TMI Blog1957 (5) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... eded 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 principal question in dispute between them was in regard to the character of the properties in suit. Both the learned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties 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 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 trust. Even so, the said compromise decree itself created a trust in favour of public charities and in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gauri Shankar Tewari and Others ((1940) L.R. 68 I.A. 53, 63.), 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 owner of his proprietary right is, however, by no means the only form of dedication known to Hindu law, and is 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 ((1906) 4 Cal. L.J. 343, 348.). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon 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 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 (8 Moo. I. A. 66). 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty by metes and bounds. As a result of the 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 sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amakshi Thayi Garu, in Jonnavada which is taking place every year, ₹ 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, ₹ 40 (rupees forty) should be spent for Ekanthaseva and the trustees should be present and see that the said Ubbayam is properly conducted. (5) ₹ 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, ₹ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alingeswara 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subjectmatter of the trust; but in law the conduct of the plaintiffs amounted to an admission that the compromise decree 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 bi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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