MALAYAMMAL AND ORS.versusA MALAYALAM PILLAI AND ORS.

                  MALAY AMMAL AND ORS.                                       A
                           v.
               A MALAYALAM PILLAI AND ORS.

                          OCTOBER 10, 1990

         [K. JAGANNATHA SHETTY, N.D. OJHA AND                                B
                    R.M. SAHAI, JJ.]

      Hindu Law-Creation of endowment under Will-Provision by
Testator for construction of his Samadhi and Matam and performance
of poojas and ceremonies thereat-Validity of.

      Will-Principles of construction-Bequest for worship of God with-
                                                                             c
out specifying a particular deity-Validity of.

      K. bequeathed his properties describing them in five Schedules,
A, B, C, D and E. In respect of the 'E' schedule properties, he created
an endowment stating that after his death it should be managed for           D
construction of his owu tomb or samadhi and for performing poojas and
ceremonies thereat.

     · Two of the legatees under the will filed a suit against the third
legatee, the manager of the trust, for partition and p0ssession of the E
schedule properties as well as for rendition of accounts pertaining to the   E
income from the said properties contending: (i) that under Hindu Law
the testator could not have created an endowment of properties for
~onstruction of his own tomb or samadhi for performing poojas and
ceremonies thereat; (ii) since the testator had bequeathed his properties
for "Samadhi Kainkaryam", the Trust was invalid; and that the said
properties should be shared by the plaintiffs and the defendant under        F
the residuary clause of the will as if they remained undisposed of by the
testator.

      The defendant resisted the suit contending that Matam and the
Samadhi were constructed for different purposes and it is only at the
Matam that the ceremonies and Guru Pooja were performed with feed-           G
ing the poor and distribution of saffron clothes; and that these acts were
distinctly and substantially religious and charitable purposes.

      The subordinate judge accepted the plaintiff's case declaring that
the dedication of the 'E' schedule properties was invalid and accord-
ingly he decreed the suit.                                                   H

                                   235
    236         SUPREME COURT REPORTS                 [1990] Supp. 2 S.C.R.

          On appeal the District Judge dismissed the suit with a direction to
A
    the defendal1t for rendition of accounts of the surplus income Crom the
    properties on the ground that dedication of properties by the testator
    was for charitable or religions in nature.

           On second appeal a single Judge of the High Court dismissed the
B   suit for partition but afrmned the decree for accounting the surplus
    income from the properties referable to the Matam and charities by
    holding (i) that the trust in respect of the properties for construction of
    sarnadhi was not valid as it was not recognised under the Hindu Law; (it)      \,
    but the endowment and directions as to application of the property for
    construction of Matam and performance of ceremonies and pooja were
     valid since they were religions and charitable in nature.
c
           On further appeal by Letters Patent the Division Bench of the High
    Court, relying upon the decision of tbe Privy Council in N. Subramania
    Pillai v. A. Draviyasundaram Pillai. AIR 1950 PC 37, held that the
    entire endowment was invalid under Hindu Law. Hence this appeal.
D
          Allowing the appeal, this Court,

          HELD: 1. The perpetual dedication of property for construction
    of a samadhi or a tomb over the mortal remains of an ordinary person
    and the making of provisions for its maintenance and for performing
E   ceremonies in connection thereto ·is not recognised as charitable or
    religions purpose among the Hindus. But the Samadhi of a Saint stands
    on a different footing. 'fherefore, the provision made by the testator for
    construction of a Samadhi over his burial place and for its maintenance
    cannot be regarded as valid. [242A-B & F]

F        Kunhamutty v. T. Ahmad Musaliar & Ors., I.L.R. (1958) Mad.
    204; A. Draviyasundaram Pillai v. N. Subramania Pillai, I.L.R. 1945
    Mad. 854 and Veluswami Goundan v. Dandapani, [1946] 1M.L.J.354,
    approved.       ·--          -

           Saraswati Am ma/ v. Rajagopal Ammal, [1954) S.C.R. 277 and
G    Nagu Reddiar & Ors. v. Banu Reddiar & Ors., [1978] 2 S.C.C. 591,
     referred to.

           2. It is one of the cardinal principles of construction of Wills that
     wherever it is possible, effect should be giv"n to every bequest of the
     testator unless it is opposed to law, custom or practice. If the testator
R    has set apart the property intended for endowment and disclosed his
                        MALAYAMMAL v. A.M. PILLAI                          237

  charitable intent in any one of his directions, such direction may be          A
  extricated leaving aside the directions which are repugnant to the recog-
  nised notions of Hindu religion or Hindu Law. Attempt should be made
  to give effect to the provisions made for recognised charitable purposes
  even though the entire scheme of the testator cannot be saved. [242G-H]

        2 •.1 In the instant case the schedu.led properties have been B
 endowed for construction of a Samadhi and Matam, and for performing
 religious rites and charitable acts. The Samadhi and Matam are con-
 structed in the same survey number but are independent of each other,
 separated by a distance. The other provisions in the will relating to
 performance of annual ceremonies conducting Guru Pooja, feeding the
 poor and distribution of saffron coloured clothes to medicants are inde- C
 pendent and have no connection with the Samadhi. Consequently, the
 entire dedication of theScheduled properties will not fail. [243A-BJ

      N. Subramania Pillai v. A. Draviyasundram Pillai, A.I.R. 1950
 PC 37, held inapplicable.
                                                                                 D
       3. In construing the validity of an endowment created under a
 Will, the Court cannot be guided merely by the acts of the Manager or
 the manner in which the executor of the Will has understood the direc-
 tions of the testator. The Court is required to examine the dominant
 intention of the testator and that cou.ld be ascertained only by the terms
 of the Will.                                                                    E

       3.1 A trust cannot be rendered invalid on the gronnd that the
 directions of the testator are in general terms and that there is no
 particular mention in the will as to whom Guru Pooja is required to be
 performed since no particular deity is named in the Will. It is for the
 Court to ascertain the presumed intention of the testator and given             F
 effect to· it. Therefore where no deity is named in the deed of endow-
 ment, the Court should ascertain the sect to which the donor belonged,
 the tenets which he held, the doctrines to which he was attached and the
 deity to which he was devoted and by such means the presumed inten-
 tion of the testator as to the application of the property should be
 ascertained. These are the safe guides. [244E & Fl                              G

      Veluswumi Goundan v. Dandapani, [1946] I MLJ 354 = AIR
 1946 Mad. 485, referred to.

         3.2 In the instant case there is no indication in the Will that Guru
__ POl)ja should 'be perfornte_d to th"_ testator_:gn the other hand the terms   l
    238         SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.

    in the Will show that the testator was a great devotee of Lord Sub-
A   ramaniaswami. The evidence also Indicates that Guru Pooja is being
    performed to Lord Subramanya followed by poor feeding and distribu-
    tion of saffron-coloured clothes. These terms of the will clearly specify
    the religious o~ charitable purposes. Therefore the endowment with
    fegard to these purposes is upheld. [244E & G-Hl
B
          3.3 Annual Shradha or anniversary is a religious rite. The per-
    manent dedication of properties for performance of annual ceremonies
    of the testator is equally valid. [245A]

          4. The Division Bench of the High Court was therefore in error in
    invalidating the entire endowment. Accordingly, the judgment Of the
c   Division Bench is reversed and the judgment and decree of the Single
    Judge are restored. [245B-C]

          5. In Hindu system there is no line of demarcation between reli·
    gion and charity. On the other hand, charity Is regarded as a part or
D   religion. But what are purely religious purposes and what religious
    purposes will be charitable must be entirely decided according to Hindu
    Law and Hindu notions. [241G·Hl

          Hindu Law of Religious & Charitable Trusts, by B.K. Mukher-
    ;ea, 5th Edn. p. 11; Mayne's Hindu Law, 11th Edn. p. 912, referred
E   to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 140
    of 1977.

        From the Judgment and Decree dated 31.1.1973 of the Madras
F   HighCourtinL.P.A.No."6ofl965.                  --~--


          A. T .M. Sam pat and P .N. Ramalingam for the Appellants.

          Ms. Lily Thomas for the Respondents.

G         The Judgment of the Court was delivered by

           K. JAGANNATHA SHETTY, J. This is an appeal from the
    judgment and decree of the Madras High Court and it arises out' of a
    suit for partition and possession of certain properties.

H         The facts leading to the institution of the suit are asfollows: On 3
               MALAYAMMAL v. A.M. PILLAI ISHEITY, J.l                 239

 March 1942, one Karuppanna Pillai (hereinafter referred to as
                                                                             A
 "testator") executed his last Will and testament Ext. B- L Thereunder
 he disposed of all his properties described in five schedules, A, B, C,
 D and E. He directed that the properties under A, Band C schedules
 shall be respectively taken and be in the possession of the defendant,
 the first plaintiff and the second plaintiff. In respect of E schedule
 properties, he has made a bequest creating an endowment that after          B
 his life time, it should be managed for the purpose and in the manner
.mentioned therein. The dispute in the suit was as to the validity of the
 endowment. One Palaniammal and Chellammal are the sisters of the
plaintiffs and the defendant. The testator created a life estate in favour
of those sisters in respect of D schedule properties with a direction that
 after their lifetime the properties shall be dealt with in the same
manner as the E schedule properties. We are not concerned in the             c
present litigation with any of the properties in schedules A to D. We
are concerned only with the validity of the disposition of E schedule
properties.

      The Will is_in Tamil_but we are helpfully provided with the English    D
translation of the relevant portion. It is also found incorporated in the
judgment of the District Judge. It runs as follows:

            "After my lifetime, the aforesaid three persons, Ponnus-
            wami Pillai, Malayalam Pillai and Thangavelu Pillai, shall
            take and manage the E schedule properties, from out of the       E
            income from the said properties pay the kist for the
            aforesaid E schedule properties, and out of the balance of
           income fo.r the salvation of my soul after my lifetime, shall
           enter my body, after my life is extinct, in the land S.F. No.
            68/B, Pun jai Thottakurichi Village pertaining to the
            aforesaid E schedule, build structure therefor and put up        F
           light every day shall plant flower plants in the said land and
           grow them, shall construct a Matam for annual ceremonies,
           install pictures therein, put up light in the Matam every
           day, conduct Guru Pooja, distribute saffron-coloured
           clothes and on that day, shall feed the poor. Since '.he
           aforesaid Ponnuswami Pillai is the eldest of the sons, he         G
           shall be the Manager, to conduct the above matters. The
           surplus income shall be taken in the shares of 2/4 by
           Ponnuswami Pillai, 1/4 by Malayalam Pillai, and 1/4 by
           Thangavelu Pillai. After the said Ponnuswami Pillai's life,
           out of his make heirs, the eldest son shall conduct in the
           same manner as above and the surplus income shall be              H
           taken by the said eldest son."
    240         SUPREME COURT REPORTS               [1990] Supp. 2 S.C.R.

          There then follows a residuary clause which is as under:
A
               "The movable and immovable properties belonging to me
               and not mentioned herein shall be taken and enjoyed by
               the aforesaid three persons after my lifetime."

B          The plainiiffs case has been that the testator could not have
    created on endowment of properties for construction of his own tomb
    or Samadhi and for performing Pooja and. ceremonies thereat. Since
    the testator has bequeathed E schedule pr()perties for "Samadhi
    Kainkaryam", ·the trust would be invalid and the said properties
    should be shared by the plaintiffs and defendant under the residuary
    clause in the Will as if they remain undisposed of by the testator. The
c   suit is also for account from the defendant regarding the income of the
    E schedule properties.

        The defendant has resisted the suit and sought to justify the
  creation of tlte trust and its purposes. It was contended inter alia, that
D the Matam and the Samadhi were constructed for different purposes.
  They are separated by a respectable distance. At the Samadhi, there is
  no performance of pooja. It is only at the Matam, the ceremonies and
  Guru Pooja are performed with feeding the poor and distribution of
  saffron clothes. These acts are distinctly and substantially religious and
  charitable purposes. It was also contended that the plaintiffs in any
E event are not entitled to claim partition and separate possession of the
  E Schedule properties.

         At the trial, learned Subordinate Judge accepted the _elaintiff's
   c·ase declaring that the dedication of the E Schedule property for
   purposes enumerated under the Will was invalid and accordingly he
F decreed the suit as prayed for. In appeal, the District Judge took a
   different view. He held that the purposes for which the E Schedule          (,
  ·properties have been dedicated were charitable or religious in nature.
   He dismissed the suit but gave certain directions to the defendant for
   rendition of accounts of the surplus income from the properties which
   the defendant as a manager is obliged to do.
G
        In second appeal to the High· Court, the learned .single Judge
  expressed the view that the Trust in respect of the properties for con-
  struction of the Samadhi with raising flower garden and lighting up
  would not be valid as it is not recognised under the Hindu Law. That
  part of E Schedule properties referable to the Samadhi and its main-
H tenance should remain as the property undisposed of by the Will.
                         '
               MALAYAMMAL v.,A.M. PILLAI [SHETfY, J.)                  241

Neither the plaintiffs nor the defendants will be entitled to it under the
terms of the Will. He however, held that the endowment and direc-            A
tions as to application of the property for construction of the Matam
and performance of ceremonies and pooja would be valid since they
are religious and charitable in nature. He dismissed the suit for parti-
tion while at the same time affirmed the decree for accounting the
surplus income from the properties referable to the Matam and                B
charities.

       In the Letters Patent Appeal, the Division Bench has disagreed
with the views expressed by learned Single Judge. It has been observed
that the Matam is close to the Samadhi and the former has been built
for the .purpose of providing a convenient place for the purpose of
offering wqrship and performing ceremonies connected with the                c
Samadhi and Matam are covered by one scheme, and therefore, the
entire trust must fail. In support of the conclusion, the Division Bench
largely relied upon the decision of the Privy Council in N. Subramania
Pillai v. A .. Draviyasundaram Pillai, AIR 1950 PC 37.
                                                                             D
      In the Privy Council case referred above, the testator by name
'Kanakasabhapathy' in his Will constituted a Trust of his properties
with certain directions as to its application. He direted that "his body
should be buried .in a Samadhi and at the same place where the
Samadhi is made, a Matam should be built with a stone inscription in
the front portion of the Matam as 'Kanakesabhapathi Samadhi                  E
Ma tam'. He also directed that regular worship should be conducted
with Guru Pooja and poor feeding. Construing the terms of the Will,
the Privy Council observed that the directions given by the testator
were embodied in a single scheme and they were primarily intended to
keep his memory alive and.to enhance his own posthumous reputation.
Feeding the poor was to be conducted during the daily pooja to be            F
performed in connection with the burial place and it did not provide
for any charity apart from the ceremonies to be conducted at his own
burial place and therefore the trust must fail.

       In Hindu system there is no li:-ie of demarcation between reugion
and charity. On the other hand, Charity is regarded as a part of             G
religion. Hindu La:w of Religious & Charitable Trusts, by B·.K.
Mukherjea, 5th Ed. p. 11. But "what are purely religious purposes and
what religious purposes will be charitable must be entirely decided
according to Hindu Law and Hindu notions." Mayne's Hindu Law
1 lth Ed. p. 912.
                                                                             H
    242         SUPREME COURT REPORTS               [1990] Supp. 2 S.C.R.

          The perpetual dedication of property for construction of a
A
    Samadhi or a tomb over the mortal remains of an ordinary person and
    the making of provisions for its maintenance and for performing cere-
    monies in connection thereto however. has not been recognised as
    charitable or religious purpose among the Hindus. But the Samadhi of
    a Saint stands on a different footing. This was the consistent view
B   taken by the Madras High Court in several cases, namely, Kunhamutty
    v. T. Ahmad Musaliar & Ors., !LR 1958 Mad. 204~AIR 1953 Mad.
    29; A. Draivaisundram Pillai v. N. Subramania Pillai, !LR 1954 Mad·.
    854; Veluswami Goundan v. Dandapani, [ 1946) 1 MLJ 354~AIR 1946
    Mad. 485. This Court in SaraswatiAmmal v. Rajagopal Ammal, [1954]
    SCR 277 has approved those decisions of the Madras High Court.
    Jagannatha Das, J., who spoke for the Court said (at 289): "We see no
c   reason to think that the Madras decisions are erroneous in holding that
    perpetual dedication of property for worship at a tomb is not valid
    amongst Hindus."

         The view taken in Saraswati Ammal case has been reiterated in
D   Nagu Reddiar & Ors. v. Banu Reddiar & Ors., [1978] 2 SCC 591 where
    Kailasam, J., observed (at 600):

                "The raising of a tomb over the remains of an ancestor, an
                ordinary person is riot recognised as religious in nature.
                The burden is on the person setting up a case of religious
E               practice in the community to prove it. This.prohibition may
                not apply when an ancestor is cremated and a memorial
                raised for performing Shradha 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."
F
          We are, therefore, inclined to hold that the provision made by
    the testator for construction of a Samadhi over his burial place and for
    its maintenance cannot be regarded as valid.

          But that however, does not mean that the entire dedication of E
G   Schedule properties must fail. It is one of the cardinal principles of
    construction of Wills that wherever it is possible, effect should be
    given to every bequest of the testator unless it is opposed to law,
    custom or practice. If the testator has set apart the property intended
    for endowment and disclosed his charitable inteni in any one of his
    directions, such direction may be extricated leaving aside the direc-
H   lions which are repugnant to tl\e recognised notions of Hindu religion
              MALAYAMMAL v. A.M. PILLAI ISHEITY, J.]                 243

or Hindu Law. Attempt should be made to give effect to the provisions
                                                                            A
made for recognised charitable purposes even though the entire
scheme of the testator cannot be saved. In the instant case, the E
Schedule has been endowed for construction of a Samadhi and Matam,
and for performing religious rites and charitable acts. The Samadhi and
Matam are constructed in the same survey number but are indepen-
dent of each other, separated by a distance of about 15 feet. Perfor-       B
mance of annual ceremonies, conducting Guru Pooja, feeding the
poor and distribution of saffron coloured clothes to mendicants appear
to be independent and have no connection with the Samadhi. There is
no indication in the Will that Guru.Pooja should be performed to the
testator. In fact he has not even indicated that his photo should be kept
in the Matam. His directions are only to install pictures at the Matam,
put up light every day in the Matam and perform Guru Pooja once a           c
year with the other charities. These provisions in the Will are not in
close parallel with and indeed far removed from those obtained in the
Privy Council decision in Subramania Pillai's case. the Division
Bench of the High Court was therefore in error in relying upon that
decision to invalidate the entire endowment.                                D

      Counsel for the plaintiffs nevertheless argued that the defendant
has been performing Guru Pooja only to the testator and not for the
deity. He referred to us Ext. A-5 to A-9 which are the invitations sent
by the defendant for the annual ceremonies and Guru Pooja to be
performed to the testator. But in construing the validity of an endow-      E
ment created under a Will, we cannot be guided merely by the acts of
the manager or the manner in which the executor of the Will has
understood the directions of the testator. We are required to examine
the dominent intention of the testator and that could be ascertained
only by the terms of the Will. The terms of the Will in this case clearly
specify the religious or charitable purposes. The defendant Ponnus-         F
wami Pillai (DW I) in his cross-examination has also explained that
there was a mistake in the writing of Ext. A-5 to A-9 for which he was
not responsible. He has testified that he performed really the annual
ceremonies on the date of death of the testator and no pooja was
performed at Samadhi. The Poojas are performed only at Matam with
Guru Pooja to Lord Subramania on 'Thai Poosam' every year. He has           G
further stated that the annual ceremonies of the testator fall on
Margali Mrisaseerusham Nakshatram and Guru Pooja is not perfor-
med on that day.

    It is. undisputed that the testator died on Margali Mrigaseeru-
sham Nakshatram. Ramaswamy Goundar (DW 2) has also deposed                  H
    244         SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.

A   that no Guru Pooja was performed on the date of death of the testator
    and it was performed only to Lord Subramania in Thai month every
    year. He used to participate in the Guru Pooja every year alongwith
    the other villagers. The evidence of Marudamuthu Pillai (OW 3) also
    supports these versions.
B
          We have no reason to disbelieve the testimony of the defendant
    and his witnesses. Even the evidence from the plaintiff indicates that
    the Matam is called 'Madam of Sri Subramanya Swami'. Ext. B-2 is a
    printed marriage invitation of the plaintiff (PW I) in which it has been
    expressly stated that the plaintiff's marriage will be performed 'at our
    Madam Sri Subramaniaswami sa·nnadhi built by ou'r grandfather
c   Karuppanna Pillai .... " Ext. A-11 also refers to (he Matam as Sub-
    ramaniaswami Sannadhi. Ext. A-2 is the Commissioner's Report. The
    Commissioner has stated that there are pictures of Gods in the Matam.
    There is pooja room. Lord Subramania's picture is also in the pooja
    room. The deity of Sri Vinayagar in granite has been installed at a
    special place with material to indicate that pooja is also being
D   performed to Sri Vinayagar.

          It is true that the directions of the testator are in general terms,
    and there is no particular mention in the Will as to whom Guru Pooja
    is required to be performed since no particular deity is named in the
    Will. But trust cannot be rendered invalid on that ground. It is for the
E   Court to ascertain the presumed intention of the testator and give
    effect to it. As observed by Patanjali Shastri, J., as he then was, in
    Veluswami Goundan's case where no deity is named in the deed of
    endowment, the court should ascertain the sect to which the donor
    belonged, the tenets which he held, the doctrines to which he was
    attached and the deity to which he was devoted and by such means the
F   presumed intention of the testator as to the application of the property
    should be ascertained. We agree that these are the safe guides. If we
    peruse the various terms in the Will and the provisions made for offer-
    ings, it will be clear that the testator was a great devotee of Lord
    Subramaniaswami. He has made provisions to perform annual pooja
    to Lord Subramaniaswami and Sri Vinayagar in the different temples
G   out of the income from A to C .Schedules. The Matam also goes by the
    name of "Subramanya''. The evidence of DW I to DW 2 further
    indicates that Guru Pooja is being performed to Lord Subramanya
    followed by poor feeding and distribution of saffron-coloured clothes.
    The endowment with regard to these purposes must therefore be
    upheld.
               MALAYAMMAL v. A.M. PILLAI [SHEITY, J.)                   245

       The permanent dedication of properties for performance of               A
annual ceremonies of the testator is equally valid. Whether one terms
it as annual Shradha or anniversary, it is certainly a religious rite and it
is not uncommon among the Hindu testators to make provisions in
their Wills for celebration or performance of such anniversaries of
themselves or their ancestors.
                                                                               B
      We are, therefore, unable to agree with the decision of the Divi-
sion Bench of the High Court. We are on the other hand in agreement
with the views expressed by learned Single Judge.

      In the result, the appeal is allowed. In reversal of the judgment
of the Division Bench, the judgment and decree of the learned Single           C
Judge are restored.                         ·

     The respondents must pay the costs of this appeal to the
appellants.

T.N.A.                                                    Appeal allowed.