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PETITIONER: MALAYAMMAL AND ORS.

       Vs.

RESPONDENT: A MALAYALAM PILLAI AND ORS.

DATE OF JUDGMENT10/10/1990

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) OJHA, N.D. (J) SAHAI, R.M. (J)

CITATION:  1990 SCR  Supl. (2) 235  1991 SCC  Supl.  (2) 579  JT 1990 (4)   321        1990 SCALE  (2)740

ACT:     Hindu  Law--Creation of endowment under  Will--Provision by  Testator for construction of his Samadhi and  Matam  and performance of poojas and ceremonies thereat--Validity of.     Will--Principles of construction--Bequest for worship of God without specifying a particular deity--Validity of.

HEADNOTE:     K.  bequeathed  his properties describing them  in  five Schedules, A, B, C, D and E. In respect of the ’E’  schedule properties,  he created an endowment stating that after  his death it should be managed for construction of his own  tomb or samadhi and for performing poojas and ceremonies thereat.     Two of the legatees under the will filed a suit  against the  third legatee, the manager of the trust, for  partition and  possession of the E schedule properties as well as  for rendition of accounts pertaining to the income from the said properties contending: (i) that under Hindu Law the testator could  not have created an endowment of properties for  con- struction  of his own tomb or samadhi for performing  poojas and  ceremonies  thereat; (ii) since the  testator  had  be- queathed his properties for "Samadhi Kainkaryam", the  Trust was  invalid; and that the said properties should be  shared by  the  plaintiffs and the defendant  under  the  residuary clause of the will as if they remained undisposed of by  the testator.     The  defendant resisted the suit contending  that  Matam and the Samadhi were constructed for different purposes  and it  is only at the Matam that the ceremonies and Guru  Pooja were  performed  with feeding the poor and  distribution  of saffron  clothes;  and that these acts were  distinctly  and substantially religious and charitable purposes.     The  subordinate  judge accepted  the  plaintiff’s  case declaring that the dedication of the ’E’ schedule properties was invalid and accordingly he decreed the suit. 236       On appeal the District Judge dismissed the suit with a direction to the defendant for rendition of accounts of  the surplus income from the properties on the ground that  dedi- cation  of properties by the testator was for charitable  or religious in nature.

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     On  second  appeal a single Judge of  the  High  Court dismissed the suit for partition but affirmed the decree for accounting the surplus income from the properties  referable to the Matam and charities by holding (i) that the trust  in respect  of the properties for construction of  samadhi  was not valid as it was not recognised under the Hindu Law; (II) but  the endowment and directions as to application  of  the property for construction of Matam and performance of  cere- monies  and pooja were valid since they were  religious  and charitable in nature.       On further appeal by Letters Patent the Division Bench of  the High Court, relying upon the decision of  the  Privy Council  in N. Subramania Pillai v. A. Draviyasundaram  Pil- lai,  AIR  1950 PC 37, held that the  entire  endowment  was invalid under Hindu Law. Hence this appeal. Allowing the appeal, this Court,       HELD:  1.  The perpetual dedication  of  property  for construction of a samadhi or a tomb over the mortal  remains of  an ordinary person and the making of provisions for  its maintenance  and  for performing  ceremonies  in  connection thereto is not recognised as charitable or religions purpose among  the  Hindus. But the Samadhi of a Saint stands  on  a different  footing.  Therefore, the provision  made  by  the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid. [242A-B JUDGMENT:       Kunhamutty v. T. Ahmad Musaliar & Ors., I.L.R.  (1958) Mad. 204; A. Draviyasundaram Pillai v. N. Subramania Pillai, I.L.R.  1945  Mad. 854 and Veluswami Goundan  v.  Dandapani, [1946] 1 M.L.J. 354, approved.       Saraswati Ammal v. Rajagopal Ammal, [1954] S.C.R.  277 and  Nagu  Reddiar & Ors. v. Banu Reddiar & Ors.,  [1978]  2 S.C.C. 591, referred to.       2.  It is one of the cardinal principles of  construc- tion of Wills that wherever it is possible, effect should he given to every bequest of the testator unless it is  opposed to  law, custom or practice. If the testator  has set  apart the property intended for endowment and disclosed his 237 charitable intent in any one of his directions, such  direc- tion  may be extricated leaving aside the  directions  which are repugnant to the recognised notions of Hindu religion or Hindu  Law.  Attempt should be made to give  effect  to  the provisions  made  for recognised  charitable  purposes  even though  the entire scheme of the testator cannot  be  saved. [242G-H]     2.1  In the instant case the scheduled  properties  have been  endowed for construction of a Samadhi and  Matam,  and for  performing  religious rites and  charitable  acts.  The Samadhi and Matam are constructed in the same survey  number but are independent of each other, separated by a  distance. The other provisions in the will relating to performance  of annual  ceremonies conducting Guru Pooja, feeding  the  poor and  distribution of saffron coloured clothes  to  medicants are  independent  and have no connection with  the  Samadhi. Consequently, the entire dedication of the Scheduled proper- ties will not fail. [243A-B]     N. Subramania Pillai v. A. Draviyasundram Pillai, A.I.R. 1950 PC 37, held inapplicable.     3.  In construing the validity of an  endowment  created under a Will, the Court cannot be guided merely by the  acts of  the Manager or the manner in which the executor  of  the Will  has  understood the directions of  the  testator.  The Court  is required to examine the dominant intention of  the testator and that could be ascertained only by the terms  of

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the Will.     3.1  A  trust cannot be rendered invalid on  the  ground that the directions of the testator are in general terms and that  there is no particular mention in the will as to  whom Guru  Pooja is required to be performed since no  particular deity is named in the Will. It is for the Court to ascertain the  presumed intention of the testator and given effect  to it. Therefore where no deity is named in the deed of  endow- ment, the Court should ascertain the sect to which the donor belonged,  the tenets which he held, the doctrines to  which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to  the application of the property should be ascertained. These are the safe guides. [244E & F]     Veluswami  Goundan  v. Dandapani, [1946] 1  MLJ  354-AIR 1946 Mad. 485, referred to.     3.2  In the instant case there is no indication  in  the Will that Guru Pooja should be performed to the testator. On the other hand the terms 238 in  the Will show that the testator was a great  devotee  of Lord Subramaniaswami. The evidence also indicates that  Guru Pooja is being performed to Lord Subramanya followed by poor feeding and distribution of saffron-coloured clothes.  These terms of the will clearly specify the religious or  charita- ble  purposes. Therefore the endowment with regard to  these purposes is upheld. [244E & G-H]     3.3  Annual Shradha or anniversary is a religious  rite. The  permanent dedication of properties for  performance  of annual ceremonies of the testator is equally valid. [245A]     4. The Division Bench of the High Court was therefore in error in invalidating the entire endowment. Accordingly, the judgment of the Division Bench is reversed and the  judgment and decree of the Single Judge are restored. [245B-C]     5.  In  Hindu  system there is no  line  of  demarcation between religion and charity. On the other hand, charity  is regarded  as a part of religion. But what are  purely  reli- gious purposes and what religious purposes will be  charita- ble  must  be entirely decided according to  Hindu  Law  and Hindu notions. [241G-H]     Hindu  Law  of Religious & Charitable  Trusts,  by  B.K. Mukherjea,  5th Edn. p. 11; Mayne’s Hindu Law, 11th Edn.  p. 912, referred to.

&      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 140  of 1977.      From  the Judgment and Decree dated 31.1. 1973  of  the Madras High Court in L.P.A. No. 6 of 1965. A.T.M. Sampat and P.N. Ramalingam for the Appellants. Ms. Lily Thomas for the Respondents. The Judgment of the Court was delivered by      K.  JAGANNATHA  SHETTY, J- This is an appeal  from  the judgment  and decree of the Madras High Court and it  arises out  of  a  suit for partition  and  possession  of  certain properties. The  facts  leading to the institution of the  suit  are  as follows: On 3 239 March  1942, one Karuppanna Pillai (hereinafter referred  to as "testator") executed his last Will and testament Ext.  B- 1. Thereunder he disposed of all his properties described in five  schedules,  A,  B, C, D and E. He  directed  that  the

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properties under A, B .and C schedules shall be respectively taken  and be in the possession of the defendant, the  first plaintiff and the second plaintiff. In respect of E schedule properties, he has made a bequest creating an endowment that after  his life time, it should be managed for  the  purpose and in the manner mentioned therein. The dispute in the suit was as to the validity of the endowment. One Palaniammal and Chellammal are the sisters of the plaintiffs and the defend- ant.  The testator created a life estate in favour of  those sisters in respect of D schedule properties with a direction that after their lifetime the properties shall be dealt with in the same manner as the E schedule properties. We are  not concerned in the present litigation with any of the  proper- ties  in  schedules A to D. We are concerned only  with  the validity of the disposition of E schedule properties.     The Will is in Tamil but we are helpfully provided  with the English translation of the relevant portion. It is  also found incorporated in the judgment of the District Judge. It runs as follows:  "After my lifetime, the aforesaid three persons, Ponnuswami Pillai,  Malayalam Pillai and Thangavelu Pillai, shall  take and manage the E schedule properties, from out of the income from  the said properties pay the kist for the  aforesaid  E schedule  properties, and out of the balance of  income  for the  salvation of my soul after my lifetime, shall enter  mY body,  after my life is extinct, in the land S.F. No.  68/B, Punjai  Thottakurichi Village pertaining to the aforesaid  E schedule,  build structure therefore and put up light  every day  shall  plant flower plants in the said  land  and  grow them, shall construct a Matam for annual ceremonies, install pictures  therein,  put  up light in the  Matam  every  day, conduct Guru Pooja, distribute saffron-coloured clothes  and on  that day, shall feed the poor. Since the aforesaid  Pon- nuswami  Pillai is the eldest of the sons, he shall  be  the Manager,  to conduct the above matters. The  surplus  income shall  be taken in the shares of 2/4 by  Ponnuswami  Pillai, 1/4 by Malayalam Pillai, and 1/4 by Thangavelu Pillai. After the  said Ponnuswami Pillai’s life, out of his  make  heirs, the eldest son shall conduct in the same manner as above and the surplus income shall be taken by the said eldest son." 240 There then follows a residuary clause which is as under: "The  movable and immovable properties belonging to  me  and not  mentioned  herein  shall be taken and  enjoyed  by  the aforesaid three persons after my lifetime."     The  plaintiff’s case has been that the  testator  could not have created on endowment of properties for construction of  his  own tomb or Samadhi and for  performing  Pooja  and ceremonies  thereat.  Since the testator  has  bequeathed  E schedule  properties  for "Samadhi  Kainkaryam",  the  trust would be invalid and the said properties should be shared by the  plaintiffs and defendant under the residuary clause  in the  Will as if they remain undisposed of by  the  testator. The  suit is also for account from the  defendant  regarding the income of the E schedule properties.     The defendant has resisted the suit and sought to justi- fy  the creation of the trust and its purposes. It was  con- tended  inter  alia,  that the Matam and  the  Samadhi  were constructed for different purposes. They are separated by  a respectable  distance. At the Samadhi, there is no  perform- ance  of pooja. It is only at the Matam, the ceremonies  and Guru Pooja are performed with feeding the poor and distribu- tion  of  saffron  clothes. These acts  are  distinctly  and substantially religious and charitable purposes. It was also contended that the plaintiffs in any event are not  entitled

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to  claim partition and separate possession of the  Schedule properties.     At  the  trial, learned Subordinate Judge  accepted  the plaintiff’s  case  declaring that the dedication  of  the  E Schedule property for purposes enumerated under the Will was invalid  and accordingly he decreed the suit as prayed  for. In appeal, the District Judge took a different view. He held that  the purposes for which the E Schedule properties  have been  dedicated were charitable or religious in  nature.  He dismissed  the suit but gave certain directions to  the  de- fendant for rendition of accounts of the surplus income from the  properties which the defendant as a manager is  obliged to do.     In  second appeal to the High Court, the learned  single Judge  expressed the view that the Trust in respect  of  the properties  for  construction of the  Samadhi  with  raising flower  garden and lighting up would not be valid as  it  is not recognised under the Hindu Law. That part of E  Schedule properties  referable  to the Samadhi  and  its  maintenance should remain as the property undisposed of by the Will. 241 Neither  the plaintiffs nor the defendants will be  entitled to it under the terms of the Will. He however, held that the endowment  and directions as to application of the  property for construction of the Matam and performance of  ceremonies and pooja would be valid since they are religious and  char- itable in nature. He dismissed the suit for partition  while at  the  same time affirmed the decree  for  accounting  the surplus  income from the properties referable to  the  Matam and charities.     In  the  Letters Patent Appeal, the Division  Bench  has disagreed with the views expressed by learned Single  Judge. It has been observed that the Matam is close to the  Samadhi and the former has been built for the purpose of providing a convenient  place  for the purpose of offering  worship  and performing  ceremonies connected with the Samadhi and  Matam are  covered by one scheme, and therefore, the entire  trust must fail. In support of the conclusion, the Division  Bench largely relied upon the decision of the Privy Council in  N. Subramania Pillai v. A. Draviyasundaratn Pillai, AIR 1950 PC 37.     In  the Privy Council case referred above, the  testator by  name ’Kanakasabhapathy’ in his Will constituted a  Trust of his properties with certain directions as to its applica- tion.  He directed that "his body should be buried in a  Sa- madhi  and  at the same place where the Samadhi is  made,  a Matam should be built with a stone inscription in the  front portion of the Matam as Kanakesabhapathi Samadhi Matam’.  He also directed that regular worship should be conducted  with Guru  Pooja  and poor feeding. Construing the terms  of  the Will,  the Privy Council observed that the directions  given by  the testator were embodied in a single scheme  and  they were  primarily  intended to keep his memory  alive  and  to enhance his own posthumous reputation. Feeding the poor  was to  be conducted during the daily pooja to be  performed  in connection with the burial place and it did not provide  for any charity apart from the ceremonies to be conducted at his own burial place and therefore the trust must fail.     In Hindu system there is no life of demarcation  between religion and charity. On the other hand, Charity is regarded as  a part of religion. Hindu Law of Religious &  Charitable Trusts,  by  B.K. Mukherjea, 5th Ed. p. 11.  But  "what  are purely  religious purposes and what religious purposes  will be  charitable must be entirely decided according  to  Hindu Law and Hindu notions." Mayne’s Hindu Law 10th Ed. p. 9 12.

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242     The perpetual dedication of property for construction of a  Samadhi or a tomb over the mortal remains of an  ordinary person and the making of provisions for its maintenance  and for performing ceremonies in connection thereto however, has not been recognised as charitable or religious purpose among the Hindus. But the Samadhi of a Saint stands on a different footing.  This was the consistent view taken by  the  Madras High Court in several cases, namely, Kunhamutty v. T.  Ahmad Musaliar  &  Ors., ILR 1958 Mad. 204=AIR 1953  Mad.  29;  A. Draivaisundram Pillai v. N. Subramania Pillai, ILR 1954 Mad. 854;  Veluswami Goundan v. Dandapani, [1946] 1  MLJ  354=AIR 1946  Mad.  485. This Court in Saraswati Ammal  v.  Rajagopl Ammal,  [1954] SCR 277 has approved those decisions  of  the Madras  High  Court. Jagannatha Das, J., who spoke  for  the Court  said  (at 289): "We see no reason to think  that  the Madras  decisions  are erroneous in holding  that  perpetual dedication  of property for worship at a tomb is  not  valid amongst Hindus."     The view taken in Saraswati Ammal case has been  reiter- ated in Nagu Reddiar & Ors. v. Banu Reddiar & Ors., [1978] 2 SCC 591 where Kailasam, J., observed (at 600): "The  raising of a tomb over the remains of an ancestor,  an ordinary  person is not recognised as religious  in  nature. The  burden is on the person setting up a case of  religious practice in the community to prove it. This prohibition  may not apply when an ancestor is cremated and a memorial raised for performing Shradha ceremonies and conducting  periodical worship, for, this practice may not offend the Hindu  senti- ment  which  does  not ordinarily  recognise  entombing  the remains of the dead."     We  are, therefore, inclined to hold that the  provision made by the testator for construction of a Samadhi over  his burial  place and for its maintenance cannot be regarded  as valid.     But that however, does not mean that the entire  dedica- tion  of E Schedule properties must fail. It is one  of  the cardinal  principles of construction of Wilts that  wherever it  is possible, effect should be given to every bequest  of the  testator unless it is opposed to law, custom  or  prac- tice.  If the testator has set apart the  property  intended for endowment and disclosed his charitable intent in any one of his directions, such direction may be extricated  leaving aside  the directions which are repugnant to the  recognised notions of Hindu religion 243 or  Hindu Law. Attempt should be made to give effect to  the provisions  made  for recognised  charitable  purposes  even though the entire scheme of the testator cannot be saved. In the  instant case, the E Schedule has been endowed for  con- struction  of a Samadhi and Matam, and for performing  reli- gious  rites and charitable acts. The Samadhi and Matam  are constructed in the same survey number but are independent of each  other, separated by a distance of about 15 feet.  Per- formance of annual ceremonies, conducting Guru Pooja,  feed- ing the poor and distribution of saffron coloured clothes to mendicants  appear to be independent and have no  connection with  the Samadhi. There is no indication in the  Will  that Guru  Pooja should be performed to the testator. In fact  he has not even indicated that his photo should be kept in  the Matam.  His directions are only to install pictures  at  the Matam, put up light every day in the Matam and perform  Guru Pooja once a year with the other charities. These provisions in  the Will are not in close parallel with and  indeed  far removed from those obtained in the Privy Council decision in

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Subramania  Pillai’s  case. The Division Bench of  the  High Court  was therefore in error in relying upon that  decision to invalidate the entire endowment.     Counsel for the plaintiffs nevertheless argued that  the defendant has been performing Guru Pooja only to the  testa- tor and not for the deity. He referred to us Ext. A-5 to A-9 which  are  the invitations sent by the  defendant  for  the annual  ceremonies  and Guru Pooja to be  performed  to  the testator.  But  in construing the validity of  an  endowment created under a Will, we cannot be guided merely by the acts of  the manager or the manner in which the executor  of  the Will  has understood the directions of the testator. We  are required  to examine the dominant intention of the  testator and that could be ascertained only by the terms of the Will. The  terms  of  the Will in this case  clearly  specify  the religious  or charitable purposes. The defendant  Ponnuswami Pillai  (DW 1) in his cross-examination has  also  explained that  there was a mistake in the writing of Ext. A-5 to  A-9 for  which he was not responsible. He has testified that  he performed really the annual ceremonies on the date of  death of  the testator and no pooja was performed at Samadhi.  The Poojas  are performed only at Matam with Guru Pooja to  Lord Subramania  on  ’Thai  Poosam’ every year.  He  has  further stated  that the annual ceremonies of the testator  fall  on Margali  Mrisaseerusham  Nakshatram and Guru  Pooja  is  not performed on that day.     It  is  undisputed  that the testator  died  on  Margali Mrigaseerusham Nakshatram. Ramaswamy Goundar (DW 2) has also deposed 244 that no Guru Pooja was performed on the date of death of the testator  and  it was performed only to Lord  Subramania  in Thai  month every year. He used to participate in  the  Guru Pooja every year alongwith the other villagers. The evidence of Marudamuthu Pillai (DW 3) also supports these versions.     We  have  no reason to disbelieve the testimony  of  the defendant  and  his witnesses. Even the  evidence  from  the plaintiff  indicates that the Matam is called ’Madam of  Sri Subramanya Swami’. Ext. B-2 is a printed marriage invitation of  the  plaintiff  (PW 1) in which it  has  been  expressly stated  that the plaintiff’s marriage will be  performed  at our Madam Sri Subramaniaswami Sannadhi built by our grandfa- ther Karuppanna Pillai  ....  "Ext. A-11 also refers to  the Matam  as Subramaniaswami Sannadhi. Ext. A-2 is the  Commis- sioner’s Report. The Commissioner has stated that there  are pictures  of  Gods in the Matam. There is pooja  room.  Lord Subramania’s picture is also in the pooja room. The deity of Sri  Vinayagar  in granite has been installed at  a  special place  with  material to indicate that pooja is  also  being performed to Sri Vinayagar.     It  is true that the directions of the testator  are  in general  terms,  and there is no particular mention  in  the Will as to whom Guru Pooja is required to be performed since no  particular deity is named in the Will. But trust  cannot be  rendered invalid on that ground. It is for the Court  to ascertain  the presumed intention of the testator  and  give effect  to it. As observed by Patanjali Shastri, J.,  as  he then  was,  in Veluswami Goundan’s case where  no  deity  is named  in the deed of endowment, the court should  ascertain the  sect to which the donor belonged, the tenets  which  he held,  the doctrines to which he was attached and the  deity to  which  he  was devoted and by such  means  the  presumed intention  of  the  testator as to the  application  of  the property should be ascertained. We agree that these are  the safe guides. If we peruse the various terms in the Will  and

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the provisions made for offerings, it will be clear that the testator was a great devotee of Lord Subramaniaswami. He has made provisions to perform annual pooja to Lord Subramanias- wami  and Sri Vinayagar in the different temples out of  the income  from  A to C Schedules. The Matam also goes  by  the name  of "Subramanya". The evidence of DW 1 to DW 2  further indicates that Guru Pooja is being performed to Lord  Subra- manya followed by poor feeding and distribution of  saffron- coloured  clothes. The endowment with regard to  these  pur- poses must therefore be upheld. 245     The  permanent dedication of properties for  performance of  annual  ceremonies  of the testator  is  equally  valid. Whether one terms it as annual Shradha or anniversary, it is certainly a religious rite and it is not uncommon among  the Hindu testators to make provisions in their Wills for  cele- bration  or performance of such anniversaries of  themselves or their ancestors.     We are, therefore, unable to agree with the decision  of the  Division Bench of the High Court. We are on  the  other hand in agreement with the views expressed by learned Single Judge.     In the result, the appeal is allowed. In reversal of the judgment  of the Division Bench, the judgment and decree  of the learned Single Judge are restored.     The respondents must pay the costs of this appeal to the appellants. T.N.A.                                          Appeal   al- lowed. 246