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Gokuldoss Jamnadoss and Co. Vs. M. Lakshminarasimhalu Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectTrust and Societies
CourtChennai
Decided On
Reported in(1940)2MLJ409
AppellantGokuldoss Jamnadoss and Co.
RespondentM. Lakshminarasimhalu Chetti and ors.
Cases ReferredIn Mulla Veetil Seeti Kutti v. K.M.K. Kunhi Pathumma
Excerpt:
.....for the endowment should be set apart as dedicated to that purpose. all these propositions are well established. these documents clearly show that the grandfather had divested himself of all personal interest in the property and obtained from the secretary of state recognition that the title was in the deity. it is true that the testator directed that his widow should enjoy the income of this property for her life and there is no reference to any provision for the adopted son. the adopted son was at that time a boy and it may very well be that the testator considered that the income from the uncharged property was sufficient to support both the mother and son. 138, devaraja mudali street, is created there is a special direction that the balance left over after meeting the expenses..........nos. 133 to 139 in the same street, and a garden known as nos. 27 and 28, mundakanniamman temple street. the suit was filed to recover possession of the property known as nos. 101 and 102 in devaraja mudali street. it was the respondents' case that this property was dedicated by their grandfather in 1890 to the deity sri tholasingaperumal swami of the sri parthasarathi' temple, triplicane, and that he constituted himself the trustee of the property. the grandfather died in the month of december, 1892, leaving a widow and an adopted son venkataraghavalu chetti, the father of the first and second respondents. all the properties owned by the grandfather came into the hands of the adopted son, who by a deed of mortgage dated 28th september, 1916, mortgaged the property in suit for rs......
Judgment:

Alfred Henry Lionel Leach, C.J.

1. There are two questions raised in this appeal. The main question is whether certain immovable property has been dedicated absolutely for religious purposes or only made subject to a charge. The second question is whether the suit out of which the appeal arises is barred by the law of limitation. The plaintiffs in the suit were the first and second respondents, both of whom were minors at the time of the institution of the suit on the 23rd April, 1934. The first respondent attained majority soon after the plaint was filed. The grandfather of the first and second respondents one Munnalur Narasimhalu Chetti, was a resident of Madras and possessed three lots of immovable property within the City, namely, a house known as Nos. 101 and 102 in the Devaraja Mudali Street, seven houses and shops known as Nos. 133 to 139 in the same street, and a garden known as Nos. 27 and 28, Mundakanniamman Temple Street. The suit was filed to recover possession of the property known as Nos. 101 and 102 in Devaraja Mudali Street. It was the respondents' case that this property was dedicated by their grandfather in 1890 to the deity Sri Tholasingaperumal Swami of the Sri Parthasarathi' Temple, Triplicane, and that he constituted himself the trustee of the property. The grandfather died in the month of December, 1892, leaving a widow and an adopted son Venkataraghavalu Chetti, the father of the first and second respondents. All the properties owned by the grandfather came into the hands of the adopted son, who by a deed of mortgage dated 28th September, 1916, mortgaged the property in suit for Rs. 10,000 to the appellants, treating it as his own property. On the 10th January, 1921, he mortgaged the same property to the appellants to secure a further advance of Rs. 15,000. He was unable to discharge these mortgages and the appellants filed a suit to enforce them. A mortgage decree was passed on the 7th March, 1924. On the 11th October, 1924, with the consent of the Court the mortgaged property was conveyed to the appellants absolutely, the consideration being the satisfaction of the mortgage decree. The appellants were unaware that there had been any dedication of the property for religious purposes, but admittedly nothing turns on this.

2. On the 21st October, 1890, the grandfather applied to the Deputy Collector of Madras for the issue of an 'A' form certificate declaring the title to the property to be in the deity. Such a certificate is of the nature of a patta and sets out the name of the owner of the property and the land-tax payable to Government. The application was made because the grandfather had decided to dedicate this property to the deity mentioned. The application has been put in evidence and prays:

That an A form certificate may be issued to Tholasingaperumal of Triplicane after the usual enquiry under the rules of the Registration Department.

3. The application also embodies the following statement:

The certificate of the house herein mentioned is in my name and as I set apart this house as a perpetual gift to Tholasingaperumal of the Parthasarathi temple, Triplicane, I request your honour to issue the certificate in the name of Tholasingaperumal of the Parthasarathi Temple of Triplicane. The property herein mentioned is one of my self-acquired properties and the income (deducting the taxes and the necessary repairs) to be derived from the house herein mentioned is to be used and spent to the daily charities and the second Vidayati Utsavam of the aforesaid Tholasingaperumal of Triplicane. The abovementioned charities are to be conducted by me till my death and afterwards by my heirs, executors, administrators, assigns or legal representatives under the supervision of the aforesaid Tholasingaperumal's Trustees or Dharmakarthas.

4. The application was granted and on the 21st February, 1891, the grandfather 'for Tholasingaperumal Swami Temple, Triplicane' executed a deed in favour of the Secretary of State undertaking to pay the land-tax due to Government in respect of the property. This document constituted the 'A' form certificate. There can be no doubt that this deed was executed by the, grandfather as trustee of the temple. In addition' to there being the words which I have just quoted the witness clause is in the following terms:

Signed, sealed and delivered by the abovenamed Munnalur Narasimhalu Chetti for Tholasingaperumal of Parthasarathiswami Temple, Triplicane, in the presence of....

5. The grandfather at the same time made a similar application in respect of the property known as Nos. 27 and 28, Mundakanniamman Temple Street and although the document has not been produced it is not disputed that he also signed a similar deed in respect of that property.

6. The grandfather died leaving a will dated 26th November, 1892. The appellants claim that the will shows that there was not an absolute dedication of the property to the deity, but that the property was only charged for the purpose of providing funds for specified religious services. It is therefore necessary to examine in some detail the provisions of the will on which this argument is based. In the first paragraph of the will the testator sets out and describes his immovable properties. The second paragraph reads as follows:

The Deputy Collector's Office Certificate bearing No. 2826 for the houses and bazaars having door Nos. 101 and 102 in Devaraja Mudali Street, and the Deputy Collector's Office Certificate bearing No. 2825 for the garden having door Nos. 27 and 28 in Mundakanniammal's Street, Mylapore, out of the above immovable properties were issued in the name of Triplicane Singaperumal on 21st February, 1891 A.D. In the aforesaid Singaperumal's temple shall he conducted from and out of the balance left after deducting from the income coming from these aforesaid houses, bazaars and gardens, expenses for repairs, taxes, gumastas and others, Nityapadi or daily offerings of three-fourths of a measure of sandal or boiled Bengal gram including the offering at Thirumalvada time at a cost of Rs. 4 (Rupees four) per mensem, one palam of Chandanam or sundal paste at a cost of Re. 1 (Rupee one) per mensem, thirtham or blessed water and spices therein and light at Tholasujammah plant at a cost of Rs. 1-8-0 (Rupees one and a half), cardamoms and cloves at a cost of As. 8 (Annas eight) per mensem, and Netti Pushpamala or garland of flowers round the head of the Swami at a cost of Rs. 2 (Rupees two) per mensem. These charities shall be conducted daily. Moreover, in the second Vidayati Utsavam in Vidayati festival following Brahma Utsavams the offerings of eight gunus of Akkaravadisal (sugar rice), eight gunus of Bakalabath (curd rice), six Pongal Taligas, three-fourths of a measure of Dosays (rice cakes), two measures of sundals, three-fourths of a measure of Vadapadi, one measure of Vadapapp'u, one viss of jaggery for panakam, and pattis, chandanam, spices and abhishekam and all the expenses shall be conducted at a cost of Rs. 125 (Rupees One hundred and twenty-five). From and out of the balance left after deducting from the income of immovable properties which are in the name of the aforesaid Triplicane Tholasingaperumal, the taxes, repairs, gumasta and other charges, the charities written above shall be performed permanently and without obstruction by my heirs, executors and administrators. Should there arise any increase or decrease in the income of the said houses, shops and gardens by any reason other than the default of the said persons it shall on such occasions be conducted suitably to such amounts as are realised.

7. In the next paragraph the testator directs the money required to defray the costs of other religious charities which are specified should be paid out of the income of the house and shop known as No. 138 in Devaraja Mudali Street. As I have indicated in this block of property are seven houses and shops but only one of the buildings is charged with these expenses. Any excess of income from this property is to be enjoyed by the testator's 'heirs', etc. The testator then directs that if his adopted son should prove to be wise and behaved properly the estate should be delivered to him upon his attaining 25'years of age. If at that time he was in 'wicked ways' he should only be paid Rs. 15 per mensem for his maintenance. In paragraph 7 the testator gives these directions:

My wife Lakshmamma should enjoy for her life the balance left after deducting taxes and other charges from the income of the houses and bazaars having Nos. 133 to 139 in Devaraja Mudali Street and she may appropriate as she pleases the jewels which she is at present wearing.

8. There are other provisions but these have not been stressed in the arguments.

9. The suit was tried by Wadsworth, J., who held that the testator before his death had made an absolute dedication of the property in suit and that the will so far as the dedicated property is concerned should only be read as containing directions for the guidance of future trustees in the administrations of the trust. The plea of limitation was raised by the appellants before the learned Judge but rejected. The appellants admit that if the property has been dedicated absolutely the only other question is that of limitation.

10. There is no evidence of the manner in which the income of the property in suit was applied from the date of the 'A' form certificate, namely, 21st February, 1891, to the date of the testator's death, nor is there any evidence as to what became of the income after his death until about the years 1919 or 1920. There is evidence that for five or six years before 1926 the income was applied for the purposes declared by the testator but it is not disclosed whether the income was applied in whole or only in part. If the grandfather's application for a certificate in fromm 'A' and the certificate can be read as completing the dedication it matters not what became of the income. If there was a completed dedication the misapplication of the income would not affect its validity. In Sunder Singh-Mallah Singh Sanatan Dharam High School Trust, Indaura v. Managing Committee, Sunder Singh-Mallah Singh Rajput High School, Indaura (1938) 1 M.L.J. 359 : L.R. 65 IndAp 106 : I.L.R. (1938) Lah. 63 (P.C.), the Judicial Committee accepted, subject to a qualification, the following statement of the law made by the Lahore High Court:

It is not disputed that for the foundation of a charitable endowment by a Hindu in the province no writing is required. What is necessary is that the purpose be clearly specified and that the property intended for the endowment should be set apart as dedicated to that purpose. It is necessary that the donor should divest himself of the property. Whether he has done so is to be determined by his subsequent acts and conduct. All these propositions are well established. It is not disputed that a valid endowment once created cannot be revoked by the donor.

11. The qualification of the Board was in these terms:

Their Lordships agree with this statement, except that the evidence of divestiture may be contemporaneous, as in this case, and, in such a case, the subsequent acts and conduct of the donor are irrelevant and cannot reinvest him.

12. Now what is the position here? The grandfather, the absolute owner of the property in a written application to the Collector stated that he had set apart the property as a perpetual gift to the deity and asked that a certificate should be issued showing that the title to the property was in the deity. This application was granted and a deed was drawn up and executed by the grandfather as the trustee of the property vested in the deity by which he covenanted for himself, his heirs, executors, administrators, personal representatives, and assigns to pay the land-tax to the Secretary of State for India. These documents clearly show that the grandfather had divested himself of all personal interest in the property and obtained from the Secretary of State recognition that the title was in the deity. This is not a case of a colourable transaction. It is true that here we do not know whether the grandfather utilised the income for the trust purposes but this does not matter as there was complete divestiture.

13. Mr. Venkatarama Sastri on behalf of the appellants has contended that in view of the provisions of the will the proper construction to be placed on the application to the CollectoV and the. 'A' form certificate is that there was merely an intention to dedicate. He has argued that a contrary construction would mean that there would be nothing left for the heirs and the testator could never have intended this. I am unable to agree that this would be the case. Of the seven shops and houses known as Nos. 133 to 139 only one was charged for religious purposes and the wording of the will indicates that it was anticipated that there would be surplus income even from this one item of property. In any event there were six houses and, shops entirely uncharged. It is true that the testator directed that his widow should enjoy the income of this property for her life and there is no reference to any provision for the adopted son. The adopted son was at that time a boy and it may very well be that the testator considered that the income from the uncharged property was sufficient to support both the mother and son. But be this as it may, the second paragraph of the will is in itself opposed to the contention that there was to be merely a charge. The words 'should there arise any increase or decrease in the income of the said houses, shops and gardens, by any reason other than the default of the said person's it shall, on such occasions, be conducted suitably to such amounts as are realized' mean in my opinion that if there was more income than was anticipated more should be spent on the religious objects which, the testator had in mind and if the income showed a decrease less should be spent. Then in paragraph 3 where the charge on No. 138, Devaraja Mudali Street, is created there is a special direction that the balance left over after meeting the expenses referred to should be enjoyed by the testator's heirs. There is no such provision in the clause relating to the property in suit. For these reasons I am unable to accept Mr. Venkatarama Sastri's argument that the will shows that in 1890 and 1891 the grandfather had only an intention of dedicating the property and that the dedication which only amounted to a charge was given by the will. The application to the Collector itself negatives this argument and by the deed of the 21st February, 1891, the intention was carried into effect. Accordingly I hold that there was a completed dedication and that the, appellants acquired no title to the property. There is no doubt that they were misled. The father of the first and second respondents when the property came in his possession, succeeded in getting an A form certificate which disclosed merely a title in him, but the appellants if they had taken the prudent course of searching the registers in the Registrar's office before accepting his title would not have been in the predicament which they are now in.

14. The point of limitation does not require much discussion as there is the authority of this Court which bound the learned Judge and binds us. The appellants say that the article of the Limitation Act which applies in this case is Article 134 as it stood before its amendment by the Indian Limitation Act, 1929, which came into force on the 1st January of that year. Before the amendment the article provided that the period of limitation for a suit to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration was twelve years from the date of the transfer. The amending Act makes the period run from the date when the transfer becomes known to the plaintiff. It is conceded that if the article as it now stands applies the suit was in time but it is said that it cannot apply and that the mortgages stand as the suit was filed more than twelve years after the mortgages had been entered into. The mortgages were simple mortgages and the mortgagees were not put in possession until the 11th October, 1924, when the property was conveyed to them. In Mulla Veetil Seeti Kutti v. K.M.K. Kunhi Pathumma : (1917)33MLJ320 , which was decided before the amendment of the Limitation Act, a Full Bench of this Court held that Article 134 of the Limitation Act did not apply to a transfer from a trustee or mortgagee under which possession was not taken by the transferee. Mr. Venkatarama Sastri has conceded that in the face of this Ruling he cannot maintain in this Court that the old Article 134 applies.

15. The appeal fails and must be dismissed with costs in favour of the first and second respondents. The fourth and fifth respondents will be granted their costs out of the trust property and we fix the amount at Rs. 50.


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