TMI Blog1978 (4) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... aradesies 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 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 foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by sale and exchange and had not maintained any 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 bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. Thondikkodar Ahmad Musaliar and two Others(I.L.R. 58 Mad. 204) A. Draivlasundram Pillai v. N. Subramania Pillai(I.L.R. 1945 Mad. 854) and Veluswami Gounder v. Dandapani, [1946]1 M.L.J. 354) 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 indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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