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PETITIONER: MENAKURU DASARATHARAMI REDDI

       Vs.

RESPONDENT: DUDDUKURU SUBBA RAO

DATE OF JUDGMENT: 10/05/1957

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. DAS, SUDHI RANJAN (CJ) IMAM, SYED JAFFER SARKAR, A.K.

CITATION:  1957 AIR  797            1957 SCR 1122

ACT: Hindu    Law--Charitable    Endowment-Compromise    decree-- Construction-Trust or charge-Intention of the donor-Test.

HEADNOTE: A  Hindu father executed a registered deed of  trust  giving away  his  properties  to  public  charities  and  appointed himself and two others as trustees.  The son in assertion by his  right  to a moiety share therein  started  to  alienate them.  There was litigation between the trustees and the son which ultimately ended in a compromise decree for  partition between  the  father  and the son, the  two  other  trustees having retired pending litigation.  After the death of  both the father and the son a suit was brought under 1123 S.   92 of the Code of Civil Procedure for the framing of  a scheme for the administration of the trust.  The trial court held  that  the  trust  deed had  been  substituted  by  the compromise  decree which itself created a trust and  decreed the suit on that basis.  On appeal by two of the  defendants who were transferees in possession of some of the properties in  suit, the High Court affirmed the decision of the  trial court holding that the compromise decree created a trust for public  charities in respect of the properties  allotted  to the   third  plaintiff,  meaning  the  father.    The   said defendants  appealed to this Court.  The principal  question for  decision  was  one of construction  of  the  compromise decree,  whether  it  created  a trust  or  a  charge.   The relevant terms of the compromise decree were as follows:- " that as regards the aforesaid schedule property, the third plaintiff should be the ’sole trustee’ till his lifetime for the  purpose  of conducting the charities described  in  the trust  deed, dated 17th March, 1919, and he  should  utilise the income derived therefrom for the charities according  to the  necessity and should enjoy the said property  till  his lifetime without rights to gift, sale etc., therein ; that  after his death, the said entire property should  pass on  to  his  grandson  Ramalingeswara  Rao  subject  to  the (performance of) the aforesaid kainkaryams (charities) ; that if the third plaintiff should die before the expiry  of

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the minority of the aforesaid Ramalingeswara Rao arrangement should  be made to have a guardian appointed  through  Court for  the property made to pass to the  said  Rainalingeswara Rao,  the  said  guardian  should  take  possession  of  the property  and  conduct the aforesaid charities  and  deliver possession  of  the same to the said Ramalingeswara  Rao  as soon as the minor attains majority ; that, thereafter the said Ramalingeswara Rao should  conduct the above mentioned charities and enjoy the properties :" Hald, that the courts below were in error in construing  the compromise  decree in the way they did and the  appeal  must succeed. There  can  be  no doubt from the terms  of  the  compromise decree read as a whole that what was intended to be  created was  a charge and not a trust in respect of  the  properties allotted   to  the  father  which  retained  their   private character. The principles of Hindu Law applicable to questions relating to  charitable  trust are well settled.  Whether  or  not  a dedication  to  charity  is  complete  must  depend  on  the intention  of  the donor which has to be gathered  from  the terms  of  the  document in any particular case  read  as  a whole.   If the dedication is complete, a trust is  created, if not, a charge follows.  The mere use of the word  ’trust’ or  ’trustee’  cannot  by itself be  conclusive  as  to  the intention of the donor and the real test is whether  private title 1124 over the property is sought to be extinguished by a complete transfer of it to the charity. Maharani Hemanta Kumati Debi v. Gauri Shankar Tewari, (1940) L.  R.  68 I.A. 53, Jadu Nath Singh v.  Thakur  Sita  Ramji, (1917) L.R. 44 I.A. 187, Pande Har Narayan v. Surja Kunwari, (1921) L.R. 48 I.A. 143, Sonatun Bysack v. Sreemutti juggul- soondyee Dossee, 8 Moo.  I.A. 66 and Gopal Lal Sett v. Purna Chandya Basak, (1921) L.R. 49 I.A. 100, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 185 of 1952. Appeal from the judgment and order dated December 15,  1948, of  the Madras High Court in Appeal No. 155 of 1946  arising out  of the decree dated October 27, 1945, in Original  Suit No. 132 of 1944. Alladi Kuppuswami and M. S. K. Sastri, for the appellants. T.   V. R. Tatachari and T. M. Sen, for respondent No. 4. 1957.  May 10.  The Judgment of the Court was delivered by    GAJFNDRAGADKAR J.-This is an appeal by defendants 47  and 48  and  the  principal question which  is  raised  for  our decision in the appeal is whether the properties in suit are the subject matter of public charitable trust or are  merely burdened  or  charged with the obligation in favour  of  the specified charities.  The suit from which this appeal arises was filed with the sanction of the Collector under s. 92  of the Cc de of Civil Procedure and the plaintiffs alleged that the  properties in suit were the subject-matter of a  public charitable trust and that a scheme may be framed for the ad- ministration of the said trust.  The present, appellants who are in possession of a substantial portion of the properties in suit as alienees have resisted this claim.  They conceded that  the  properties  in their hands were  subject  to  the charge  in favour of the charities but they denied that  the said  properties  were the subject-matter  of  a  charitable trust.  Several other pleas were made by the parties but the

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principal question in dispute between them was in regard  to the character of the properties in suit.  Both the learned 1125 trial  judge  and the High Court of Madras have  upheld  the plaintiffs’ plea.  It has been declared that the  properties in  question are trust properties and a direction  has  been issued  that  a  scheme of management should  be  framed  in respect of the trust with a view to carry out the charitable intentions  of  the  settlor.  It is this  decree  which  is challenged  before us by Mr. Alladi Kuppuswami on behalf  of defendants 47 and 48 and his argument is that the view taken by the Courts below about the character of the properties is based upon a misconstruction of the decree in question. In the plaint, it was alleged that one Purushottam had  been earning  and  purchasing large properties and  endowing  and dedicating  them for public charitable purpose  since  1896. In about 1919 Purushottam who had then become old wanted  to place  the charities which he had been till then  personally administering  on a permanent and enduring basis.   That  is why he executed and registered a deed of trust on March  17, 1919.   By  this  document,  a  trust  in  respect  of   his properties was created and three trustees were appointed  to administer the trust.  Purushottam himself was one of  these trustees and two Advocates, Mr. Reballa Subbarayudu and  Mr. C.  Viswanadha Rao, were his co-trustees.  It  would  appear that  Purushottam’s  son Ramakrishnayya did not  approve  of this arrangement and he began to obstruct the administration of  the  trust.  As a result of  this  obstructive  attitude adopted by Ramakrishnayya, two suits had to be filed by  the trustees  against  Ramakrishnayya  and  his  associates  who interfered  with  the management of the  trust.   These  two suits  were O.S. No. 599 of 1919 and O.S. No. 68 of 1920  on the  files of the District Munsiff’s Court, Kavali, and  the District   Court,   Nellore,   respectively.    They    were subsequently  transferred  to the  Sub-Court,  Nellore,  and numbered  as O.S. No. 39 of 1921 and O.S. No. 67 of 1921  in the said Court.  Pending the hearing of these suits, the two advocates  trustees  withdrew  from the  suits  leaving  the conduct  of  the  suits solely  in  charge  of  Purushottam. Ultimately  the two suits ended in a compromise.   According to the plaint in the present suit out of the which this 1126 appeal has arisen, this compromise decree was fraudulent and collusive  the  object of the parties being  to  efface  the character  of the trust properties completely and to  create individual rights in Purushottam, his son Ramakrishnayya and the  other  defendants  who  claimed  to  be  alienees  from Ramakrishnayya.  The plaint even alleged that, in persuading the  Court to pass the said compromise decree,  the  parties effectively played fraud on the Court and the trust.   Since the compromise was thus null and void, it cannot affect  the original trust created by Purushottam in 1919.  That is  why the plaint alleged that the properties mentioned in sch.   A which  were  covered by the original deed of trust  of  1919 were trust properties and asked in substance for the framing of a scheme for the administration of the said trust. At  the  date  of this suit both  Purushottam  and  his  son Ramakrishnayya    were    dead.     Ramakrishnayya’s     son Ramalingeswara Rao was therefore impleaded as defendant  No. 1.  A large number of defendants had to be impleaded to  the suit  because  the  properties had been  alienated  both  by Ramakrishnayya and Ramalingeswara Rao to several purchasers. Defendants  47 and 48 were two of such purchasers.  On  June 7,  1942, an agreement of sale by defendant No. 1 in  favour of  defendants  47  and 48 was executed  and  a  decree  for

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specific performance was ultimately passed in their  favour. It was then that defendants 47 and 48 were impleaded to this suit  on  January 3, 1944.  These  defendants  substantially adopted   the  defence  raised  by  the   other   contesting defendants  who were already on the record.   The  principal contention  raised on their behalf was that  the  compromise decree was not fraudulent or collusive, that it  represented a  fair and bona fide family settlement between  Purushottam and  his  son  Ramakrishnayya and as  such  the  decree  was binding  against Purushottam and the trust alleged  to  have been created by him in 1919. On  the  pleadings of the parties, the learned  trial  judge framed  ten issues.  He found that the suit  was  competent, that the compromise decree was not shown to be collusive  or fraudulent and it was binding on the 1127 trust.  Even so, the said compromise decree itself created a trust  in favour of public charities and in respect  of  the properties which had been allotted by" the compromise decree to  the  share  of Purushottam.  It would  be  noticed  that according to the plaint the trust for the administration  of which  a scheme was claimed by the plaintiffs was the  trust created  by  Purushottam in 1919.  Since the  learned  trial judge  held  that  this  trust  deed  had  been  effectively substituted  by the arrangement evidenced in the  compromise decree,  he  proceeded  to  consider  the  effect  of   this compromise decree and since he thought that this  compromise decree  itself  created  a  trust  in  substitution  of  the original  trust  of 1919 he proceeded to pass  a  decree  in favour  of  the  plaintiffs in respect  of  the  substituted trust.   This  decree was passed on October 27,  1945.   The matter  was taken to the High Court of Madras by  defendants 47  and 48.  On December 15, 1948, the appeal  preferred  by defendants 47 and 48 was dismissed and the decree passed  by the  trial Court was confirmed.  The learned Judges  of  the High  Court of Madras dealt substantially with the  question of the construction of the compromise decree and, since they came  to the conclusion that the said decree  constituted  a public  charitable  trust  in  respect  of  the   properties assigned to the share of Purushottam, they saw no reason  to interfere  with the decree under appeal.  Two  other  points were  raised before the High Court.  They were, whether  the obligation  arising  out  of the trust  is  annexed  to  the property  that  fell to the share of Purushottam  under  the compromise decree and whether the said decree was  collusive and not binding on the trust.  The High Court took the  view that,  since the. compromise decree itself created  a  trust and it was possible to give relief to the plaintiffs on that view, it was not necessary to consider the said two  points. Defendants  47 and 48 then preferred the present  appeal  to this  Court.   By our interlocutory judgment  on  March  30, 1955, we sent the case back to the High Court of Andhra with the direction that they should record their findings on  the two  additional points which were urged before them  but  on which they thought it 1128 unnecessary   to  make  findings.   In  pursuance  of   this interlocutory judgment, the High Court of Andhra to whom the proceedings  were transferred owing to the creation  of  the new State of Andhra have now recorded their findings on  the two issues in question.  They have held that the  obligation in  question  is annexed to the property that  fell  to  the share  of Purushottam under the compromise decree  and  they have found that the said compromise decree was not collusive and  was  binding on the trust.  That is how  the  principal

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question which we have to consider in the present appeal  is the construction of the compromise decree in question. The principles of Hindu Law applicable to the  consideration of  questions of dedication of property to charity are  well settled.   Dedication to charity need not necessarily be  by instrument  or grant.  It can be established by  cogent  and satisfactory evidence of conduct of the parties and user  of the  property  which  show the extinction  of  the,  private secular   character  of  the  property  and   its   complete dedication  to  charity.  On the other hand, in  many  cases Courts have to deal with grants or gifts showing  dedication of property to charity.  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  a whole.  The use of the word "trust" or "trustee" is no doubt of some help in determining such intention; but the mere use of  such words cannot be treated as decisive of the  matter. Is the private title over the property intended 1129 to  be completely extinguished ? Is the title in  regard  to the  property intended to be completely transferred  to  the charity ? The answer to these questions can be found not  by concentrating  on  the significance of the use of  the  word "trustee" or "trust" alone but by gathering the true  intent of the document considered as a whole.  In some cases  where documents  purport to dedicate property in favour of  public charity,  provision  is  made for  the  maintenance  of  the worshipper who may be a member of the family of the original owner of the property himself and in such cases the question often  arises whether the provision for the  maintenance  of the  manager  or  the  worshipper from  the  income  of  the property  indicates  an intention that the  property  should retain its original character and should merely be  burdened with an obligation in favour of the charity.  If the  income of the property is substantially intended to be used for the purpose  of the charity and only an insignificant and  minor portion  of it is allowed to be used for the maintenance  of the  worshipper or the manager, it may be possible  to  take the  view  that dedication is complete.  If,  on  the  other hand, for the maintenance of public charity a minor  portion of  the  income  is expected or required to be  used  and  a substantial  surplus is left in the hands of the manager  or worshipper  for  his  own  private  purposes,  it  would  be difficult  to accept the theory of complete dedication.   It is  naturally difficult to lay down a general rule  for  the solution  of the problem.  Each case must be  considered  on its  facts  and  the  intention  of  the  parties  must   be determined on reading the document as a whole. In Maharani Hemanta Kumari Debi v. Gauri Shankar Tewari  and Others (1), Sir George Rankin, who delivered the judgment of the  Board  has  observed, "In the usual  case  of  complete dedication made to an idol, for example, the property ceases altogether to belong to the donor, and becomes vested in the idol  as a juristic person.  Complete relinquishment by  the

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owner of his proprietary right is, however, by no means  the only form of dedication known to Hindu law, and is (1) (1940) L.R. 68 I.A. 53, 63. 145 1130 very  different  from  anything  that  could  ordinarily  be inferred  from  the  public user of  a  highway.   From  the standpoint of the Hindu law ’it is not essential to a  valid dedication that the legal title should pass from the  owner, nor is it inconsistent with an effectual dedication that the owner  should continue to make any and all uses of the  land which  do  not  interfere  with the uses  for  which  it  is dedicated’  per  Mookerjee  J. in  Chairman  of  the  Howrah Municipality  v.  Khetra Krishna Mitra (1).  "  The  learned Judge  has  further added that when the dedication  is  only partial  the property in some parts of India might none  the less  in  Common  parlance be  described  as  debotter,  but whether it be charged with a sum of Money for the worship of an  idol or be subjected to a right of limited user  on  the part of the public,it would descend and be alienable in  the ordinary  way.  The only difference, as Mr. Mayne  observes, is that it passes with it a charge upon it. In  Jadu  Nath  Singh v. Thakur Sita  Ramji  (2)  the  Privy Council was dealing with a deed of dedication which provided that  after the death of the grantor certain female  members of his family should succeed him as managers, that half  the income  should be enjoyed by the managers without  power  of alienation,  that upon the death of the named  managers  the Government  should become manager and the whole  net  income should  then be applied to the expenses of the temple.   The Privy  Council held that the deed was a valid  endowment  of the  whole property to the temple and that the donor had  no rights  in  it  against either the  idol  or  the  managers. Dealing  with the argument that in the hands of  the  female members  of  the grantor’s family liberty was given  to  the said members to enjoy half the income, Lord Haldane observed that " If the income of the property had been large, a ques- tion  might  have  been raised, in  the.  circumstances,  as throwing  some  doubt upon the integrity  of  the  settler’s intention, but, as the entire income is only 800 rupees,  it is  obvious that the payment to these ladies is of the  most trifling  kind, and certainly not an amount which one  would expect in a case of that kind." Lord (1) (1906) 4 Cal.  L.J. 343, 348. (2) (1917) L.R. 44 I.A. 187, 190. 1131 Haldane then emphasized the clear expression of the  initial intention  of  the donor to apply the whole  estate  of  the donor  to  the benefit of the temple and he added  that  the rest is only a gift to the idol sub modo by a direction that of  the  whole which had already been given part  is  to  be applied for the upkeep of the idol itself and the repair  of the  temple  and the other is to go for the  upkeep  of  the managers.   That  is  how in the end it was  held  that  the document showed complete dedication in favour of the idol. In  Pande,  Har  Narayan v. Surja  Kunwari  (1),  the  Privy Council has observed that in determining whether the will of a  Hindu gives the testator’s estate to an idol  subject  to the  charge in favour of the heirs of the testator or  makes the  gift to the idol a charge upon the estate, there is  no fixed rule depending upon the use of particular terms in the will.   The  question depends upon the construction  of  the will  as a whole.  In this particular case, though the  will had  provided  that the property of the  testator  shall  be considered  to  be property of a certain  idol,  there  were

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further  provisions  which  showed that  the  residue  after defraying  the expenses of, the temple shall be used by  the testator’s  legal  heirs to meet their own expenses  and  it appeared  that only a small proportion of the  total  income could  be utilised for the idol whereas a large balance  was available to the heirs.  On these facts, it was held by  the Privy  Council that the intention disclosed by the  document was  that the heirs should take the property subject to  the charge  for the performance of the religious purposes  named in  the will.  Lord Shaw, who delivered the judgment of  the Board,  cited  with  approval the  earlier  observations  of Turner  L. J. in Sonatun Bysack v. Sreemutti  Juggutsoondree Dossee  (2 ). Turner L. J. had stated: " although  the  will purports  to  begin with an absolute gift in favour  of  the idol, it is plain that the testator contemplated that  there was  to  be some distribution of the property  according  as events  might turn out; and that he did not intend  to  give this  property  absolutely  to  the  idol  seems  to   their Lordships to be clear from the directions (1) (1921) L.R.  I.A. 143. (2) 8 Moo.  I. A. 66. 1132 which  are  contained in the various clauses of  the  will." Similarly, in Gopal Lal Sett v. Purna Chandra Basak(1),  the Privy Council held that the will of the Hindu testatrix with which  they  were  concerned  in  this  case  conferred  the properties  specified  on  the  grandson  charged  with  the maintenance  of  the  worship but that  no  shebaitship  was created.  The will in question had provided that out of  the income  of  the  specified  property,  her  grandson  should perform  the  worship of certain family idols  and  that  he should  be in charge of the worship.  The will contained  no gift,  express  or implied, to the idols, and there  was  no provision  for the worship after the death of the  grandson. It  is in the light of these decisions that we will have  to construe the compromise decree in the present case. Before  considering  the  terms of  the  compromise  decree, however,  it would be relevant to mention some  more  facts. After  Purushottam  had executed a deed of  trust  in  1919, troubles arose in his own family.  His son apparently  began to  assert his share in the property which was the  subject- matter of the said trust and he actually started to alienate his  alleged  undivided share in the  said  property.   That indeed  was the genesis of the two suits initially filed  by the  three  trustees in 1919-1920.  In O.S. No. 30  of  1921 itself,  an alternative claim appears to have been  made  by Purushottam  when  he was left in sole charge  of  the  suit after  the withdrawal from the suit by his co-trustees.   He claimed  a declaration that he was entitled to  recover  the possession  of the property as mentioned in sch.  A and  A-1 of  the  claim, or, in the alternative, that  he  should  be declared to be entitled to the title of the property jointly with  his  son Ramakrishnayya and the partition in  the  two shares  of  the same may be directed and he may  be  put  in possession of such property as would fall to his share.   In other  words, the first claim was based on the  validity  of the  original  trust  deed created by  Purushottam  and  the second  )#as based on the assumption that the trust was  not valid,  that  the property, the subject-matter of  the  said trust was liable to be divided between (1)  (1921) L.R. 49 I.A. 100. 1133 Purushottam  and  his  son  and  a  prayer  was  made   that Purushottam  should be allotted his share by a partition  of all  the property by metes and bounds.  As a result  of  the

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compromise  decree  passed in this suit, the  property  over which  Purushottam had created a trust in 1919  was  divided between  himself and his son Ramakrishnayya and some of  the property  which was not included in the trust deed  of  1919 but which was also the subject-matter of the suit itself was allotted  to  the share of Purushottam.  The  property  thus allotted to the share of Purushottam formed part of sch.   1 and  it  is  in  respect of  this  property  that  a  public charitable trust has been created according to the  findings of the Courts below.  For the appellants, it is urged before us  that this view is erroneous.  We will now  consider  the relevant terms of the compromise decree.  Clause (1) of  the decree  provides  that  the property described  in  sch.   1 attached  to the decree should go to the share of the  third plaintiff,  viz., Purushottam.  It appears that  four  items included  in  sch.   1  had been  sold  by  defendant  I  to defendants  13 and 14.  These alienees, however,  agreed  to give up their claim in respect of these properties.   Clause (1) then reads as follows:  "that as regards the aforesaid schedule property, the third plaintiff  should be the ’ sole trustee ’ till his  lifetime for the purpose of conducting the charities described in the trust  deed, dated 17th March, 1919, and he  should  utilise the income derived therefrom, for the charities according to the  necessity and should enjoy the said property  till  his lifetime  without rights to gift, sale etc.,  therein;     that  after  his death, the said entire  property  should pass  on to his grandson Ramalingeswara Rao subject  to  the (performance of) the aforesaid kainkaryams (charities);     that if the third plaintiff should die before the expiry of   the  minority  of  the  aforesaid  Ramalingeswara   Rao arrangement  should  be made to have  a  guardian  appointed through  Court  for the property made to pass  to  the  said Ramalingeswara Rao the ,said guardian should take possession of the property 1134 and  conduct the aforesaid charities and deliver  possession of  the same to the said Ramalingeswara Rao as soon  as  the minor attains majority; that, thereafter the said Ramalingeswara Rao should  conduct the above mentioned charities and enjoy the properties;" Then  cls. (2) and (3) deal with the claims of  defendant  1 and  defendants 10, 11 and 12.  Clause (4) directs that  the properties  allotted  to the share of  the  third  plaintiff should  be immediately delivered to him by  the  defendants; and el. (5) provides that the third plaintiff should give up all  other  claims in respect of the suit  and  the  parties should bear their own respective costs. At this stage it may be relevant to refer to the particulars of  charities  for  whose benefit  admittedly  the  decretal provision  in el. (1) has been made.  These particulars  are mentioned in para. 6 of the original deed of trust and it is not  disputed  that  the burden imposed by cl.  (1)  of  the decree is in favour of the same charities.  These  charities are nine in number and they are thus enumerated in the  deed of trust: "(1)  In the choultry constructed in the land in Survey  No. 81, all persons who pass to and fro in Doranala Road, should be  given  drinks  to quench thirst,  everyday  two  brahmin travellers should be given food at noon. (2)  For  the  purpose  of  Mahanaivaidyam  (food  offering) taking  place  every  night  to  Sree  Malleswaraswami  Varu enshrined in the aforesaid Damaramadugu village, 12 tooms of paddy  and Rs. 6 in cash should be given to the  trustee  of the said Devasthanam.

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(3)  During the time of Brahmotsavam of Sri  Malleswaraswami and  Sri Kamakshi Thayi Garu, in Jonnavada which  is  taking place  every year, Rs. 10 (rupees ten) should be paid  every year  in  respect of the Ravana Seva Ubbayam that  is  being conducted by the Damaramadugu villagers. (4)  During the Brahmotsavam time of Sri Jonnavada  Kamakshi Thayi that takes place every year, 1135 Rs. 40 (rupees forty) should be spent for ’Ekanthaseva’  and the trustees should be present and see that the said Ubbayam is properly conducted. (5)  Rs.  12 should be paid every year towards  Deeparadhana expenses   during  nights  to  Sri  Veeranjaneyaswami   Varu enshrined in Pata Santhapeta, Nellore, to the trustee of the said Devasthanam. (6)  From  out of the said fund, Rs. 42 per year  should  be paid to poor Brahmin boys reading in classes commencing from fourth  form  and  upward in the High  School,  towards  the school  fees.  Now, this amount shall be paid to  Amperayani Venkatakrishnayya who is reading in the Kurnool School, till he  stops his study; and after he stops his study, the  then trustees  are  hereby empowered to give the  money  to  poor Brahmin boy whom they consider as the suitable    recipient. (7)  If there should be difference of opinion, on any matter relating  to the management of the aforesaid charities,  the opinion  of the majority trustees shall prevail and it  will be given effect to. (8)  The trustees shall exercise all powers in the matter of the  management  of these charities, viz.,  to  appoint  the necessary staff; to remove them; to suspend them; to  impose fine;  and  to  make  all  arrangements  for  the  staff  to discharge their duties efficiently. (9)  The trustees are fully empowered to now and then  grant cowles  in  respect of the  schedule-mentioned  property  to individuals and to have muchilikas executed and in the event of  any disputes arising at any time through any person,  in respect  of  the  said property, to  institute  and  conduct suitable  proceedings  in proper Courts, to  get  over  such disputes;  and also to incur the necessary expenditure  from out of the income from the aforesaid endowments." It  would be clear that el. (1) of the compromise decree  is the  foundation of the theory, that a public trust had  been created  in respect of the properties allotted to the  share of Purushottam.  In dealing with this clause, the High Court of Madras appears to have  attached considerable  importance to the fact that 1136 Purushottam had already, in unequivocal terms, expressed his intention  to create a trust of his own properties in  1919. There is no doubt that the document of 1919 creates a public charitable  trust.  In construing cl. (1) of the  compromise decree,  the  learned  Judges of the High  Court  of  Madras appear to have assumed that this clause was really  intended to  confirm  the  earlier creation of the  trust  though  in respect  of different properties.  With respect,  in  making this  assumption,  the learned Judges appear to  have  over- looked  the sharp distinction between the words used in  the trust deed of 1919 and in cl. (1) of the compromise  decree. The trust deed had appointed three trustees and by cl.  (12) had specifically provided that the amounts described in  the schedule  and  the income that will increase and  accrue  in future shall be utilised for the above charities only and it shall not be used for private purposes.  In other words, el. (12)  emphatically prohibits the use of the income from  the property  for  any private purpose and  in  terms  dedicates

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entirely the whole of the property and its income for public charitable  purposes.   Clause  (3) of the  trust  deed  had appointed three trustees, had provided for the management of the  trust  and  the keeping of the  accounts.   Under  this clause,  all  the trustees should join together and  hold  a meeting  once  a  month  in the  choultry  and  examine  the accounts and consider the other details of management.   The deed  has  further  provided for the  appointment  of  other trustees  in  case of vacancy occurring either by  death  or resignation.   Now let us look at cl. (1) in the  compromise decree.  It is true that the third plaintiff is described in this  clause as the sole trustee till his lifetime.   It  is also true that, as the sole trustee, he is allowed to  enjoy the  said  property till his lifetime "  without  rights  to gift,  sale  etc., in the same." The use of the  word  "sole trustee"  is no doubt relevant and its full effect  must  be taken   into   account  but  its  significance   cannot   be exaggerated.   It  is really difficult to understand  how  a sole trustee could enjoy the property.  The enjoyment of the property inevitably suggests the right to enjoy the property in one’s right and this notion is not easily                     1137 reconcilable  with the theory of complete dedication of  the property in favour of charity.  Even so, we will assume that the  use of the word " sole trustee " is a factor in  favour of  the plaintiffs.  In the same clause, there is,  however, another indication which is inconsistent with this theory of complete  dedication.  The income of the property has to  be utilised  for  charities according to  the  necessity.   The contrast  between  this provision and the provision  in  cl. (12)  of  the earlier deed of trust  is  obvious.   Whereas, under  the  earlier deed the whole of the income had  to  be utilised  only for the purpose of charity, under el. (1)  of the decree a part of the income is to be utilised  according to the need of the charity.  Then, after the death of  Puru- shottam,  the clause provides that the property should  pass on to his grandson Ramalingeswara Rao subject to the purpose of  the aforesaid charities.  The notion that  the  property has  to  pass  from Purushottam  to  Ramalingeswara  Rao  is consistent  with Purushottam’s title to the property and  is inconsistent  with  the  title  of  the  idol  in  the  said property.  This clause about the devolution of the title  in favour  of the grandson clearly and  unequivocally  suggests that  all that Purushottam wanted to achieve by this  clause was  to leave his private title unimpaired except  with  the burden  or charge in favour of charity.  This clause can  be contrasted with cl. (4) of the trust deed which provides for the subsequent appointment of trustees.  Then the  provision about the appointment of the guardian of Ramalingeswara  Rao during his minority is also inconsistent with the theory  of complete  dedication.  It is difficult to appreciate  how  a guardian of a minor trustee can be appointed in this way  in respect  of properties which do not belong to the minor  but are   trust   properties.   It  is,  however,   urged   that Purushottam  as  the sole trustee is  positively  prohibited from making the gift of the property or selling the property by the first part of el. (1) and that Prima facie  indicates that Purushottam was not an absolute owner of the  property; but  in  judging the effect of this prohibition,  we  cannot lose  sight  of the fact that a similar prohibition  is  not included in the decree when the decree deals 146 1138 with the rights of the grandson of Purushottam.  Reading the clause  as  a  whole,  it seems  to  us  fairly  clear  that

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Purushottam  wanted the property to devolve on his  grandson and  treated  the property as his private property  in  that behalf.   Since  that was the intention  of  Purushottam  no restraint  has  been  imposed  on  the  absolute  title   of Ramalingeswara  Rao  and he has been apparently  given  full liberty to deal with the property as he likes except that he was  under  an obligation to the charity in  question.   The last portion of the clause authorises Ramalingeswara Rao  to conduct  the  above  mentioned charities and  to  enjoy  the property.  This clause again is wholly inconsistent with the theory  of complete dedication and merely suggests  that  in the  hands of Ramalingeswara Rao as well as in the hands  of his  successors  or  transferees the  property  would  stand burdened  with  the obligation to perform the  charities  in question.  We have carefully considered the terms of cl. (1) of this decree and we are satisfied that it is difficult  to hold on these terms that the property allotted to the  share of   Purushottam  under  the  decree  was  intended  to   be completely  dedicated  in  favour  of  charities.   In   our opinion, the learned Judges of the High Court of Madras were in  error  in  construing  this  clause  as  evidencing  the creation  of  a public charitable trust.  We  are  satisfied that  the  properties  continue  to  be  the  properties  of Purushottam  until his death and on his death they  devolved upon  his grandson Ramalingeswara Rao subject always to  the burden of performing the charities mentioned in the  earlier deed of trust. For  the Advocate-General of Andhra who has been allowed  to represent  charities in the present case after the death  of the  original plaintiffs, Mr. Tatachari has urged that  even though  the compromise decree may not indicate the  creation of  a  public trust that would not  necessarily  defeat  the plaintiffs’ claim.  He contends that the trust of 1919 which had   been   validly  created  by  Purushottam   cannot   be effectively  effaced  by the  subsequent  compromise  decree between  Purushottam and his son and the alienees  from  his son.   Mr.  Tata  chari  has referred  us  to  the  material allegations in the 1139 plaint  where it has been suggested that in agreeing to  the compromise  decree  Purushottam was in substance  guilty  of breach  of trust.  We do not propose to consider the  merits of this interesting argument because, in our opinion, it  is too late for the plaintiffs to raise such a point.  We  have already mentioned that one of the issues specifically raised between the parties in the present litigation was in  regard to the nature and effect of the compromise decree.  In  fact we  have  already  indicated that, when we  found  that  the learned  Judges  of  the  High  Court  of  Madras  had   not considered  this  issue, by our  interlocutory  judgment  we invited  the  High Court to consider this issue  along  with another.   The  position now is that both the  Courts  below have  found that the compromise decree was not collusive  or fraudulent ’and it binds the trust.  The respondent has  not filed  any  objection to the finding submitted by  the  High Court of Andhra in pursuance to our interlocutory  judgment. Indeed, if the plaintiffs had adhered to their original case they  should  have insisted upon obtaining a  decree  for  a scheme  of  the original trust of 1919.  It is true  that  a decree  for a scheme was passed in favour of the  plaintiffs but  this  decree  was  passed  on  the  assumption  that  a subsequent compromise decree had created a public trust.  It is  clear  from  the  plaint that  the  plaintiffs  had  not alternatively  asked for a scheme of the  subsequent  trust. That being so, it was really necessary for the plaintiffs to

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have  preferred an appeal against the trial  Court’s  decree and urged that the original trust deed had not been  effaced and  that  it  was still subsisting not  with  standing  the compromise  decree  and that a scheme should  be  framed  in respect  of  the said original trust.  It appears  that  the plaintiffs were content to acquiesce in the finding that the subsequent  compromise decree bound the original trust  deed and,  as matters then stood, it did not make  any  practical difference to the plaintiffs’ case because they got a scheme for  the administration of the trust though  new  properties were  substituted  for the old to  constitute  the  subject- matter  of  the  trust;  but  in  law  the  conduct  of  the plaintiffs  amounted  to an admission  that  the  compromise decree  1140 offaced  the  original trust in that the properties  of  the trust  were changed in the manner indicated in  the  decree. Before  the High Court of Madras, the only point  which  the plaintiffs  urged was that the compromise decree  created  a trust.  It is true that this compromise decree was  intended for the benefit of the charities covered by the earlier deed of trust and the argument was that the properties which were allotted  to  the  share of Purushottam  by  the  compromise decree  should  be deemed to have been substituted  for  the original  properties  of  the trust.   Having  adopted  this attitude  it  is now not open to the plaintiffs  to  contend that  the  terms of the compromise decree do  not  bind  the trust, that the decree per se constituted a breach of  trust and that the original trust is wholly unaffected by whatever Purushottam  did  in  the  subsequent  litigation.   In  our opinion, therefore, it is unnecessary to consider the merits of  the  contention which Mr. Tatachari attempted  to  raise before us. Since  we hold that the compromise decree had not created  a public trust, it is unnecessary to consider any other point. We  wish  to  make  it  clear  that  Mr.  Alladi  Kuppuswami expressly  told us that his clients have always agreed  that the  properties  in  their  hands  are  burdened  with   the obligation to discharge the charities mentioned in the  deed of  trust executed by Purushottam in 1919.   We  accordingly declare  that the properties in the hands of the  appellants are  subject to the charge in favour of the said  charities. However  since the plaintiffs’ case for a scheme has  failed the  appeal  must be allowed and the plaintiffs’  suit  dis- missed.   As the Advocate-General has appeared before us  to support  the  case  of the charities,  we  direct  that  the parties should bear their costs throughout.                             Appeal allowed.                         1141