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PETITIONER: NANDURI YOGANANDALAKSHMINARASIMACHARI AND ORS.

       Vs.

RESPONDENT: SRI AGASTHESWARASWAMI VARU OFKOLAKALUR

DATE OF JUDGMENT: 15/01/1960

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1960 AIR  622            1960 SCR  (2) 768  CITATOR INFO :  RF         1978 SC1329  (28)

ACT: Grant-Inam-Intention-Specified  charitable payments  exhaus- ting  income at date of grant-lntention is to  denote  whole income  to charity-Plaint-Prayer Portion-If and when can  be allowed to be amended-Documents-The interpretation Possible- Supreme Court not to intervene with view taken by the courts below.

HEADNOTE: The  sole trustee of a deity in a suit prayed for  a  decree for  the  recovery of the arrears of income  of  a  property alleging   that  the  property  in  dispute  constituted   a specified  endowment for Kalyanotsavam of the deity and  the appellants  who  were  trustees of  the  said  property  had committed default in carrying out the purpose of the  trust; but there was no formal Prayer for the declaration that  the said  properties  and  income  thereof  formed  a   specific endowment  for the said due performance of the  services  of Kalyanotsovam  of the deity and feeding charges,  and  other expenses.   The defence raised was that lnam was a  personal grant burdened with service of the deity and that it was not a  specific  trust or an endowment for the  benefit  of  the idol.   The  High Court after allowing  the  respondents  to amend  the plaint by adding a formal prayer for  declaration stating  that  the properties and income  thereof  formed  a specific  endowment for the due performance of the  services of  Kalyanotsavam  of  the  deity  held  in  favour  of  the respondents  and further, observed that the appellants  were liable to pay the entire income to the deity.  On appeal  to the Supreme Court it was contended for the appellants  inter alia (1) that the grant was a personal grant, burdened  with the  provision for service and it was not a specific  grant. (2) that High Court should not have allowed the amendment of the plaint. Held,  that  in the instant case the grant, was  a  specific endowment  for  Kalyanotsavam of the deity and  therefore  a specific  trust and not a grant to the appellants  with  the added obligation of spending on the service. In  considering the question of the nature of a  grant,  the

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inam  registers have always been treated as evidence of  the utmost  importance  particularly where Sanad  &  Inam  title deeds are not produced, and when two inferences are possible from  the  reading of documents there is no reason  why  the Supreme  Court  will interfere with the view taken  by  the. courts below. When at the time of a grant the specific charitable payments exhaust  the-income of the property, it is a fair  inference to draw      769 therefrom that the intention was to devote the whole  income to   charity and any subsequent increase in the value of the property  accrues  to  the charity and the courts  would  be right to apply the  doctrine of Cy-pres. Held,  further,  that where necessary allegations  had  been made  in a plaint and the requisite pleas raised and  issues framed    on  the  question  and  the  parties  were   fully cognizant  on  the  points  in  controversy  and   necessary evidence led by them, the courts   would    be   right    in allowing  the amendment by the addition of a prayer  in  the prayer  clause,  which was in the nature  of  formal  relief which flowed from the allegation in the plaint.

JUDGMENT: CIVIL APPELATE JURISDICTION: Civil Appeal No. 147 of 1956. Appeal from the judgment and decree dated August 7, 1952, of the Madras High Court in A. S. No. 809 of 1947, arising  out of  the judgment and decree dated October 31, 1947,  of  the Sub Judge, Tenali in 0. S. No. 64 of 1944. K.   R.  Chaudri, T. S. Venkataraman and K. B.  Sharma,  for the appellants. N.   Subramanyam and T. Satyanarayana for the respondent. 1960.  January 15.  The Judgment of the Court was  delivered by KAPUR  J.-This is an appeal against the judgment and  decree of the High Court of Madras varying the decree of the  trial court.   The  appellants were the defendants  in  the  trial court  and  the,  respondent  was  the  plaintiff  who   was represented  by  the  sole trustee appointed  by  the  Hindu Religious Endowment Board. The  suit was brought by the deity through the sole  trustee for  recovery of Rs. 3,480 towards the arrears of income  of the  property  in  trust for the years  1942-44  and  for  a direction  for  future payment at the rate of  160  bags  of paddy  per  year  or its equivalent  i.e.  Rs.  1,680.   The plaintiff alleged that the property in dispute constituted a specific  endowment for Kalyanotsavam of the deity and  that the  defendants who were trustees had committed  default  in carrying out the purpose of the trust.  The prayer was for a decree for the recovery of expenses of Kalyanotsavam and  of the feeding charges.  The defence raised was 98 770 that  the inam was a personal grant for driving the  car  of the  deity  on  the  festival days and that  it  was  not  a specific trust or an endowment for the benefit of the  idol. In  other  words it was a grant of the  inam  burdened  with service to the god.  There were other pleas raised in regard to jurisdiction, res judicata and  adverse possession.   The trial court held that the     grant,    was    a    specific endowment  for  the  Kalyanotsavam  of  the  deity  but  the appellants were not bound to  spend the whole income of  the lands for the purpose.  It decreed a sum of Rs. 200 per year

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as adequate provision for the performance of the service  of Kalyanotsavam.  The other pleas raised were decided  against the appellants. In  the High Court the only point argued was  regarding  the nature  of the grant and as in the opinion of that  court  a general  trustee could not call upon a specific  trustee  to pay any money ’except on the ground of expending that amount and  there  was no proof of this expenditure the  prayer  as contained  in the plaint was not granted and the High  Court was  also  of  the opinion that as all the  facts  had  been pleaded  and there were no new facts to be alleged  and  the parties were alive to the real nature of the dispute and had even the issues framed on that very question, it allowed the plaint  to  be amended by the addition of the prayer  for  a declaration  that  the properties in the  schedule  and  the income  thereof  formed  a specific endowment  for  the  due performance  of the services of Kalyanotsavam of  the  deity and  feeding charges and other expenses  incidental  thereto and  the appellants were therefore liable to pay the  entire income.   It was also of the opinion that all the  available evidence  had been adduced by both the parties and that  the prayer for declaration was only a formal relief which flowed from  the allegations in the plaint.  It neither involved  a change  of  the cause of action nor did it require  a  fresh trail  and therefore the petition for amendment was  allowed by the addition of the prayer stated above. In  this appeal counsel for the appellant has  raised  hreet points: (1) that the suit wag not maintainable; 771 (2)that  the amendment should not have been allowed and  (3) the  grant was a personal grant to the  appellants  burdened with  the  provision for service and it was not  a  specific endowment.  As far as the first question is concerned it has not  been  shown as to how  the suit  was  not maintainable. The  question  of  amendment, in our  opinion,  was  rightly decided  by the High Court.  As held by that court  all  the necessary  allegations had been made in the plaint  and  the requisite pleas had been raised by the appellants; an  issue was  framed  on  the question and  the  parties  were  fully cognizant  of  the points in controversy and  the  necessary evidence was led by the parties.  In this view of the matter the  High Court was right in allowing the amendment  by  the addition of a prayer in the prayer clause. We then come to the question of the nature of grant which on a  consideration  of  the  documentary  evidence  and  other evidence  has  been found by both the courts below to  be  a specific  endowment  for Kalyanotsavam.   This  finding  was challenged  by  the  appellant.   For  that  purpose  it  is necessary  to consider the inam papers which form  the  main and  basic  documentary  evidence by  the  appellant.   Inam registers have always been treated as evidence of the utmost importance.   The first document to be considered is of  the year  1859-60 which is a copy of the inam statement made  by N. Buchayya, the ancestor of the present appellants.  Column 1  of this document shows the names of the inamdars and  the enjoyers  to  be  " N. Buchayya  the  present  enjoyment  is towards  the  Kalyanotsavam " of the deity.  Columns 4  &  5 give  the residence and name of the original  inamdars.   In Column 5 are given the particulars of the family of the then enjoyers and the entry is for the deity’s Kalyanotsavam.  In Column 6 is given the name of the grantor who gave the  land to  the grantee and " with the income therefrom he has  been performing Sri Swami Varu’s Kalyanotsavam from that time  ". Columns  7-9  give  the extent of the land.   In  Column  11 particulars  relating  to the present enjoyment  are  to  be

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given and the entry was Sri Swami Varu’s 772 Kalyanotsavam.  In Column 12 it was shown that the     grant was  revenue-free and the land was under the cultivation  of Buchayya  the income of which was  Rs.  11 per  annum.   The entries  show  that  the inam   was  granted  as  a specific endowment for the Kalyanotsavam of the deity and the  amount was spent in the  services of the deity. The  next document to be considered is a copy of  the  inam- fair register of May 16, 1860.  The High Court finding  that some of the entries in that document were not clear sent for the  original register -from the Collector’s office  and  it was found that some of the entries were not in the  original at all.  In Column 8 the words ’driving the car’ were not to be  found  and the remarks in Column 12 to the  effect  that ’the  purpose for which the inam was granted is not  stated’ were  not  in the original register.  In Column  2  of  this document  the  general class to which the inam  belonged  is shown  as  religious  endowment.  Column 8  relates  to  the description of the inam and the entry is ’For service in the pagoda  The service is performed’.  Columns 9-11  relate  to tenure.  Column 12 has already been discussed.  In Column  9 it  is shown as free of tax.  In Column 13 the name  of  the original  grantee  is  shown  to  be  the  ancestor  of  the appellants.   In  Column  15 the entry is:  ’In  fasli  1223 Viresalingam  0-8-8-In fasli 1236 Nanduri Vissanna  Buchayya for  service during -the festival of the pagoda 0-8-O’.   In Column 21 the entry contains the following: ’To be confirmed and continued so long as the service is performed.  In fasli 1216  the  inamdar is entered as village servant but  it  is ascertained and is entered in fasli 1256(?), that service is performed from a long time in the pagoda’.  In Column 22  it is stated ’confirmed’ and below that is given the number  of the  title  deed to be T.D. 243.  From these  documents  and from the fact that neither the sanad nor the inam title deed was  produced and taking into consideration some  admissions of the predecessors of the appellants where it was  admitted that  they  were dharmakartas of the Kalyanotsavam  and  had been  performing  that service the High Court  came  to  the conclusion that the inam 773 lands  in dispute were endowed for Kalyanotsavam and   other purposes incidental thereto and constituted a specific trust and the appellants were trustees thereof. It  was urged by counsel for that appellants that the  words in the inam register that the grant was tocontinue     as long as the service is performed were indicative of the fact that   the  grant  was  not  to  the    deity  but   to them individually with the added obligation of spending from  out of  the income on the   particular service to  the deity.  A combined reading of the two documents i.e. statement of  the ancestor of the appellants and the inam register shows  that the  grant was a specific endowment and that the lands  were endowed  for  the  purpose of Kalyanotsavam  and  for  other purposes  incidental  thereto  and  constituted  a  specific trust.  The courts below have found this to be the nature of the trust and even if two inferences were possible from  the reading  of these two documents there is no reason  why  the view  taken  by the courts below should be  interfered  with particularly  when there are admissions by the  predecessors of  the  appellants  which support the view  of  the  courts below.  Besides those words do not necessarily mean that the grant  was  to the individual with the added  obligation  to spend on the performance of service.  In the present case it is  not stated in the inam fair register that the grant  was

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to  be confirmed in favour of Buchayya and continue so  long as the service was performed.  This kind of language used in inam  registers has been discussed in some decided cases  in the  Madras  High  Court e.g.  Hindu  Religious  Endowments, Madras v. Thadikonda Koteswara Rao(1) where this distinction Was  prominently  brought  out between the words  "  to  be, confirmed  so long as the service is performed" and " to  be confirmed  to  the  party  so  long  as  he  continues   the performance  of the services".  The latter was held to be  a personal  grant  and  the former was not so  held.   We  are therefore of the opinion that the finding of the High  Court that the grant was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant  to the appellant with (1)  A.I.R. 1937 Mad. 852 774 the  added  obligation of spending on the  service  must  be accepted to be correct. The   next   question   for   decision   is   as   to   what portion   of  the  income  of  the  inam  lands  is  to   be expended on the service to the deity.  The courts below  are not in accord on this point.  The trial court held that  Rs. 200 out of the income should be    adequate for the  purpose and  the  High Court applied Cy-Pres doctrine and  held  the whole income to be for the deity even though it exceeded the expenditure  for the particular service.  One of  the  facts which emerges from the inam register is that when the  grant was  made  the specific charitable  payments  exhausted  the income  of the property and it is a fair inference  to  draw therefrom that the intention was to devote the whole  income to  charity and any subsequent increase in the value of  the property accrues to the charity; Hindu Religious  Endowments v. Thadikonda Kotesuwararao (1); Tudor. on Charities (5 Ed.) p. 164; Laws of England Vol. 4, para 624, p. 303.  The  High Court  was therefore justified in holding that the whole  of the income was to go to deity, thus varying the judgment  of the  trial  court  that only a portion of it was  to  be  so employed.   The High Court applied Cy-pres doctrine  relying on  N.  Sankaranarayana  Pillayan & Ors.  v.  The  Board  of Commissioners  for Hindu Religious Endowments,  Madras  (2). It  was there held that where the grant is to the deity  and the  income  is ear-marked for the services  for  which  the specific  endowment is created, if there is a surplus  which cannot  be spent on these services, it would be a  case  for the  application  of  the  Cy-pres  doctrine.   Taking  into consideration that originally the inam income. was only  Rs. 11  the  whole of which was to be and was  expended  on  the service  of  deity i.e. Kalyanotsavam  and  considering  the nature  of the grant the High Court has rightly applied  Cy- pres doctrine. We  are  therefore of the opinion that the judgment  of  the High Court was right and we dismiss this appeal with costs. Appeal dismissed. (1)  A.I.R. 1937 Mad. 852. (2)  (1947) L.R. 74 I.A. 230. 775