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A. Draviasundaram Pillai vs N. Subramania Pillai on 24 January, 1945
C. Kunhamutty vs Thondikkodan Ahmad Musaliar And ... on 11 September, 1934
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Madras High Court
Veluswami Goundan vs Dandapani Minor By Next Friend And ... on 11 January, 1946
Equivalent citations: (1946) 1 MLJ 354
Author: P Saslri

JUDGMENT Patanjali Saslri, J.

1. These appeals arise out of a suit and a cross suit brought to establish the rival claims of the parties to certain immoveable properties left by one Ramaswami Goundan who died in 1941. The first plaintiff who is a minor represented by the second plaintiff, his mother, acting as his next friend, brought O.S. No. 53 of 1942, in the Court of the Subordinate Judge of Coimbatore claiming that a dharmasasanam (or deed of charitable endowment) executed by Ramaswami was a sham and nominal transaction and that he as the undivided son of Ramaswami succeeded to the properties comprised in the deed by survivorship and, in the alternative, that he was the only person entitled to manage the properties on behalf of the charity in case the deed was upheld as a valid dedication. He accordingly prayed for a declaration to that effect and for sundry other consequential reliefs which it is unnecessary to detail here. The son of Ramaswami by his first wife was called as first defendant to the suit and he filed a written statement as the sole contesting defendant pleading inter alia, that the deed of endowment created a valid trust intended to be operative and was given effect to and acted upon by Ramaswami himself before his death, that the second plaintiff was not the lawfully Wedded wife of Ramaswami and the first plaintiff was not born to him and that he (first defendant), though divided from his father, was entitled, as the only legitimate son of Ramaswami, to manage the trust properties on behalf of the trust and perform the services specified in the deed. On practically the same allegations he brought O.S. No. 760 of 1941 in the Court of the District Munsiff, Tirupur, for injunction and other reliefs. This suit was transferred to the Court of the Subordinate Judge, Coimbatore, where it was numbered as O.S. No. 180 of 1942 and was tried along with the other suit by consent of parties. It will be convenient to refer to the parties as they are arrayed in O.S. No. 53 of 1942.

2. The learned Subordinate Judge has found (1) that the second plaintiff was lawfully wedded to Ramaswami Goundan and the first plaintiff was born to him, (2) that the dharmasasanam (Ex. P-3) was executed by Ramaswami as a nominal transaction to screen the properties against the claims of his illegitimate son by his concubine, Kannammal, but was intended to be operative to the extent of charging the properties with an annual expenditure of Rs. 150 for the performance of the services specified therein and (3) that the properties devolved on the first plaintiff as the undivided son of Ramaswami subject to the trust and the second plaintiff was entitled to manage the properties on his behalf. The learned Judge accordingly passed a decree in favour of the plaintiffs in O.S. No. 53 of 1942 and dismissed O.S. No. 180 of 1942, making the first defendant liable for costs in both the suits. From the said decrees the first defendant has preferred these appeals and the plaintiffs have preferred a memorandum of cross-objections claiming that the deed Ex. P-3 was wholly nominal and inoperative.

3. Mr. Viswanatha Sastri appearing for the appellant did not attack the finding of the Court below regarding the legitimacy of the first plaintiff. But he urged that the finding of the learned Judge that the transaction evidenced by Ex. P-3 was partly nominal and partly operative was opposed to the evidence in the case, besides being self-contradictory and unintelligible. He contended that the deed operated and was intended to operate as a genuine dedication of the entire properties to the trust specified therein and that the deed was acted upon by Ramaswami himself who was performing the services applying the income of the properties thereto. He further submitted that on a true construction of its terms relating to the future conduct of the services the appellant as well as the first plaintiff was entitled as the " santhathi " of Ramaswami to participate in the management of the properties and performance of the trusts. On the other hand, Mr. Muthukrishna Aiyar for the plaintiffs-respondents 1 and 2, while maintaining that Ex. P-3, was a wholly nominal and colourable transaction brought about for ulterior purpose?, attacked its validity also on legal grounds:

4. The deed runs as follows:

Deed of charity of annadhanam (free distribution of food) in connection with the gutupooja of Komarapalayam Marappa Goundar Samadhi (tomb)--value Rs. 5,000.

5. Deed of charity brought about on the 21st September, 1936, by me, Ramaswami Goundar, son of Marappa Goundar, Vellala, agriculturist, residing at cusba Komarapalayam village, Palladam Taluk:

At the time when my deceased father Marappa Goundar was alive, that is, during his last days he had left me instructions that as soon as he left this mundane world he should be buried in the field G.S. No. 59/1, situated in the said Komarapalayam, which is a patta land belonging to me and that a tomb should be erected and also a temple over it; in pursuance of the same, till now I am conducting pooja (worship) and newedyam (offering) every day, thrice a day and every year on the day of Pooradam Nakshatram in the month of Avani celebrating the gurupooja (worship of the preceptor) and also doing annadanam etc., to the devotees incurring an expenditure of about Rs. 150. Since I am of the opinion that after my lifetime also the said services should be continued to be carried on hereditarily in the above manner, I hereby provide that out of the joint family properties, which belong to me both as ancestral and self-acquired properties, excluding the share which has fallen to my only son, Veluchamy Goundan, as per the deed of partition which was effected between him and myself, with the income derived from the undermentioned properties worth Rs. 5,000, which relate to my share, I shall be performing the pooja, etc., aforesaid during my lifetime; that after my lifetime the said services shall be carried on properly by my descendants with the help of the income derived from the undermentioned properties without myself or the said persons subjecting them to any hypothecation, usufructuary mortgage or sale and that in case they were subjected to the encumbrances aforesaid it shall not be valid. To this effect is the deed of charity brought about by me out of my own free will.

It is urged that the deed is invalid as a dedication to a public charity as the performance of gurupooja at the samadhi or tomb of a person however pious is not a charitable object recognised by the Hindu Law and reliance is placed on the recent decision of this Court in Draviasundaram v. Subramania (1945) 1 M.L.J. 328 : I.L.R. (1945) Mad. 854. There a testator provided in his will that a matam should be built for keeping him in samadhi with a Sivalingam installed therein, that daily pooja, mandala pooja and the yearly guru-pooja should be conducted permanently and that poor mendicants should be fed during the mandala pooja and the yearly gurupooja. The Court held, following Kunhamutty v. Ahmed Musaliar (1934) 68 M.L.J. 107 : I.L.R. 58 Mad. 204, that the building of a tomb and its maintenance was not a charitable object and that, the matam over the tomb being only an adjunct of the tomb even though daily worship was to take place there, the whole provision was unlawful and the gift was invalid. The provisions of Ex. P-3 set out above are closely similar and the principle of the decision must therefore apply.

6. Mr. Viswanatha Sastri seeks to distinguish the present case by stressing the use of the word " temple," and argues that the worship therein three times a day with offerings of " neivedyam " for which the deed makes provision is a distinct charitable object and that even if the direction for the performance of gurupooja at the samadhi and the incidental feeding of the poor is unlawful, the gift which is a composite endowment should be upheld in its entirety as a valid dedication of the " temple " in which a Sivalingam is kept and worshipped. We are unable to accept this contention. In the first place, there is no reference in the deed to any Sivalingam installed in the so-called temple and, although the photographs, Ex. D-2 series show the existence of a Sivalingam there, it appears from the evidence of the appellant that the lingam was brought from Kasi and installed there sometime in 1937 when the earliest photo Ex. D-2 was taken. The daily worship and offering of " neivedyam " said to have been conducted by Ramaswami Goundar before the execution of the deed in September, 1936, could, therefore, be taken to have related only to the samadhi of his father. It is indeed admitted by the witnesses called for the appellant that the pooja is done to the samadhi. The learned Subordinate Judge after discussing the evidence has recorded his conclusion thus:

I should think that there is a lingam-likestone with avadai too perhaps, kept on the samadhi but it has not been consecrated and no pooja is done therefor.

We agree with this finding. It is to be noted in this connection that in the case referred to above the testator provided for the daily pooja of the Sivalingam to be installed in the matam and nevertheless the whole bequest was held invalid as the matam with the lingam was regarded as an adjunct of the tomb. In the present case it is clear from the evidence that the so-called temple is nothing more than a " zinc shed " over the lingam which is kept on the samadhi.

7. Mr. Muthukrishna Aiyar raised a further contention that even, if the " temple " were held to be a distinct and severable object of the dedication,it could only be regarded as a temple for the worship of God as no particular deity is mentioned in the deed and that such an endowment in general terms would be void for uncertainty under the Hindu Law as Hindus worship numerous deities. Reference was made in support of this view to Venkatanarasimharao v. Subbarao (1923) I.L.R. 46 Mad. 300, Chandicharan Mitra v. Hari-boladas (1919) I.L.R. 46 Cal. 951, Phundanlal v. Arya Prithi Midhi Sabha (1911) I.L.R. 33 All. 793. The point did not directly arise in the case first mentioned where the question was whether a trust for " the spread of Hindu religion rt was void for uncertainty. In holding that it was, Spencer, J., referred to the decision of the Calcutta High Court in Chandicharan Mitra v. Hanbola dass (1919) I.L.R. 46 Cal. 951, where a Division Bench (Fletcher and Cuming, JJ.) laid down that under "the Hindu system of law " a general endowment for the worship of God without giving the name of the deity for whose benefit the endowment was to take effect was void for uncertainty. This proposition Was based on the authority of a decision of the Allahabad High Court in Phundanlal v. Arya Prithi Nidhi Sabha (1911) I.L.R. 33 All. 793. That was a case where a person who was building a house intended to instal an idol therein on completion and, meanwhile, executed a deed of endowment in respect of certain other properties belonging to him in favour of " Sri Thakurji of the thakurdwara called after his name," appointing himself as the manager of the properties. Subsequently, however, he was converted to the creed of Arya Samaj and conveyed the properties comprised in the deed of endowment as well as the house to the Samaj. Owing, to the conversion, the donor did not instal any idol in the house which he had intended to convert into a thakurdwara. After his death, the Samaj sued through its president for possession of the properties alleging wrongful dispossession by the defendants who pleaded that the plaintiff derived no title under the later conveyance as the donor had previously dedicated the properties to charity. Overruling the plea the learned Judges (Richards, C.J. and Banerji, J.), observed:

The question is whether, under these circumstances the gift which he made on the 30th of May, 1903, can operate as complete and effectual gift of the eight shops and can prevail as against the subsequent document of the 4th of February, 1905. If the dedication was complete, it is clear that he could not revoke it and make another gift. We are of opinion that in the present instance the first dedication was not valid. It was not a dedication to any particular deity which was subsequently to be installed in a temple. It was a dedication to the thakurji in his thakurdwara without mentioning the thakurji to whom the property was dedicated. As we have already said, there was no thakurji and no thakurdwara, therefore the dedication was bad on the ground of uncertainty.

The formulation of the question for decision and the next few sentences in the passage quoted above would seem to indicate that all that the learned Judges meant to decide was that the donor having intended to dedicate the property to the idol of a deity (thakur) which he proposed to instal later in a particular house, which was under construction and having changed his faith before completing the construction and effecting the installation, there was no completed gift, in other words, that the deed disclosed an intention in the donor that the decision should take effect on the completion of the building as a thakurdwar and the installation of the idol therein. There is a distinction between a gift qualified by a condition which is not fulfilled and a gift for vague and uncertain purposes. Both are ineffectual though for different reasons. The learned Judges would seem to hold that the case before them came under the first category though it must be admitted they have in some places used language which may be understood to imply that it fell under the second. The decision is therefore of somewhat doubtful value as an authority for the proposition which the learned Judges of the Calcutta High Court deduced from it.

8. A gift for " the worship of God " has been held in England to be charitable and valid (see Tudor on Charities, 5th edition, page 32, citing Attorney-General v. Pearson (1817) 3 Mer. 353, 409 : 36 E.R. 135) and we are unable to discover anything in " the Hindu system of Law " which renders such a gift invalid. The learned Judges in the Calcutta case remark that unless the donor indicates the particular thakur for whose benefit the property is given the Court would be " unable to say for which of the Hindu deities the endower intended that the property should be held." With all respect, this reasoning seems to us to proceed on a fundamental misconception of Hindu theology. The notion that Hindus worship only particular deities and not one Supreme Being is not correct. It might seem pedantic to refer at length to Hindu scriptural texts to show that the idea of one God is a basic creed of the Hindu faith, but we may, perhaps, be excused, under the circumstances for referring to the well-known verse in the Vishnusahasranamam, often recited on various ceremonial occasions among Hindus, which says that " Vishnu, the one Supreme Being, the Great Soul and the Ruler of the Universe, pervades the three worlds and protects countless beings of-different species." (Mahabharata, Anusasana Parva, Adhyaya, 254, verse 142). This idea of one Supreme Being can, indeed, be traced back to Vedic times. The Rigveda, the earliest Hindu scripture extant, refers to the " one Being whom wisemen call by diverse names" (1--164--46). The same idea of the unity of God is reiterated in numerous other religious texts to which it is unnecessary to refer. That the conception of the so-called Trinity of the Hindu pantheon is functional in character will be seen from the invocation to Vishnu in Kalidasa's Raghuvamsa : " Thou art the Creator, the Upholder and the Destroyer of the Universe. Obeisance to Thee in Thy triple form." (i.e., Brahma, Vishnu and Siva)(10-16). There are doubtless various deities worshipped by Hindus holding different tenets but these are only personifications of what are believed to be the various attributes or the cosmic manifestations of the Supreme Being.

9. As regards the supposed inability of Courts to determine the particular deity for whose benefit the endowed property should be held, where no deity is named in the deed of endowment, it is sufficient to point out that in most cases the problem can be easily solved by ascertaining the sect to which the donor belonged, the tenets which he held, the doctrines to which he was attached and the deity to which he was devoted and arriving by such means at his presumed intention in regard to the application of the property. It was observed by Lord Eldon in Attorney-General v. Pearson (1817) 3 Mer. 353, 409 : 36 E.R. 135, already referred to " where a body of Protestant Dissenters have established a trust without any precise definition of the object or mode of worship I know no means the Court has of ascertaining it except by looking to what has passed and thereby collecting what may, by fair inference, be presumed to have been the intention of the founders " (at page 410)(Cf. Re Louisa Kenny; Clode v. Andrews (1907) 97 L.T. 130). In any case, a gift, for " the worship of God " discloses a general charitable intention and the Court can apply the doctrine of cypres upholding the gift as a public trust, even where it is not possible to ascertain with any degree of certainty how the donor intended the trust to be carried out. We accordingly reject Mr. Muthukrishna Aiyar's contention that the gift to the temple under Ex. P-3 assuming it to be a distinct and severable dedication, is void under the Hindu law merely because Ramaswami Goundar has not specified the particular deity to be worshipped therein.

10. As, howeever, we are of opinion, for the reasons already indicated, that the " temple " was not intended to be an independent object of bounty but is only an adjunct of the samadhi the whole dedication fails. In this view, it is unnecessary to enquire whether it was intended to be a genuine gift or a mere sham or how the right of management is to devolve.

11. The appeals are dismissed with costs. One advocate's fee. The memorandum of objections directed against the declaration of a charge on the properties is allowed. No costs.