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R.M.S. Firm Consisting of Partners Raman Chettiar and ors. Vs. S.L.M. Muthuswami Odayar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad188; (1940)2MLJ803
AppellantR.M.S. Firm Consisting of Partners Raman Chettiar and ors.
RespondentS.L.M. Muthuswami Odayar
Cases ReferredKayastha Patasala Allahabad v. Mt. Baghwathi Devi
Excerpt:
.....not being less than 1,000 of oil on wednesdays and saturdays and also 1,000 mud vessels. in other words the feeding of poor pilgrims does advance religion according to the tenets of roman catholics, and it cannot be said therefore that the dedication was not 'for the benefit of the public' within the meaning, of these words which are found in section 18 of the transfer of property act. i is found to be valid, it is obvious the suit must fail, and the suit must therefore be deemed to have been rightly dismissed......the trust itself is valid because the dedication was partly for purposes which were not for the public benefit can be raised in a suit of this kind has been decided by their lordships of the privy council against the present contention of the appellants. in other words, even where questions may arise under sections 14, 16 or 17 of the transfer of property act in connection with certain dispositions in favour of private persons, nevertheless an attack on the trust deed on such grounds cannot be made except in a suit for administration of the trust or the assets belonging to the person who made the dedication or created the trust. it is, however, not necessary to rely on this aspect because in this case there is no foundation laid for the attack on ex. i on this ground, namely, that any.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the decree of the Subordinate Judge of Tiruvarur dated 24th August, 1936 in O.S. No. 39 of 1935 on his file, a suit to set aside the order made on a claim petition on the 11th October, 1933, in favour of the defendant. The subject-matter of the dispute is about 47 acres of land situated in two villages which were under Ex I dated June 25th, 1927, dedicated for certain purposes connected with the tomb of the defendant's father Chinnayya Odayar and the well-known annual Roman Catholic Festival at Velanganni.

2. The principal facts of the case are that the defendant is the head of a family which possessed considerable landed property and also engaged in trade on a fairly large scale in several places. The landed property of the family was as much as 200 velies, a veli being equal to about 6 1/2 acres. The defendant was assisted in the business by his three sons and the defendant and his sons executed Ex. I which is styled a partition deed on 25th June, 1927. The partners are however Christians and the phrase 'partition deed' is perhaps not the correct description to be applied to the document. It is this document that was put forward as a shield by the defendant when the properties in question which had been dedicated for the purposes mentioned above were attached in execution of a decree obtained by the plaintiffs who are Nattukottai Chettis against the defendant. The claim put forward by the defendant on the strength of Ex. I was allowed and the attachment was cancelled and the present suit was instituted by the plaintiffs to set aside the order on the claim petition and to declare that the properties covered by Ex. I are liable to be attached and sold in execution of the decree obtained by them against the defendant. The main contest in the Court below centred round the question whether the dedication made by Ex. I was valid. The finding was in favour of the defendant, that is to say, in the affirmative and the suit was dismissed with costs. The plaintiffs are the appellants and the same point which arose for decision in the Court below is the point for determination in this appeal. The truth of the document, that is to say, its execution or registration, is not denied and the only attack made on it is in respect of its validity. This attack is based on more than one ground and it will be convenient to deal with each separately. In the first place it was contended that the dedication was not real but only sham or illusory; in other words, that there was no intention whatever to make a dedication or create a trust, but the document was executed merely for the purpose of screening the properties in question from creditors. So far as this ground of attack is concerned very little need be said in support of the finding of the Court below, for this part of the case has been very fully dealt with in the judgment appealed from and the attack on this part of the judgment was never very serious. It is not as if the properties concerned formed any considerable portion of the properties of the executants. As mentioned already, the landed properties of the family were very considerable in extent, being about 1300 acres and what was dedicated by Ex. I was less than 50 acres of land; a very small fraction, indeed, of the total property. It cannot be said that if the idea was to screen the properties from the creditors the executants would have thought of screening only a very small fraction of their total property from the creditors. Secondly, there is no doubt that actually the purposes mentioned in Ex. I for which the dedication was made were being carried out though much better evidence could have been perhaps adduced. There is very little reason to doubt the actual fact that the charities mentioned in Ex. I were being performed both before the document was executed and afterwards, and the dedication in Ex. I was merely to, give permanency to what was being done for several years in commemoration of the deceased father of the defendant who had died about 30 years before. As pointed out by the learned Subordinate Judge, action was taken after Ex. I as if it was a genuine dedication because a patta was taken out for the lands in the name of the charity, and receipts were being granted in the name of the charity. Lease deeds were also taken in. the name of the charity and account books were maintained showing the extent of the income of these lands for the charity. It is also found that Ex. I was mentioned in all subsequent important transactions with the creditors, and it is obvious that but for Ex. I there could not have been these transactions. The main object of Ex. I, as a perusal of Ex. I will show, was to make arrangements for the satisfaction of the creditors of the family treating all the debts incurred by whichever member of the family as debts binding on the family and making all the properties belonging to the family liable in respect of such debts. The arrangement was that the father, that is, the defendant, was to divest himself of all his rights in the properties which, as mentioned already, were very considerable except for a small house worth about Rs. 2,000 and all the properties of the family, that is, the entire 200 veils of land and the outstandings due to the family with the exception of the property reserved for the charity were placed in the hands of the sons for the express purpose of paying off all the debts, one of the conditions being that the sons were not to alienate any of the properties or to make any partition as between themselves of the properties till all the debts were paid. It is thus clear that the main object of Ex. I was to make an efficient arrangement for the payment of all the creditors and incidentally to make a small provision for a religious or charitable purpose. It is found that there was an endowment in respect of the tomb of the defendant's grandfather which was being administered for a long time and it was nothing out of the way therefore for the defendant and his sons to agree to create a similar endowment for the tomb of the defendant's father. It is really unnecessary to say more on this topic, for it is, futile to contend that the dedication was not real or was only illusory. That the intention was to make a real dedication is clear not only from the document itself but also from the surrounding circumstances and the subsequent conduct of the persons connected with the document. The attack therefore on the document on the ground that it did not make a real dedication of the propertied for any religious or charitable purpose must fail.

3. The real attack on the document is on the ground that it was in fraud of creditors and it is this aspect of the case that has taken most of the time during the argument before us. In deciding this question regard must be had to the state of affairs at the time Ex. I was executed, that is, June 1927. In other words, we have to ascertain what was the actual financial condition of the defendant and his sons in June, 1927, when this dedication was made. This evidence has been analysed by learned Counsel and the gist of the evidence is as follows. The assets of the family were a house worth Rs. 2,000 and 200 velis of land and certain outstandings. What exactly the outstandings were it is not possible to say and the appellants' advocate has valued the lands at a flat rate of Rs. 300 an acre, proceeding on the basis of the price paid for the lands now in dispute under Ex. III. The valuation therefore on behalf of the plaintiffs of the assets is Rs. 3,92,000 and it omits all mention of outstandings and is based on a mere estimate of the value of the lands and not on the actual values fetched subsequently. It is not denied that the price of land fell after 1927 and the evidence shows that 536 acres were sold in discharge of debts ring the period 1930-34 for Rs. 2,64,000, making an average of nearly Rs. 500 an acre; and it is seen that another 540 acres still remained subject to incumbrances to the extent of about Rs. 2,10,000. Making allowance for the fall in the price of lands after 1927, it would not be wrong to say that the value of the lands in 1927 must have been at least Rs. 600 an acre. Even allowing only Rs. 500 an acre, the value of the lands, namely, 200 velis or 13,000 acres would be Rs. 6 1/2 lakhs. This figure, may, in our opinion, be taken as a conservative estimate of the value of the lands in June 1927. As regards the liabilities the statement furnished to us by the appellants' advocate shows only Rs. 4,22,870 as the total amount of the debts. Out of this amount it is obvious that at least Rs. 40,000 should be deducted because this amount of Rs. 40,000 is included in the larger amount of Rs. 1,09,370 shown as the amount due to the Hongkong and Shanghai Bank. A reference to the document relating to this debt at page 78 of the printed record shows that this debt of Rs. 40,000 was incurred on a promissory note executed on 26th July, 1927. It is thus clear that this debt of Rs. 40,000 was not in existence on the date of Ex. I. The finding of the learned Subordinate Judge is as follows:

Upon a review of the evidence of the parties as well as the transactions of the debts and discharge it appears to me to be safe to infer that the properties were worth Rs. 5 lakhs and the debts did not exceed that figure.

4. He also points out that there are no sufficiently strong circumstances which indicate that there was any intention to defeat or delay creditors and that no creditor thought of challenging Ex. I from 1927 onwards till the attachment was made by the plaintiff in 1933, though all the creditors would have been aware of the document very soon after it was executed. The third plaintiff in his evidence admitted that the value of the assets was Rs. 4 1/2 lakhs, on the then basis, that is to say, on the basis of the value in 1927. He said so even in his examination-in-chief and repeated it in cross-examination. It is therefore clear that even according to his own statement the assets are worth more than the amount of the liabilities, because, according to the statement furnished to us by the appellants' advocate, the liabilities were then only Rs. 4,22,870. This value is certainly less than the then value of the assets according to the third plaintiff himself. In this connection some allowance has to be made also for the natural propensity of mankind to take a rosy view of things and to value one's own property at a little higher figure than would perhaps be fetched in the market. There is the undoubted fact that a portion of the property was actually sold for Rs. 2,64,000 and another portion of the property is still regarded as sufficient security for Rs. 2,10,000 and a balance is left of about 200 acres. As we have said already, on a conservative estimate, the assets must have been worth at least Rs. 6 to 6 1/2 lakhs and as the debts could in no case be said to have exceeded Rs. 4 1/2 lakhs in 1927, the position was certainly not unfavourable and the defendant and his sons could never have thought for a moment that any of their creditors were likely to be defeated or delayed by reason of the dedication of a small extent of land, less than 50 acres, for a religious purpose. In other words, the circumstances do not permit any inference against the honesty or integrity of those who brought about Ex. I. We have no doubt that they must be deemed to have acted honestly and that there could not have been any intention to defraud or even knowledge that any creditor would be defrauded thereby. If, as a matter of fact, one or two creditors still remain unpaid, it is perhaps due to the forced sales which took place after 1927 and the fall in prices. It is not proper to judge the intention of the defendant and his sons in 1927 by what has happened since. No circumstances existing at the time have been made out from which an inference of fraud can be drawn. This is itself sufficient to support the finding of the Court below and it is really not necessary for us to go further into details which have been correctly stated in the judgment appealed from.

5. The next ground of attack is that the dedication is not a valid one and in any case cannot prevail as against the creditors of the defendants. The learned advocate for the appellants even went to the length of saying that, even assuming that the dedication by Ex. I was for a religious purpose, the purpose was only private and not public and that therefore the trust could not be regarded as valid in view of Section 14 of the Transfer of Property Act. There is really no substance in this contention. It is clear from Section 18 of the Transfer of Property Act that the restrictions in Sections 14, 16 and 17 do not apply in the case of transfers of property for the benefit of the public in the advancement of religion, etc. In this case there can be no doubt that the purpose was a religious one, that is to say, for the advancement of religion and there is nothing to show that it was not for the benefit of the public. If it had been intended to attack the validity of the dedication in Ex. I, on the ground that there was no benefit to the public thereby, it should have been pleaded in so many words, for the question whether a particular charity was for the benefit of the public or not is a question of fact on which evidence can be led. For instance, whether the offering of prayers at the tomb or the performance of other ceremonies there, are for the benefit of the public is a question that cannot be answered as a question of law; for the answer must depend on the beliefs entertained by the class or community to which the dedicators belonged. Even otherwise it seems to us that really the purpose of the dedication was not private. The main purpose was obviously for the benefit of the public. By far the more important purpose was the feeding of the poor pilgrims twice a day on ten days during the festival of Arogyamatha Swami at Velanganni without distinction of caste or religion and the distribution to them, the number not being less than 1,000 of oil on Wednesdays and Saturdays and also 1,000 mud vessels. It is clear that it was a purpose that must necessarily consume by far the greater part of the income derived from the land set apart for this charity. No doubt it is added at the end later on that Arathanai and Japams should be daily performed at the grave with lights, flowers, incense, etc., according to the custom of the family. It does not follow that the introduction of this clause about the performance of japams etc., at the grave makes any difference. Even the feeding of the pilgrims and the distribution of oil among them is to be done in the name of the tomb charity or the Samadhidharmam as described in the document. The learned Subordinate Judge has stated with reference to the clause in Ex. I regarding the offering of prayers, japams, etc., at the tomb that the dedication for such a purpose is not valid, relying on Most Reverend Joseph Colgan v. Administrator-General of Madras I.L.R. (1892) Mad. 424 which held, following the older English cases, that a dedication for perpetual masses for the benefit of the soul of the departed was void as being one for superstitious uses. It y be necessary that the ruling in Most Reverend Joseph Colgan v. Administrator-General of Madras I.L.R.(1892)Mad. 424, which relies on those old cases which were subsequently overruled by the House of Lords in Bourne v. Keane (1919) A.C. 815 may have to be considered if anything really turned on this aspect of the case. Our attention has been drawn to the recent case - Kayastha Patasala Allahabad v. Mt. Baghwathi Devi (1937) 1 M.L.J. 166 : L.R. 64 IndAp 5 : I.L.R. (1937) All. 3 decided by the Privy Council in 1936. Though that was a case in which the trust deed had not been attacked on the ground of being an attempt to defraud creditors, nevertheless in dealing with the question whether the trust itself is valid because the dedication was partly for purposes which were not for the public benefit can be raised in a suit of this kind has been decided by their Lordships of the Privy Council against the present contention of the appellants. In other words, even where questions may arise under Sections 14, 16 or 17 of the Transfer of Property Act in connection with certain dispositions in favour of private persons, nevertheless an attack on the trust deed on such grounds cannot be made except in a suit for administration of the trust or the assets belonging to the person who made the dedication or created the trust. It is, however, not necessary to rely on this aspect because in this case there is no foundation Laid for the attack on Ex. I on this ground, namely, that any of the purposes for which the dedication was made were purely for private benefit and not for the public benefit. It cannot be said that ex necessitate rei the offering of prayers, japams, etc., at the grave can never be for the public benefit or for the benefit of any section of the public. In any case, this purpose appears to be obviously subordinate to the main purpose of the dedication which was to feed poor pilgrims and distribute oil among them during the ten days of a well-known festival in the neighbourhood. Such a dedication is obviously for the benefit of the public and it certainly advances religion according to the notions of the community to which the executants of Ex. I belong; in other words the feeding of poor pilgrims does advance religion according to the tenets of Roman Catholics, and it cannot be said therefore that the dedication was not 'for the benefit of the public' within the meaning, of these words which are found in Section 18 of the Transfer of Property Act. This attack on Ex. I on the ground that it offends against the provisions of Section 14 of the Transfer of Property Act is one of which no hint is given in the plaint.

6. For the reasons given above we see no reason to interfere with the finding of the lower Court on the only question which arises in this litigation, namely, the validity of Ex. I. Once Ex. I is found to be valid, it is obvious the suit must fail, and the suit must therefore be deemed to have been rightly dismissed. The appeal is accordingly dismissed with costs of the defendant-respondent.


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