mukherjea	 5th Ed. p. 11. But "what are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu Law and Hindu notions. " Mayne 's Hindu Law 10th Ed. p. 9 12. 242 The perpetual dedication of property for construction of a Samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto however	 has not been recognised as charitable or religious purpose among the Hindus. But the Samadhi of a Saint stands on a different footing. This was the consistent view taken by the Madras High Court in several cases	 namely	 Kunhamutty vs T. Ahmad Musaliar & Ors.	 ILR 1953 Mad. 29; A. Draivaisundram Pillai vs N. Subramania Pillai	 ILR 1954 Mad. 854; Veluswami Goundan vs Dandapani	 1946 Mad. This Court in Saraswati Ammal vs Rajagopl Ammal	 ; has approved those decisions of the Madras High Court. Jagannatha Das	 J.	 who spoke for the Court said (at 289): "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. " The view taken in Saraswati Ammal case has been reiter ated in Nagu Reddiar & Ors. vs Banu Reddiar & Ors.	 ; where Kailasam	 J.	 observed (at 600): "The raising of a tomb over the remains of an ancestor	 an ordinary person is not recognised as religious in nature. The burden is on the person setting up a case of religious practice in the community to prove it. This prohibition may not apply when an ancestor is cremated and a memorial raised for performing Shradha ceremonies and conducting periodical worship	 for	 this practice may not offend the Hindu senti ment which does not ordinarily recognise entombing the remains of the dead. " We are	 therefore	 inclined to hold that the provision made by the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid. But that however	 does not mean that the entire dedica tion of E Schedule properties must fail. It is one of the cardinal principles of construction of Wilts that wherever it is possible	 effect should be given to every bequest of the testator unless it is opposed to law	 custom or prac tice. If the testator has set apart the property intended for endowment and disclosed his charitable intent in any one of his directions	 such direction may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion 243 or Hindu Law. Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved. In the instant case	 the E Schedule has been endowed for con struction of a Samadhi and Matam	 and for performing reli gious rites and charitable acts. The Samadhi and Matam are constructed in the same survey number but are independent of each other	 separated by a distance of about 15 feet. Per formance of annual ceremonies	 conducting Guru Pooja	 feed ing the poor and distribution of saffron coloured clothes to mendicants appear to be independent and have no connection with the Samadhi. There is no indication in the Will that Guru Pooja should be performed to the testator. In fact he has not even indicated that his photo should be kept in the Matam. His directions are only to install pictures at the Matam	 put up light every day in the Matam and perform Guru Pooja once a year with the other charities. These provisions in the Will are not in close parallel with and indeed far removed from those obtained in the Privy Council decision in Subramania Pillai 's case. The Division Bench of the High Court was therefore in error in relying upon that decision to invalidate the entire endowment. Counsel for the plaintiffs nevertheless argued that the defendant has been performing Guru Pooja only to the testa tor and not for the deity. He referred to us Ext. A 5 to A 9 which are the invitations sent by the defendant for the annual ceremonies and Guru Pooja to be performed to the testator. But in construing the validity of an endowment created under a Will	 we cannot be guided merely by the acts of the manager or the manner in which the executor of the Will has understood the directions of the testator. We are required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will. The terms of the Will in this case clearly specify the religious or charitable purposes. The defendant Ponnuswami Pillai (DW 1) in his cross examination has also explained that there was a mistake in the writing of Ext. A 5 to A 9 for which he was not responsible. He has testified that he performed really the annual ceremonies on the date of death of the testator and no pooja was performed at Samadhi. The Poojas are performed only at Matam with Guru Pooja to Lord Subramania on 'Thai Poosam ' every year. He has further stated that the annual ceremonies of the testator fall on Margali Mrisaseerusham Nakshatram and Guru Pooja is not performed on that day. It is undisputed that the testator died on Margali Mrigaseerusham Nakshatram. Ramaswamy Goundar (DW 2) has also deposed 244 that no Guru Pooja was performed on the date of death of the testator and it was performed only to Lord Subramania in Thai month every year. He used to participate in the Guru Pooja every year alongwith the other villagers. The evidence of Marudamuthu Pillai (DW 3) also supports these versions. We have no reason to disbelieve the testimony of the defendant and his witnesses. Even the evidence from the plaintiff indicates that the Matam is called 'Madam of Sri Subramanya Swami '. B 2 is a printed marriage invitation of the plaintiff (PW 1) in which it has been expressly stated that the plaintiff 's marriage will be performed at our Madam Sri Subramaniaswami Sannadhi built by our grandfa ther Karuppanna Pillai . "Ext. A 11 also refers to the Matam as Subramaniaswami Sannadhi. A 2 is the Commis sioner 's Report. The Commissioner has stated that there are pictures of Gods in the Matam. There is pooja room. Lord Subramania 's picture is also in the pooja room. The deity of Sri Vinayagar in granite has been installed at a special place with material to indicate that pooja is also being performed to Sri Vinayagar. It is true that the directions of the testator are in general terms	 and there is no particular mention in the Will as to whom Guru Pooja is required to be performed since no particular deity is named in the Will. But trust cannot be rendered invalid on that ground. It is for the Court to ascertain the presumed intention of the testator and give effect to it. As observed by Patanjali Shastri	 J.	 as he then was	 in Veluswami Goundan 's case where no deity is named in the deed of endowment	 the court should ascertain the sect to which the donor belonged	 the tenets which he held	 the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained. We agree that these are the safe guides. If we peruse the various terms in the Will and the provisions made for offerings	 it will be clear that the testator was a great devotee of Lord Subramaniaswami. He has made provisions to perform annual pooja to Lord Subramanias wami and Sri Vinayagar in the different temples out of the income from A to C Schedules. The Matam also goes by the name of "Subramanya". The evidence of DW 1 to DW 2 further indicates that Guru Pooja is being performed to Lord Subra manya followed by poor feeding and distribution of saffron coloured clothes. The endowment with regard to these pur poses must therefore be upheld. 245 The permanent dedication of properties for performance of annual ceremonies of the testator is equally valid. Whether one terms it as annual Shradha or anniversary	 it is certainly a religious rite and it is not uncommon among the Hindu testators to make provisions in their Wills for cele bration or performance of such anniversaries of themselves or their ancestors. We are	 therefore	 unable to agree with the decision of the Division Bench of the High Court. We are on the other hand in agreement with the views expressed by learned Single Judge. In the result	 the appeal is allowed. In reversal of the judgment of the Division Bench	 the judgment and decree of the learned Single Judge are restored. The respondents must pay the costs of this appeal to the appellants. T.N.A. Appeal al lowed.

Summary:
K. bequeathed his properties describing them in five Schedules	 A	 B	 C	 D and E. In respect of the 'E ' schedule properties	 he created an endowment stating that after his death it should be managed for construction of his own tomb or samadhi and for performing poojas and ceremonies thereat. Two of the legatees under the will filed a suit against the third legatee	 the manager of the trust	 for partition and possession of the E schedule properties as well as for rendition of accounts pertaining to the income from the said properties contending: (i) that under Hindu Law the testator could not have created an endowment of properties for con struction of his own tomb or samadhi for performing poojas and ceremonies thereat; (ii) since the testator had be queathed his properties for "Samadhi Kainkaryam"	 the Trust was invalid; and that the said properties should be shared by the plaintiffs and the defendant under the residuary clause of the will as if they remained undisposed of by the testator. The defendant resisted the suit contending that Matam and the Samadhi were constructed for different purposes and it is only at the Matam that the ceremonies and Guru Pooja were performed with feeding the poor and distribution of saffron clothes; and that these acts were distinctly and substantially religious and charitable purposes. The subordinate judge accepted the plaintiff 's case declaring that the dedication of the 'E ' schedule properties was invalid and accordingly he decreed the suit. 236 On appeal the District Judge dismissed the suit with a direction to the defendant for rendition of accounts of the surplus income from the properties on the ground that dedi cation of properties by the testator was for charitable or religious in nature. On second appeal a single Judge of the High Court dismissed the suit for partition but affirmed the decree for accounting the surplus income from the properties referable to the Matam and charities by holding (i) that the trust in respect of the properties for construction of samadhi was not valid as it was not recognised under the Hindu Law; (II) but the endowment and directions as to application of the property for construction of Matam and performance of cere monies and pooja were valid since they were religious and charitable in nature. On further appeal by Letters Patent the Division Bench of the High Court	 relying upon the decision of the Privy Council in N. Subramania Pillai vs A. Draviyasundaram Pil lai	 AIR 1950 PC 37	 held that the entire endowment was invalid under Hindu Law. Hence this appeal. Allowing the appeal	 this Court	 HELD: 1. The perpetual dedication of property for construction of a samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto is not recognised as charitable or religions purpose among the Hindus. But the Samadhi of a Saint stands on a different footing. Therefore	 the provision made by the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid. [242A B Kunhamutty vs T. Ahmad Musaliar & Ors.	 I.L.R. ; A. Draviyasundaram Pillai vs N. Subramania Pillai	 I.L.R. and Veluswami Goundan vs Dandapani	 	 approved. Saraswati Ammal vs Rajagopal Ammal	 ; and Nagu Reddiar & Ors. vs Banu Reddiar & Ors.	 ; 	 referred to. It is one of the cardinal principles of construc tion of Wills that wherever it is possible	 effect should he given to every bequest of the testator unless it is opposed to law	 custom or practice. If the testator has set apart the property intended for endowment and disclosed his 237 charitable intent in any one of his directions	 such direc tion may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion or Hindu Law. Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved. [242G H] 2.1 In the instant case the scheduled properties have been endowed for construction of a Samadhi and Matam	 and for performing religious rites and charitable acts. The Samadhi and Matam are constructed in the same survey number but are independent of each other	 separated by a distance. The other provisions in the will relating to performance of annual ceremonies conducting Guru Pooja	 feeding the poor and distribution of saffron coloured clothes to medicants are independent and have no connection with the Samadhi. Consequently	 the entire dedication of the Scheduled proper ties will not fail. [243A B] N. Subramania Pillai vs A. Draviyasundram Pillai	 A.I.R. 	 held inapplicable. In construing the validity of an endowment created under a Will	 the Court cannot be guided merely by the acts of the Manager or the manner in which the executor of the Will has understood the directions of the testator. The Court is required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will. 3.1 A trust cannot be rendered invalid on the ground that the directions of the testator are in general terms and that there is no particular mention in the will as to whom Guru Pooja is required to be performed since no particular deity is named in the Will. It is for the Court to ascertain the presumed intention of the testator and given effect to it. Therefore where no deity is named in the deed of endow ment	 the Court should ascertain the sect to which the donor belonged	 the tenets which he held	 the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained. These are the safe guides. [244E & F] Veluswami Goundan vs Dandapani	 [1946] 1 MLJ 354 AIR 1946 Mad. 485	 referred to. 3.2 In the instant case there is no indication in the Will that Guru Pooja should be performed to the testator. On the other hand the terms 238 in the Will show that the testator was a great devotee of Lord Subramaniaswami. The evidence also indicates that Guru Pooja is being performed to Lord Subramanya followed by poor feeding and distribution of saffron coloured clothes. These terms of the will clearly specify the religious or charita ble purposes. Therefore the endowment with regard to these purposes is upheld. [244E & G H] 3.3 Annual Shradha or anniversary is a religious rite. The permanent dedication of properties for performance of annual ceremonies of the testator is equally valid. [245A] 4. The Division Bench of the High Court was therefore in error in invalidating the entire endowment. Accordingly	 the judgment of the Division Bench is reversed and the judgment and decree of the Single Judge are restored. [245B C] 5. In Hindu system there is no line of demarcation between religion and charity. On the other hand	 charity is regarded as a part of religion. But what are purely reli gious purposes and what religious purposes will be charita ble must be entirely decided according to Hindu Law and Hindu notions. [241G H] Hindu Law of Religious & Charitable Trusts	 by B.K. Mukherjea	 5th Edn. p. 11; Mayne 's Hindu Law	 11th Edn. p. 912	 referred to.