{"id":135485,"date":"1973-12-07T00:00:00","date_gmt":"1973-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sappani-mohamed-mohideen-anr-vs-r-v-sethusubramania-pillai-ors-on-7-december-1973"},"modified":"2015-07-28T07:52:19","modified_gmt":"2015-07-28T02:22:19","slug":"sappani-mohamed-mohideen-anr-vs-r-v-sethusubramania-pillai-ors-on-7-december-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sappani-mohamed-mohideen-anr-vs-r-v-sethusubramania-pillai-ors-on-7-december-1973","title":{"rendered":"Sappani Mohamed Mohideen & Anr vs R. V. Sethusubramania Pillai & Ors on 7 December, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sappani Mohamed Mohideen & Anr vs R. V. Sethusubramania Pillai & Ors on 7 December, 1973<\/div>\n
Equivalent citations: 1974 AIR 740, \t\t 1974 SCR (2) 594<\/div>\n
Author: P Goswami<\/div>\n
Bench: Goswami, P.K.<\/div>\n
           PETITIONER:\nSAPPANI MOHAMED MOHIDEEN & ANR.\n\n\tVs.\n\nRESPONDENT:\nR. V. SETHUSUBRAMANIA PILLAI & ORS.\n\nDATE OF JUDGMENT07\/12\/1973\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nDWIVEDI, S.N.\nCHANDRACHUD, Y.V.\n\nCITATION:\n 1974 AIR  740\t\t  1974 SCR  (2) 594\n 1974 SCC  (1) 615\n\n\nACT:\nReligious  Endowment- Whether absolute or partial-Tests\t for\ndetermining\n\n\n\nHEADNOTE:\nIn  1882,  there  was a partition  of  ancestral  properties\namongst 5 brothers by means of a partition deed Three of the\n5  brothers  took the properties mentioned in  the  relevant\nschedules  for enjoyment severally, and\t certain  properties\nwere  kept  for enjoyment in common.  Two brothers K  and  V\nwere  enjoying\ttheir shares jointly, Clause 1 of  the\tdeed\nexcluded from partition the properties specified in  certain\nclauses.   One\tof  the clauses is  cl.\t 8  which  describes\ncertain\t charity purposes and provides that  the  properties\nmentioned in the 8th schedule and allotted for charity shall\nbe administered by K. Clause 9 makes a special provision  in\nconnection  with three religious charities in relation to  a\ntemple.\t The clause mentions that a sum of Rs 45\/- had\tbeen\nspent  annually for these three purposes, that\tarrangement,\nhad been made for contribution of sums amounting to Rs\t13\/-\nby  three brothers that the dry lands mentioned in  the\t 9th\nschedule  shall\t be administered by K and from\tout  of\t the\nincome\tof  the said properties and from out  of  their\t own\nfunds  K  and  V shall perform the  aforesaid  charities  by\nspending  the balance of Rs 32\/without fail.   The  property\nmentioned in cl. 9 was not excluded from partition.  At\t the\ntime  of the partition the income from the property  in\t the\n9th schedule was in fact not sufficient to meet the expenses\nof  the\t three\tcharities directed  to\tbe  performed.\t The\nproperty having been alienated, the respondents filed a suit\nfor  a declaration that there was an absolute  endowment  of\nthe property for the performance of the religious  charities\nand that the alienation was invalid.\nThe trial Court decreed the suit.  The first appellate Court\nheld  that  there was no absolute dedication  and  the\tHigh\nCourt,\tin second appeal, restored the decree of  the  trial\nCourt.\nAllowing the appeal to this Court\nHELD  :\t Whether  an  endowment\t is  absolute  or   partial,\nprimarily depends on the terms of the grant.  If there is an\nexpress\t endowment, there is no difficulty, but if there  is\nonly an implied endowment, the intention has to be  gathered\non  the\t construction of the document.as a  whole.   If\t the\nwords  of  the\tdocument  are  clear  and  unambiguous,\t the\nquestion  of  interpretation would not arise.  If  there  be\nambiguity. the intention of the founders has to be carefully\ngathered  from the scheme and language of the  grant.\tEven\nsurrounding  circumstances,  subsequent\t dealing  with\t the\nproperty,  the\tconduct of the parties to the  document\t and\nlong  'usage of the property and other relevant factors\t may\nhave to be considered in an appropriate case. 1607D-F]\nIn the present case, it is clear from the terms of cl.9\t and\nother  material\t provisions of the deed that  there  was  no\nabsolute endowment of the property to the temple or a trust.\nThe  property, however, is impressed with the obligation  or\ncharge\tof performing the religious charities  mentioned  in\ncl.9 of the partition deed in the manner indicated  therein.\nThe alienation is therefore, not invalid and the  obligation\nto perform the charity follows the property. [607F-G;  608A-\nC]\n(1)  While  cl. 8 recites that 'the properties mentioned  in\nthe  8th  schedule  and\t allotted  for\tcharities  shall  be\nadministered by K'. cl. 9 recites that dry land mentioned in\nthe  9th Schedule shall be administered by K.' There  is  no\nreference in cl. 9 that the land was allotted for  charity'.\n[602D]\n(2)  If the property was absolutely dedicated to the  temple\nfor the performance of the religious charities the intention\nof  the\t founders would have been defeated the\tincome\tfrom\nthe, property being little or nothing.\tA construction of  a\ndocument which would frustrate the intention of the founders\nshould\tbe  avoided.  To gather such intention at  the\ttime\nwhen  the document came into existence the Present value  of\nor  present income from, the property is irrelevant.  [602H-\n603B]\n595\n(3)  It\t is  because of the obligation to keep alive  the  3\ncharities that the property was not allotted to the  temple,\nbut  was  allotted  to K and V, so that they  may  get\tsome\nrecompense out of its income some day. [602G-H]\n(4)  The  present case is far from a case where\t the  entire\nincome\tof  the\t property has been endowed  to\ta  trust  to\nsustain\t a conclusion that the entire corpus belongs to\t the\ntrust. [608 A]\n(5)  This  conclusion drawn from the intrinsic\tevidence  of\nthe document itself, is reinforced by the subsequent conduct\nof  the parties and the various transactions  effected\tfrom\ntime to time with respect to the property. [603 E-F; 607H]\nSree  Sree  Ishwer  Sridhar Jew v.  Sushila  Bala  Dasi\t and\nothers<\/a>,\t [1954] S.C.R. 407414 Menakuru Das aratharami  Reddi\nv.  Duddukuru  Subba Rao,<\/a>[1957] S.C.P. 1122,  1128  and\t Ram\nKissore\t Lal  v.  Kamal\t Narain,<\/a>  [1963]  Supp.\t (2)  S.C.R.\n417\/424\/428, followed.\nSri Sri Iswar Bhubaneswari Thakurani v. Barojo Nath Dey\t and\nOthers,\t A.I.R.\t 1937 Privy Council 185, Gopal Lal  Sett  v.\nPurna  Chandra Busak and others, A.I.R. 1922  Privy  Council\n2531254, Hulada Prasad Deghoria v. Kalidas Naik and  others,\nA.I.R. 1914 Cal. 813\/814-815, North-Eastern Railway Co.,  v.\nLord  Hastings,\t [1900]\t A.C.  260,  Drammond  v.   Attorney\nGeneral,  (1849) 2 H.L.C. 837, The Attorney-General  v.\t The\nMaster Wardens, &c. of the wag Chandlers, (1873)Eng. & Irish\nAppeal,\t 6 L.R., 1\/19, Dr. Villiam Jack, Principal  and\t the\nProfessors of the University and King's College of  Aberdeen\nv.  Sir\t Thomas Burnett, of Leys Bart. (1846)  XII  Clark  &\nFinnelly, 812, and Mayre on Hindu Law and Usage 11th ed.  P.\n923,  Section  792 and Halsbury's Laws of England,  3rd\t ed.\nVo. 4, p. 306 , referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1555  of
\n1967.\n<\/p>\n
Appeal\tby Special leave from the judgment and Decree  dated
\nthe  5th  January, 1967 of the Madras High Court  in  Second
\nAppeal No. 82 of 1963.\n<\/p>\n
K.   S. Ramamurthi and B. R. Agrawala, for the appellants,
\nM. K. Ramamurti and J. Ramamurti, for the respondents.
\nThe Judgment of the Court was delivered by
\nGOSWAMI,  J. In this. appeal we have to go back to a  period
\nclose  upon a passing century to divine what a\tHindu  Joint
\nFamily\tthat  had separated at that distant  date,  thought,
\ncontemplated,  did and above all intended not only then\t but
\nalso for the future.  It was the year 1882 and precisely  on
\n13th May of at year an instrument of partition was  executed
\nand  registered\t amongst  five\tbrothers,  namely,  Sivarama
\nkrishna\t Pillai,  Kailasam  Pillai,  Venkatachalam   Pillai,
\nChidambaram Pillai and Namasivayam Pillai sons of Subramania
\nPillai.\t  The family appears to be religiously disposed\t and
\nwas keen to perpetuate the pious
\n596<\/span>
\nancestral  ideology, A genealogy given in the  statement  of
\ncase by the appellants gives the appropriate picture for the
\npurpose of this appeal:\n<\/p>\n
\t\t     Subramenia Pillai\n<\/p>\n
———————————————————-
\nShiverama  kailasam Venkatachalam  Chidambaram\t Navasiva
\nkrishna\t   Pillai    Pillai\t   Pillai\t yam
\nPillai\t\t\t\t\t\t Pillai
\n\t\t   Sethusubramanya Pillai
\nKailasam pillai Venkatachalam  Gopalakrishan  Prianayagam
\n(Junior)\tPillai (Jr.)\t Pillai\t       Pillai
\n(died in 1950) (died in 1953)\t (D-6)\t\t(D-7)
\n\t  R.V. Sthusubramanya\t   R.P. Sethusubramanya
\n\t  Pillai\t\t    Pillai
\n\t  (1st plaintiff)\t   (2nd plaintiff)\n<\/p>\n
———————————————————-
\nTo  start  with\t the  deed of  partition,  it  appears,\t the
\nproperties of the family were ancestral and were partitioned
\namongst\t the five brothers reserving some to be\t enjoyed  in
\ncommon\tand allotting certain properties to charities to  be
\nadministered  by  one of their\tbrothers,  Kailasam  Pillai.
\nReading the entire. document it appears that even after\t the
\npartition  Kailasam Pillai and Venkatachalam Pillai  desired
\nto  enjoy their shares of the property jointly and were,  in
\ngreat  cordiality while the other three brothers  lived\t and
\nenjoyed\t their properties separately.  It also appears\tthat
\nthe   second   and   the  third\t  brothers,   Kailasam\t and
\nVenkatachalam  were  given to piety or, at  any\t rate,\twere
\nperhaps\t considered as responsible and solvent persons,\t who
\ncould be entrusted to administer the charities indicated  in
\nthe deed.  There is also reference to family debts and other
\namicable  adjustments  amongst\tthe  brothers  and  also  to
\nvoluntary  relinquishment  of  a  share\t by  Sivaramakrishna
\nPillai.\t  With this brief synopsis we may now  extract\tsome
\nmaterial  provisions of the partition deed (Ext.  Al)  which
\nwas written in Tamil and has been officially translated:\n<\/p>\n
\t      Clause 1: “Out of the entire properties  worth
\n\t      Rs.  28,000\/:  belonging\tto  our\t family\t and
\n\t      mentioned\t in the schedules herein,  excluding
\n\t      the properties situate in Rasavallipuram\theld
\n\t      in common as detailed in para 6 and  mentioned
\n\t      in  the  sixth schedule  here,  excluding\t the
\n\t      charity properties as
\n\t      597<\/span>
\n\t      detailed in para 8 and mentioned in the eighth
\n\t      schedule excluding the other wet, dry  (lands)
\n\t      gardens  and  all the  properties\t situate  in
\n\t      Kattampulimanapadayur excluding the  property,
\n\t      kept  in common from October 1880 as  detailed
\n\t      in  para\t7  and\tmentioned  in  the   seventh
\n\t      schedule\t herein,   situate   in\t  one\tcrop
\n\t      cultivation  village  Gananthanparai,  in\t the
\n\t      other  properties, settled in favour of us  in
\n\t      one  month  of  September 1881,  dry  and\t wet
\n\t      lands, palmyra trees, etc. in Kilakadu situate
\n\t      in     Alangulam\t  Village    attached\t  to
\n\t      Naranammalpuram\tJamabandi   area,    whereas
\n\t      Sivaramakrishna  Pillai has  relinquished\t his
\n\t      share  in favour of the other four persons  as
\n\t      detailed\tin  para  4  out  of  the  aforesaid
\n\t      properties,  excepting the properties held  in
\n\t      common as detailed in para II and mentioned in
\n\t      the  10th schedule the other  properties\twere
\n\t      divided  among  the other\t four  persons\twith
\n\t      reference to good and bad by casting chits  in
\n\t      the month of January 1882″.\n<\/p><\/blockquote>\n
\t      Clause  2 refers to family houses\t which\tneed
\n\t      not be quoted.\n<\/p><\/blockquote>\n
\t      Clause   3  :”As\tdivision  was  effected\t  as
\n\t      detailed in paras 1 and 2, the first  Schedule
\n\t      properties  fell\tto the\tshare  of
\n\t      Sivaramakrishna Pillai amongst us, the  second
\n\t      and  third schedule properties to two  persons
\n\t      Kailasam\tPillai and Venkatachalam Pillai\t the
\n\t      fourth  schedule\tproperties  to\t Chidambaram
\n\t      Pillai  and the fifth schedule  properties  to
\n\t      Namasivayam Pillai.  Ever since the properties
\n\t      were  allotted as aforesaid,  Kailasam  Pillai
\n\t      and Venkatachalam Pillai were enjoying the two
\n\t      shares  of their properties in common and\t the
\n\t      other  three  persons were  enjoying  all\t the
\n\t      other  shares of properties separately.\tThat
\n\t      is   the\tsecond\titem  of   Kattampuli\tland
\n\t      mentioned in fourth schedule which fell to the
\n\t      share of the Chidambaram Pillai and the second
\n\t      item of Kattampuli land mentioned in the fifth
\n\t      schedule\t which\t fell  to   the\t  share\t  of
\n\t      Namasivayam  Pillai were enjoyed\tby  Kailasam
\n\t      Pillai under usufructuary mortgage rights”.
\n\t      Clause  6: “As the Kulukuthurai Inam  Palmyrah
\n\t      trees  situate in Rasavallipuram mentioned  in
\n\t      the  sixth schedule here and  one-third  share
\n\t      belonging\t to  us five persons  could  not  be
\n\t      conveniently enjoyed by division, it was to be
\n\t      enjoyed  in  common  and\tthe  income  derived
\n\t      therefrom should be given to the early morning
\n\t      pooja of the seventh day festival in the month
\n\t      of  “Thai” of Sabhapati Naicker Deity  in\t the
\n\t      Siva  Temple  situate  in\t Rasavallipuram\t for
\n\t      expenses\tfor Archana on the 4th\tThai  Friday
\n\t      every year
\n\t      Clause  7:  “The dry  lands,  palmyrah  trees,
\n\t      gardens\tand  other  buildings\tsituate\t  in
\n\t      Gangathanaprai  mentioned in the 7th  schedule
\n\t      herein  should  be  enjoyed  in  common.\t The
\n\t      income  from the said dry lands  and  palmyrah
\n\t      groves should be divided into five shares\t and
\n\t      two  such shares should be enjoyed in  common.
\n\t      by  Kailasam Pillai and  Vankatachalam  Pillai
\n\t      and the other three shares by the other  three
\n\t      persons independently”.\n<\/p><\/blockquote>\n
\t      598<\/span><\/p>\n
\t      Clause 8: “The properties mentioned in the 8th
\n\t      schedule herein and allotted for charity shall
\n\t      be  administered in person by  Kailsam  Pillai
\n\t      and  from out of the income of the first\titem
\n\t      property shall be given to mid-day offering of
\n\t      Thirumanjanam  expenses in the Siva Temple  in
\n\t      Rasavallipuram.\t From\tthe   second\titem
\n\t      properties the expenses for the evening  pooja
\n\t      of  the  said temple shall be  met,  from\t the
\n\t      third item property the expenses for pooja  of
\n\t      Lord  Siva  at Sepparai on “ani”\tUttiram\t day
\n\t      should  be  met and from the 4th item  of\t the
\n\t      property.\t  They shall feed four\tbrahmins  in
\n\t      the Siva Temple Sepparai during Dwadashi days
\n\t      The  next\t clause No. 9 which is the  bone  of
\n\t      contention  between  the parties\tmay  now  be
\n\t      quoted:\n<\/p><\/blockquote>\n
\t      Clause   9:  “In\tthe  Sepparai  Siva   Temple
\n\t      established   by\tour  parents,  for   meeting
\n\t      expenses\tof  lamp burning for  ever  and\t one
\n\t      measure of rice for daily offering to God\t and
\n\t      Archana  expenses, a sum of Rs. 451- is  spent
\n\t      annually.\t Out of this a sum of Rs. 5 per year
\n\t      which shall be paid by Sivaramakrishna Pillai,
\n\t      Namasivayam Pillai and a sum of Rs. 3 per year
\n\t      by  Chidmbaram Pillai to Kailasam\t Pillai\t and
\n\t      excluding the sum of Rs. 13\/- as given in\t the
\n\t      three  items aforesaid for the balance of\t Rs.
\n\t      32 the dry land mentioned in the 9th  schedule
\n\t      shall  be administered in person\tby  Kailasam
\n\t      Pillai and spent from out of the income of the
\n\t      said  properties\tand from out  of  their\t own
\n\t      funds Kailasam Pillai and Venkatachalam Pillai
\n\t      shall  perform the aforesaid  charity  without
\n\t      fail”.\n<\/p><\/blockquote>\n
\t      Clause 12: “Kailasam Pillai and  Venkatachalam
\n\t      Pillai shall in respect of their properties in
\n\t      common and the other three in respect of their
\n\t      respective    properties\t  separately\t and
\n\t      absolutely enjoy with powers of alienation  by
\n\t      way of gift, exchange, sale etc.\tIn the share
\n\t      of properties allotted to Kailasam Pillai\t and
\n\t      Venkatachalam Pillai the other sharers have no
\n\t      right and similarly in the share of properties
\n\t      of the other sharers the aforesaid two persons
\n\t      have no right.  Likewise in the property\theld
\n\t      by the other three persons, in the property of
\n\t      which one of them the others have no manner of
\n\t      right”.\n<\/p><\/blockquote>\n
Then  nine schedules are given showing the  properties\tthat
\nhave fallen to the shares of different brothers.  The  ninth
\nschedule property, which is the suit property, is  described
\nin Ext.\t A-1 as follows:\n<\/p>\n
599<\/span><\/p>\n
The  9th  schedule situate within the  jurisdiction  of\t the
\naforesaid  Sub-District Naranathanapuram Jamabandi  attached
\nto  Alangulam  village and Cilakadu wet irrigated  by  well,
\ntamarind  trees and dry and the particulars of these are  as
\nfollows:-\n<\/p>\n
\t       Extent
\nDry Wet\t  Survey   Letter   Acres De.\n<\/p>\n
\t   No.\n<\/p>\n
Wet\t  866\tA-2   0-47   The number of tama-\n<\/p>\n
Dry\t  890\tC-2   1-00   rind trees stand-\n<\/p>\n
\t  343\t   c\t0-30 ing near the tank\n\t  360\t   D\t0-83 bund of the afore-\n\t  376\t  A-2\t1-22 said village, 72\nDry\t  377\t    A\t0-68\n\t  428\t\t9-37\n\t  845\t  B-6\t1-21\n\t  901\t  C-2\t0-35\n\t  902\t  A-2\t0-40\n\t       903\t c-  0-20\n\t\t\t  -----------\n     In all wet and Dry\t      16-05\n<\/pre>\n
This ninth schedule property is the suit property.
\nIt  appears that Kailasam Pillai in the meantime died as  is
\napparent  from\tthe  partition\tdeed  (Ext.   A-3)  executed
\nbetween Venkatachalam Pillai and Thirumalai Vadvammal  widow
\nof  Kailasam Pillai on 21-1-87.\t Clause 19 of this deed\t may
\nbe quoted:\n<\/p>\n
\t      “Sivaramakrishna\tPillai, Chidamabram  Pillai,
\n\t      Venkatachalam   Pillai,  son   of\t  Namasivaya
\n\t      Pillai, these persons were contributing a\t sum
\n\t      of  Rs. 13\/- every year to the  said  Kailasam
\n\t      Pillai  for  perpetual  burning  of  lamp\t  at
\n\t      Chepparaiswami Nataraja Sannathi.\t  Henceforth
\n\t      the  said Venkatachalam Pillai  shall  receive
\n\t      the said amount and perform the charity”.\n<\/p><\/blockquote>\n
In  this partition deed, the properties of  Kailasam  Pillai
\nand  Venkatachalam  Pillai were\t divided  and  Venkatachalam
\nPillai\ttook the responsibility of performing the  charities
\nentrusted  to  Kailasam Pillai under clause 9 of  the  first
\npartition  deed\t of 1882.  It appears from Ext.\t  B-1  dated
\n8-9-1937,  which  is a sale deed in favour of  S.  Srinivasa
\nIyengar, that on 8th November, 1921, the suit properties had
\nbeen “usufructually mortgaged for Rs. 11,000\/- in favour  of
\none  Maragathammal  by\tGomathi Ammal  for  the\t purpose  of
\ndischarging  the  family debts for a period of\tfive  years.
\nThe  period was extended by a further usufructuary  mortgage
\nof  the\t properties for a sum of Rs. 7350\/- on\t26th  April,
\n1923.\tIt  also  appears  that the  rights  under  the\t two
\nusufructuary  mortgage deeds were assigned to  S.  Srinivasa
\nIyengar by a deed of’ assignment in November, 1962, executed
\nby  the\t said  Maragathammal  for  a  consideration  of\t Rs.
\n18,350\/-.  Since S. Srinivasa Iyengar made repeated  demands
\nfor  clearing  up  the\tdebts  due  under  the\tusufructuary
\nmortgages  the\tsaid properties along with some\t other\tland
\nwere  sold  to him by Kailasam Pillai  (Jr.),  Venkatachalam
\nPillai (Jr.), Gopalakrishna Pillai (defendant 6, briefly  D-\n<\/p>\n
6) and Perianyagam Pillai
\n600<\/span>
\n(defendant  7.\tbriefly\t D-7) for  a  consideration  of\t Rs.
\n18,350\/-.   So this sale in favour of Srinivasa Iyengar\t was
\nin  “discharge\tof  the said  othi  (usufructuary  mortgage)
\ndebts”\tand  the  properties  which  had  already  been\t  in
\npossession  of Srinivasa Iyengar continued to remain in\t his
\npossession  now\t as owner of the properties with  “power  of
\nalienation   by\t  way  of  gift,  exchanges,   sales,\tetc.
\nabsolutely”.\n<\/p>\n
A  third  partition deed (Ext.\tA-10) had been\texecuted  on
\n19th   October,\t  1936,\t amongst  Kaliasam   Pillai   (Jr.),
\nVenkatachalam  Pillai (Jr.), Gopalakrishna Pillai (D-6,\t and
\nPrianayagam  Pillai  (D-7)  in\torder  to  later  facilitate
\nabsolute  sale of the properties in favour of  S.  Srinivasa
\nIyengar\t in 1937.  It was stated in this deed  (Ext.   A-10)
\nthat  “from the property endowed to the temple\tof  Sepparai
\nAlgiakootha we shall keep the eternal lamps burning, collect
\nthe  sums which our grandfather endowed for our\t family\t and
\nuse  special efforts to perform the charities”.\t  In  clause
\n14(1) of this deed it was stated as follows:-\n<\/p>\n
\t      “In  as such as sharer No. 1, Kailasam  Pillai
\n\t      (reference to Kailasam Junior) has voluntarily
\n\t      relinquished in favour of the other 3  sharers
\n\t      the right to perform and administer the family
\n\t      charities\t and the properties endowed for\t the
\n\t      same; sharer No. 1 shall not have at any\ttime
\n\t      any    right    to    said    charities\t  or
\n\t      endowments. . . . ”\n<\/p><\/blockquote>\n
Thus  on  8th  September, 1937, a sale\tdeed  for  the\tsuit
\nproperty and other lands (Ext.\tB-1) was executed in  favour
\nof  S. Srinivasa Iyengar Avergal by Kailasam  Pillai  (Jr.),
\nVenkatachalam  Pillai (Jr.),Gopalakrishna Pillai  (D-6)\t and
\nPerianayagam  Pillai  (D-7)  for  a  consideration  of\t Rs.
\n18350\/-.   Srinivasa Iyengar also got his name\trecorded  in
\nthe patta.  On 10th June, 1943, S. Srinivasa Iyengar sold by
\nExt.  B-2 the suit property, etc. to Sappani Ahmad Mohideen,
\nfather of the two appellants herein, for a consideration  of
\nRs.  22600\/-.  Sappani Ahmed Mohideen got his name  recorded
\nin  the patta in due course.  The second appellant,  who  is
\nthe brother of the first appellant, sold some portion of the
\nsuit property to Defendants 3 to 5 on 7th April, 1960.
\nThis  appears  to  be  the history  and\t background  of\t the
\nlitigation.\n<\/p>\n
The  plaintiffs (the first two respondents) herein  are\t the
\ngreat  grandsons of Venkatachalam Pillai son  of  Subramania
\nPillai.\t  They\tinstituted  a suit in the  court  of  munsif
\nTirunelveli   on   5th\tSeptember,  1960,   impleading\t the
\npurchasers  of\tthe suit property as Defendants 1 to  5\t and
\nGopalakrishna\tPillai,\t  uncle\t of   the   plaintiffs\t and
\nPerianayagam  Pillai,  father of the 2nd plaintiff,  as\t the
\ndefendants  6  and 7 respectively, praying  for\t declaration
\nthat  the suit properties belong to the trust and  that\t all
\nalienations in respect of them are not binding on the  trust
\nand for possession of the suit properties from defendants  1
\nto  5 to “the lawful trustees”.\t One written  statement\t was
\nsubmitted  on behalf ,of the defendants 1 to 5 and the\tsuit
\nproceeded ex-parte against defendants 6 and 7, who were\t not
\neven examined as witnesses in the trial.\n<\/p>\n
Two points were in dispute during the trial, namely, whether
\nthe suit was barred by limitation (issue No. 2) and  whether
\nthe   deed  dated  13th\t May,  1882,  creates  an   absolute
\ndedication of the suit property
\n601<\/span>
\nor  only a charge on the income of the said property  (issue
\nNo.  3).  The 1st plaintiff Who was a young man of 28  years
\non the date of his giving evidence, examined himself and two
\nother  witnesses.   The defendants examined only  the  first
\ndefendant.   The trial court answered both the above  issues
\nin favour of the plaintiffs and decreed the suit.  On appeal
\nthe Subordinate Judge, Tirunelveli, affirmed the finding  of
\nthe  Munsif on the question of limitation but reversed\tthat
\nrelating  to issue No. 2. He held that the entire income  of
\nthe  suit property was not sufficient even to meet a  minute
\nfraction  of the expenses and, therefore, the\tquestion  of
\nabsolute  dedication of the property did not arise.  It\t may
\nbe  noted  here\t that  the  trial  court  as  well  as\t the
\nSubordinate Judge held that the income from the property was
\nnot  sufficient\t to meet all the expenses of  the  charities
\ndirected  to  be performed.  The value of the suit  land  in
\n1882  was  found by the Subordinate Judge to  be  only\t40\/-
\nafter  elaborate discussion of the value of the\t neighboring
\nproperties which were subject matters of different sales  at
\nthe relevant time.  When the matter was taken to the  Madras
\nHigh  Court in second appeal, the High Court held  that\t the
\nfamily\thad  divested itself of the ownership  of  the\tsuit
\nproperty and that the deed of partition created an  absolute
\nendowment of the suit property for the purpose of performing
\nthe  charities mentioned therein.  It further held that\t the
\nsuit  property was not allotted to Kailasam  Pillai’s  share
\nand  he was only made a trustee of the properties.   In\t the
\nview the High Court took, the second appeal was allowed\t and
\nthe  trial court’s decree was restored.\t Hence\tthis  appeal
\nwith special leave.\n<\/p>\n
The  only  question that has been canvassed in\tthis  appeal
\nbefore us by the learned counsel for the appellants is\tthat
\nthe deed of partition (Ext.  A-1) did not create an absolute
\nendowment  of the suit properties for performing  the  three
\nkattalis  (endowment  for  religious  charities)   mentioned
\ntherein,  This takes us to the construction of the  document
\nas a whole with particular reference to the clauses which we
\nhave  set  out earlier therefrom.  The\tdeed  of  partition
\ndiscloses  a  scheme of partial division  of  the  ancestral
\nproperties amongst the brothers.  Three of the five brothers
\nhave  taken properties mentioned in the\t relevant  schedules
\nfor enjoyment severally and certain properties were kept for
\nenjoyment in common.  Two brothers, Kailasam Pillai and Ven-
\nkatachalam   Pillai  were  enjoying  their  shares  of\t the
\nproperties  jointly.   Provision was made for  discharge  of
\nfamily debts and different mutual adjustments have also been
\nrecorded.   Clause  I  of the deed, which we  have  set\t out
\nearlier,  is  very significant. it excludes  from  partition
\nproperties  specified  in  certain  clauses  including\t the
\ncharity\t properties as detailed in para 8 and  mentioned  in
\nthe eighth schedule.  Property mentioned in clause 9 is\t not
\nexcluded  from partition.  When we look to clause 8 in\tthis
\ncontext, we find that the properties mentioned in the eighth
\nschedule   are\t “allotted  for\t charity”  and\t “shall\t  be
\nadministered\t    in\t     person\t  by Kailasam
\nPillai”(emphasissupplied).Inthisclause\t four\tobjects\t  of
\ncharity\t have been mentioned, the expenses of which have  to
\nbe  met\t from  four items of  property\tallotted  for  them.
\nBesides clause 8 refers to mid-day offering of Thirumanjanam
\nexpenses  in the Siva Temple in Rasavallipuram, and also  to
\nthe evening pooja of the said temple.  There is reference in
\nthis clause also to the expenses for
\n602<\/span>
\npooja of Lord Siva at Sepparai on “Ani” Uttiram day and also
\nfor feeding four brahmins in the Siva Temple Sepparai during
\nDwadashi  days.\t  What is, therefore, excluded\tfor  charity
\npurposes in clause I is clearly described in clause 8 of the
\npartition deed.\t Having provided for all these ,charities in
\nclause\t8, clause 9 makes a special provision in  connection
\nwith the same Sepparai Siva Temple “for meeting all expenses
\nof  lamp burning for ever and one measure of rice for  daily
\noffering to God and Archana expenses. . . “. Clause 9  takes
\nnote  that  a sum of Rs. 45\/- has been\tspent  annually\t for
\nthese  kattalais’.   Arrangement has been made\ttherein\t for
\ncontribution  by two brothers of Rs. 51 each per year and  a
\nsum of Rs. 3\/- per year by another brother, totalling a\t sum
\nof  Rs.\t 13\/-  which has to be given  by  them\tto  Kailasam
\nPillai.\t it  may  be  noted  that  these  two  brothers\t are
\nunconnected with the suit property after partition.   Clause
\n9  thereafter recites that “for the balance of Rs. 32\/-\t the
\ndry  land  mentioned  in the ninth  schedule  shall  be\t ad-
\nministered  in person by Kailasam Pillai and spent from\t out
\nof  the income of the said properties and from out of  their
\nown  funds  Kailasam Pillai and Venkatachalam  Pillai  shall
\nperform\t the aforesaid\tcharity\t without  fail”. (emphasis
\nsupplied).  The draftsman, who prepared this deed, had\tgood
\nreasons\t to  mention  in  clause  8  that  “the\t  properties
\nmentioned in the eighth schedule and allotted for  charities
\nshall be administered in person by Kailasam” while in clause
\n9  he chose to record that “dry land. mentioned in  the\t 9th
\nschedule  shall\t be  administered  in  person  by   Kailasam
\nPillai”.   There is no reference in clause 9 that this\tland
\nshall be “allotted for charity” whereas those words  clearly
\nappear in clause 8 of the deed.\t In the entire scheme of the
\ndeed  there  must  be a\t legitimate  justification  for\t not
\nallotting  the\tlands mentioned in the\tninth  schedule\t for
\ncharity.  Besides, it is clear on the findings of the courts
\nbelow  that  the  value\t of the property  in  1882  was\t in-
\nconsiderable and the income out of it was not sufficient  to
\nmeet  tile  expenses  for  the\tcharities.   A\tdevice\thad,
\ntherefore,  to\tbe made to keep alive the sacred  memory  of
\ntheir  parents who were keen to continue these charites\t out
\nof the ancestral property.  Having divided the properties in
\nthe manner done in the partition deed, each of the  brothers
\ncontributed   according\t to  his  capacity  and\t by   mutual
\nadjustment  a very substantial share of the expenses was  to
\nbe  borne by Kailasam Pillai and Venkatachalam\tPillai,\t who
\nwere  entrusted\t to perform the charities without  fail,  if
\nnecessary,  which  was even inevitable at the time,  out  of
\ntheir  own  funds.   Since it is a common  ground  that\t the
\ncharities  have been performed for years, the burden of\t the
\nliability must have fallen on kailasam Pillai and thereafter
\non  Venkatachalam Pillai, It is because of this\t feature  in
\nkeeping alive the three charities mentioned in clause 9 that
\nthe  lands in the ninth schedule were allotted\tto  Kailasam
\nPillai\tand Venkataclaalam Pillai so that they may get\tsome
\nrecompense  out\t of  the income of the property\t if  it\t may
\nsomehow or some day be forthcoming.  The entire income\tfrom
\nthe  property  was  little or nil  and\twas  not  absolutely
\ndedicated  to the Temple for the charities.  We have got  to
\nlook  at the matter from what the founders intended  in\t the
\nyear 1882 and no construction. can be given to the  document
\nwhich would frustrate the intention of the founders to\tkeep
\nalive  the charities by appropriate performance.   If  these
\ndry  and then barren properties of the ninth schedule  were
\nabsolutely dedicated to
\n603<\/span>
\nthe  Temple  for  performance of  the  three  kattalais\t the
\nintention  of  the founders would have\tbeen  defeated.\t  It
\nwould  have been nobody’s business, income being  little  or
\nnil.  We are, therefore, clearly of opinion that there is no
\nambiguity  about  any of the provisions of this\t deed  which
\nclearly go to show that there was no intendment to create an
\nabsolute endowment of the suit property to the Temple or the
\ntrust.\n<\/p>\n
The  present  value of the property and the  present  income
\ntherefrom will, in our view, not be relevant nor a safe\t aid
\nto  gather  the intention of the parties in  1882.   We\t are
\nunable\tto agree with the High Court that “the\twording”  of
\nthe  deed  makes it ‘clear beyond doubt’ that  there  is  an
\nabsolute  endowment of the property.  We are also unable  to
\nhold,  as  the\tHigh Court has done, that  “the\t family\t has
\ndivested  itself  of. the ownership and\t Kailasam  has\tbeen
\ncreated\t trustee  therefore”.  Ext.  A-3 on which  the\tHigh
\nCourt  relied  to  reach its conclusion\t does  not,  in\t our
\nopinion,   make\t any  departure\t from  the  nature  of\t the
\ntransaction nor from the original intention of the  parties,
\nparticularly  in  view of clause 19 thereof  already  quoted
\nabove.\t Similarly Ext.\t A-10 executed in 1936 on which\t the
\nHigh Court relied does not unerringly point to any different
\nintention  even\t of the succeeding  generation.\t  The  first
\nextract\t quoted\t earlier from Ext.  A-10 does  not,  in\t our
\nopinion,  relate  to the ninth schedule\t property  when\t the
\ncharity has been specifically endowed in the eighth schedule
\nto  Ext.  A-1.\tAgain ,the second extract from Ex  t.  A-10,
\nnamely,\t clause.  14(1), earlier set out, does not,  in\t our
\nview,  run  counter  to\t the  original\tintention  of  their
\nancestors.   The  initial intention to be gathered  from  an
\nancient\t document when the provisions are  reasonably  clear
\ncannot\tbe readily altered to suit changing conditions\tover
\nthe  ears.  Even so, if somehow it is possible to hold\tthat
\nthe subsequent dealing with the property is consistent\twith
\nthe  intention of the original\tparties to the document,  as
\ninterpreted  by us on the terms of the original\t deed,\tthat
\ncourse\thas  to\t be preferred by  the  court.\tBesides,  in
\ninterpreting ancient documents courts have to be cautious to
\nguard\tagainst\t warping  of  the  issue  by  reference\t  to
\nsubsequent conduct of parties or their representatives which
\nmay vary for imponderable reasons, bona-fide or otherwise.
\nClause 3 of the partition deed mentions only such properties
\nas have- been allotted to the brothers in full ownership. it
\ncould not mention the property specified in clause 9 because
\nit is burdended with a charge in favour or kattalais.
\nWe may now refer to some decisions cited at the bar.
\nIn  Sree  Ishwar  SridharJew v. Sushila Bala  Dasi<\/a>  (1)\t and
\nothers, it was observed :\n<\/p>\n
\t      “It  is quite true, that a dedication  may  be
\n\t      either absolute or partial.  The property\t may
\n\t      be given out and out to the idol, or it may be
\n\t      subjected\t to a charge in favour of the  idol.
\n\t      ‘The,  question whether the idol itself  shall
\n\t      be considered the true beneficiary, subject to
\n\t      a\t charge in favour of the heirs or  specified
\n\t      relatives of the testator for their upkeep, or
\n\t      that, on the other
\n\t      (1)   [1954] S. R. 407-414.\n<\/p><\/blockquote>\n
\t      604<\/span><\/p>\n
\t      hand, these heirs shall be considered the true
\n\t      beneficiaries  of the property, subject  to  a
\n\t      charge for the upkeep, worship and expenses of
\n\t      the  idol,  is a question which  can  only  be
\n\t      settled\tby  a  conspectus  of\tthe   entire
\n\t      provisions  of the will’ Pande Har Narayan  v.
\n\t      Surja Kunwari(1)”.\n<\/p><\/blockquote>\n
\t      Observations to the same effect have also been
\n\t      made  by the Privy Council in Sri\t Sri  Iswari
\n\t      Bhubaneshwari Thakurani v. Brojo Nath Dey\t and
\n\t      others.(2)
\n\t      in  Menakuru Daseratharami Reddi v.  Duddukuru
\n\t      Subba  Rao,<\/a>(3) this Court observed as  follows
\n\t      :-\n<\/p><\/blockquote>\n
\t      “Now it is clear that dedication of a property
\n\t      to  religious  or charitable purposes  may  be
\n\t      either complete or partial.  If the dedication
\n\t      is  complete,  a\ttrust in  favour  of  public
\n\t      religious\t  charity   is\tcreated.    If\t the
\n\t      dedication  is partial, a trust in  favour  of
\n\t      the  charity  is not created but a  charge  in
\n\t      favour  of  the charity is attached  to,\tand-
\n\t      follows,\t the  property\twhich  retains\t its
\n\t      original\t private  and\tsecular\t  character.
\n\t      Whether  or not dedication is   complete would
\n\t      naturally\t  be  a\t question  of  fact  to\t  be
\n\t      determined  in each case in the light  of\t the
\n\t      material terms used in the document.  In\tsuch
\n\t      cases  it is always a matter  of\tascertaining
\n\t      the  true\t intention  of\tthe  parties  it  is
\n\t      obvious  that such intention must be  gathered
\n\t      on  a fair and reasonable construction of\t the
\n\t      document considered as whole.”\n<\/p><\/blockquote>\n
\t      in  Ramkishore  Lal v. Kamal  Narain,<\/a>(4)\tthis
\n\t      Court observed :\n<\/p><\/blockquote>\n
\t      “The golden rule of construction, it has\tbeen
\n\t      said,  is\t to ascertain the intention  of\t the
\n\t      parties  to the instrument  after\t considering
\n\t      all  the\twords, in  their  ordinary,  natural
\n\t      sense.  To ascertain this intention the  court
\n\t      has  to consider the relevant portion  of\t the
\n\t      document\tas  a whole and also  to  take\tinto
\n\t      account  the  circumstances  under  which\t the
\n\t      particular words were used”.\n<\/p><\/blockquote>\n
\t      it was further observed(4) :<\/p><\/blockquote>\n
\t\t“What  was said in this\t case  in connection
\n\t\t\t    with  the construction of a wilt  appl
\nies  with
\n\t      equal force to the construction of every other
\n\t      document by which some property is disposed of
\n\t      In  Gopal Lal Sett v. Purna Chandra Basak\t and
\n\t      other(5),\t  the  Privy  Council  observed\t  as
\n\t      follows –\n<\/p>\n
\t      “The  first. question that arises\t is  whether
\n\t      the  gift is a gift to the Idols,\t or  whether
\n\t      there  was  a  gift to  any  other  person  or
\n\t      persons  charged with the maintenance  of\t the
\n\t      Idols.   The will is most obscure,  but  their
\n\t      Lordships\t think\tthat there is  certainly  no
\n\t      direct  gift  of\tthe whole  property  to\t the
\n\t      Idols,  nor in the circumstances ought one  to
\n\t      be  implied.  It is consequently necessary  to
\n\t      see  in  what capacity and by virtue  of\twhat
\n\t      right  the  worship  of the  Idols  is  to  be
\n\t      carried out.  The person on. whom
\n\t      (1)   1921  LR 48 I.A. 143, 145-146.\n<\/p>\n
\t      (2) A.I.R. 1937 P.C. 185.\n<\/p>\n
\t      (3) (1957) S.C.R. 1122,1128.\n<\/p>\n
\t      (4) [1963] Supp. 2 S.C.R. 417,424,428.\n<\/p>\n
\t      (5)   A.I.R. 1922 P. C. 253-54.\n<\/p>\n
\t       605<\/span><\/p>\n
\t      the duty was cast was undoubtedly Udoy  Chand,
\n\t      and the conclusion which their Lordships\thave
\n\t      reached,\tis that if, as they think, there  is
\n\t      no  gift to the Idols it is only\tpossible  to
\n\t      give  effect to the provision of the  will  by
\n\t      treating\tit as conferring the  property\tupon
\n\t      Udoy  Chand.   The will is addressed  to\thim;\n<\/p>\n
\t      upon   him  throughout  all  the\tburdens\t  of
\n\t      performing different duties are cast, and this
\n\t      necessarily  involves  the  ownership  of\t the
\n\t      property”.\n<\/p>\n
It  may\t be appropriate to refer to a passage  in  Mayne  on
\nHindu Law and Usage, eleventh edition (Reprint) at page\t 923
\n(Section 792) which reads as under
\n\t      “A  dedication  of property for  religious  or
\n\t      charitable purposes may be either absolute  or
\n\t      partial (1).  In the former case, the property
\n\t      is  given\t out  and out to an  idol  or  to  a
\n\t      religious\t or charitable institution  and\t the
\n\t      donor   divests  himself\tof  all\t  beneficial
\n\t      interest\tin  the property  comprised  in\t the
\n\t      endowment\t  (2).\t Where\tthe  dedication\t  is
\n\t      partial,\ta charge is created on the  property
\n\t      or  there\t is a trust to receive and  apply  a
\n\t      portion  of  the income for the  religious  or
\n\t      charitable  purposes (3). In such a case,\t the
\n\t      property\t descends  and\tis   alienable\t and
\n\t\t\t    partible   in  the\tordinary  way,\tth
\ne   only
\n\t      difference  being\t that  it  passes  with\t the
\n\t      charge upon it”(4).\n<\/p>\n
In this context we may also note a decision of the  Calcutta
\nHigh  Court  in Hulada Prasad Deghoria v. Kalidas  Naik\t and
\nothers,(5)  where the court had to deal with  interpretation
\nof an ancient document:\n<\/p>\n
\t      “The matter may be put briefly in the word  of
\n\t      Sugdan, L. C., in Attorney-General v. drummond
\n\t      (6)  : ‘One of the most settled rules  of\t law
\n\t      for  the\tconstruction of\t ambiguities  in  an
\n\t      ancient  instrument is that you may resort  to
\n\t      contemporaneous usage to ascertain the meaning
\n\t      of the deed ; tell me what you have done under
\n\t      such  a  deed, and I will tell you  what\tthat
\n\t      deed  means’.   To  this\tmust  be  added\t the
\n\t      qualification formulated by Lord Cranworth, L.
\n\t      C., in Sadlier v. Biggs (7), in the  following
\n\t      terms  :\t‘If  there is  a  deed\twhich  says,
\n\t      according to its true construction, one thing,
\n\t      you  cannot say that the deed means  something
\n\t      else, merely because the parties have gone  on
\n\t      for long time so understanding it”.\n<\/p><\/blockquote>\n
We have referred to this case although in the case before us
\nthe  terms  of the deed are not at all\tambiguus  while\t the
\nCalcutta High Court had to consider an instrument the  terms
\nof which were “at best inconclusive” The principle that\t the
\ncourt  may call in aid acts under the deed as a clue to\t the
\nintention,  as was pointed out by Lord Halsbury, L.  C.,  in
\nNorth-\tWestern\t Railway Co.v.Lord  Hastings,(8)  “does\t not
\napply unless there is an ambiguity, for even usage does\t not
\njustify deviation
\n(1)  (1937) 64 I.A. 203\/211.\n<\/p>\n
(2)  (1904) 31 I.A. 203.\n<\/p>\n
(3)  (1859) 8 M.I.A. 66.\n<\/p>\n
(4)  (1878) 4 Cal. 56.\n<\/p>\n
(5)  AIR 1914 Cal. 813\/814-815.\n<\/p>\n
(6)  (1842) 1 Dr. & W. 358.\n<\/p>\n
(7)  (1853) 4 H.L.C. 436.\n<\/p>\n
(8) (1900) A. C. 260.\n<\/p>\n
M 602 Sup.  C I\/75
\n606<\/span>
\nfrom  terms which are plain : Attorney-General v.  Bochester
\nCorporation”(1).   It was observed by the House of Lords  in
\nDrammond v. Attorney General(2) :\n<\/p>\n
\t      ” Consequently, while in a case of  ambiguity,
\n\t      the  court will uphold that construction of  a
\n\t      deed  which justifies a long usage as  to\t the
\n\t      application  of  trust funds, the\t court\twill
\n\t      not,  where there is no ambiguity,  accept  an
\n\t      erroneous\t interpretation\t though\t  consistent
\n\t      with  usage,  so\tas to  sanction\t a  manifest
\n\t      breach of trust”.\n<\/p><\/blockquote>\n
Our attention was drawn to a decision of the House of  Lords
\nin The Attorney-General v. The Master, Wardens, & C. of\t the
\nWag Chandlers’ Co.3 wherein it was held :\n<\/p>\n
\t      “There is one well-known class of\t authorities
\n\t      of  this\tsort.\tA  testator  devises  to   a
\n\t      corporate\t body  or to an\t individual,  landed
\n\t      property,\t and  he affixes to  that  devise  a
\n\t      condition\t  that\t the  corporation   or\t the
\n\t      individual  shall at their or his\t own  peril,
\n\t      and if necessary out of their own funds,\tmake
\n\t      certain  payments,  or a certain\tpayment,  to
\n\t      some object of his bounty.  In a case of\tthat
\n\t      kind the devise is said to take the land\tupon
\n\t      condition.   If  the devise is  accepted,\t the
\n\t      condition\t must  be fulfilled, and  the  money
\n\t      must be paid, whether the land devised is,  or
\n\t      is  not,\tadequate to make the  payment.\t The
\n\t      very statement of a case of that kind  implies
\n\t      that  the land is the land of the devise,\t and
\n\t      that every accretion to the value of the\tland
\n\t      belongs to the devise ; and that the person or
\n\t      the  charity  which  has the  benefit  of\t the
\n\t      condition,   which   receives   the    payment
\n\t      mentioned\t in  the condition, has a  right  to
\n\t      nothing more than that payment”.\n<\/p><\/blockquote>\n
This case meets the requirements of the present case  before
\nus.   To  the same effect there is a passage  in  Halsbury’s
\nLaws of England edition, volume 4, at page 306 :\n<\/p>\n
\t      “Speaking generally, the increase will  belong
\n\t      to  the  donee, first, if the gift be  to\t the
\n\t      donee subject to certain payments to others  ;
\n\t      secondly,\t if  the gift be upon  condition  of
\n\t      making   certain\t payments   subject   to   a
\n\t      forfeiture   upon\t  non-performance   of\t the
\n\t      condition ; or, thirdly, if the donee might be
\n\t      a loser by the insufficiency of the fund”. (4)
\n\t      .lm0
\n\t      The  case\t referred  to  in  Halsbury  is\t Dr.
\n\t      Villiam Jack, Principal, and the Professors of
\n\t      the University and King’s College of  Aberdeen
\n\t      v.  Sir Thomas Burnett, of Leys, Bart.  (1846)
\n\t      XII  Clark  & Finnelly,  812,(5)wherefrom\t the
\n\t      following passage is apposite :\n<\/p><\/blockquote>\n
\t      “in  searching for the intention of  a  donor,
\n\t      which   is   the\tstandard   to\tgovern\t the
\n\t      construction  of\ta deed of gift,\t the  facts,
\n\t      first,  that  the\t gift  is  subject  to\t the
\n\t      condition\t  of  making  certain  payments\t  to
\n\t      others,–secondly, that forfeiture will be in-
\n\t      curred by non-performance of that\t condition,-
\n\t      and, thirdly, that
\n\t      (1)  5 De G.M. & G. 797.\t  (2) (1849)  2\t HLC\n<\/p><\/blockquote>\n
\t      837.
\n\t      (3)   (1873) Eng. & Irish Appeal, 6 LA., 1119.
\n\t      (4)   (1846) 12 Cl. & Fin. 812, H.L. 828.\t per
\n\t      Lord Cottenham.\n<\/p><\/blockquote>\n
\t      (5)   8 English Reports, H.L., Cl. & Fin 8-12,
\n\t      p. 1632.\n<\/p><\/blockquote>\n
\t      607<\/span><\/p>\n
\t      the  donee  may be subjected to  loss  by\t the
\n\t      performance of that condition, are  sufficient
\n\t      to  raise the presumption that in case of\t the
\n\t      increase\tof the fund, the donor\tintended  to
\n\t      give   to\t the  donee  the  benefit  of\tthat
\n\t      increase”.\n<\/p><\/blockquote>\n
It  was held by the House of Lords in that case\t “that\tthis
\nwas  a grant upon condition, and not a mere trust, and\tthat
\nthe Principal and Processors were entitled, after satisfying
\nthe  conditions\t of  the deed of  gift,\t to  appropriate  to
\nthemselves any surplus arising from the lands thus given”.
\nArgument was addressed at the bar with regard to the surplus
\nincome\tfrom the suit property since with progress  of\ttime
\nthe value of the property has increased and necessarily\t its
\nincome.\t  We are, however, of the view that for the  reasons
\nalready\t discussed  in this particular case we will  not  be
\nrequired to examine the rule of surplus income in  charities
\nfor the purpose of discovering the intention of the  parties
\nat the time of initial partition.\n<\/p>\n
The  principles that emerge from the above decisions so\t far
\nas. appropriate to the case at hand may briefly be stated.
\nWhether\t the  endowment is absolute ‘or\t partial,  primarily
\ndepends\t on the terms of the grant.  If there is an  express
\nendowment,  there  is no difficulty.  If there\tis  only  an
\nimplied\t endowment, the intention has to be gathered on\t the
\nconstruction  of the document as a whole.  If the  words  of
\nthe  document  are clear and unambiguous,  the\tquestion  of
\ninterpretation would not arise.\t If there be ambiguity,\t the
\nintention of the founders has to be carefully gathered\tfrom
\nthe  scheme  and language of the  grant.   Even\t surrounding
\ncircumstances,\tsubsequent  dealing with the  property,\t the
\nconduct of the parties to the document and long usage of the
\nproperty   and\tother  relevant\t factors  may  have  to\t  be
\nconsidered in an appropriate case.  ‘As pointed out earlier,
\nwe  have  a document in the instant case where there  is  an
\nexpress endowment of certain specified properties as recited
\nin-clause  8 of the deed.  Significantly, there is  complete
\nomission to create an absolute endowment of the property  in
\nthe  ninth  schedule  although the same is  referred  to  in
\nclause\t9  of  the deed and has been dealt with\t in  a\tvery
\nspecial manner therein.\t There is absolutely no doubt on the
\nterms of clause 9 read with the other material provisions of
\nthe  deed  that there is no absolute endowment of  the\tsuit
\nproperty  in  favour of the temple or for the  charities  as
\nclaimed by the planitiffs\/respondents.\tWe may, however, add
\nthat  the  conclusion  we have reached\tfrom  the  intrinsic
\nevidence  of  the  document  itself  is\t reinforced  by\t the
\nsubsequent   conduct   of  the\tparties\t and   the   various
\ntransactions  effected from time to time with regard to\t the
\nsuit properties.  To boot, it is far from a case where the
\n608<\/span>
\nentire income of the property has been endowed to the  trust
\nto  sustain a conclusion that the entire corpus\t belongs  to
\nthe trust.\n<\/p>\n
Having\tregard to the principles set out above, it is  clear
\nthat in the present case there was no absolute endowment  of
\nthe suit property to the temple or the trust.  The property,
\nhowever,  is  impressed\t with the obligation  or  charge  of
\nperforming the three kattalais mentioned in clause 9 of\t the
\npartition  deed\t in  the  manner  indicated  therein.\t The
\nalienation  of the property is, therefore, not\tinvalid\t and
\nthe  obligation\t to perform the\t above\tmentioned  charities
\nfollow with the property.\n<\/p>\n
In the result the appeal is allowed and the judgment of\t the
\nHigh Court is set aside and that of the Subordinate Judge is
\nrestored  subject  to the direction that the  suit  property
\nwill  be  impressed  with  the\tobligation  to\tperform\t the
\ncharities  mentioned  in clause 9 of the partition  deed  of
\n1882 and the plaintiffs’ suit stands dismissed.\t The parties
\nwill bear their own costs in this Court.\n<\/p>\n
V.P.S.\t\t\t\t Appeal Allowed.\n609<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sappani Mohamed Mohideen & Anr vs R. V. Sethusubramania Pillai & Ors on 7 December, 1973 Equivalent citations: 1974 AIR 740, 1974 SCR (2) 594 Author: P Goswami Bench: Goswami, P.K. PETITIONER: SAPPANI MOHAMED MOHIDEEN & ANR. Vs. RESPONDENT: R. V. SETHUSUBRAMANIA PILLAI & ORS. DATE OF JUDGMENT07\/12\/1973 BENCH: GOSWAMI, P.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-135485","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSappani Mohamed Mohideen & Anr vs R. V. 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