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TMI Blog1990 (10) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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, Ponnuswami Pillai, Malayalam Pillai and Thangavelu Pillai, shall take and manage the E schedule properties, from out of the income from the said properties pay the kist for the aforesaid E schedule properties, and out of the balance of income for the salvation of my soul after my lifetime, shall enter mY body, after my life is extinct, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty for purposes enumerated under the Will was invalid and accordingly he 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. In second appeal to the High Court, the learned single Judge expressed the view that the Trust in respect of the properties for construction 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 maintenance should remain as the property undisposed of by the Will. Neither the plaintiffs nor the defendants will be entitled to it under the terms of the Will. He however, held that the endowment and directions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 taken by the Madras High Court in several cases, namely, Kunhamutty v. T. Ahmad Musaliar Ors., ILR 1958 Mad. 204=AIR 1953 Mad. 29; A. Draivaisundram Pillai v. N. Subramania Pillai, ILR 1954 Mad. 854; Veluswami Goundan v. Dandapani, [1946] 1 MLJ 354=AIR 1946 Mad. 485. This Court in Saraswati Ammal v. Rajagopl 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 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 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 not recognised as religious in nature. The burden is on the person setting up a case of religious practice in the community to prove it. This prohibition may not apply when an ancest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 endowment 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 dominant 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 Ponnuswami Pillai (DW 1) 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 further stated that the annual ceremonies of the testator fall on Margali Mrisaseerusham Nakshatram and Guru Pooja is not performed on that day. It is undisputed that the testator died on Marga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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