1. The only question that is urged for our decision is whether, on the facts and in the circumstances the endowment of items 65 to 73 of the plaint 'A' Schedule settled by the late Ramanujacharyulu under Ex. A-11 dated 21st September 1929 is nominal or real.
2. In order to appreciate the scope of the question, it is necessary to briefly state the facts that gave rise to the same. Ramanujacharyulu, the grandfather of the plaintiff-appellant herein, who was driven out of his family by his father while he was quite young, had settled in the Agency areas and worked as Karnam of several villages for a number of years and earned considerable properties and died in or about the year 1932, leaving behind him his wife Latchamma, a divided son the Ist defendant herein, a keep and some properties. In the year 1918, he created an endowment of Ac. 66-75 cents of rain-fed lands which fell to his share in the family division with his only son, the 1st defendant in the year 1916, for the sole purpose of performing Sri Sitarama Swamy at Korukonda every year in the manner stated by him from generation to generation. He had also obtained a sale deed in the name of his wife Latchamma under Ex. A-10 dated 24-7-1923 for a building in Sitanagaram for a sum of Rs. 600/- for the purpose of maintaining a choultry therein. The consideration of Rs. 600/- is said to have been paid from Latchamm's Stridhanam. But, however the very sale deed Ex. A-10 indicates the purpose of the sale being to convert the building into a choultry and to run the same for charitable purpose and for the benefit of passers-by poor and other deserving persons. On 21-9-1929 a registered settlement deed Ex. A-11 setting items 65 to 73 of the plaint 'A' Schedule comprising Ac. 33-7- cents of wet lands in Sitanagaram was made by Ramanujacharyulu. The document recited that the property was in fact settled for specific purpose of the maintenance of the choultry purchased in the name of his wife under Ex. A-10 . In this document, three pointed by the settlor Ramanujacharyulu. The 5th defendant contested the plaintiff's suit for declaration that the properties are not endowed to the choultry and they are joint family properties, on the ground that they were endowed irrevocably under Ex. A-11 for a charitable purpose. The plea of the appellant has not been accepted by the trial Court as well as the learned single Judge of this Court.
3. In support of his submission that the endowment in question is nominal out not real, Mr. Jagnnadha Rao has placed reliance on the following circumstances : (I) that there was no mutation of patta inrespect of the lands in question in favour of the choultry; (ii) that no ledgers and accounts have been maintained; (iii) that no leases have been granted by the trustees; (iv) that no investment of the income from the lands has been made nor any purchase of property or lands has been made by the trustees from and out of the income of the lands and (v) that there is no evidence of payment of taxes by the trustees.
4. An endowment can be created by the execution of a deed of dedication by the donor. But however, it must be noted that the mere execution of a deed of dedication without the donor intending to act upon the terms of the deed, would not create a valid endowment. In other words, to constitute a valid endowment, it must be established that the donor intended to divest himself of his ownership in the property dedicated. An endowment may be real or nominal. Whether a particular endowment is nominal or real, is a question of fact depending upon the facts and circumstances of each case. In order to determine whether an endowment is nominal or real, the factors relevant and material are (I) whether, in fact, any endowment has been created or not, and (ii) the conduct of the parties and the surrounding circumstances. Where an endowment has, in fact, been created or a trust came into existence, the subsequent conduct of the parties with regard to the enjoyment of the property settled or endowed, is not very much material. The law on this aspect has been succinctly summed up by the learned author F. B. Mukharji in his book 'Hindu Law of Religious and Charitable Trusts' (Third Edition) Thus :---
'The tests of a bona fide of nominal endowment are : how did the founder treat the property or how have the descendants treated it; has the income of the endowed lands been continuously applied to the object of dedication?..................In order to establish a valid endowment it must be proved that the grant was made with the intention that the profits should be applied for the particular religious purpose and that the profits have been so applied. No endowment is created if the deed was not meant to be acted upon and the founder had other or ulterior motives, e. g., tying up of property out of the reach of the creditors. When however the acts and conduct of the parties show that the income of the property was employed in the performance of religious rites and laid down by the founder, the mere fact that the members of the grantor's family were nominated shebaits, or they were to be remunerated out of the endowed fund are not proper grounds for holding the dedication to be nominal.'
While the dealing with the conduct of the testator during his lifetime and that of the manager of the property after his death, the learned author proceed to state thus :---
'........When an endowment is created by a will and is to take effect on the death of the testator, then unless there is evidence to show that the testator gave directions during his own lifetime contrary to the terms of the will, his mode of dealing with the property is irrelevant for the purpose of determining as to whether the endowment is real of fictitious. The acts of the manager after the death of the testator contrary to the terms of the endowment cannot also be regarded as reflecting the intention of the testator.' (PP. 82 and 88).
See also para 407-A of Mulla's Hindu Law (18th Edition).
5. Applying the aforesaid principles, we shall presently examine whether there is any endowment in fact in the present case. The recitals in Ex. A-11 which are very material for the purpose of determining whether or not an endowment has been created would prove beyond doubt that the charitable purpose of purchasing the building under Ex. A-10 and using the same for choultry has been carried out for the years 1923 to 1929. The aforesaid facts would establish that the choultry was in the existence in the year 1929 when Ex. A-11 was executed. The charity was therefore in full swing when the settlement under Ex. A-11 of the property in question was made by late Ramanujacharyulu. In the circumstances, it cannot be said that the trust deed was not acted upon. As Ramananujacharyulu himself was managing the choultry and carrying out the charitable purpose thereof till the year 1929, he had appointed three third party trustees under Ex A-11 to manage the property endowed to the charity under the very same document. It must, therefore, be held that there is intrinsic evidence available in the very document in the form of recitals which would establish the real and true nature of the endowment. Where the trustee commits a breach of trust in not carrying out all or some of the objects of the trust, it does not in any way nullify the trust created for a charitable purpose. When once there is evidence of divestiture of personal rights to the trustees, the trust is complete. In the case on hand, the donor had, in fact, handed over possession of the property settled by him, to the trustees as per the recitals in Ex. A-11. Further, the onus is on the party who assets that a particular endowment is nominal but not real, to establish the same by independent evidence. There is no positive evidence on the side of the appellant to show that the joint family itself enjoyed the property in its own right either by mortgaging or by selling any portion of the same or using the entire usufruct therefrom. But on the other hand there is positive evidence adduced by the Endowment Department through D. Ws. 1 to 3 to the effect that the charitable purposes for which the property in question was dedicated under Exs. A-10 and A-11 were, in fact, carried out and continued till 8 or 10 years prior to the suit. The trial court as well as the learned single Judge accepted the testimony of D. Ws. 1 to 3 and we see no reason to differ from the view taken by them. We may add that no averment that the settlement was fictitious or nominal has been made in the plaint by the appellant herein. What was stated in para 6 of the plaint is only that in a fit of moods, late Ramanujacharyulu had executed the settlement deed Ex. A-11. We are not depending upon the mere execution of the document Ex. A-11 but we have considered the entire evidence, oral and documentary on record, including the relevant and material recitals in Exs. A-10 and A-11, to arrive at a conclusion relating to the intention of the donor. On a consideration of the entire evidence, oral and documentary we have no hesitation to hold that the settlement deed Ex. A-11 executed by Late Ramannujacharyulu created a charitable endowment for the purpose of maintaining the choultry till then managed by him in a building purchased by him in the name of his wife Latchamma under Ex. A-10 for a sum of Rs. 600/- on 24-7-1923 and the same had been acted upon by him from 1929 till his death and thereafter, by the trustees who are charged with the duty to maintain the same in accordance with law. Even assuming without admitting that subsequent to the death of late Ramanujacharyulu, the trustees did not perform their duties in accordance with law or that they have neglected to manage the charitable endowment as per his directions, the nature and character of the trust property in question would not alter. In other words. the heirs of the late Ramanujacharyulu do not acquire any right in the property settled by Ramanujacharyulu under Ex A-11 for the specific purpose of maintaining the choultry at Sitanagaram. In the circumstances, the suit has been rightly dismissed and we hold that there is no merit in this appeal.
6. For all the reasons stated, this appeal is dismissed with costs.
7. Appeal dismissed.