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PETITIONER: NAGU REDDIAR AND ORS.  ETC.

       Vs.

RESPONDENT: BABU REDDIAR AND ORS.  ETC.AND VICE VERSA

DATE OF JUDGMENT27/04/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SARKARIA, RANJIT SINGH

CITATION:  1978 AIR 1174            1978 SCR  (3) 770  1978 SCC  (2) 591

ACT: Settlement  of  trust on tombs under the Hindu  Law  whether valid  in  law-Meaning  of "Poruthataravu"-Onus  is  on  the person who claims regular worship of the samadhi a religious practice in the community, to prove.

HEADNOTE: By  a deed Ex.  A I dated 10th September 1885, five  members of the family of one Nagi Reddi dedicated certain properties belonging  to their family described in Schedule A and B  to the plaint to two charities one called Annadhana-Chatram and the other called Sachindananda Matam situated in the village Vairichettipalayam, After the death of Ramalingachi  Reddiar his.  adopted  son Nagu Reddiar appellant  in  C.A.  2456/68 assumed  management of the trust properties,  in  accordance with  the succession indicated in Ex.  A2, in 1942.  A  suit O.S. 152155 under Section 92 of the Civil Procedure Code was filed  by the plaintiffs respondents herein in the Court  of Sub-Judge  Trichirapalli. for removing the appellant  No.  I from the trusteeship of the suit charities and for framing a scheme  for the said charities.  The Trial Court found  that the  two  charities  in  question  were  public  Trusts  and comprised all the alienated properties except item 7 of  the Plaint  ’A’  Schedule  of the  trust  properties;  that  ’B’ Schedule properties were bequeathed for performance of  Puja in Samadhi and for feeding the ’agathis’ and ‘paradesis’  in the  Matam and that the samadhi could not be separated  from the  Matam and therefore the dedication of the ’B’  Schedule properties in forum of the matam and samadhikoil is  invalid in  ’law.   The Court ordered the removal of  the  defendant from  the  office  of the trusteeship and  directed  him  to render  accounts  and ordered the framing of  a  scheme  for plaint ’A’ Schedule properties except item 7 which was found to be not a trust property. Aggrieved by the said decision both the plaintiff respondent and defendant appellant preferred appeals to the High Court. A.S.  114/68 is an appeal preferred by the  first  defendant appellant against the decree removing him from, trusteeship, directing the framing of a scheme and declaring  alienations made by him to be not binding on the Trust.  A.S. 194/58  is an  appeal preferred by the plaintiff against that  part  of the decree of the judgment dismissing the suit in respect to

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Sachidananda Matam and ’B’ Schedule properties and declaring item 7 of the plaint ’A’ Schedule as property not  belonging to the Chatnam Trust.  Both the appeals were disposed of  by the  High Court by a common judgment dismissing A.S.  114/58 of  the defendant appellant subject to the  modification  of the  decree  of the lower Court that he would be  liable  to render accounts in respect of the trust properties only  for five  years  prior to the date of the suit and  allowing  in part  A.S. 194/58 of the plaintiff respondent  holding  that item  7 of the plaint ’A’ Schedule properties was also  part of the Trust properties.  It also found that alienations  7, 8  and  15  of ’B’ Schedule properties  were  not  valid  or binding  on  the Trust.  Differing from the Trial  Court  it held   that   the  Matam  and  the  Samadhikoil   were   not inextricably   mixed   up  and  that   the   endowment   for Sachidananda  Matam was a valid endowment.  The  High  Court allocated  half the properties mentioned in ’B’ Schedule  to the Sachidananda Matam and feeding charity and directed  the other  half of the ’B’ Schedule properties should go to  the defendant  No.  I  because it related to  the  Puja  in  the Samadhi, the endowment for which purpose not being valid. Allowing the appeals by certificate, in part the Court HELD  :  1.  The  samadhi was a tomb  of  ancestors  of  the settlors  of the Trust and as such the settlement in  favour of the tomb is not valid in law. [776 D] 771 2.   The word "Poruthatharavu" in the words "Dharumathirkaga Ezhuthivaitha Poruthatharavu" does not mean a ’charge’.  The words mean a document evidencing the transaction  ’Atharavu’ means  ’support’  and ’Poruthatharavu means  a  document  in support.   The  document  also explicitly  states  that  the properties  are  given  absolutely  for  the  charities.   A reading of the documents makes it clear that the  properties were  absolutely endowed in favour of the charities and  the settlors  specifically relinquished all their rights in  the endowed properties. [776 F, G. H] 3.   The  recital makes it clear that the endowment  was  in favour  of  not only Sachidananda Swami Matam but  also  the Samadhikoil, but the properties as described in the schedule were  intended  to be vested in the Matam with  a  direction that  income from specified properties were to be spent  for the purpose mentioned in the schedule itself.  The intention was  that  while  all the properties were  endowed  for  the purpose  of  charities mentioned, the vesting was to  be  as directed in the schedule with the obligation that the income from  the  properties as mentioned should  be  utilised  for upkeep of the Nandavaram attached to the Annadanam  Choultry and  for  the purpose of Puja in the samadhi also  from  the income   of  the  properties  that  were  allotted  to   the Sachindananda Matam. [777B, D-E] The properties described in the schedule referred to as  the properties  allotted to Sachidananda Swami Matam  vested  in the  Matam with a charge that part of the income  should  be spent on the Puja to be performed in the samadhi [777 E]. In this view (i) the conclusion arrived at by the High Court that  properties were endowed for the Matam and the  samadhi and  that  as the purposes of charities  were  distinct  and separate, they could be separated cannot be accepted.  (ii). The  allotment of half the ’B’ Schedule proper-ties for  the charities concerned with the Matam is not correct and  (iii) The direction that the other half of ’B’ Schedule properties should  go to the first defendant (appellant No. I  in  C.A. 2456/68)  cannot be sustained in law for on the findings  of the  High Court the properties would have to revert back  to the settlors and their descendants. [777 F-G]

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4.   For  the  settlement to be valid and for the  trust  to claim exemption from the rule against perpetuity, it must be for  a  religious  and charitable purpose  The  English  law relating  to  settlement on tombs does not  apply  to  Hindu religious  endowments.  What are purely  religious  purposes and  what  religious  purpose will  be  charitable  must  be entirely decided according to Hindu law," and Hindu notions. [777G-H, 778A, C] 5.   The  determination of what conduces to religious  merit in  Hindu law is primarily a matter of  shastric  injunction and  therefore  any purpose claimed to be a  valid  one  for perpetual dedication on the ground of religious merit though lacking  in public benefit must be shown to have a  shastric basis  as  far  as Hindu  are  concerned.   Other  religious practices  and  beliefs  have also  grown  up  and  obtained recognition  from certain classes as  constituting  purposes conducive to religious merit.  But if such beliefs are to be accepted  by Courts as being sufficient for valid  perpetual dedication  of  property therefore without  the  element  of actual  or  personal public benefit, it must be  shown  that they  have  obtained  wide recognition  and  constitute  the religious  practice  of  a substantial and  large  Class  of persons. [778C-E] The  building of a samadhi or a tomb over the remains  of  a person  and  the  making of provision  for  the  purpose  of ’Gurupooja’ and other ceremonies in connection with the same cannot  be  regarded  as  charitable  or  religious  purpose according to Hindu law. [778 E-F] Saraswathi  Ammal  and Anr. v. Rajagapal Ammal,  [1954]  SCR 277; Kunha mutty v. Thondikodan Ahmed Mudaliar and two Ors., I.L.R. 58 Mad. 204 A. Drainasundaram Pillai v. N. Subramania Pillai, I.L.R. 1945 Mad. 854 Veluswami Gounder v. Dandapani, [1946] 1 M.L.J. 304 referred to. 772 6.   The rule that a provision for the purpose of puja  over the tomb of the remains of a person is invalid is subject to certain  exceptions.   Cases  of Hindu  saints  having  been entombed deified and worshipped stand on a different footing from  the  case  of an ordinary private  individual  who  is entombed and worshipped therein.  Samadhi over one who comes to be regarded as of the illuminate and the tombs of  heroes may  evolve  in course of time as a shrine of  Hindu  public religious worship [778 G, 779 A] Saraswathi  Ammal  and Anr. v. Rajagopal Ammal,  [1954]  SCR 277, Sri Ramanasramam by its Secretary G. Sambasiva Rao  and Ors. v. The Commissioner for Hindu Religious and  Charitable Endowments, [1960] 2 M.L.J. 121; Board of Commissioners  for Hindu  Religious Endowments, Madras v. Pidugu Narsinham  and Ors.,   [1939]   1  M.L.J.  134,   Ratnavelu   Mudaliar   v. Commissioner  of H.R. & C.E. [1953] 2 M.L.J. 574;  Ramaswami v.  The Board of Commissioners, Madras, [1958] 2 M.L.J.  511 referred to. 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   sharaddha   ceremonies   and   conducting periodical  worship  for this practice may  not  offend  the Hindu   sentiment  which  does  not   ordinarily   recognise entombing the remains of the dead.  A place of worship  will not cease to be religious because of its being in the memory of a person.  In the instant case, it was never pleaded that any  religious  practice existed amongst  the  community  of building  samadhis  over the remains of  the  ancestors  and

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performing pujas.                          [779 E, F-G]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  2456-2457 of 1968. Appeals by Special Leave from the Judgment and Decree  dated 2-2-1962  of the Madras High Court in A. S. Appeal Nos.  114 and 198 of 1958. P.   R.  Mridul, K. Jayaram, K. Ram Kumar for the  Appellant in C.A. 2456/68 and Respondent in C.A. 2457/68. T.   S.  Krishna Murthy Iyer and Miss Lilly Thomas  for  the Appellant in C.A. 2457/68 and Respondents C.A. 2456/68. The Judgment of the Court was delivered by KAILASAM,  J.-These two appeals are by certificates  granted by  the  High Court of Madras against a common  judgment  in A.S. No. 114 and A.S. No. 194 of 1958. These appeals arise out of a suit filed by the plaintiffs in the  Court of the Subordinate Judge, Tiruchirapalli in  O.S. No.  152  of  1955 under section 92 of  the  Code  of  Civil Procedure   for  removing  one  Nagu  Reddiar,   the   first defendant,  from the trusteeship of the suit  charities  and for  framing  a scheme for the said  charities.   The  trial court  found that the two charities in question were  public trusts  and  comprised all the alienated  properties  except item  7 of plaint-A Schedule of the trust  properties.   The Trial Court found that B-Schedule properties were bequeathed for  performance of Puja in the Samadhi and for feeding  the Agathies  and Paradesies in the Matam and that  the  Samadhi could  not  be separated from the Matam  and  therefore  the dedication  of  the B Schedule properties in favour  of  the Matam and Samadhikoil is invalid in law.  The Court  ordered the removal of the defendant from the 773 office  of  the  trusteeship  and  directed  him  to  render accounts  and ordered the framing of a scheme for  Plaint  A Schedule properties except item 7 which was found to be  not a  trust  property.   Aggrieved by  the  judgment  both  the plaintiffs and the defendants preferred appeals to the  High Court of Madras, the appeal by the defendants being A.S. No. 114 of 1958 and by the plaintiffs A.S. No. 194 of 1958.  The High Court disposed of both the appeals by a common judgment dismissing  A.S. No. 114 subject to the modification of  the decree of the lower court that the first defendant would  be liable to render accounts in respect of the trust properties only  for five years prior to the date of the suit  and  not for  the entire period of his management as ordered  by  the sub-Judge.   The High Court allowed the appeal in  A.S.  No. 194  of  1958 in part holding that item 7 of  the  plaint  A Schedule  properties was also part of the trust  properties. It  also found that alienations of items 4., 7, 8 and 15  of B-Schedule  properties  were not valid or  binding  on-  the trust,  Differing  from the trial court, it held  that  the, Matam and the Samadhikoil were not inextricably mixed up and that  the  endowment  for Sachidhananda Matam  was  a  valid endowment.   The  High Court allocated half  the  properties mentioned  in the B Schedule to the Sachidananda  Matam  and feeding  charity and directed that the other half of  the  B Schedule properties should go to the first defendant because it  related  to the Puja in the Samadhi, the  endowment  for which purpose not being valid.  Aggrieved by the judgment of the High Court the parties have preferred appeals  against the  common judgment in A.S. Nos. 114 and 194 of 1958.   For

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the  purpose of ,convenient reference, we will refer to  the parties as plaintiffs and defendants according to their rank in the trial court. The  facts of the case are briefly as follows.  By. a  deed, Ex.   A-1, dated 10th September, 1885, five members  of  the family  of  one  Nagi  Reddi  dedicated  certain  properties belonging to their family described in Schedules A and B  to the  plaint  to  two  charities  one  called  the  Annadhana ’Chatram and the other called Sachidananda Matam situated in the   village  of  Vairichettipalayam.   Besides   the   two charities  properties  were endowed for the  upkeep  of  one Karpaka  Vinayakar temple constructed in the village by  the ancestors  of  the  founders and for  certain  Kattalais  in Sabhanayagar  temple in Chidambaram, Subramanyaswami  temple in Palani and Arunachaleswaraswami temple in Tiruvannamalai. On  the  same  day the founders of the  trust  under  Ex-A-2 nominated  one of them, Ramalingachi Reddiar, as  a  trustee for  the charities for life.  After his life-time  his  son, grandson and their descendants were to succeed Under Ex.  A- 1 separate sets of properties were dedicated for each of the charities  particulars of which will be referred to  in  due course.   Ramalingachi  Reddiar was managing  the  charities till be died in 1942.  He had no natural issue and therefore adopted  the first defendant in 1918 as his son.  The  first defendant  assumed  management of the  trust  properties  in accordance with the line of succession indicated in Ex.   A- 2.   In  the  plaint it was alleged that  after,  the  first defendant took charge of the properties in 1942, be had  not carried out the directions of the trust, alienated the trust properties by sale and exchange and had not maintained any 774 accounts.   On  the ground of misfeasance,  malfeasance  and misappropriation  of trust properties the plaintiffs  prayed for  the removal of the first defendant from the  office  of the trusteeship and asked for accounts and for framing of  a scheme.   The  main  contesting  defendant  was  the   first defendant, the second defendant being the wife of the  first defendant’s  brother-in-law.  The second defendant  and  the other   defendants  are  either  alienees  or   persons   in possession of the trust properties. In these two appeals before us the concurrent finding of the courts  below that the Annadhara Chatram is a  public  trust and  that it is valid is not disputed.  The finding  of  the High  Court  that  the  trust  properties  were   improperly alienated and that they are not valid is also not questioned before us.  The findings of the courts below that the  first defendant was guilty of breach of trust in relation to  the; properties  and  directing his removal from  the  office  of trusteeship  for  a period of five years and  the  direction calling  upon  him to render accounts for a period  of  five years before the filing of the suit are not challenged.   In both  the appeals before us the only point that  was  raised was regarding the B Schedule properties.  The contention  on behalf  of the plaintiffs is that the endowment is  a  valid one  as it was mainly in favour of the Matam and feeding  of the  poor who visited the Matam and that the performance  of the  Puja  in the Samadhi was not connected  with  the  main endowment  as the properties vested absolutely in favour  of the  Matam.   On behalf of the defendants it  was  submitted that the endowment is not valid in law as its purpose  war., for  maintenance of a tomb (Samadhi) of an ancestor  of  the defendant which is invalid in law. The  trial  court held that the Samadhikoil referred  to  in Exs.   A-1  and A-2 means the tomb or tombs built  over  the place  where the mortal remains of certain ancestors of  the

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executants of Exs.  A-1 and A-2 were interned and that  from the   description   that  the   Samadhikoil   adjoining   or appurtenant  to the Matam and the fact that  the  properties were  bequeathed for performance of Puja at the  Samadhikoil and feeding the Agathies and Paradesies, the bequest is  one in  connection with the performance of Puja at the  Samadhi. It  also found that the Samadhi and the Matam premises  were adjoining  each other and so closely intertwined  that  they cannot  be  separated  and therefore. the  bequest  for  the performance of Puja at the Samadhikoil or the feeding of the poor in the Matam cannot be separated and therefore  bequest in favour of the Matam and Samadhikoil should be declared as invalid.  The High Court while agreeing with the  conclusion of  the trial court that the Samadhi is really a tomb of  an ancestor  of  the  defendants’  family  disagreed  with  the finding  of the trial court that the Matam and  the  Samadhi are  intertwined  or  so  inextricably  mixed  up  that  the endowment  under Ex.  A-1 of B-Schedule properties  must  be held  to  be an invalid document as it benefits  a  Samadhi. The  High ,Court came to the conclusion that the charity  in favour  of  the  Matam for feeding of the poor  is  a  valid endowment and was a distinct charitable object and therefore valid endowment.  While, confirming the endowment in  favour of the Sachidananda Matam, it found the endow- 775 ment as regards the Samadhi or the tomb as invalid.   Having regard  to the nature of the services rendered by the  Matam and the Samadhi the High Court allocated half the properties mentioned  in  the  B Schedule  to  Sachidananda  Matam  and feeding  charities  but  directed  the  other  half  of  the properties  in the B Schedule to be delivered to  the  first defendant. The  question that falls for determination is the nature  of the endowment as regards the B Schedule properties and as to bow  far it can be held to be valid: As rightly pointed  out by  the trial court the determination of this question  will solely  depend upon the construction of the  two  documents, Exs.  A-1 and A-2 particularly Ex.  A-1, the trust deed. The trust deed was executed on 10th September, 1885 by  five persons in respect of the under-mentioned charities :               Karpaka Vinayakar temple constructed by  their               ancestors,    Annadana   Choultry   and    the               Nandavanam  (flower  garden) attached  to  it,               Sachidananda Matam and the Samathikoil  (tomb)               attached   to   it,  Sabanayagar   temple   in               Chidambaram, Subramaniaswami temple in  Palani               and     Arunachaleswaraswami     temple     in               Thiruvannamalai. The  recital in the document provides that the settlors  had allotted  84.8  acres described in the  Schedule  absolutely under  the  document for being utilised  for  the  charities mentioned.   The settlors declared that they would  have  no rights  whatsoever in respect of the  aforesaid  properties. The  recitals  are  followed by the  schedules.   The  first Schedule  recites that the properties  mentioned  thereunder are allotted to the Karpaka Vinayakar temple.  After  giving description  of  the  various  items  of  properties  it  is directed  that  the  income  from  the  properties  will  be utilised  for conducting Pujas twice a day and Abishekam  on special  occasions by employing Brahmins for  the  Vinayakar deity.   A  separate schedule is given  regarding  the  pro- perties  which are allotted to the Annadanam choultry.   The schedule starts by saying that the properties described  are allotted  to  the  Annadanam choultry.  At the  end  of  the Schedule, it is directed that the income from the properties

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be spent for feeding the Brahmins that come to the  choultry and for expenses of the nandavanam attached to the choultry. The  next  Schedule-  is  relevant  for  our  purpose.   The Schedule in the question is captioned as follows :- Matam"   Description   of   the   properties   allotted   to Sachidananda It  may be noted that the description does not  include  the Samadhi  but at the end of the Schedule it is provided  that the income from the properties mentioned in the Schedule  be spent  for  feeding  the Agathies  and  Paradesies  and  for conducting  Puja in the Samadhi attached to the Matam.   The other Schedules describe the properties that are allotted to the  various  temples, Sabanayagar  temple  at  Chidambaram, Arunachaleswaraswami    temple   at   Thiruvannamalai    and Subramaniaswami temple at Palani. 776 On behalf of the defendants Mr. Mridul, the learned counsel, submitted  that the endowment under the B Schedule  was  for the  purpose  of  feeding the Agathies  and  Paradesies  who visited  the  Samadhi and the Matam was for the  purpose  of accommodating  such visitors to the Samadhi and as such  the principal  object of the endowment was for Samadhi and  that it  is  invalid in law.  In any event, the  learned  counsel submitted that the finding of the lower court that both  the charities were so inextricably intertwined that they  cannot be  separated  which would entail the  invalidation  of  the entire  endowment  was  correct.  On  the  other  hand,  Mr. Krishnamurthy Iyer, the learned counsel for the  plaintiffs, submitted  that  the  Samadhi was in fact a  kovil  and  the entire  endowment  was valid as it was for  the  purpose  of feeding  the poor who came to the temple.  In any  event  he submitted that the vesting of the properties under  Schedule B  was only in favour of the Matam and that  only  direction was  to  spend some moneys for performing that Puja  in  the Samadhi.  In the event of the direction for the Puja of  the Samadhi  being  held unsustainable in law that part  of  the endowment alone is liable to be declared invalid. We  find no difficulty in rejecting the extreme  contentions of  both  the parties and agreeing with the finding  of  the courts below that the Samadhi was a tomb of ancestors of the settlors  of the trust and as such the settlement in  favour of  the  tomb is not valid in law.  The  question  therefore that  remains  for consideration is as to what part  of  the endowment  under  B  Schedule could be found  to  be  valid. Strong  reliance was placed by both the learned  counsel  on the  Tamil words that are used in the settlement deed.   Mr. Mridul,  the learned counsel for the  defendants,  submitted that the document if properly construed would show that only a  charge was created on the properties for  performing  the various charities, and the properties continued to vest with the   settlors.   In  any  event,  he  submitted  that   the properties described in Schedule B were jointly endowed  for the  Matam as well as for the Samadhi and were  inextricably intertwined and as such invalid.  Particular stress was laid by  the  learned  counsel  on  the  words   "Dharumathirkaga Ezhuthiyaitha  Poruthatharavu" which means "a  document  for charity in writing evidencing the transaction.  The  learned counsel would construe the words "Poruthatharavu" as meaning a  charity.   We  are unable to agree.   The  words  mean  a document  evidencing  the  transaction.   ’Atharavu’   means support’ and ’Poruthatharavu would mean document in support. The,  plea  of the learned counsel is unsupportable  as  the document  explicitly  states that the properties  are  given absolutely for the charities. This  unequivocal statement is followed by the recital  that

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the settlors will have no right whatsoever in the properties endowed.  Again to place the matter beyond all doubt, it  is specifically recited that for the purpose of conducting  the charity  Ramalingachi Reddiar, his son, grandson  and  their descendants  will  be  Dharmakartas.  On a  reading  of  the document  we  have.  no  doubt  that  the  properties   were absolutely  endowed  in  favour of  the  charities  and  the settlors  specifically relinquished all their rights in  the endowed. properties.  This leaves us with the  consideration of the question whether the properties 777 were endowed in favour of both the Matam and the Samadhi  or the Matam alone.  The schedule commences as follows "The description of the lands allotted to the  Sachidananda- swami Matam." This   description  standing  alone  would  mean  that   the properties  were  to  vest in  the  Sachidanandaswami  Matam alone.   But  the  recital in the body  of  the  trust  deed includes  the Samadhikovil attached to ’he Matam as  one  of the  beneficiaries which would indicate that  the  endowment was in favour of the Samadhi also.  While agreeing with  the learned  counsel  that the above recital would  support  the plea  that the endowment was in favour of the Samadhi  also, we are inclined to hold that the properties as described  in the Schedule were intended to be vested in the Matam with  a direction that incomes from the specified properties were to be spent for the purposes mentioned in the Schedule  itself. We  find  that in the Schedule under  which  properties  era allotted to the Annadana choultry, while the Schedule begins by stating that the properties are allotted to the  Annadana choultry, at the end of the Schedule it is directed that the income from the properties be spent for feeding the poor  in the  choultry and for maintaining Nandavanam.   Reading  the entire  document as a whole, we feel that the intention  was that  while all the properties were endowed for the  purpose of charities mentioned, the vesting was to be as directed in the  Schedule with the obligation that the income  from  the properties so mentioned should be utilised for the upkeep of Nandavanam  attached to the Annadanam choultry, and for  the purpose  of Puja in the Samadhi also from the Income of  the properties that were allotted to the Sachidananda Matam.  On a careful reading of the document, we are satisfied that the properties  described  in the Schedule referred  to  as  the properties  allotted to Sachidananda Swami Matam  vested  in the Matam with a charge that a part of the income should  be spent on the Puja to be performed in the Samadhi. In this view we are unable to accept the conclusion  arrived at  by the High Court that the properties were  endowed  for the  Matam and the Samadhi and that as the purposes  of  the charities   were  distinct  and  separate  they   could   be separated.   We  are  equally  unable  to  agree  with   the allotment  of  half  the  B  Schedule  properties  for   the charities concerned with the Matam.  The direction that  the other  half of B Schedule properties should go to the  first defendant  cannot  be  sustained in law,  for  even  on  the finding  of  the High Court, the properties  would  have  to revert back to the settlors and their descendants. We  are of the view that only a charge was created  for  the expenses  for  conducting  the Puja in the  Samadhi  on  the properties that vested with the Matam.  The question  arises as  to how far such a direction in the settlement  could  be held to be valid in law.  It is not in dispute that for  the settlement to be valid and for the trust to claim  exemption from the rule against perpetuity, it must be for a religious and charitable purpose recognised as such by Hindu law.  The

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English  law relating to settlement on tombs does not  apply to Hindu 15-315SCI/78 778 religious endowments.  The Courts in India have adopted  the technical  meaning  of  charitable  trusts  and   charitable purposes  which the courts in England have placed  upon  the term  ’charity’.   But,  in  addition,  under  the  head  of advancement of religion, there are other charitable  objects in  Hindu  law  which will not be  charitable  according  to English  law  for  that law forbids bequests  for  what  are termed   superstitious  uses.   Under  the  Mussalman   Wakf Validing  Act,  1913,  Act  VI  of  1913,  a  wakf  for  the maintenance and support, wholly or partially, of his  family or  descendants  is valid provided the ultimate  benefit  is expressly  or  impliedly reserved for the poor  or  for  any other   purpose  recognized  by  the  Mussalman  law  as   a religious,  pious  or  charitable  purpose  of  a  permanent character. What  are  purely  religious  purposes  and  what  religious purpose   will  be  charitable  must  be  entirely   decided according  to  Hindu law and Hindu notions.   In  Saraswathi Ammal and Another v. Rajagopal Ammal(1) it was held that the determination  of what conduces to religious merit in  Hindu law  is  primarily  a matter  of  Shastraic  injunction  and therefore  any  purpose  claimed  to  be  a  valid  one  for perpetual dedication on the ground of religious merit though lacking in public benefit, must be shown to have a Shastraic basis  so  far as Hindus are concerned.  While  stating  so, this  Court  recognised that other religious  practices  and beliefs  may  have grown up and  obtained  recognition  from certain  classes  as  constituting  purposes  conducive   to religious merit.  But if such beliefs are to be accepted  by courts as being sufficient for valid perpetual dedication of property therefore without the element of actual or presumed public  benefit,  it must at least be shown that  they  have obtained  wide  recognition  and  constitute  the  religious practice of a substantial and large class of persons.  After referring to the Madras decisions in Kunhamutty v.  Thondik- kodar  Ahmad  Musaliar and two Others(1)  A.  Draivlasundram Pillai  v. N. Subramania Pillai(3) and Veluswami Gounder  v. Dandapani,(4)  this Court observed that it was held  in  the above  decisions  that the building of a samadhi or  a  tomb over the remains of a person and the making of provision for the purpose of Gurupooja and other ceremonies in  connection with  the  same  cannot  be  recognised  as  charitable   or religious purpose according to Hindu law. The  rule that a provision for the purpose of Puja over  the tomb  of  the remains of a person is invalid is  subject  to certain  exceptions.   As  pointed  out  by  this  Court  in Saraswathi Ammal’s case (supra) there have been instances of Hindu saints having been defied and worshipped but very  few if  at  all  have  been entombed.  Such  cases  stand  on  a different  footing  from  the case of  an  ordinary  private individual  who is entombed and worshipped  thereat.   After referring  to  the, decision in Saraswathi  Ammals  case,  a Bench  of the Madras High Court in Sri Ramanasramam  by  its Secretary G. Sambasiva Rao (1)  1954 S.C.R. 277. (2)  I.L.R. 58 Mad. 204. (3)  I.L.R. 1945 Mad. 854. (4)  [1946]1 M.L.J. 354. 779 and  Ors.  v.  The  Commissioner  for  Hindu  Religious  and Charitable  Endowments, Madras,(1) observed that as  samadhi

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over  one who comes to be regarded as of the  illuminati  or even the tombs of heroes may evolve in course, of time as  a shrine of Hindu public religious worship, as was held in the Board  of  Commissioners  for  Hindu  Religious  Endowments, Madras   v.  Pidugu  Narasimham  and  Others,(1)   Ratnavelu Mudaliar  v. Commissioner, for H. R. & C. E., (3) and  Rama- ,swami  v. The Board of Commissioner, Madras.(4) This  Court referring  to  the decision of Board  of  Commissioners  for Hindu Religious Endowments, Madras v. Pidugu Narasimham  and Others  (supra) observed that the Judges of the  High  Court were  inclined to hold that the worship was religious.   But this  was a case of a grant from a sovereign  authority  and was not an endowment for worship of a tomb.  In (1953) 2  M. L.  J.  574 a Bench of the Madras High Court held  that  the samadhi  or tomb of one Apparswami is a place  of  religious worship  taking  into account that the institution  was  for over  a  century regarded as a place of  religious  worship. Viswanatha Sastri J. in T. R. K. Ramaswami Serval and Anr v. The  Board of Commissioners. for the H. R. E.,  Madras,  (4) through  its  President,  expressed his  view  that  it  was sufficient  if the worshippers considered themselves  likely to be the recipients of the bounty or blessings of a  Divine Presence,  which  they  believed  to  exist  at  the  place. Samadhis of saints are recognised as religious  institutions in  the South.  It is well-known that the Samadhi  of  saint ’Pattinathar’  is  considered  as  a  place  of  worship  in Tiruvottiyar  near  Madras.  According  to  tradition  great saints have attained Yoga Samadhi in the well-known  pilgrim centres; Saint Tirumoolar attained’ Samadhi in  Chidambaram, Saint  Konganavar at Tirupathi, Saint Valmiki  at  Srirangam and Bhgamuni at Palani. 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 Sharadha ceremonies  and  conducting periodical  worship  for this practice may  not  offend  the Hindu   sentiment  which  does  not   ordinarily   recognise entombing the remains of the dead.  A place of worship  will not cease to be religious because of its being in the memory of a person. It may be stated that the case before us relates to the tomb of  an ancestor of the settlors.  It was never pleaded  that any  religious  practice existed amongst the  community,  of building  samadhis  over the remains of  the  ancestors  and performing  pujas.  The plea of the defendant in Para  8  of the  written statement is that the dominant purpose  of  the dedication of B Schedule properties was Samadhi (1)  1960 (2) M.L.J. 121. (2)  1939 (1) M.L.J. 134. (3)  1953 (2) M.L.J. 574. (4)  1950 (2) M.L.J. 511. 780 Kainkaryam i.e. worship of the ancestors in their entombment and as such invalid in law. It  only  remains  for  us  to  consider  what   appropriate directions  should  be given in the case.  In  view  of  our finding  that  the vesting of B Schedule properties  was  in favour  of the Matam alone with a charge on  the  properties that the expenses for Puja at the Samadhi should be met  out of the income of the property, the vesting will not fail but the  direction to meet expenses for the Puja at the  Samadhi is, unsustainable in law. The High Court directed framing of a scheme for the adminis-

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tration of the two trusts.  The High Court also agreed  with the trial Judge that the Board of Trustees should consist of three  persons, two of whom should be respectable  residents of  Vairichattipalayam and the third should be, a member  of the  family of the first defendant.  We agree that a  scheme should  be  framed with a Board of  Trustees  consisting  of three members, one belonging to the family of the donors and two  other  respectable residents of the  village.   As  the prohibition against the first defendant for  being a trustee for five years has expired his claim to be appointed as  one of the trustees from the members belonging to the family  of the  settlors  may be considered by the  Subordinate  Judge. The  three trustees appointed by the Subordinate Judge  will administer  the  scheme that may be framed  subject  to  the directions that may be issued by the Subordinate Judge  from time to time. It  is  the common case of the parties that due  to  changed circumstances very few people visit the village on their way to various places of pilgrimage and therefore there are  not many  visitors to be fed in the choultry.  The  income  from the  properties  that is allotted to the  Karpaka  Vinayakar temple  under  Ex. A-1 will be used in conformity  with  the directions  in the document.  Regarding the  property  which had been allotted to the Annadana choultry the direction  is that  from  the income of the property,  the  Brahmins  that visit  the choultry should be fed and the Nandavanam  should be  maintained.   The direction will be adhered  to  but  if there  are not enough Brahmins as envisaged in the  document the  income will be utilised for feeding the poor  boys  and girls of the schools of the village even though they may not belong  to the Brahmin community.  Regarding the  properties that are allotted to the Sachidanandaswami Matam, it is seen that  there  are  not enough pilgrims  passing  through  the village due to improved transport facilities.  The-direction to  incur  expenses  for the Puja in  the  Samadhikovil  has failed.   The income from the properties after  feeding  the Agathies  and paradesies that visit the Matam will  be  uti- lised for feeding the poor boys and girls of the schools  of the  village.  It will be open to the Subordinate  Judge  to utilise  the surplus income from the properties allotted  to Anandana  choultry and Sachidanandaswami Matam  for  feeding the  poor school-going- boys and girls in the  village.   We are satisfied that the settlement is predominantly for a 781 charitable purpose and as the direction regarding feeding of the Brahmins in the Annadanam choultry and for Agathies  and Paradesies  in  the  Matam cannot be  duly  carried  out  as intended  by the settlors, applying the Cypres  doctrine  we direct  as indicated above that the, funds may  be  utilised for  a  purposes which are as nearly as  possible  with  the intention of the donors. There  will be no order as to cost& S.R. Appeals allowed  in part. S.R.                  Appeals allowed in part. 782