# [1974] 2 S.C.R. 594

- **Citation:** [1974] 2 S.C.R. 594
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Bench:** S.N. Dwiveqt, Y. V. C!iANDRACHUD, P.K. GOSWAMr
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-2-s-c-r-594-6147
- **Pages:** 15

## Headnote

Religious Endowmeut-WMther absolute_ or partial-Tests for dnermillin:
In J 882 tn:re was a partition of ancestral properties amongst 5 b
means of a 'partition deed
Three of the 5 brothers took the properties rothe_rs by
jn the relevant schedules for enjoyment severally, and certain propcrric, '!'nt,kned
for enjoym:nt in cOmmon. Two brothers K and V were enjoying ihe·cre tPt
jointly. CJ•us.e 1 of the deed eJtcli!ded from. partitio~ the properties 5~~fi~'''
certain cbuses. One of the clal;lscs ts cl: 8 wht_ch dcscnbes certain charity P ' 1"
and provides that the properttes mentaoncd tn the 8th schedule and allo=
charity shall b:~dministe~~d ~y K. Clause 9 makes a special provision in conncctio~
wilb three rel,g,ous chartttes tn rclahon to a temple.
The clause mentions that a
sum of Rs 451· had been sp:nt annually for these three purposes, that arranaement
had b!en m1de for contribution of sums amounting 10 Rs 13/· by three brother;
that the dry hnds m:ntjoned in the 9th schedule shall be administered by K and
from out of the incom~ of the said properties :.nd from out or their own fund$ K
lind V aha II p:rfomt the aforesaid charilies by spending the balance of Rs 32.'·
without fail.
The prop~rty m:ntioned in ct. 9 was not e1tcluded from partition.
AI tbe time or I he plrtition the in rome from I he property in the 9th s.:hcdule wos
in fact not ~ullicient to m~el the exp:nscs of the three charilies dirce1cd to be per.
formed. The property having b:en afienaled, the re,pondenrs filed a suit for a
decluation thll th:re w" an ab3olute endnwment of. the property for the perfor.
mance of the religious charities and tmtt the alienation was ;n,., lid.
The trial Court decreed the suit. ·The Orst appcllale Court held that there ~~~•
no abso!ute dedication and the High Coull, in second appeal, restored tbc dcrnc
of the tnal Court.
Allowin& the appeal to this Court
c
D
HELD :Whether an endowment is a~olute or parlin I, primuilY depends on ~U
lertm of the grant. If there is an e~press endowmcnl, there is Ito dJ.ll'tcuJry, ~u .,..
there is only an implied endowment, the intention haa to be eathcred on thej'~ ~~d
tion of the docwnent as a whole. If the. word~ of lhc docuroentnre c • ;mbi·
unambiguou~. the que~tinn or interpretation would not arue. If there b':ch;nte
tuity, the iatentjon of the founden has to be carefullY gathered [;'m ~~ dcahnll
f
a~d lancuage of the 11rant. Even surrounding circumstances,'" seq usngtof the
wnh the property, !he conduct of the partie• to the document a odd .'on I appropriate
rrop~ny and Olhcr relevant factors may have 10 be comtdcrc •0 00
r;a'IC. 16070-FJ
•L
iltriaf prOvisiCOS
In th:pre~entca$e, it is clear from the tcrnu ofcl. 9~U~d ouoerm
the 11rrplcOr
or I he deed that there wa1 no absolute endowment of the pr~pc~t~ ::; chor8r of per·
a lr':'\t, The pro~ny, how~r. islmpre•scd with the
oblt~at,c . din the man~tcr
fvr!lllllg the religious chariliesmentioncd incl.9 of the _PiiiitUODddr the obli~atton
G
tnd1cated therein. The alienalion is therefore. not anvahd on
. to p:rform the charity fo!low1 the property. (607P-G; c.oaA-CI
1 and
8 It schc~t• t
(1) While cl. 8 recites th.:at '!he propcrtle• menlioned in the. 1
land m•ntlon·
alla/Jrd fordu,lti~uhall be administered by K'. cl. Y recites 1hal d'krcncc In cf, 9
ed itt tlu 9th S~!!:dulc 1h11J be adroini\tered by K.' There Is 00 rc
thattheWI•I was 'a/lullec/J'or charity',
(602DJ
''"'"'
he pcrforn
J
I I
(lJ If the pro\l:ny Wl\ abiolutely dedicated lo the temple forct be•" ~cf~3 te i
ofth: r;IJ'lt<IUl ~ tUttlos the illtelltion o( I he (oundeTrs w·ould Ita~ 0 of a doctl~r
lhe.•ncom.e from the property being lillie or notlting. A conslruct•~dcd. 'fO J1
01uo
wh•cll W·)ul4 (ru>lrlltc lito Intention of I he fouttdcrl should, be avo the prcscoll
sw.~h lntcn!lllllllt the tlm• whCf.l the docwnent came into cKtste'!~p]
ot or p:c..~~ntlnc:am: rrom, the property js jrrcle\·ant. (602U-uv
-..; . :-
_:;.
.4
c
0
E
f
c
• It I
'
, sAPPAN! V, R. V. S. PILLAI (Goswami, 1.)
S&5
. b:C

## Text

_Characters 0–39,916 of 43,036. This is a partial read: ask again with offset=39916 for what follows._

594
SAPPANI MOHAMED MOHIDEEN & ANR.
v. ·
R. V. SETHUSUBRAMANIA PILLAI & ORS.
Decemba 1, 1973
[S.N. DWIVEQT, Y. V. C!iANDRACHUD AND P.K. GOSWAMr, JJ.)
Religious Endowmeut-WMther absolute_ or partial-Tests for dnermillin:
In J 882 tn:re was a partition of ancestral properties amongst 5 b
means of a 'partition deed
Three of the 5 brothers took the properties rothe_rs by
jn the relevant schedules for enjoyment severally, and certain propcrric, '!'nt,kned
for enjoym:nt in cOmmon. Two brothers K and V were enjoying ihe·cre tPt
jointly. CJ•us.e 1 of the deed eJtcli!ded from. partitio~ the properties 5~~fi~'''
certain cbuses. One of the clal;lscs ts cl: 8 wht_ch dcscnbes certain charity P ' 1"
and provides that the properttes mentaoncd tn the 8th schedule and allo=
charity shall b:~dministe~~d ~y K. Clause 9 makes a special provision in conncctio~
wilb three rel,g,ous chartttes tn rclahon to a temple.
The clause mentions that a
sum of Rs 451· had been sp:nt annually for these three purposes, that arranaement
had b!en m1de for contribution of sums amounting 10 Rs 13/· by three brother;
that the dry hnds m:ntjoned in the 9th schedule shall be administered by K and
from out of the incom~ of the said properties :.nd from out or their own fund$ K
lind V aha II p:rfomt the aforesaid charilies by spending the balance of Rs 32.'·
without fail.
The prop~rty m:ntioned in ct. 9 was not e1tcluded from partition.
AI tbe time or I he plrtition the in rome from I he property in the 9th s.:hcdule wos
in fact not ~ullicient to m~el the exp:nscs of the three charilies dirce1cd to be per.
formed. The property having b:en afienaled, the re,pondenrs filed a suit for a
decluation thll th:re w" an ab3olute endnwment of. the property for the perfor.
mance of the religious charities and tmtt the alienation was ;n,., lid.
The trial Court decreed the suit. ·The Orst appcllale Court held that there ~~~•
no abso!ute dedication and the High Coull, in second appeal, restored tbc dcrnc
of the tnal Court.
Allowin& the appeal to this Court
c
D
HELD :Whether an endowment is a~olute or parlin I, primuilY depends on ~U
lertm of the grant. If there is an e~press endowmcnl, there is Ito dJ.ll'tcuJry, ~u .,..
there is only an implied endowment, the intention haa to be eathcred on thej'~ ~~d
tion of the docwnent as a whole. If the. word~ of lhc docuroentnre c • ;mbi·
unambiguou~. the que~tinn or interpretation would not arue. If there b':ch;nte
tuity, the iatentjon of the founden has to be carefullY gathered [;'m ~~ dcahnll
f
a~d lancuage of the 11rant. Even surrounding circumstances,'" seq usngtof the
wnh the property, !he conduct of the partie• to the document a odd .'on I appropriate
rrop~ny and Olhcr relevant factors may have 10 be comtdcrc •0 00
r;a'IC. 16070-FJ
•L
iltriaf prOvisiCOS
In th:pre~entca$e, it is clear from the tcrnu ofcl. 9~U~d ouoerm
the 11rrplcOr
or I he deed that there wa1 no absolute endowment of the pr~pc~t~ ::; chor8r of per·
a lr':'\t, The pro~ny, how~r. islmpre•scd with the
oblt~at,c . din the man~tcr
fvr!lllllg the religious chariliesmentioncd incl.9 of the _PiiiitUODddr the obli~atton
G
tnd1cated therein. The alienalion is therefore. not anvahd on
. to p:rform the charity fo!low1 the property. (607P-G; c.oaA-CI
1 and
8 It schc~t• t
(1) While cl. 8 recites th.:at '!he propcrtle• menlioned in the. 1
land m•ntlon·
alla/Jrd fordu,lti~uhall be administered by K'. cl. Y recites 1hal d'krcncc In cf, 9
ed itt tlu 9th S~!!:dulc 1h11J be adroini\tered by K.' There Is 00 rc
thattheWI•I was 'a/lullec/J'or charity',
(602DJ
''"'"'
he pcrforn
J
I I
(lJ If the pro\l:ny Wl\ abiolutely dedicated lo the temple forct be•" ~cf~3 te i
ofth: r;IJ'lt<IUl ~ tUttlos the illtelltion o( I he (oundeTrs w·ould Ita~ 0 of a doctl~r
lhe.•ncom.e from the property being lillie or notlting. A conslruct•~dcd. 'fO J1
01uo
wh•cll W·)ul4 (ru>lrlltc lito Intention of I he fouttdcrl should, be avo the prcscoll
sw.~h lntcn!lllllllt the tlm• whCf.l the docwnent came into cKtste'!~p]
ot or p:c..~~ntlnc:am: rrom, the property js jrrcle\·ant. (602U-uv
-..; . :-
_:;.
.4
c
0
E
f
c
• It I
'
, sAPPAN! V, R. V. S. PILLAI (Goswami, 1.)
S&5
. b:Cluse of the obligation to keep alive the 3 charities that the proo rt
(3} n;l~otted to the tc~p~e, but was allotted to K and V, so that they m•/'5~
was not
pcnse out of 1ts ,ncome some day. [602G-HJ
·
some rceom
Th present case is far from a case where the entire income of the propertv
<4l
endow~d to a trust to sustain a conclusion that the entire corpus be!on•s t~
has been e
•
the trust. [608 Al
·
(S) This conclusion drawn from the intrinsic c\:idcnce ofthedocumcn~ils~!f, is
reinforced by the su~cque~l conduct of the partieS and the •arious transacticns
effcdcd from time to ttme Wtth respect to the property. [603 E-F; 607H)
Srtt Srte fsftwer Sridhar Jt.w v. Susftila Bola Da.ri ancl others, (1954] S.C.R. 407414 Mtnakum Dasaratltarami Rtddi v, Duddukuru Subba Rao,{I951]S.C.R. 1122,
~~~and Rom Kissore La/ v. Kamal Noroin, [1963] Supp, {2) S.C.R. ~17;~2-4/428,
followed.
Sri Sri bwar Bltubarr.awori T7takurani \', Barojo Nat!t Dey and Otlltrs, A.l.R.
1937 Pci•y Council 185, Gopal LDJ &11 v. Puma Chandra Busak or.d otttrl, A.l.R.
19"..2 Privy Council 253/!54, HuUula Prasad Dtgltoria v. Ka/ic/as !l'aik a11d ctftas,
.U.K. 1914 Cal. 813/814-SIS, Nonh-EaJtern Raifll'ay Co., v. Lord Hastin:s. [19COI
A.C.l60, Drsmmorr.d v. Auarney Ge~ra/, (1849) 2 H.L.C. 837, Tht Auornry.(;enerol
v. Tht Musttr Wurdens, &c. of thr wag Clllmd!trs, (1873)Eng. & Irish Appeal, 6 I..R.,
1/19, Dr. Villiam Jat:k, Prindpa/ and tfte Pro[es>ors of the Unirtrsity anc/ King's
Olllrge of . .lobtrdun v. Sir Tho~TUU Burnt /I, o[uys Bart. (1846) XII Clark & Finnelly,
812,and Mayrc orr /lind" Law and Usage lith ed. P. 923, SeCtion 792and Hafsbury's
Law1o[ £11;/and, Jrd ed. Yo. 4, p. 306, referred to.
C!vtL APPELLATI? JURISDICTION :Civil Appeal No. 1555 of 1967.
Appeal by Special leave from the judgment and Decree dated the
Sth January, 1967 of the Madras High Court in Second Appeal No.
82 of 1963.
K. S. Ramaumrtlri and B. R. Agrmrala, for Lhe appellants,
M. K. Ramflmurti and J. Ramamurti, for the re;r''Pdents.
The Judgment of the Court was delivered by
u GoswAMT, J. In this appeal we have to go back to a period close
:"a P•u~ing century to divine what a Hindu Joint Family that bad
alp! ?ratel} at that distant date thought contemplated, did and above
Ultend d
'
'
h
188'
and
. e not only then but also for the future. It was t e ~ear
-
Prc~:~scly o
13
.
t f partitton was
exttut ·'
n
th May of .... at year an 1nstrumen o
.
.. •. _
Cu and
.
ly Stvarama ... l
sbna Pill· .
r~glStered amontst five brothers, .nam: •
am pifiai
an~~ "' '11• Ka1la:s.'\m Pillai Venkatachalam Pilla1, Chidamb~r 'ly a"'
·~ arnilS·
•
.11 • The ,allll
"
Pears t
betvayam Pillai sons of Subramania· PI 31•
t the pious
0
religiously disposed and was keeu to perp.:tua e
:I
I
I
·I
I !
t
.j
l
.~
~
. i•.
I
596
SUPREME COURT REPORTS
[1974} 2 S.C.R.
ancestral ideology. A genealogy given in the statement of case by the
appellants gives the appropriate picture for the purpose of this appeal :
Shiv;,·am1
kri;h'la
Pillai
Kailasat~ pillai
(Junior)
(died in 1950)
S·Jbramenia PHtai
/
.
'
K'li!lsam
Pilla! ·
Venkntachalnm
'chidDmbarrm
Navasiva
Pillai
Pillai
yam
Pill;d
/
S!thusubramanya Pillai
Venkatachalam
Pillai (Jr.)
(died in 1953)
/
I
R.V. S~thusubr amlnya
Pillai
(1st plaintiff!)
/
G::>palakrishan
Pillai
(D-6)
Prianayagam
J>illai
(0-7)
I
I
I
R.P. S~thusubramanya
Pillai
(2nd plaintiff)
To start with the d\!ed of p:trtition, it appears, the·properties of the
family were ancestral and were partitioned amongst the five brothers
reserving some to be enjoyed in common and allotting certain properties to charities to be administered by one of their brothers, Kailasam
Pillai. Reading the entire document it appears that even af\er the
partition Kailasam PiUai and Venkatachalam Pillai desired to enjoy
their shares of the property jointly and were in great cordiality while
the other three brothers Jived and enjoyed their properties separately.
It also appears that the second and the third brothers, Kailasam and
Venkatachalam were given to piety or, at any rate, were perhaps oon·
sldered as responsible anc solvent persons, who could be entrusted to
administer the charities indicated in the deed. There is also reference
to family debts and
other
amicable adjustments amongst the
brothers and also to voluntary relinquishment of a share by Sivara-
"1
makrishna Pillai. With this brief synopsis we may now extract some
material provisions of the partition deed (Ext. AI) which was written
in Tamil and has been officialJy translated:
Clause 1 : "Out of the entire properties worth Rs. 28,000/:
belonging to our family and mentioned in the schedules
herein, excluding the . properties situate in Rasavallipuram
held in common as detailed in para 6 and mentioned in the
sixth schedule here, excluding the charity properties as
A
D
c
D
E
G
ll
A
B
c
D
E
F
G
H
SAPPAN! V. R. V. S. PILLAl (Goswami, J.)
597
detailed in para 8 and mentioned in the eighth schedule excluding_ the other wet, dry (lands) gardens and all the properties
situate in Kattampulimanapadayur
excluding the property,
kept in common from October· 1880 as detailed in para 7
and mentioned in the seventh schedule herein,
situate in
one crop cultivation village Gananthanparai, in the other
properties, settled ill favour of us in one month of September
1881. dry and wet lands, palmyra trees, etc. in Kilakadu
situate 'in Alangulam Village attached to Naranammatpuram
Jamabandi area,
whereas
Sivaramakrishna
Pillai
has
relinquished his share in favour of the other four persons
as detailed in para 4 out of the aforesaid properties, excepting the properties held in common as detailed in para
J 1 and mentioned in the lOth schedule the other properties
were divided among the other four persons with reference
to good and bad by casting chits in the month of January
1882".
Clause 2 refers to family houses which need not be quoted.
Clause 3 :"As division was effected as detailed in. paras I
and 2, the first Schedule properties fell to the share of Sivaramakrishna Pillai amongst us, the second and third schedule properties to two persons KailasRm Pillai and Venkatachalam Pillai
the fourth schedule properties to Chidambaram Pillai and the
fifth schedule properties to Namasivaya.m Pillai. Ever since the
properties were allotted as aforesaid,
Kailasam Pillai and
Venkatachalam Pil!ai were enjoying the two sl1ares of their
properties in common and the other three persons were enjoying
all the other shares of propert:es separately: That is the second
item of Kattampuli land mentioned
in fourth schedule which
fell to the share oft he Chidambaram Pillai and the second item of
Kattampuli land mentioned in the fifth schedule which fell to
the share of Namasivayam Pillai were enjoyed by Kailasam
Pillai under 1.1sufructuary mortgage rights".
Clause 6: "As t:1e Kulukuthurai Inam Palmyrah trees situate
in Rasavallipuram mentioned in the sixth schedule here and
one-third share belonging to us five persons could not be conveniently enjoyed by division, it was to be enjoyed in common and ·
the income derived therefrom should be given to the early morning pooja of the seventh day festival in the month of ''Thai"
of Sabhapati Naicker J)eity in the Siva
Temple situate
in
Rasavallipuram for expenses for Archana on the 4thThai Friday
every year".
Clause 7: "The dry lands, palmyrah trees, gardens and other
buildings situate in Gangathanaprai mentioned in the 7th schedule
herein should be enjoyed in common. The income from the
said dry lands and palmyrah groves should be divided into
five shares and two such shares should be enjoyed in common.
by Kailasam Pillai and Vankatachalam Pillai and the other three
shares by the other three persons independently".
. .. _ ,. ~ ·~
598
SUPitEME COURT REPORTS
{1974] 2 S.C.R.
Clause 8: ''The properties mentioned in the 8th schedule
herein and allotted for charity shall be administered in person
by Kailsam Pillai and from out of the income of the first item
property shall be given to mid-day offering of Thirumanjanam.
expenses in the Siva Temple in Rasavallipuram. From the second
item properties the expenses for the evening pooja of the said
temple shall be met, from the third item property the expenses for
pooja of LOrcrSiv:l·at Sepparai on "ani" Uttiram day should be
met and from the 4th item of the property. They shall feed
four brahmins in the Siva Temple Sepparai during Dwadashi
days".
The next clause No. 9 which is the bone of contention between
the parties may now be quoted:
Clause 9: "In the Seppa~ai Siva Temple established by our
parents, for meeting expenses of lamp burning for ever and one
measure of rice f".- daily offering to God and Archana expenses,
a sum of Rs. 45/- is spent ~nnually. Out of this a sum of Rs. 5
per year which shall be paid by Sivaramakrishna Pillai, Namasivayam Pillai and a sum of Rs. 3 per year by Chid •mbaram Pillai
to Kailasam Pillai and excluding the sum of Rs. 13/- as given in the
three items aforesaid for the balance of Rs. 32 the dry land
mentioned in the 9th schedule shall be administered in person by
Kailasam Pillai and spent from out of the income of the said
properties and from out of their own funds Kailasam Pillai and
Venkatachalam Pillai shall perform the aforesaid charity without
fail".
Clause 12: "Kailasam Pillai and Venkatachalam Pillai shall
in respect of their properties in common and the other three in
respect of their respective properties separately and absolutely
enjoy with powers of alienation by way of gift, exchange, sale
etc. In the share of properties allotted to Kailasam Pillai and
c
I)
E
Venkatachalam PiJiai the other sharers have no
right and
G.
similarly in the share of properties of the other sharers the aforesaid two persons have no right. Likewise in the property held
by the other three persons, in the property of which one of
them the others ltave no manner of right".
Then nine schedules are given showing the properties that have
H
fallen to the sh.u-es of different brothers. The ninth schedule property,
which i1the suit property, is described in Ext. A-1 as follows:
I
SAPPANI V, R. V, S. PILLAI (Goswaml, /,)
599•
A
The 9th schedule situate within the jurisdiction of the aforesaid
Sub-District Naranathanapuram Tamabandi attached to Alangulam
village and Cilakadu wet irrigated by well, tamarind trees and dry and·
the particulars of these are as follows:-
'
£)(tent
Dry Wet
Survey
Letter
Acres D:.
B
No.
Wet
866
A-2
0-47
The number oftamaDry
890
C-2
1-00
rind trees stand.
343
c
0-30
ing near the tank
360
D
0-83
bund of the afore376
A-2
1-22
said
village, 72.
Dry
377
A
0-68
c
428
9-37
845
B-6
1-21
901
C-2
0-35
902
A-2
0-40
903
C0-20
In all wet and Dry
16-05
D.
This ninth schedule property is the suit property.
E
F
G
H
It appears that Kailasam Pillai in the mentimc died as is apparent
from the partition deed (Ext. A-3) executed between Venkatachalam
Pillai and Thirumalai Vadvammal widow of Kailasam Pillai on
21-1·87. Clause 19 of this deed may be quoted:
"Sivaramakrishna Pil!ai, Chidamabram Pillai, Venkatachalam Pillai, son of Namasivaya Pillai, these persons were
contributing a sum of Rs. 13/- every year to the SRid Kai\asam
Pillai for perpetual
burning of lamp at, Chepparaiswami
Nataraja Sannathi. Henceforth the said Venkatachalarn Pillai
shall receive the said amount and perform the charity".
In this partition deed, the properties of Kailasam Pillai and Venkatacbalam Pillai were divided and Venkatachalam Plllai took the responsibility of perfor:ni1 g the charities entrusted to Kailasam Pillai under
clause 9 of the first partition deed of 1882. It appears from Ext. B-l
dated 8-9-1937, which is a sale deed in favour of S. Srinivasa Iyengar.·
that on 8th November, 1921, the suit properties had been "usufructuaUy
mortgaged for Rs. 11,000/- in favour of one Mat·agathamma\ by
Gomathi Ammal for the purpose of dischargin11 the family debts for
a period of five years. The period was extended by a further usufru·
ctuary mortgage of the properties for a sum of Rs. 7350/- on 26th
April, 1923. It also appears that the rights under the two usufructuary
mortagage deeds were assigned to S. Srinivasa Iyengar by, a deed of
assignment in November, 1962, executed by the said Maragathammal
for a consideration of Rs. 18,350/-. Since S. Srinivasa Iyengar made·
repeated demands for clearing up the debts due under the usufructuary
mortgages the said properties along with some other land were sold
to him by Kailasam Pillai (Jr.), Venkatachalam Pillai (Jr.), Gopalakrishna Pillai (defendant 6, briefly D-6) and Pcrianyagam Pillai
600
SUPREME COURT REPORTS
[1974] 2 s.c.n.
(defendant 7, briefly D-7) for a consideration of Rs. 18,350/-. So
this sale in favour of Srinivasa Iyengar was in "discharge of the said
othi (usufructuary mortgage) debts" and the properties which had already
been in possession of Srinivasa Iyengar continued to remain in his
possession now as owner of the properties with "power of alienation
by YJay of gift, exchanges, sales, etc. absolutely".
A third partition deed (Ext. A·l 0) had hcen executed on 19th
October, 1936, among;;t Kaliasam Pillai (Jr.), Venkatachalam Pillai
(Jr.), Gopalakrishna Pillai (D-6, and Prianayagam Pillai (D-7) in order
to later faci!tiate absolute sale of the properties in f:wour of 5. Srinivasa Iyengar in 1937. It was stated in this deed IExt. A-10) that
"from the property endowed to the temple of Sepparai Algiakootha
we shall keep the eternal lamps burning, collect the sums which our
grandfather endowed for our family and use special efforts to perform
the charities". In clause 14(1) of this deed it was stated as follows:-
"In as such. as sharer No. 1, Kailasam Pillai (reference to
Kailasam Junior) has voluntarily relinquished in favour of the
other 3 sharers the right to perform and administer the family
charities and the properties endowed for the same; sharer No. I
shall not have at ar·. time any right ro said charities or
cndowm·~nts .... "
Thus on 8th September, J 937, a sale deed for the suit property and other
land~ (Ext. B-1) was executed in favour of S. Srini\'asa Iyengar AYergal
by Kail::':s~m Pillai (Jr.), Venkatachalam Pillai (Jr.),Gopalakrishna Pillai
(D-6) and Perianayagam Pillai (D-7) for a consideration of Rs. 18350/-.
Srinivasa Iycng;>.r also got his name r,·corded in the patta. On lOth
June, 11)43, S. Srinivasa Iyeng:tr sold by E:(t. B-2 the suit property.
etc. h) S<lppc-.ni Ahmad Mohideen, father of thl.' two appellants herein,
for a consideration of Rs. 22600/-. Sappani Ahmed Mohideen got his
name recorded in the p::ttta in due course. The second appellant, who
is the brother of the first appellant, sold some portion of the suit property to Defendants 3 to 5 on 7th April, 1960 .
This appears to be the history and background of the litigatillll.
The plaintiffs (the first two respondents) herein are the great
grandsons of Venkatachalam Pillai son of Subramania Pillai. They
instituted a suit in the court of munsif Tirunelveli on 5th September,
1960, impleading the purchasers of the suit property as Defendants 1 to
5 and Gopalakris!ma Pillai, uncle of the plaintiffs and PerianayagamPillai,
father of the 2nd plaintiff, as the defendants 6 and 7 respectively,
praying for declaration that the suit properties belong to the trust and
that all alienations in respect of them are not binding on the trust and
for possession of the suit properties from defendants 1 to 5 to "the
lawful trustees". One written statement was submitted on behalf
of the defendants 1 to 5 and the suit proceeded ex-parte against defend·
ants 6 and 7, who were not even examined as witnesses in the trial.
TW;J points were in dispute during the trial, namely, whether the
suit was barred by limitation (issue No.2) and whether the deed dated
!3th May, 1882, creates an absolute dedication of the suit property
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SAPPANI v. R. V. s. PILLAI (Goswami, 1.)
6 01
or only a charge on the income of the said property (issue No. 3). The·
Ist plaiatiff who was a young man of 28 years on the date of his giving
evidence, examined himself and two other witnesses. The defendants
examined only the first defendant. The trial court answered both the
above issues in favour of the plaintiffs and decreed the suit. On appeal
the Subordinate Judge, Tirunelveli, affirmed the finding of the Munsif
on the question of limitation but reversed that relating to issue No. 2.
He held that the entire income of the suit property was not sufficient
even to meet a minute fraction of the expenses and, therefore, the
the question of absolute dedication of the property did not arise.
It may be noted here that the trial court as well as the Subordinate
Judge held that the income from the property was not sufficient to meet
all the expenses of the charities directed to be performed. The value
of the suit land in 1882 was found by the Subordinate Judge to be only
40/- after elaborate discussion of the. value of the neighbouring pro--
perties which were subject matters of different sales at the rele\ant
time. When the matter was taken to the Madras High Court in seco~1d·
appeal, the High Court held that the family had divested itself of the
ownership of the suit property and that the deed of partition created an
absolute endowment of the suit property for the purpose of perfonning
the charities mentioned therein. It further held that the suit property
was not allotted to Kailasam Pillai's share and he wa~ only made a
trustee of the properties. In the view the High Court took, the second
appeal was allowed and the trial court's decree was restored.
Hence- .
this
appeal with special leave.
The only question that has been canvassed in this appeal beforeus by the learned counsel for the appellants is that the deed of partition
(Ext. A-1) did not create an absolute endowment of the suit properties.
for per!orming the three kattalis (endowment for religious charities)
mentioned therein. This takes us to the construction of the document
as a whole with p!irticular reference to the clauses which we have set
out earlier therefrom. The deed of partition discloses a scheme of'
partial division oO~e ancestral properties amongst the brothers. Three
of the five broth~rs have taken properties mentioned in the relevant
, schedules for enjoyment severally and certain properties were kept
for enjoyment in common. Two brothers, Kailasam Pillai and Venkatachalam Pillal were enjoying their shares of the propertiesjointly~
Provision was made for discharge of family debts and different mutual.
adjustments have also been recorded. Clause 1 of the deed,.
which we have set out earlier, is very significant. It excludes from
partition properties specified in certain clauses including the charity
properties as detailed in para 8 and mentioned in the eighth schedule ..
Property mentioned in clause 9 is not excluded from partition. When.
we look to clause 8 in this context, we find that the properties mentioned
in the eighth schedule are "allotted for charity" and "shall be administ@d in person by K~ilasam Pillai'' (emp~asis supplied). In this cla~se
four objects of chanty have been mentioned, the expenses of wiuch.
have to·be met from four items of property allotted for them. Besides
clause 8 refers to mid-day offering of Thirumanjanam expenses ill tlte · ·
Siva Temple in Rasavallipuram, and also to the evening pooja of the
said temple. There is reference in this clause also to the expenses for-
SUPREME COURT REPORTS
[1974] 2 s.c.R.
pooja of Lord Siva at Sepparai on "Ani" Uttiram day and also for feed-
·ing four brahmins in the Siva Temple Sepparai during Dwadashi days.
What is, t~refore, excluded for charity purposes in clause l is clearly
described in clause 8 of the partition deed. Having provided for all these
charities in clause 8, clause 9 makes a special provision in connection
with the same Sepparai Siva Temple "for meeting all expenses of lamp
burning for ever and one measure of rice for daily offering to God
and Archana exp~nses .... ".
Clause 9 takes note that a sum of Rs.
45/· has been spent annually for these kattalais'. Arrangement
has been made therein for contribution by two brothers of Rs . 5/-
each per year and a sum of Rs. 3/· per year by another brother, totalling a sum of Rs. 13/- which bas to be given by them to Kailasam Pillai.
It may be noted that these two brothers are unconnected with the suit
property after partition. Clause 9 thereafter recites that "for the balance
of Rs. 32/· the dry land mentioned in the ninth schedule shall be administered in person ·by Kailasam Pitlai and spent from out of the income of the said properties and from out of their owlt funds Kailasam
Pillai and Venkatachalam Pillai shall perform the aforesaid charity
without fail". (emphasis supplied). The draftsman, who prepared
this deed, had good reasons to mention in clause 8 that "the properties
mentioned in the eighth schedule and allotted for charities shall be
administered in person by Kailasam" while in clause 9 he chose to
record that "dry land mentioned in the 9th schedule shall be administe-
. red in person by Kailasam Pillai" . There is no reference in clause 9
that this land shall be ''allotted for charity" whereas those words clearly
appear in clause 8 of the <teed. In the entire scheme of the deed there
must be a legitimate justification for not allotting the lands mentioned
in the ninth schedule for charity. Besides, it is clear on the findings
of the courts below that the value of the property in 1882 was inconsiderable and the income out of it was not sufficient to meet the
expenses for the charities. A device had, therefore, to be made to keep
alive the sacred memory of their parents who were keen to continue
these charites out of the ancestral prop~:rty. Having divided the prop~rties in the manner done in the partition deed, each of the brothers
contributed according to his capacity and by mutual adjustment a
very substantial share of the expenses was to be borne by Kailasam
Pillai and Venkatachalam Pillai, who were entrusted to perform the
ch&rities without fail, if necessary, which was even inevitable at the
time, out of their own funds. Since it is a common ground that the
charities have been performed for years, the burden of the liability
must have fallen on Kailasam Pillai and thereafter on Venkatachalam
Pillai. It is because of this feature in keeping alive the three charities
mentioned in clause .9 that the lands in the ninth schedule were allotted
to Kailasam Pi!lai and Venkatacttalam Pillai so that they may get
some recompense out of the income of the property if it may somehow
or .some day be fo1thcoming. The entir~ income from the property
was little or nil and was not absolutely dedicated to the Temple for the
charities. We have got to look at the matter from what the founders
intended in the year 1882 and no construction can be given to the
do~;ument which would frustrate the intention of the founders to keep
alive the charities by. appropriate performance. If these dry and then
ba(ten prop~rties of the ninth schedule were absolutely dedicated to
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SAP.PANI V. J., V. S. PlLLAI (Goswami, J.)
603
the Temple for performance of the three kattalais the intention of the
founders would have been defeated. It would have been no body's btlsiness, income being little or nil. We are; therefore, clearly of opinion
that there is no ambiguity about any <>f the provisions of this deed which
clearly go to show that there was no intendment to create an absolute
endowment of the' suit property to the Temple or the trust.
The present value of the property and the present iacome therefrom will, in our view, not be relevant nor a safe aid to gather the intention of the parties in 1882 .. We are unable to agree with the High
Court that "the wording" of the deed makes .it 'clear beyond doubt'
that there is an absolute endowment of the property. We are also
unable to hold, as the High Court has done, that "the family has divested itself of the ownership and Kailasam has been created trustee
therefor". Ext. A-3 on which the High Court relied to reach its conclusion does not, in our opinion, make any departure from the nature
of the transaction nor from the original intention of the parties, particularly in view of clause-19 thereof already quoted above. Similarly
Ext. A-10 executed in 1936 on which the High Court relied does not
unerringly point to any different intention even ·of the succeeding
generation. The first ·extract quoted earlier from Ext. A-10 does not,
in our opinion; relate to the ninth schedule property when the charity
has been specifically endowed in the eighth schedule to Ext. A-1. Again
the second extract fromEx t. A~IO, namely, clause 14(1), earlier set
out, does not, in our view, run counter to the original intention of their
ancestors. The initial intention to be gathered from •n ancient document when the provisions are reasonably clear cannot be readily altered
to suit changing conditions over the years. Even so, if somehow it is
possible to hold that the .subsequent dealing with the property is consistent with the intention of the original parties to the document, as
interpreted by us on the terms of the original deed, that course has to
be .preferred by the court. Besides, in interpreting ancient documents
courts ltave to be cautious to guard against warping of the issue by
reference to subsequent conduct of parties or their. representatives
which may vary for imponderable reasons, bona-fide or otherwise.
Clause 3 of the partit.ion deed mentions only such properties as
have been allotted to the brothers in full ownership. It could not
mention the property specified in clause 9 because it is burdended with
a charge in favour or kattalais.
We may now refer to some decisions cited at the bar.
In Sree Sre~ Ishwar.SridltarJew v. Sushi/a Data Dasi (1) and others,
it was observed· :
. ''I~ is quite true, that a dedication may be either absolute
or. partial. The p~operty may be given out and out to the idol,
or 1t ;may be subjected. to a. charge in favour of the idol. 'The
questtop wheth~r the 1dol 1ts~Jf shall be considered the true::
be~e~ctary, subject to a. charge 1.n favour ef the heirs or. specified
relat1ves of the testator for then upkeep~ ot that, on the other
(1) [195-41 S,C.R. 407-414.
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hand, these heirs shall be cpnsidered the true beneficiaries of
the property, subject to a charge for the upkeep, worship and
expenses of the idol, is a question wh(ch'can only be settled by
a conspectus of the entire provisions of the will' Pande Hor
Narayan r. Surja Kumrari(l)''.
Observations to the same effect have also been made by the Privy
Council in Sri Sri Iswari B!wbaneshwari Thalwrani v. Brojo Nath Dey
and otlters.(2)
In Menakuru Daseratharami Reddi v. Duddukuru Subba Rao,(l) this
Court observed as follows :-
"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 creatt:d.
If the dedication is partial, a trust
in favour of the charity is not created but a charge in
favour of the charity is attached to, and follows, the property
which
retains its original private and secular character.
Whether or not dedication is complete would naturally
be a question of fact to be determined in each case in the light
of the material terms used in the document. In such cases it is
always a matter of ascertaining the true intention of the parties
it is obvious that such intention must be gathered on a fair and
reasonable construction of the document considered as whole."
In Ramkishor~ La! 1'. Kamal Narain,(4) this Court observed :
"The golden rule of construction, it has been said, is to
ascertain the intention of the parties to the instrument after
considering all the words, in their ordinary, natural sense. To
ascertain this intention the court has to consider the relevant
portion of the document as a whole and also to take into account
the circumstances under which the particular words were used".
It was further observed(•) :
''What was said in this case in connection with the conc
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struction of a will applies with equal force to the construction
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of every other document by which some property is disposed
of".
In Gopal La! Sm 1'. Purna Chandra Ba~·ak and'othu(5), the Privy
Council observed as follows :-
"The first question that arises is whether the gift is a gift
to the Idols, or whether there was a. gift to any other person or
persons charged with the maintenance of the Idols. The will is
most obscure, but their Lordships think that there is certainly
no direct gift of the whole property to the Idols, nor in the
circumstances ought one to be implied. It is consequently necessary to see in what capacity and by virtue of what right the
worship of the Idols is to be carried out. The person on whom
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(1) 1921 L.R. 48 I.A. ·143, 145-1~ . (2) A.I.R. 1937 P.C. 185.
(3) (19511 S.C.R. 1122, 1128.
(4) (1963) Supp. 2 S.C.R. 417,424,428.
(5) A.I.R. 1922 P. C. 253·54.
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SAPPANI V. R. V. S. l'ILLAI (Goswami, /,)
605
the duty was cast was undoubtedly Udoy Chand, and the conclusion which their Lordships have reached, is that if, as they
think, there is no gift to the Idols it is only possible to give effect
to the provision of the will by treating it as conferring the property upon Udoy Chand. The will is addressed to him; upon him
throughout all the burden~r of performing different duties are
cast, and this necessarily involves the ewnership of the property".
It may be appropriate to refer to a passage in Mayne on Hindu·
Law and Usage, eleventh edition (Reprint) at page 923 (Section 792)
which reads as under :
"A dedication of property for religious or charitable purposes may be either absolute or partiat·(l). In~he former case,
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the property is given out and out to an idol or to a
religious or charitable institution and the donor divests
himself of all beneficial interest in the property comprised in
the endowment (2). Where the dedication is partial, a charge is
created on the property or there is a trust to recieve and apply a
portion of the income for the religious or charitable purposes
(3). In such a case, the property descends and is alienable and
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partible in the ordinary way, the only difference being that it
passes with the charge upon it"(4).
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In this context, we may also note a decision of the Calcutta High
Court in Hulada Prasad Deghoria v. Kalidas Naik and others,(S) where
the court had to deal with interpretation of an ancient document :
"The matter may be put briefly in the word of Sugdan,
L. C., in Attorney-General v. drummond (6) : 'One of the most
settled rules of law for the construction of ambiguities in an
ancient instrument is that you may resort to contemporaneous
usage to ascertain the meaning of the deed ; tell me what you
have done under such a deed, and I will tell you what that deed
means'. To this must be added the qualification formulated by
Lord Cranworth, L. C., in Sadlier v. Biggs (7), in the following
terms : 'If there is a deed which says, according to its true construction, one thing, you cannot 8ay that the deed means something
else, merely because the parties have gone on for long time so
understanding it".
We have referred to this case although in the case before us the terms
of the deed are not at all ambiguus while the Calcutta High Court had
to consider an instrument the terms of which were "at best inconclusive" The principle that the court may call in aid acts under the
deed as a clue to the intention, as was pointed out by Lord Halsbury,
L. C., in North-Western Railway Co.v.Lord Hastings,(B) "does not apply
unless there is an ambiguity, for even usage does not justify deviation
(1) (1937) 64 I.A. 203/211.
(3) (1859) 8 M.I.A. 66.
(5} AIR 1914 Cal. 813/814-815.
(7) (1853) 4 H.L.C. 436.
(2) (1904) 31 I.A. 203.
(4) (1878) -4 CaL 56.
(6) (1842) 1 Dr.&:. W. 358.
(8) (1900) A.C. 260.
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[1974] 2 s.c.R.
from terms which are plain : A.ttornty-Gentral v. Bochtsler Col'·
poratlon"(l), It was observed by the House of Lords in Drammond v.
Atlomey Gtntral(2) :
" Consequently, while in a case of ambiguity, the court
will uphold tllat construction of a deed which justifies a long
usage as to the application of trust funds, the court will not,
where there is no ambiguity, accept an erroneous interpretation
though consistent with usage, so as to sanction a manifest breach
of trust".
Our attention was drawn to a decision of the House of Lords in
The Attomey-Ge11era/v. The Master, Wardens, & C. of the Wag Chand·
lers' Co.3 wherein it was held :
"There is one well-known class of authorities of this sort.
A testator devises to a corporate body or to an individual, landed
property, and he affixes to that devise a condition that the corporation or the individual shall at their or his own peril, and
if necessary out of their own funds, make certain payments, or
a certain payment, to some otje::t of his bounty. In a case of
that kind the devisee is said to take the land upon condition. If
the devise is accepted, the condition must be fulfilled, and the
money must be paid, whether the land devised is, or is not, ade·
quate to make the payment. The very statement of a case ofthit
kiltd implies that the land is the land of the devisee, and that.
every accretion to the value of the land belongs to the devisee ;
and that_the-person or the charity which has the benefit of the
condition, which receives the payment mentioned in the
cJndition, has a right to nothing more than that payment".
This case meets the requirements of the present case before us. To the
same effect there is a passage in Halsbury's Laws of England
edition, volume 4, at page 306 :
"Speaking generally, the increase_.will belong to the donee,
first, if the gift be to the donee subject to certain payments to
others ; secondly, if the gift be ypon condition of making certain
payments subject to a .forfeiture upon non-performance of the
condition ; or, thirdly, if the donee might be a loser by the insufficiency of the fund ... (4)
The case referred to in Halsbury is Dr. Vi/liam Jack, Principal, and the
Professors of the U11iversity and King's College of Aberdeen v. Sir Thomas Burnett, of Leys, Bart. (1846) XII Clark & Finnelly, 812,tS)whercrrom the following passage is apposite :
.
"In sear.ching for the intention of a donor, which is
the st-andard to govern the construction of a deed of gift, the
facts, first, that the gift is subject to the condition of making
<:ertain payments to others,--secondly, that forfeiture will be in-
-curred by non·performance of that condition,·and, thirdly, that
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'(1) S De G.M. & G. 797.
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(2) (1849) 2 HLC 837,
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'(3) (1873) Ens. & hish Appeal, 6 U .. , 1/19.
'(4) (1846) 12 ct. & Fin. 812, H~L. 828. per Lord Cottenham.
(5) 8 English Reports, H.L., Cl. a: Fin 8·12, p. 1632.
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'SAPPANI V, R, y, S. PILLAI (Goswami, ],)
607
t'he donee may be subjected to loss by the performance of that
condition, are sufficient to raise the presumption that in case of
fho increase of the fund, the donor .intended to aive to the
donee the benefit of that increase'',
lt was held by the House of Lords in that case "that this was a grant
upon condition, and not a mere trust, and that the Principal and Professors were entitled, after satisfying the condil'lons of the deed of
.gift, to ap1'ropriate to themselves any surplus arising from the Jands
thus given".
Argument was addressed at the bar with regard to the surplus
income from the suit property since with progress of time the value
of the prorerty has increased and necessarily its income.