Alfred Henry Lionel Leach, C.J.
1. The sole question involved in this appeal is whether under the will of one Ramanujakootam Mangamma who died on the 8th August, 1914, there was a dedication to charily of certain immovable property or whether the property was merely charged to charitable uses. Paragraph 3 of the will reads as follows:
I having up to now treated as daughter by affection and brought up Manchukonda Nanugannamma, alias Alamelumangathayaramma, daughter of my deceased younger sister Dachepalli Andalamma, she and her descendants shall take possession of and reside free of rent in one kitchen downstairs and the two rooms upstairs on the eastern side and the halls attached thereto in house No. 25, Venkatachalla Mudali Street. The remaining portion of the said house shall be let on rents and the rents realised shall be utilised for services in the manner described below:
(a) for the Brahmotsavam festival of Sri Venkateswara on the hills in the Tirupati Devasthanam, Rs. 100 per year;
(b) Feeding 25 Vaishnavas on every Dwadasi day in the Bairagimatam or otherwise known as Thiruvengadamudayan temple, Madras, and
(c) Dosaipadi service on every Ekadasi and Amavasai days (eleventh day of the forthnight and new moon days) in Sri Chenna Kesava Perumal temple, Devaraja Mudali Street, Madras.
2. The property in suit is the property referred to in this paragraph and what the Court has to decide is whether Nanugannamma, who has been referred to in this appeal as the residuary legatee, takes the whole property subject to a charge in favour of the charities set out in the paragraph or whether there is a complete dedication to charity of that portion of the house which was not set apart for the residence of Nanugannamma.
3. Having made these provisions the testatrix goes on to direct her executors to sell another property owned by her, namely No. 16, Varadayya Street, Madras, and, after paying her debts to give one half of the balance to the residuary legatee and the other half to the head of the Tirupati Jeer Matam in Tinnanore for the purpose of 'daily feeding' in the Mutt. After disposing of her jewels and household articles the 'testatrix provides that the remainder left after deducting the charity expenses 'as detailed above' shall be given to the residuary legatee. The charity expenses 'detailed above' admittedly refer to the charity expenses set out in Clause 3 of the will.
4. Another clause of the *will which has been referred to in the arguments is Clause 7, which reads as follows:
Neither my gnatis nor the executors nor any other kind of relations have any right or title whatever to make gift etc., or sale or to create mortgage in respect of the aforementioned house No. 25, Venkatachalla Mudali Street so long as sun and moon may last.
5. The suit was tried by the Additional Judge of the City Civil Court, who came to the conclusion that there was no dedication of the property No. 25, Venkatachalla Mudali Street to charitable uses, but only of the income. It is common ground that the rents accruing from that property will provide far more than is necessary to meet the expenses of the charities. According to the appellant the gross income is Rs. 1,200; according to the respondent it is Rs. 1,400, but they are both agreed that not more than Rs. 350 will be required to comply with the directions with respect to charity contained in paragraph 3 of the will.
6. In Har Narayan v. Surja Kunwari , the Privy Council had to consider a case where a testator directed that his property should be considered to be the property of a certain idol, but went on to provide that:
Whatever may be saved after defraying the expenses of the temple and the pay of the servants shall be used by our legal heirs to meet their own expenses.
7. Lord Shaw in delivering the judgment of the Judicial Committee observed:
In such cases no fixed and absolute rule can be set up, derived alone from the use of particular terms in one portion of the will. The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their up-keep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the up-keep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will.
8. In that case, as in the present one, the income of the property was considerably in excess of what was required for the worship and maintenance of the temple. Lord Shaw quoted a passage from the judgment of Turner, L.J., in Sonatan Bysack v. Sreemutty Juggutsundree Dossee (1859) 8 M.I.A. 66, where Turner, L.J., said that:
Although the will purports to begin with an absolute gift in favour of the idol, it is plain that the testator contemplated that there was to be some distribution of the property according as events might turn out and that he did not intend to give this property absolutely to the idol seems to their Lordships to be clear from the directions which are contained in various clauses of the will.
9. On this line of reasoning the Board held in Har Narayan v. Surja Kunwari , that the intention was that the heirs should take the property subject to a charge for the performance of the religious purposes named.
10. In Ashutosh Dutt v. Doorga Churn Chatterjee I.L.R.(1879)Cal. 438 : 6 I.A. 182 , the Privy Council had to consider a Hindu will which has much in common with the will now under consideration. The operative parts of the will opened as follows:
I dedicate the auction-purchased property No. 3496, Lot Panchgatchia, Pargana Baligori, Zilla Hooghly, standing in my name to the Thakur Ishwar Raj Rajeswar that is in my house. And the Sarodia Pooja and other ceremonies that are being performed in the house will be performed as hitherto. After all these acts have been observed from the proceeds of the said property, if there be a surplus in the profits then the family will be supported therefrom.
11. After appointing the executors the testatrix said:
After your death he who is my heir for the time being will be the executor of this will : Beyond performing the aforesaid worship of the deb and the ceremonies and poojas, none of my heirs shall have any interest in or profit from my property. And they will have no power of gift or sale over it. And it will not be attached or sold on account of their debts.
12. It was held that there was here a bequest of the surplus to the members of the family for their own use and benefit and that each of the sons of the testatrix took a share in the property after satisfying the religious and ceremonial trusts. With regard to the prohibition against gift or sale Sir Barnes Peacock, who delivered the judgment of the Board, pointed out that this direction being inconsistent with the interest given was beyond the power of the testatrix and must be rejected as having no operation.
13. Now, what is the position here? The will provides that a portion of the property which was not to be occupied by the residuary legatee should be let and the rents utilised for specific purposes, but later the testatrix provides that the surplus shall go to the residuary legatee. The amount of the surplus was and is far greater than what is required to comply with the directions of the testatrix with regard to religious charities. It is also to be observed that the testatrix had no children of her own and she had brought up the residuary legatee as her daughter. As a matter of fact she described her in the will as her 'daughter by affection'. And the prohibition against alienation must be ignored as the Privy Council indicated in Ashutosh Dutt v. Doorga Churn Chatterjee I.L.R.(1879)Cal. 438 : 6 I.A. 182 .
14. In these circumstances we. are of opinion that the learned trial Judge came to the correct conclusion in holding that the property was taken by the residuary legatee subject to a charge Consequently the appeal will be dismissed with costs.