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TMI Blog1927 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... y was asserted and a partition was demanded. 4. The plaint contained various allegations of malversation by the first defendant. 5. When the case came on for trial a number of questions arose which were disposed of by the Subordinate Judge Most of his directions were confirmed by the High Court on appeal. In the cases in which the judgment of the Subordinate Judge was so varied the decision of the High Court has been generally accepted, The only point remaining is that which is the subject of the present appeal. 6. The earlier clauses of the will provide for certain distributions between the wife and sons and daughters which are either not questioned or have been disposed of by the judgments already mentioned. The last clauses of the will run as follows :- 7. I advanced a loan to Muchilika Appalaraju and others of Chengon-dapalli, Ernagudem Taluk, took an usufructuary mortgage of Chengondapalli and its hamlets Patnam Madampatt, etc., forming a muttah belonging to the said Appalaraju and others and have been managing the same. The net profits realised from the said muttah annually, I have been giving away for the expenses of feeding, etc., in the choultry which I built i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other part of the decision and appealed to the High Court, which decided that there was an appropriation of the usufructuary mortgage as well as of the ₹ 10,000 to the charitable endowment. 10. It is from this decision that the plaintiff now appeals. 11. It is much to be regretted that the first defendant has not seen his way to be represented before their Lordships; but the facts of the case have been fully presented by counsel for the appellant, and every portion of the evidence on the record has been brought to their Lordships' notice. 12. A dedication of a portion of the family property for the purpose of a religious charity (and the charity which Gangi Reddi purported to endow is of this nature) may, according to Hindu law, be validly made without any instrument in writing, even if it be an appropriation of some landed property, and the act of the karta of the family would be valid if assented to in any way, however informally, by the other members of the family. Such an appropriation may even (if the property allotted be small as compared with the total means of the family) be made by the karta without consent. This much was not questioned by counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and then proceeds to direct that so long as the mortgage remains in the possession of the family the net profits annually realised shall be applied in the same manner. 19. This is not quite in agreement with the statement of the clerk, who speaks of a surplus or balance which was applied to the ordinary family expanses; but still there is the statement which is not to be neglected. 20. The other document of importance is a deposition which Gangi Beddi made on October 16, 1903-that is before any one of the three wills were made. It would appear that in that case he was suing upon a promissory note, and that the defence was that it was a forgery, and that this defence was supported by a suggestion that he had not money enough to be in a position to lend the sum, whenever it was, said to be due on the promissory note. 21. Their Lordships would gather that the transaction had been effected by the elder son who, at the time of the deposition, had not been long dead, and that some difficulty may have arisen because he was dead at the time when the trial came on. In that deposition Gangi Reddi started by giving himself a character as a substantial person, and he said as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of which the deceased made his charitable contribution. 27. After 1900 and until 1911 an account of the expenses on the choultry never amounting to more than a few hundred rupees a year, and much less than the receipts of corresponding date from the Chegondapalli mortgage, was regularly kept; but there was no transfer of the debit to Chegondapalli, and no correlation between the two accounts till December, 1911, when the sum of ₹ 8,400 for the charity and another sum of ₹ 11,240, being the loss on a particular trade, were both debited to the account of Chegondapalli, and even then left it in credit to the extent of ₹ 6,321. Such accounts as have been filed since that date are simply accounts kept contemporaneously for the two purposes without any correlation or transfer from one to the other. 28. These accounts support the appellant's case. They are inconsistent with any appropriation of the full net profits of the usufructuary mortgage to the purposes of the choultry. They do not even show any regular appropriation year by year of any fixed sum or indeed of the annual cost of upkeep fixed or unfixed to the account of the charity. 29. Their Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X
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