TMI Blog1953 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... istration but later amended it as one for partition and separate possession of her half shall share in the properties. Both the courts below have decreed partition with ancillary reliefs. There are some minor variations in the decree of the High Court from that of the Subordinate Judge, details of which it is not necessary to notice. The defendants are the appellants before us. 2. Shortly before her death, the widow, Gomathi Ammal, executed two documents both on the same day, namely the 4th November, 1940, (1) a sale deed by which she conveyed the entire bus service as a going concern to the 2nd defendant for consideration of ₹ 80,000/- (vide Exhibit D-6); and (2) a settlement deed by which she dedicated some immovable properties worth about ₹ 27,000/- for the performance of certain services purporting to be of a religious and charitable character (Vide Exhibit D-8). The main dispute between the parties was as to the validity of these two deeds, apart from certain minor contest as to whether some of the suit properties were part of Kanakasabapathi's estate and liable for partition. As regards the sale deed (Exhibit D-6) both the courts below have concurrently fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies should be charged solely with the said kainkariyam (services) in the manner stated above and that no one else should have any right or interest therein, that no one should alienate the said properties in any manner, that all necessary interest should be taken in improving the said properties and that I should make a settlement in writing, mentioning the above particulars, and within a few days thereafter, my husband passed away. As desired by him, he has been entombed in the property forming the first item of schedule I herein. A person was appointed for (doing) pooja in respect of the said samadhi and daily pooja as well as special Gurupooja and annadhanam (charity of feeding), etc. in Avani (August-September) of the first year in Tiruvona Nakshatram when he died, have been conducted. In having so conducted them, a sum of ₹ 200 has been spent in connection with the expenses of daily pooja and for the salary of the person and a sum of ₹ 1,000 for Gurupooja and annadhanam, etc. in the aforesaid one year. The properties forming items 7 to 16 of Schedule I fetch only an income of ₹ 400 per year. Since it is not sufficient for conducting the said kainkariyams (ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acant land in the properties described in schedules 1 and 2 herein may be sold if and when they can fetch suitably and profitably high price and for the amounts realised by such sale, other substantial properties capable of yielding income be purchased. Except under such circumstances, no one has the right to make any other alienations whatever. Should any such alienations be made, it shall not be valid. No one has the right to cancel this settlement or make alterations therein. 4. As appears from the above, Kanakasabapathi was entombed after his death and the question is as to the validity of the dedication made therefore. It will be seen that the settlement deed proceeds on the footing that the dedication was made in pursuance of the desire of the husband and that the items in schedule 2 thereto which are items 18 to 24 of Schedule II attached to the plaint in this suit are the widow's own property and not part of the estate of Kanakasabapathi. The courts below have found both these assertions not to be true. But no question has been raised before the courts below or before us that the settlement, even if otherwise valid, was beyond the powers of the limited owner, Gomat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the deed consists of any whether it is not merely worship of the deceased entombed in the samadhi. Though the word Guru ordinarily refers to a preceptor, it is not inapplicable to an ancestor considered as Guru. However that may be there is enough in the settlement deed to show what the dominant motive of the dedication is. A careful perusal of the document shows that Gurupooja and annadhanam on the sradh day were contemplated as being parts of the worship at the tomb. There can be no doubt about at least so far as items 1 to 10 are concerned which fetch only a small income. The inspiration and motive for the dedication therefore is the alleged desire of the husband that the properties and their income are to be utilised for the kainkariyam (services) expenses relating to the said samadhi. The dedication of additional items 11 to 25 is only in pursuance of the same impulse. It is recited that during the first year after her husband's death she herself got the daily pooja as well as Gurupooja and annadhanam on the sradh day conducted and spent for the same. Her spending as much as ₹ 1,000 for Gurupooja and annadhanam on the day of sradh was clearly as part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference did not materialise on account of the subject-matter therein having been compromised. 8. It was held in the Madras decisions above noticed 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 recognized as charitable or religious purpose according to Hindu law. This is not on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of superstitious uses as such has no application to India. The ground of the Madras decisions is that a trust of the kind can claim exemption from the rule against perpetuity only if it is for a religious and charitable purpose recognised as such by Hindu law and that Hindu law does not recognise dedication for a tomb as a religious or charitable purpose. It is, however, strenuously argued by the learned counsel for the appellants that the perpetual dedication of property in the present case, as in the Madras cases above referred to, must be taken to have been made under the belief that it is productive of spiritual benefit to the deceased and as being somewhat analogous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishta works at pages 20 and 21 and what are purtta works at page 27. This has been adopted by later learned authors on the law of Hindu Religious Endowments and accepted by Justice Subrahmania Ayyar in his judgment in Parthasarathy Pillai and another v. Thiruvengada Pillai and others I.L.R. 30 Mad. 340 . These lists are no doubt not exhaustive but they indicate that what conduces to religious merit in Hindu law is primarily a matter of Shastraic injunction. To the extent, therefore, any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. No doubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereat. The case reported as The Board of Commissioners for Hindu Religious Endowments, Madras v. Pidugu Narasimham and others AIR1939Mad134 has also been referred to. It is somewhat curious case furnishing an instance where images of as many as 66 heroes who were said to have been killed in a war between two neighbouring kingdoms in the 13th century were installed in a regular temple and systematically worshiped by the public for several centuries and inam grants therefore made during the Moghul period. With reference to the facts of that case, the learned Judges were inclined to hold that the worship was religious. This, however, is a case of a grant from a sovereign authority and in any case is not an endowment for worship of a tomb. In the three Madras cases in which it was held that the perpetual dedication of property by a Hindu for performance of worship at a tomb was not valid, there was no suggestion that there was any widely accepted practice of raising tombs and worshiping thereat and making endowments therefore in the belief as to the religious merit acquired thereby. In the present case also, no question has been raised that in the community to which the parties belong ..... X X X X Extracts X X X X X X X X Extracts X X X X
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