# SUPREME COURT REPORTS [1960(2)] NANDURIYOGANANDA LAKSHMINARASIMACHARI AND ORS v. SRI AGASTHESW ARASW AMI V ARU OF KOL AKAL UR

- **Citation:** [1960] 2 S.C.R. 768
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** J. L. Kapur. P. B. Gajendragadkar, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1960-2-nanduriyogananda-lakshminarasimachari-and-ors-v-1777
- **Pages:** 7

## Headnote

Grant-Inam-Intention-Spccified charitable payments exhausting income at date of grant~Intention is to denote tfJhole income
to charity-Plaint-Prayer portion-If and when can be allowed to be
amended-Documents-The interpretation possible-Supreme Conrt
not to intervene with view taken by the courts below.
·
The sole trustee of a deity in a suit prayed for a decree for
the recovery of the arrears of income of a property alleging that
the property in dispute constituted a specified endowment for
Kalyanotsavam of the deity and the appellants who were
trustees of the said property had committed defanlt in carrying
out the purpose of the trust; but there was no formal prayer for
the declaration that the said properties and income thereof formed
a specific endowment for the said due performance of the services
of Kalyanotsovam of the deity and feeding charges, and other
expenses.
The defence raised was that Inam was a personal
grant bnrdened with service of the deity and that it was not a
specific trust or an endowment for the benefit of the idol.
The
High Conrt after allowing the respondents to amend the plaint by
adding a formal prayer for declaration stating that the properties
and income thereof formed a specific endowment for the dne
performance of the services of Kalyanotsavam of the deity held in
favour of the respondents and further; observed that the appellants were liable to pay the_ entire income to the deity. On appeal
to the Supreme Court it was contended for the appellants inter
alia (r) that the grant was a personal grant, burdened with the
provision for service and it was not a specific grant.
(2) that
High Court should not have allowed the amendment of the
plaint.
Held,
that in the instant case the grant, was a specific
endowment for Kalyanotsavam of the deity and therefore a
specific trust and not a grant to the appellants with the added
obligation of spending on the service.
In considering the question of the nature of a grant, the inam
registers have always been treated as evidence of the utmost
importance particularly where Sanad & Inam title deeds are not
produced, and when two inferences are possible from the reading
of documents there is no reason why the Supreme Court will
interfere with the view taken by the courts below.
When at the time of a grant the specific charitable payments
exhaust the income of the prpperty, it is a fair inference to draw
'
-
J
S.C.R.
SUPREME COURT REPORTS
769
therefrom that the intention was to devote the whole income to
19fio
charity and any subsequent increase in the value of the property
accrues to the charity and the courts would be right to apply the
Nanduri
doctrine of Cy-pres.
Yogananda
Held,
further, that where necessary allegations had been Lakshin1narasimamade in a plaint and the requisite pleas raised and issues framed
chari and Ors.
on the question and the parties were fully cognizant on the points
v.
in controversy and necessary evidence led by them, the courts
Sri
would be right in allowing the amendment by the addition of a Agastheswaraswami
•
prayer in the prayer clause, which was in the nature of formal Varu of Kolakalur
relief which flowed from the allegation in the plaint.
CIVIL APPEL.ATE JURISDICTION:
Civil Appeal No.
147 of 1956.
AppeaJ from the judgment and decree dated August
7, HJ52, mf the Madras High Court in A. S. No. 809
of 194 7;arising out of the judgment and decree dated
October 31, 1947, of the Sub Judge, Tenali in 0. S. No.
64 of 1944.
K. R. Chaudri, T. S. Venkataraman and K. R.
Sharma, for the appellants.
N. Subramanyam and T. Satyanarayana for the
respondent.
1960. January 15. The Judgment of the Court
was delivered by
KAPUR J.-This is an appeal against the judgment
and decree of the High Court of Madras varying the
· decree of the trial court. The appellants were the
defendants in the trial court and the respondent was
the plaintiff who was represented by the sole trustee
appointed by the Hindu Religious li:ndowment Board.
The suit was brought by

## Text

]anuat'y Ij.
768
SUPREME COURT REPORTS [1960(2)]
NANDURIYOGANANDA
LAKSHMINARASIMACHARI AND ORS.
v.
SRI AGASTHESW ARASW AMI V ARU OF
KOL AKAL UR
(J. L. KAPUR. P. B. GAJENDRAGADKAR AND
K. c. DAS GUPTA, JJ.)
Grant-Inam-Intention-Spccified charitable payments exhausting income at date of grant~Intention is to denote tfJhole income
to charity-Plaint-Prayer portion-If and when can be allowed to be
amended-Documents-The interpretation possible-Supreme Conrt
not to intervene with view taken by the courts below.
·
The sole trustee of a deity in a suit prayed for a decree for
the recovery of the arrears of income of a property alleging that
the property in dispute constituted a specified endowment for
Kalyanotsavam of the deity and the appellants who were
trustees of the said property had committed defanlt in carrying
out the purpose of the trust; but there was no formal prayer for
the declaration that the said properties and income thereof formed
a specific endowment for the said due performance of the services
of Kalyanotsovam of the deity and feeding charges, and other
expenses.
The defence raised was that Inam was a personal
grant bnrdened with service of the deity and that it was not a
specific trust or an endowment for the benefit of the idol.
The
High Conrt after allowing the respondents to amend the plaint by
adding a formal prayer for declaration stating that the properties
and income thereof formed a specific endowment for the dne
performance of the services of Kalyanotsavam of the deity held in
favour of the respondents and further; observed that the appellants were liable to pay the_ entire income to the deity. On appeal
to the Supreme Court it was contended for the appellants inter
alia (r) that the grant was a personal grant, burdened with the
provision for service and it was not a specific grant.
(2) that
High Court should not have allowed the amendment of the
plaint.
Held,
that in the instant case the grant, was a specific
endowment for Kalyanotsavam of the deity and therefore a
specific trust and not a grant to the appellants with the added
obligation of spending on the service.
In considering the question of the nature of a grant, the inam
registers have always been treated as evidence of the utmost
importance particularly where Sanad & Inam title deeds are not
produced, and when two inferences are possible from the reading
of documents there is no reason why the Supreme Court will
interfere with the view taken by the courts below.
When at the time of a grant the specific charitable payments
exhaust the income of the prpperty, it is a fair inference to draw
'
-
J
S.C.R.
SUPREME COURT REPORTS
769
therefrom that the intention was to devote the whole income to
19fio
charity and any subsequent increase in the value of the property
accrues to the charity and the courts would be right to apply the
Nanduri
doctrine of Cy-pres.
Yogananda
Held,
further, that where necessary allegations had been Lakshin1narasimamade in a plaint and the requisite pleas raised and issues framed
chari and Ors.
on the question and the parties were fully cognizant on the points
v.
in controversy and necessary evidence led by them, the courts
Sri
would be right in allowing the amendment by the addition of a Agastheswaraswami
•
prayer in the prayer clause, which was in the nature of formal Varu of Kolakalur
relief which flowed from the allegation in the plaint.
CIVIL APPEL.ATE JURISDICTION:
Civil Appeal No.
147 of 1956.
AppeaJ from the judgment and decree dated August
7, HJ52, mf the Madras High Court in A. S. No. 809
of 194 7;arising out of the judgment and decree dated
October 31, 1947, of the Sub Judge, Tenali in 0. S. No.
64 of 1944.
K. R. Chaudri, T. S. Venkataraman and K. R.
Sharma, for the appellants.
N. Subramanyam and T. Satyanarayana for the
respondent.
1960. January 15. The Judgment of the Court
was delivered by
KAPUR J.-This is an appeal against the judgment
and decree of the High Court of Madras varying the
· decree of the trial court. The appellants were the
defendants in the trial court and the respondent was
the plaintiff who was represented by the sole trustee
appointed by the Hindu Religious li:ndowment Board.
The suit was brought by the deity through the
sole trustee for recovery of Rs. 3,480 towards the
arrears of income of the property in trust for the years
1942-44 and for a direction for future payment at the
rate of 160 bags of paddy per year or its equivalent
i.e. Rs. 1,680. The plaintiff alleged that the property
in dispute constituted a specific endowment for
Kalyanotsavam of the deity and that the defendants
who were trustees had committed default in carrying
out the purpose of the trust. The prayer was for a
decree for the recovery of expenses of Kalyanotsavam
and of the feeding char.ges. The defence raised wat;i
Kapur J.
•
770
SUPREME COURT REPORTS [1960 (2)]
z960
that the inam was a personal grant for driving the
car of the deity on the festival days and that it was
YNanduna·
not a specific trust or an endowment for the benefit of
ogonan a
h 'd 1
I
]
d .
f
h
.
Laf.shniinara.~inia- t e l
O •
n ot ier wor sit was a grant o
t e inam
chari and o,,. burdened with service to the god. There were other
v..
pleas raised in regard to jurisdiction, res judicata and
5"
adverse possession.
The trial court held that the
A [lastheswaraswatni
"fi
d
f
h K l
v~ru of Kolakalurgrant wa~ a spe01 IC en owment or t e
a yanotsavam
of the deity but the appellants were not bound to
Kapur J.
spend the whole income of the lands for the purpose.
It decreed a sum of Rs. 200 per year as adequate
provision for the performance of the service of
Kalyanotsavam. The other pleas raised were decided
against the appellants.
In the High Court the only point argued was
regarding the nature of the grant and as in the
opinion of that court a general trustee could not call
upon a specific trustee to pay any money except on
the ground of expending that amount and there was
no proof of this expenditure the prayer as contained in
the plaint was not granted and the High Court was
also of the opinion that as all the facts had been
pleaded and there were no new facts to be alleged and
the parties were alive to the real nature of the dispute
and had even the issues framed on that very question,
it allowed the plaint to be amended by the addition of.
the prayer for a declaration that the properties in the
schedule and the income thereof formed a specific
endowment for the due performance of the services of
Kalyanotsavam of the deity and feeding charges and
other expenses incidental thereto and the appellants
were therefore liable to pay the entire income. It was
also of the opinion that all the available evidence had
been adduced by both the parties and that the prayer
for declaration was only a formal relief which flowed
from the allegations in the plaint. It neither involved
a change of the cause of action nor did it require a
fresh trail and therefore the petition for amendment
was allowed by the addition of the prayer stated
above.
In this n,ppeal counsel for the appellant has raised
hrnet points : (I) that the suit was not maintainable;
..
-
<
-
-
-
--
S.C.R.
SUPREME COURT REPORTS
771
(2) that the amendment should not have been
1 960
allowed and (3) the grant was a personal grant to the
.
appellants burdened with the provision for service and
YNandu•d•
.
'fi
d
A £
h
fi
oganan a
it was not a spec1 c en owment.
s ar as t e
rst Lakshminarasima·
question is concerned it has not been shown as to how chari and ors.
the suit was not maintainable. The question of
v.
amendment, in our opinion, was rightly decided by the
Sri
.
High Court. As held by that court all the necessary :gasth~w;r~s:~m•
allegations had been made in the plaint and the aru
0
0
a a ur
requisite pleas had been raised by the appellants; an
Kapur J.
issue was framed on the question and the parties were
fully cognizant of the points in controversy and the
necessary evidence was led by the parties. In this
view . of the matter the High Court was right in
allowing tlre amendment by the addition of a prayer
in the prayer clause.
We then come to the question of the nature of
grant which on a consideration of the documentary
evidence and other evidence has been found by both
the courts below to be a specific endowment for
Kalyanotsavam. This finding was challenged by the
appellant. For that purpose it is necessary to consider
the inam papers which form the main and basic
documentary evidence by the
appellant. Inam
registers have always been treated as evidence of the
utmost importance. The first document to be considered is of the year 1859-60. which is a copy of the
inam statement made by N. Buchayya, the ancestor
of the present appellants. Column 1 of this document
shows the names of the inamdars and the enjoyers to
be" N. Buchayya the present enjo~ment is towards
the Kalyanotsavam" of the deity. Columns 4 & 5
give the residence and name of the original inamdars.
In Column 5 are given the particulars of the family of
the then enjoyers and the entry is for the deity's
Kalyanotsavam. In Column 6 is given the name of
the grantor who gave the land to the grantee and
"with the income therefrom he has been performing
Sri Swami Varu's Kalyanotsavam frqm that time".
Columns 7-9 give the extent of the land. In Column 11
. " particulars relating to the present enjoyment are to
be given and the entry was Sri Swami Varu's
772
SUPREME COURT REPORTS [1960 (2)]
'960
Halyanotsavam. In Column 12 it wa• shown that the
Nandnri
grant was revenue-free and the land was under the
Yogananda
cultivation of Buchayya the income of which was
Lahshmin"'asima- Rs. 11 per annum. The entries show that the inam
chari and Ors.
was granted as a specific endowment for the Kalya-
;;i
notsa:vam of the d~ity and the amount was spent in the
A ga.;theswaraswami servICeS of the deity.
Varu 0! Kolakalur
The next document to be considered is a copy of
J<apur J.
the inam-fair register of May 16, 1860. The High
Court finding that some of the entries in that document
were not clear sent for the original register from the
Collector's office and it was found that some of the
entries were not in the original at all. In Column 8
the words 'driving the car' were not to be.found and
the remarks in Column 12 to the effect that ' the
purpose for which the inam was granted is not stated'
were not in the original register. In Column 2 of this
document the general class to which the inam belonged
is shown as religious endowment. Column 8 relates to
the description of the inam and the entry is 'For
service in the pagoda ......... The service is performed '.
Columns 9-11 relate to tenure. Column 12 has already
been discussed. In Column 9 it is shown as free of tax.
In Column 13 the name of the origina.I grantee is shown
to be the ancestor of the appellants. In Column 15 the
entry is: 'In fasli 1223 Viresalingam 0-8-8-In fasli
1236 Nanduri Vissanna Buchayya for service during
the festival of the pagoda 0-8-0'. In Column 21 the
entry contains the following : 'To be confirmed and
continued so long as the service is performed. In
fasli 1216 the inamdar is entered as village servant
but it is ascertained and is entered in fasli 1256(?),
that service is performed from a long time in the
pagoda'. In Column 22 it is stated 'confirmed' and
below that is given the number of the title deed to be
T.D. 243. From these documents and from the fact
that neither the sanad nor the inam title deed was
produced and taking into consideration some admissions of the predecessors of the appellants where it
was admitted that they were dharmakartas of the
Kalyanotsavam and had been performing that service
the High Court came to the conclusion that the inam
-
' -
-
S.C.R.
SUPREME COURT REPORTS
773
lands in dispute were endowed for Kalyanotsavam and
other purposes incidental thereto and constituted a
specific trust and the appellants were trustees thereof.
}.,Tanduri
Yogananda
It was urged by counsel for that appellants that Lafishminarasimah
d .
h .
.
h
h
chart and Ors.
t e wor s rn t e inam register t at t e grant was to
v.
continue as long as the service is performed were
Sri
indicative of the fact that the grant was not to the A gastl.eswaraswami
deity but to them individually with the added obligaVaru 01 l<olakalur
tion of spending from out of the income on the
particular service to the deity.
A combined reading
of the two documents i.e. statement of the ancestor
of the appellants and the inam register shows that the
grant was a specific endowment and that the lands
were endowed for tho purpose of Kalyanotsavam and
for other purposes incidental thereto and constituted
a specific trust. The courts below have found this to
be the nature of the trust and even if two inferences
were possible from the reading of these two documents
there i.s no reason why the view taken by the courts
below should be interfered with particularly when
there are admissions by the predecessors of the appellants which support the view of the courts below.
Besides those words do not necessarily mean that the
grant was to the individual with the added obligation
to spend on the performance of service. In the present
case it is not stated in the inam fair register that the
grant was to be confirmed in favour of Buchayya and
continue so long as the service was performed. This
kind of language used in inam registers has been
dis cussed in some decided cases in the Madras High
Court e.g.
Hindu Religious Endowments, Madras v.
Thadikonda Koteswara Rao(1) where this distinction
was prominently brought out between the words "to
be confirmed so long as tho service is pel'formed" and
" to be confirmed to the party so long as he continues
the performance of the services". The latter was held
to be a personal grant and the former was not so held.
We are therefore of the opinion that the finding of
the High Court that the grant was a specific endowment for Kalyanotsavam of the deity and therefore
a specific trnst and not a grant to the appellant with
(r) A.IR. 1937 Mad. 852
J<apur ].
774
SUPREME COURT REPORTS [1960 (2)]
'>6°
the added obligation of spending on the service must
be accepted to be correct.
Nanduri
Th
t
t"
c
d · ·
·
t
h t
Yogananda
•
e nex q.ues ron 1or
ec~s1on is as . o w a
Lak.<hminamsima- portwn of the mcome of the mam lands IS to be
chori and Ors.
expended on the service to the deity. The courts
v.
below are not in accord on this point. The trial court
Sri
held that Rs. 200 out of the income should be
Avgasthe:w1
a(ralskwa1mi adequate for the purpose and the High Court applied
aru O;
o a a ur ~
d
.
d h ld h
h 1 •
b f'
vy-pres
ocLrme an
e
t e w o e mcome to e or
•
J<apur J.
the deity even though it exceeded the expenditure
for the particular service. One of the facts which
emerges from the inam register is that when the grant
was made the specific charitable payments exhausted
the income of the property and it is a fair kiference
to draw therefrom that the intention was to devote
the whole income to charity and any subsequent
increase in the value of the property accrues to the
charity; Hindu Religious Endowments v. Thadikonda
Koteswararao ('); Tudor on Charities (5 Ed.) p. 164;
Laws of England Vol. 4, para 624, p. 303. The High
Court was therefore justified in holding that the
whole of the income was to go to deity, thus varying
the judgment of the trial "court that only a portion
of it was to be so employed. The High Court applied
Cy-pres
doctrine relying on N. Sanka.ranarayana
Pillayan & (ks. v. The Board of Commissioners for
Hindu Religious Endowments, Madras('). It was there
held that where the gramt is to the deity and- the
~
income is ear-marked for the services for which the
specific endowment is created, if there is a surplus
l
which cannot be spent on these services, it would be
)
a case for the application of the Cy-pres doctrine.
Taking into consideration that originally the inam
income was only Rs. 11 the whole of which was to
be and was expended on the service of deity i.e.
Kalyanotsavam and considering the nature of the
grant the High Court has rightly applied Cy-pres
doctrine.
We are therefore of the opinion that the judgment
of the High Court was right and we dismiss this
appeal with costs.
(r) A.l.R. r937 Mad. 852.
Appeal dismissed.
(2) (r947) L.R. 74 I.A. 230.