1. After deciding all the other issues in the appellants' favour, the Subordinate Judge dismissed the suit on she ground that they had failed to prove such an interest in the subject-matter as to entitle them to maintain it. It is first to be observed that this point was not taken in the written statement and was not included in any of the thirteen issues, though it was taken and overruled in the proceedings before the Collector when sanction to prosecute the suit was asked for and granted to the plaintiffs. It has been repeatedly held in this country that such a suit as the present may be instituted by any member of the class intended to be benefited by the charity for the support and preservation of which the aid of the Court is invoked. According to the document which evidences the institution of the charity the class for which it was intended comprised Brahmans generally. The document does not restrict the charity to any particular sect, nor does, the oral evidence show that the alleged founder Gopalakrishna Ayyan excluded from his bounty such Brahmans as the plaintiffs might properly be taken to represent. The circumstance that the Brahmans entertained by him were ordinarily Japtas or travellers does not, especially when taken with the language of the instrument of dedication, indicate any intention to restrict the charity to Brahmans answering to one or other of those descriptions. For these reasons, I think the Subordinate Judge was wrong in dismissing the suit on the ground of want of interest in the plaintiffs, I have now to consider the several points raised on behalf of the respondent, Gopala Ayyan, who is the adopted son of the alleged founder of the charity. It was first contended that the story told by the plaintiffs' witnesses and recited in the instrument of 1878 and again in the agreement of 1881 relating to the adoption, was a pure invention, that Gopalakrishna Ayyan never made any arrangement or gave any instructions such as are attributed to him, and that his widows and mother never had any real intention of dedicating property to charitable purposes. Although the instrument of 1878 was executed only ten days after his death and actually written by the second respondent's father, although the same facts are recited in the agreement of 1881 to which the second respondent's father was a party, and although the same individual representing one of the widows, insisted before the Tahsildar in 1883 that the charity should be maintained as it had been instituted by the adoptive father of the second respondent, we are asked to say that the idea of dedicating property to charity originated solely in the minds of the widows, and was carried out merely as a scheme for preserving to them as against a child who might be adopted some control over the property of their deceased husband. A more hopeless contention can hardly be conceived. It seems necessary to observe that there is a strong presumption in favour of the truth of statements recorded in writing by persons who are under no disability, and that the Court is most reluctant to bold that the parties did not mean what they said. I think there can be no doubt that the widows intended to create or confirm a valid trust, and further I agree with the Subordinate Judge in finding that they acted in conformity with directions given by their deceased husband. The question then is whether the evidence justifies the finding that there, had been a previous declaration of trust by the husband. The plaint alleges that fifteen years before his death he had set apart certain lands for charitable purposes and there is some general evidence in support' of the allegation. It certainly is proved that, for some years, he had been carrying on the charities which are mentioned in the instrument of 1878, and it is probable that he did so with the proceeds of the Adhichapuram lands. But I do not think it is proved that he dedicated any particular lands or even any particular share to this purpose. The evidence is wholly wanting in the precision and detail requisite for the proof of such a dedication, when no written instrument executed by the alleged founder is produced. It is not unimportant that he did execute a registered deed for the benefit of a Siva temple.
2. But I think there is another ground on which the plaintiffs' claim may be supported. As an act done by the widows in pursuance of the instructions of their husband, the deed of settlement of 1878 would be inoperative as against the adopted son. Regarded as ' an incomplete gift made by the husband and carried out by the widows, it could not stand on a higher footing than would a will executed by Gopalakrishna Ayyan, and the interest of the adopted son clearly could not be defeated by a will. But if the directions given by Gopalakrishna Ayyan to the widows regarding his charities, and the mode of maintaining them are associated with the direction to take a child in adoption, it may fairly be inferred that he did not intend an adoption to take place, except on the condition that his directions as to the charities are observed. This is the view of the matter which the widows actually took, for the father admits that they would not have taken his son unless he had consented to maintain the charities. The written agreement made in respect of the adoption shows that the adoption was made on that condition and on the other terms mentioned in the instrument of 1878. If the condition had been originated by the widows, it might not have been binding on the adopted son, but seeing that the husband's authority was qualified by a condition which he was at liberty to impose, and that the condition was insisted on when the authority was exercised, I think the adopted son is in no other position than he would be, if Gopalakrishna Ayyan himself had taken him in adoption, at the same time declaring that he did so only on the condition of certain property being set apart for charity. As there would have been no adoption if the requisition of the widows had not been obeyed, and as the widows were entitled and indeed bound to make that requisition, I do not think it is open to the adopted son, now to repudiate the condition. In this view of the facts, the decision in Lakshmi v. Subramanay I.L.R. 12 Mad. 490 applies.
3. The decree of the Subordinate Judge will be reversed. It being necessary to provide for the conduct of the charity and the second defendant having, in consequence of his conduct, forfeited his right to act as trustee, we must direct the Subordinate Judge to inquire and submit the name of some competent person willing to accept the office. The trustee when appointed will be subject to the superintendence of the Tanjore District Board, and his accounts will be opened to the inspection of the managing member of the founder's family for the time being. The Subordinate Judge will also ascertain the probable average income of the endowments and submit a scheme for the disposal of the income in accordance with the wishes of the founder. On the occasion of a vacancy, the President of the Local Board to appoint a successor out of the founder's family, if possible. The Subordinate Judge will be at liberty to apply for further directions. The second defendant must pay the plaintiffs' costs in this and in the lower Court.
The report is to be submitted within three months from the date of the receipt of this order, and seven days will be allowed for filing objections after the report has been posted up in this Court.
Subramania Ayyar, J.
4. I wish to make a few observations only, with reference to the contention urged on behalf of the second defendant, that the dedication of the lands to the charity in question is not binding upon him.
5. The evidence clearly proves that the second defendant's adoptive father Gopalakrishna Ayyan, shortly before his death and during the illness which terminated fatally, directed his widows to make the dedication referred to and authorized the adoption of a son to him. Accordingly ten days after his death, they executed Exhibit A and handed over possession of the property dedicated to the person who was entrusted with the management of the affairs of the charity, and about two or three years after Exhibit A the second defendant was adopted. It is also established that the natural father of the second defendant gave him in adoption with the full knowledge of the alienation and acquiescing in it and that, but for such acquiescence, the second defendant would not have been adopted.
6. The contention on behalf of the second defendant was twofold, first, that though the second defendant was adopted in 1881, yet his title related back to the date of the adoptive father's death, and as Exhibit A was later, the alienation is not binding on him; secondly, even if his rights accrued from 1881, still he is entitled to set aside the alienation. The first part of the contention may be dismissed from notice, for it is too late to question the doctrine that the adopted son's rights arise from the time of the adoption. Bamundoss Mookerjea v. Mussamut Tarinee 7 M.I.A. 169 . The second part of the contention alone requires some consideration. Now under the nuncupative will of Gopalakrishna Ayyan--such in my view do the instructions evidenced by Exhibit A amount to compare Hari Chintaman Dikshit v. Moro Lakshman I.L.R. 11 Bom. 89 the direction that the property be devoted to the charity and that the authority to adopt, both should be given effect to only after his death. Though in fact the second defendant was adopted two or three years subsequent to the execution of Exhibit A, yet his case cannot possibly be put on a higher footing than if he had been adopted at the moment of the adoptive father's death. Let us, for argument, suppose that such was the case. It is clear that the direction as to the allotment of the property to the charity was an oral devise, which became operative the moment the testator died and as ex hypothesi, the second defendant's title to his adoptive father's estate accrued then and not earlier, it is difficult to see how on principle the defendant could be entitled to question the alienation. For, unlike the case where the adoption takes place before the will comes into force, the adopted son's right, according to the supposition, comes into existence simultaneously with the right of the charity. How then can the former derogate from the latter right? Even if the above view were unsustainable (though it is not easy to see how it could be), the second defendant must nevertheless be held bound by the alienation. For the circumstances in which the adoption took place rendered it conditional on the alienation not being challenged by the adopted son, and the case would then be clearly governed by the decision in Lakshmi v. Subramanya I.L.R. 12 Mad. 490 Narayanasami v. Sama-sami I.L.R. 14 Mad. 172 and Basava v. Lingangauda I.L.R. 19 Bom. 428.
7. If, from the hypothetical case, we turn to the actual facts of the case before us, there is no doubt that the title of the adopted son could not 'affect the right of the charity; for the latter right had vested long before the adopted son's right arose. The second defendant's rights must therefore be held to be subject to that created in favour of the charity by the oral devise, and it is hardly necessary to point out that Exhibit A does not evidence an alienation by the widows, but is a mere formal declaration executed by the persons appointed by the testator to bring into existence such written evidence of his disposition and who held possession of the property devised till they transferred the same to the duly constituted manager of the charity only as the trustees for the charity. Compare Bhaskar Purshotam v. Sarasvatibai I.L.R. 17 Bom. 486.
8. In the view I have taken of the case, it has become unnecessary to consider, supposing that the direction to transfer to the charity amounted not to a devise, but to a mere power to transfer at the discretion of the widows, whether the execution of such power, before the power to adopt was exercised, would not disentitle the adopted son to question the alienation.
9. I, therefore, concur in the conclusion arrived at by my learned colleague.