PETITIONER: SAPPANI MOHAMED MOHIDEEN & ANR. Vs. RESPONDENT: R. V. SETHUSUBRAMANIA PILLAI & ORS. DATE OF JUDGMENT07/12/1973 BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. DWIVEDI, S.N. CHANDRACHUD, Y.V. CITATION: 1974 AIR 740 1974 SCR (2) 594 1974 SCC (1) 615 ACT: Religious Endowment- Whether absolute or partial-Tests for determining HEADNOTE: In 1882, there was a partition of ancestral properties amongst 5 brothers by means of a partition deed Three of the 5 brothers took the properties mentioned in the relevant schedules for enjoyment severally, and certain properties were kept for enjoyment in common. Two brothers K and V were enjoying their shares jointly, Clause 1 of the deed excluded from partition the properties specified in certain clauses. One of the clauses is cl. 8 which describes certain charity purposes and provides that the properties mentioned in the 8th schedule and allotted for charity shall be administered by K. Clause 9 makes a special provision in connection with three religious charities in relation to a temple. The clause mentions that a sum of Rs 45/- had been spent annually for these three purposes, that arrangement, had been made for contribution of sums amounting to Rs 13/- by three brothers that the dry lands mentioned in the 9th schedule shall be administered by K and from out of the income of the said properties and from out of their own funds K and V shall perform the aforesaid charities by spending the balance of Rs 32/without fail. The property mentioned in cl. 9 was not excluded from partition. At the time of the partition the income from the property in the 9th schedule was in fact not sufficient to meet the expenses of the three charities directed to be performed. The property having been alienated, the respondents filed a suit for a declaration that there was an absolute endowment of the property for the performance of the religious charities and that the alienation was invalid. The trial Court decreed the suit. The first appellate Court held that there was no absolute dedication and the High Court, in second appeal, restored the decree of the trial Court. Allowing the appeal to this Court HELD : Whether an endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty, but 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. 1607D-F] In the present case, it is clear from the terms of cl.9 and other material provisions of the deed that there was no absolute endowment of the property to the temple or a trust. The property, however, is impressed with the obligation or charge of performing the religious charities mentioned in cl.9 of the partition deed in the manner indicated therein. The alienation is therefore, not invalid and the obligation to perform the charity follows the property. [607F-G; 608A- C] (1) While cl. 8 recites that 'the properties mentioned in the 8th schedule and allotted for charities shall be administered by K'. cl. 9 recites that dry land mentioned in the 9th Schedule shall be administered by K.' There is no reference in cl. 9 that the land was allotted for charity'. [602D] (2) If the property was absolutely dedicated to the temple for the performance of the religious charities the intention of the founders would have been defeated the income from the, property being little or nothing. A construction of a document which would frustrate the intention of the founders should be avoided. To gather such intention at the time when the document came into existence the Present value of or present income from, the property is irrelevant. [602H- 603B] 595 (3) It is because of the obligation to keep alive the 3 charities that the property was not allotted to the temple, but was allotted to K and V, so that they may get some recompense out of its income some day. [602G-H] (4) The present case is far from a case where the entire income of the property has been endowed to a trust to sustain a conclusion that the entire corpus belongs to the trust. [608 A] (5) This conclusion drawn from the 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 respect to the property. [603 E-F; 607H] Sree Sree Ishwer Sridhar Jew v. Sushila Bala Dasi and others, [1954] S.C.R. 407414 Menakuru Das aratharami Reddi v. Duddukuru Subba Rao,[1957] S.C.P. 1122, 1128 and Ram Kissore Lal v. Kamal Narain, [1963] Supp. (2) S.C.R. 417/424/428, followed. Sri Sri Iswar Bhubaneswari Thakurani v. Barojo Nath Dey and Others, A.I.R. 1937 Privy Council 185, Gopal Lal Sett v. Purna Chandra Busak and others, A.I.R. 1922 Privy Council 2531254, Hulada Prasad Deghoria v. Kalidas Naik and others, A.I.R. 1914 Cal. 813/814-815, North-Eastern Railway Co., v. Lord Hastings, [1900] A.C. 260, Drammond v. Attorney General, (1849) 2 H.L.C. 837, The Attorney-General v. The Master Wardens, &c. of the wag Chandlers, (1873)Eng. & Irish Appeal, 6 L.R., 1/19, Dr. Villiam Jack, Principal and the Professors of the University and King's College of Aberdeen v. Sir Thomas Burnett, of Leys Bart. (1846) XII Clark & Finnelly, 812, and Mayre on Hindu Law and Usage 11th ed. P. 923, Section 792 and Halsbury's Laws of England, 3rd ed. Vo. 4, p. 306 , referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1555 of
1967.
Appeal by Special leave from the judgment and Decree dated
the 5th January, 1967 of the Madras High Court in Second
Appeal No. 82 of 1963.
K. S. Ramamurthi and B. R. Agrawala, for the appellants,
M. K. Ramamurti and J. Ramamurti, for the respondents.
The Judgment of the Court was delivered by
GOSWAMI, J. In this. appeal we have to go back to a period
close upon a passing century to divine what a Hindu Joint
Family that had separated at that distant date, thought,
contemplated, did and above all intended not only then but
also for the future. It was the year 1882 and precisely on
13th May of at year an instrument of partition was executed
and registered amongst five brothers, namely, Sivarama
krishna Pillai, Kailasam Pillai, Venkatachalam Pillai,
Chidambaram Pillai and Namasivayam Pillai sons of Subramania
Pillai. The family appears to be religiously disposed and
was keen to perpetuate the pious
596
ancestral ideology, A genealogy given in the statement of
case by the appellants gives the appropriate picture for the
purpose of this appeal:
Subramenia Pillai
———————————————————-
Shiverama kailasam Venkatachalam Chidambaram Navasiva
krishna Pillai Pillai Pillai yam
Pillai Pillai
Sethusubramanya Pillai
Kailasam pillai Venkatachalam Gopalakrishan Prianayagam
(Junior) Pillai (Jr.) Pillai Pillai
(died in 1950) (died in 1953) (D-6) (D-7)
R.V. Sthusubramanya R.P. Sethusubramanya
Pillai Pillai
(1st plaintiff) (2nd plaintiff)
———————————————————-
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 (Ext. Al) which
was written in Tamil and has been officially translated:
Clause 1: “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
597
detailed in para 8 and mentioned in the eighth
schedule excluding the other wet, dry (lands)
gardens and all the properties situate in
Kattampulimanapadayur 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 Gananthanparai, 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
Naranammalpuram 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 II 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 the 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
Gangathanaprai mentioned in the 7th schedule
herein should be enjoyed in common. The
income from the said dry lands and palmyrah
groves should be divided into five shares and
two such shares should be enjoyed in common.
by Kailasam Pillai and Vankatachalam Pillai
and the other three shares by the other three
persons independently”.
598
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
Thirumanjanam 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 Siva 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 Sepparai during Dwadashi days
The next clause No. 9 which is the bone of
contention between the parties may now be
quoted:
Clause 9: “In the Sepparai Siva Temple
established by our parents, for meeting
expenses of lamp burning for ever and one
measure of rice for daily offering to God and
Archana expenses, a sum of Rs. 451- 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 Chidmbaram 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 share of properties
of the other sharers 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 others have no manner of
right”.
Then nine 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 as follows:
599
The 9th schedule situate within the jurisdiction of the
aforesaid Sub-District Naranathanapuram Jamabandi attached
to Alangulam village and Cilakadu wet irrigated by well,
tamarind trees and dry and the particulars of these are as
follows:-
Extent
Dry Wet Survey Letter Acres De.
No.
Wet 866 A-2 0-47 The number of tama-
Dry 890 C-2 1-00 rind trees stand-
343 c 0-30 ing near the tank
360 D 0-83 bund of the afore-
376 A-2 1-22 said village, 72
Dry 377 A 0-68
428 9-37
845 B-6 1-21
901 C-2 0-35
902 A-2 0-40
903 c- 0-20
-----------
In all wet and Dry 16-05
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, Chidamabram 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. Henceforth
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 “usufructually mortgaged for Rs. 11,000/- 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 Rs.
18,350/-. Since S. Srinivasa Iyengar made repeated demands
for clearing up the debts due under the usufructuary
mortgages 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 Perianyagam Pillai
600
(defendant 7. briefly D-7) for a consideration of Rs.
18,350/-. So this sale in favour of Srinivasa Iyengar was
in “discharge of the said othi (usufructuary 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 Kaliasam 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
Algiakootha we shall keep the eternal lamps burning, collect
the sums which our grandfather endowed for our family and
use special efforts to perform the charities”. In clause
14(1) of this deed it was stated as follows:-
“In as such as sharer No. 1, Kailasam 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 or
endowments. . . . ”
Thus on 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
Perianayagam Pillai (D-7) for a consideration of Rs.
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 Ahmad 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.
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
Perianayagam 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.
Two points were in dispute during the trial, namely, whether
the suit was barred by limitation (issue No. 2) and whether
the deed dated 13th May, 1882, creates an absolute
dedication of the suit property
601
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 40/-
after elaborate discussion of the value of the neighboring
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 deed 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 Pillai’s 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 court’s decree was restored. Hence this appeal
with special leave.
The only question that has been canvassed in this appeal
before us by the learned counsel for the appellants is that
the deed of partition (Ext. A-1) did not create an absolute
endowment of the suit properties for performing the three
kattalis (endowment for religious charities) mentioned
therein, This takes us to the construction of the document
as a whole with particular reference to the clauses which we
have set out earlier therefrom. The deed of partition
discloses a scheme of partial division of the ancestral
properties amongst the brothers. Three of the five brothers
have taken properties mentioned in the relevant schedules
for enjoyment severally and certain properties were kept for
enjoyment in common. Two brothers, Kailasam Pillai and Ven-
katachalam Pillai were enjoying their shares of the
properties jointly. Provision was made for discharge of
family debts and different mutual adjustments have also been
recorded. Clause I of the deed, which we have set out
earlier, is very significant. it excludes from partition
properties specified in certain clauses including the
charity properties as detailed in para 8 and mentioned in
the eighth schedule. Property mentioned in clause 9 is not
excluded from partition. When we look to clause 8 in this
context, we find that the properties mentioned in the eighth
schedule are “allotted for charity” and “shall be
administered in person by Kailasam
Pillai”(emphasissupplied).Inthisclause four objects of
charity have been mentioned, the expenses of which have to
be met from four items of property allotted for them.
Besides clause 8 refers to mid-day offering of Thirumanjanam
expenses in the Siva Temple in Rasavallipuram, and also to
the evening pooja of the said temple. There is reference in
this clause also to the expenses for
602
pooja of Lord Siva at Sepparai on “Ani” Uttiram day and also
for feeding four brahmins in the Siva Temple Sepparai during
Dwadashi days. What is, therefore, excluded for charity
purposes in clause I is clearly described in clause 8 of the
partition deed. Having provided for all these ,charities in
clause 8, clause 9 makes a special provision in connection
with the same Sepparai Siva Temple “for meeting all expenses
of lamp burning for ever and one measure of rice for daily
offering to God and Archana expenses. . . “. Clause 9 takes
note that a sum of Rs. 45/- has been spent annually for
these kattalais’. Arrangement has been made therein for
contribution by two brothers of Rs. 51 each per year and a
sum of Rs. 3/- per year by another brother, totalling a sum
of Rs. 13/- which has to be given by them to Kailasam
Pillai. it may be noted that these two brothers are
unconnected with the suit property after partition. Clause
9 thereafter recites that “for the balance of Rs. 32/- the
dry land mentioned in the ninth schedule shall be ad-
ministered 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”. (emphasis
supplied). The draftsman, who prepared this deed, had good
reasons to mention in clause 8 that “the properties
mentioned in the eighth schedule and allotted for charities
shall be administered in person by Kailasam” while in clause
9 he chose to record that “dry land. mentioned in the 9th
schedule shall be administered in person by Kailasam
Pillai”. 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 in-
considerable and the income out of it was not sufficient to
meet tile 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 charites 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 Venkataclaalam 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
603
the Temple for performance of the three kattalais the
intention of the founders would have been defeated. It
would have been nobody’s business, income being little or
nil. We are, therefore, clearly of opinion that there is no
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.
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 therefore”. 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 Ex t. 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 ears. 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.
Clause 3 of the partition deed mentions only such properties
as have- been allotted to the brothers in full ownership. it
could not mention the property specified in clause 9 because
it is burdended with a charge in favour or kattalais.
We may now refer to some decisions cited at the bar.
In Sree Ishwar SridharJew v. Sushila Bala Dasi (1) and
others, it was observed :
“It is quite true, that a dedication may be
either absolute or partial. The property may
be given out and out to the idol, or it may be
subjected to a charge in favour of the idol.
‘The, question whether the idol itself shall
be considered the true beneficiary, subject to
a charge in favour of the heirs or specified
relatives of the testator for their upkeep, or
that, on the other
(1) [1954] S. R. 407-414.
604
hand, these heirs shall be considered the true
beneficiaries of the property, subject to a
charge for the upkeep, worship and expenses of
the idol, is a question which can only be
settled by a conspectus of the entire
provisions of the will’ Pande Har Narayan v.
Surja Kunwari(1)”.
Observations to the same effect have also been
made by the Privy Council in Sri Sri Iswari
Bhubaneshwari Thakurani v. Brojo Nath Dey and
others.(2)
in Menakuru Daseratharami Reddi v. Duddukuru
Subba Rao,(3) this Court observed as follows
:-
“Now it is clear that dedication of a property
to religious or charitable purposes may be
either complete or partial. If the dedication
is complete, a trust in favour of public
religious charity is created. If the
dedication is partial, a trust in favour of
the charity is not created but a charge in
favour of the charity is attached to, and-
follows, the property which retains its
original private and secular character.
Whether or not dedication is complete would
naturally be a question of fact to be
determined in each case in the light of the
material terms used in the document. In such
cases it is always a matter of ascertaining
the true intention of the parties it is
obvious that such intention must be gathered
on a fair and reasonable construction of the
document considered as whole.”
in Ramkishore Lal v. Kamal Narain,(4) this
Court observed :
“The golden rule of construction, it has been
said, is to ascertain the intention of the
parties to the instrument after considering
all the words, in their ordinary, natural
sense. To ascertain this intention the court
has to consider the relevant portion of the
document as a whole and also to take into
account the circumstances under which the
particular words were used”.
it was further observed(4) :
“What was said in this case in connection
with the construction of a wilt appl
ies with
equal force to the construction of every other
document by which some property is disposed of
In Gopal Lal Sett v. Purna Chandra Basak and
other(5), the Privy Council observed as
follows –
“The first. question that arises is whether
the gift is a gift to the Idols, or whether
there was a gift to any other person or
persons charged with the maintenance of the
Idols. The will is most obscure, but their
Lordships think that there is certainly no
direct gift of the whole property to the
Idols, nor in the circumstances ought one to
be implied. It is consequently necessary to
see in what capacity and by virtue of what
right the worship of the Idols is to be
carried out. The person on. whom
(1) 1921 LR 48 I.A. 143, 145-146.
(2) A.I.R. 1937 P.C. 185.
(3) (1957) S.C.R. 1122,1128.
(4) [1963] Supp. 2 S.C.R. 417,424,428.
(5) A.I.R. 1922 P. C. 253-54.
605
the duty was cast was undoubtedly Udoy Chand,
and the conclusion which their Lordships have
reached, is that if, as they think, there is
no gift to the Idols it is only possible to
give effect to the provision of the will by
treating it as conferring the property upon
Udoy Chand. The will is addressed to him;
upon him throughout all the burdens of
performing different duties are cast, and this
necessarily involves the ownership of the
property”.
It may be appropriate to refer to a passage in Mayne on
Hindu Law and Usage, eleventh edition (Reprint) at page 923
(Section 792) which reads as under
“A dedication of property for religious or
charitable purposes may be either absolute or
partial (1). In the former case, the property
is given out and out to an idol or to a
religious or charitable institution and the
donor divests himself of all beneficial
interest in the property comprised in the
endowment (2). Where the dedication is
partial, a charge is created on the property
or there is a trust to receive and apply a
portion of the income for the religious or
charitable purposes (3). In such a case, the
property descends and is alienable and
partible in the ordinary way, th
e only
difference being that it passes with the
charge upon it”(4).
In this context we may also note a decision of the Calcutta
High Court in Hulada Prasad Deghoria v. Kalidas Naik and
others,(5) where the court had to deal with interpretation
of an ancient document:
“The matter may be put briefly in the word of
Sugdan, L. C., in Attorney-General v. drummond
(6) : ‘One of the most settled rules of law
for the construction of ambiguities in an
ancient instrument is that you may resort to
contemporaneous usage to ascertain the meaning
of the deed ; tell me what you have done under
such a deed, and I will tell you what that
deed means’. To this must be added the
qualification formulated by Lord Cranworth, L.
C., in Sadlier v. Biggs (7), in the following
terms : ‘If there is a deed which says,
according to its true construction, one thing,
you cannot say that the deed means something
else, merely because the parties have gone on
for long time so understanding it”.
We have referred to this case although in the case before us
the terms of the deed are not at all ambiguus while the
Calcutta High Court had to consider an instrument the terms
of which were “at best inconclusive” The principle that the
court may call in aid acts under the deed as a clue to the
intention, as was pointed out by Lord Halsbury, L. C., in
North- Western Railway Co.v.Lord Hastings,(8) “does not
apply unless there is an ambiguity, for even usage does not
justify deviation
(1) (1937) 64 I.A. 203/211.
(2) (1904) 31 I.A. 203.
(3) (1859) 8 M.I.A. 66.
(4) (1878) 4 Cal. 56.
(5) AIR 1914 Cal. 813/814-815.
(6) (1842) 1 Dr. & W. 358.
(7) (1853) 4 H.L.C. 436.
(8) (1900) A. C. 260.
M 602 Sup. C I/75
606
from terms which are plain : Attorney-General v. Bochester
Corporation”(1). It was observed by the House of Lords in
Drammond v. Attorney General(2) :
” Consequently, while in a case of ambiguity,
the court will uphold that construction of a
deed which justifies a 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”.
Our attention was drawn to a decision of the House of Lords
in The Attorney-General v. The Master, Wardens, & C. of the
Wag Chandlers’ Co.3 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 devise 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 devise, and
that every accretion to the value of the land
belongs to the devise ; 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 Halsbury’s
Laws of England 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”. (4)
.lm0
The case referred to in Halsbury is Dr.
Villiam Jack, Principal, and the Professors of
the University and King’s College of Aberdeen
v. Sir Thomas Burnett, of Leys, Bart. (1846)
XII Clark & Finnelly, 812,(5)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 in-
curred by non-performance of that condition,-
and, thirdly, that
(1) 5 De G.M. & G. 797. (2) (1849) 2 HLC
837.
(3) (1873) Eng. & Irish Appeal, 6 LA., 1119.
(4) (1846) 12 Cl. & Fin. 812, H.L. 828. per
Lord Cottenham.
(5) 8 English Reports, H.L., Cl. & Fin 8-12,
p. 1632.
607
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 Processors were entitled, after satisfying
the conditions of the deed of gift, to appropriate to
themselves any surplus arising from the lands thus given”.
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.
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 planitiffs/respondents. We may, however, add
that the conclusion we have reached from the 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
608
entire income of the property has been endowed to the trust
to sustain a conclusion that the entire corpus belongs to
the trust.
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.
In the result the appeal is allowed and the judgment of the
High Court is set aside and that of the Subordinate Judge is
restored subject to the direction that the suit property
will be impressed with the obligation to perform the
charities mentioned in clause 9 of the partition deed of
1882 and the plaintiffs’ suit stands dismissed. The parties
will bear their own costs in this Court.
V.P.S. Appeal Allowed.
609