1. In these appeals the Court is called upon to decide the effect of the will of one Sundaram, who died in the month of July 1983. The testator had two sons, Shanmugam and Sethuraman, and a daughter, the plaintiff in the two suits which have given rise to the appeals. Shanmugam predeceased his father. He left a widow Swar-navalli, but no issue. Sethuraman died on 23rd February 1936 and Swarnavalli in March 1940. Sundaram executed a will dated 29th January 1933 in which he purported to leave for charitable purposes the net income of the properties described in the document, after deducting certain sums for the maintenance of his son Sethuraman and his daughter-in-law Swarnavalli. The properties were described by the testator as being his own. One of the questions in the appeals is whether the properties belonged to the joint family. Another question is assuming that the testator had the right to dispose of the properties by a will, whether the directions amounted to a dedication to charitable uses or merely created a charge for such uses. It is quite clear that the testator intended that Sethuraman and Swarnavalli should act as trustees of the charities mentioned in the will, and that they did so act has been found as a fact. It is also said on behalf of the appellants that even if the properties belonged to the joint family, as the Subordinate Judge has found, the plaintiff is not in a position to challenge the validity of the endowments as Sethuraman accepted as being valid the provisions of the will and acted as a trustee of the charities named therein.
2. In O.S. No. 90 of 1942, filed on 18th November 1942, namely, two years and eight months after the death of Swarnavalli, the plaintiff claimed the estate as the heir of her brother on the basis that the will was invalid She averred that her father had torn up the will. This allegation was entirely false and it is now accepted on her behalf that her father did leave the will relied upon by the defendants and that it was executed by him when in full possession of his faculties. In this suit the plaintiff sought to set aside certain alienations of properties covered by the will for which Swarnavalli was responsible when she was acting as the sole trustee of the charities declared in the will after her husband's death. Appeal No. 113 of 1944 is from the decree passed in O.S. No. 90 of 1942. The appellants are defendants 5 and 6, who are two of the alienees. The plaintiff filed Order Section No. 15 of 1943 to recover another lot of property alleged by her to belong to her father's estate. It was in the possession of defendant 2, who claimed to be a usufructuary mortgagee of it. The mortgage had been created by Swarnavalli after her husband's death and the plaintiff said that it was invalid. The suit was decreed and Appeal No. 43C of 1914 is the result. The two suits were dealt with in a common judgment. The appeals can also be dealt with together.
3. The Subordinate Judge's findings may be summarised as follows : (1) The will set up by the defendants had been executed by Sundaram when in a sound disposing state of mind and it had not been revoked; (2) the will was invalid because the properties disposed of by it were not the separate properties of the testator, but belonged to the joint family; (3) assuming the will to be binding on the plaintiff, it merely created a charge in favour of the charities mentioned in it; (4) Swarnavalli had no title to any of the properties left by her father-in-law and therefore conveyed no title to the alienees; (5) the alienees were not bona fide purchasers or mortgagees, as the case might be, as they had not made proper inquiries with regard to the title of Swarnavalli to convey or mortgage and (6) the alienations were not binding on the plaintiff who was entitled to a decree for possession as the heir of her deceased brother Sethuraman.
4. In the first place, we will deal with the question whether the properties covered by the will belonged to the testator in his own right or whether they belonged to the joint family. The testator was a carpenter and as such did not earn more than Re. 1-8-0 per diem. His father was one Nallaperumai who died many years ago. Nallaperumal had another son, Ramalingam. When Nallaperumal died he left property which became ancestral property in the hands of his sons. In 1903 the sons decided to separate. The movable properties of the joint family were partitioned in that year. Sundaram's share of these properties amounted to Rs. 3500, represented by debts due to the joint family. In 1306 the immovable properties were partitioned and to Sundaram was allotted property valued in the deed of partition at as. 1200. The learned Subordinate Judge says that this was probably an undervaluation. While we can well believe this to be the case, we will assume that it was its true value. Therefore, by 1907 Sundaram became the owner of what was ancestral property to the value of Rs. 4700. Admittedly he carried on a money-lending business. He could only have carried on this business with what he had received in the partition with his brother. Certainly his earnings as a carpenter would not have been sufficient to provide the capital for a money-lending business. He was obviously of a thrifty nature. In addition to money-lending he conducted chit funds in his own name, but here again the capital required for them could only have come from the nucleus of the ancestral properties and what he had made out of them. It was not until 1917 that he was in a position to buy the first of the immovable properties which stood in his name at the time of his death. The value of these properties was some Rs. 38,000. The Subordinate Judge has hold that they must have been acquired out of the nucleus of the ancestral properties which fell to Sundaram's share in the partition with his brother. With this opinion we are in full agreement. He had no capital apart from that which came to him in 1903 and 1906. The ancestral properties which he received in these years provided a sufficient nucleus for the acquisition in the course of years of the properties in suit and therefore the burden of proving that they belonged to the testator in his own right lay upon the appellants. They have certainly not discharged the burden.
5. This being the position, the testator could not by his will dedicate the properties to charitable uses, but if it was his intention and properly expressed, his son's concurrence therein would alter the position. The principle stated by the Privy Council in Parmanandas Jivandas v. Vinayak Rao Wassudeo 7 Bom. 19 would in such circumstances apply and effect would have to be given to the will. In that case a Hindu testator made a bequest for charitable uses. His nephew, the son of a deceased brother, who was entitled either as his heir or as legatee to the residue of his estate, claimed that the only property which the testator died in possession of constituted joint family property and that under the Mitakshara law the testator had no power to dispose of it as he had purported to do. A specific portion of the testator's estate had been set apart as applicable to the trust for the charitable purposes declared by the will. The nephew who had received the residue of the estate agreed with the executors that he would act jointly with them in carrying out the trust. In fact he acted as a trustee of the charity. It was held by the Judicial Committee that in these circumstances there had been a valid dedication of the property to charity. It did not matter whether the will alone was sufficient for the purpose. The fact that the nephew had accepted the dedication and had become a trustee of the charity was1 sufficient to give effect to the testator's intentions. Their Lordships said that they were not disposed to express any opinion on the question whether the testator had such ownership in the estate as entitled him to make a dedication. They considered that if it were held that the power of the testator was doubtful, or even that it did not exist, the case must still turn upon the effect of the transactions which had taken place since his death. The transactions included the acceptance by the nephew of the will, his acquiescence in the transfer of the money set apart for the charity and his acceptance of the office of trustee. Therefore, if Sethuraman accepted his father's directions and treated the properties as being vested in him and his sister-in-law as the trustees of the charities, it will not be open to the plaintiff, who merely stands in his shoes, to take up a different position. As the surviving coparcener Sethuraman became the absolute owner of the family estate.
6. Now what are the facts in this connection? In para. 13 of his written statement defendant 5 averred that after Sundaram's death Sethuraman and Swarnavalli took possession of the properties in pursuance of the will and that they accepted office as trustees and carried out the directions of the will with regard to the trusts created thereby. The plaintiff filed a written statement in reply, but she did not traverse these allegations. The learned Subordinate Judge has found that on the death of Sundaram, Sethuraman and Swarnavalli acted in conformity with the testator's directions. There is ample oral evidence to support this finding. In fact the witnesses who deposed to this fact were not cross-examined on the point. Moreover, the witnesses for the defence gave evidence first and when it came to the plaintiff's turn she did not deny the truth of what they had stated. Therefore, we agree with the finding that Sethuraman accepted the will as constituting a valid dedication of the properties to charitable uses and that he acted as a trustee of the charities. The effect of Sethuraman's acquiescence was not discussed in the trial Court but the point is raised in the memorandum of appeal and we have allowed it to be argued because the plaintiff has had ample notice of it. We will now turn to the provisions of the will. The testator directed that out of the properties Rupees 150 a year should be paid to Sethuraman for his maintenance and Rs. 84 a year to Swarnavalli for her maintenance. Each was allotted a house to live in for life, but the houses were not bequeathed to them. The main provisions of the will are as follows:
Just as I am conducting the pooja etc., on the first day of the Navaralkrigolu festival (an annual festival for nine days when dolls, toys etc., are exhibited) incurring an expenditure of Rs. 25 in the Kamakshi Amman temple belonging to our kinsmen, situated in South Masi Street, Madura, in future also the said puja, etc., shall be continued according to the same mamool. In addition, the pooja etc., conducted by me on the first Somavaram (Monday) of the month of Karthigai every year, spending up to a sum of Rs. 25 in Periya Nayanar Swami Temple situated on the northern row of Eluthanikara Street, Madura, who is our family deity, shall be continued by me properly hereafter in the same manner. Further, during the Panguni festival in the temple of Sri Sakshath Sivasubramania deity of Thirupparankundram the Thirukansathukal etc., (halting and worshipping the deity in a place during a procession) in the building bearing No. 9 which belongs to me by right of purchase, for a period of nine days spending up to a sum of Rs. 9 and the feeding of our kinsmen and the pilgrims on the tenth day, namely, Thirukalyanam day conducted by me as usual every year spending up to Rs. 41 shall be continued by me in future also in the same manner.
* * * *After deducting the expenses for the aforesaid charities etc., and the amount required for Annasanthi Samarathanai (free distribution of food) for our kinsmen on the Dwadesi day, i.e., the day next to Vaikunta Ekadasi day every year conducted in house No. 27 where my son Sethuraman Achary is residing spending nearly a sum of Rs. 25. The balance shall be constituted as a fund for the benefit of the said charities and the said charities shall be conducted in a befitting manner. The aforesaid persons or my other pangalis shall have no right to alienate the aforesaid properties in any manner. If by mistake any sale, hypothecation etc., are created they are not valid. In case my son aforesaid or his heirs or my daughter-in-law fail to conduct the above charities from the incomes aforesaid Sankaralingam Achary, one of the undermentioned executors appointed by me, shall conduct the aforesaid charities at the proper times and shall maintain a detailed account in respect of the incomes, produce and the interest income and other incomes and expenditures relating to the charities.
* * * *From the properties and incomes mentioned herein the charities shall be conducted and excluding the expenses for carrying out the charities and the debit and credit expenses of my family as per the terms aforesaid, the balance of the incomes shall be constituted as a fund for charity. Neither my son Sethuraman Achary, nor my daughter-in-law Swarnavall Ammal, nor the executors, nor the heirs of the said persons shall have any right to utilise the properties set out herein and the balance of the incomes for their own private purposes in any manner.
* * * *Even if any of' the properties belonging to me has been omitted to be mentioned herein, this will shall be binding upon the same.
7. The learned advocate for the plaintiff has not suggested that the charities mentioned in the will cannot be the subject of lawful endowment. All that is said is that if Sethuraman's concurrence in the testator's directions makes the will valid, it merely operates to create charges in favour of the various charities, because there are DO words expressly vesting the properties in Sethuraman and Swarnavalli as trustees. It is true that the will does not contain a direct statement that the properties shall vest in the trustees, but we have to look at the document as a whole and, in that way, gather what were the testator's intentions. There can be no doubt that the testator intended the properties to devolve on his son and daughter-in-law as trustees for the charities named. There is no other conclusion open when the following directions in the will are borne in mind, namely, (1) if his son and daughter-in-law were not prepared to conduct the charities in accordance with his directions, then one of the three executors named in the will should carry out these duties; (2) the properties mentioned in the will should not be sold and (3) the income was to be devoted to the charities named by him and the balance should 'be constituted as a fund for charity.'
8. In Srinibash Das v. Monmohini Dasi 3 C.L.J. 224 the Calcutta High Court was called upon to construe a will of a Hindu testator which provided for certain legacies and then directed that the rest of his estate was to be dedicated to his family idol. In six clauses which followed he made provision for the maintenance out of the income of the estate of his wife and other relations, for the marriage of his daughters and for their residence and maintenance. Finally in Clause 10 it was provided that the estate should remain vested in the family idol and the properties should not be disposed of to meet the debt of any one. It was held that as there was no reservation of any proprietary right or interest in the property in favour of the family of the testator, but the heirs were expressly excluded from all right of inheritance to the property, it was impossible to hold that the intention of the testator was to leave his estate to his heirs, subject merely to a charge in favour of the idol mentioned in the will. In Ishwari Bhubaneswaree Thakurani v. Brojo Nath De. the Privy Council referred to the importance of the directions given for the disposal of the surplus income and in. Abiba Ali. v. Alhaji Mama Ali A.I.R. 1942 P.C. 69 their Lordships held that a devise of rent of land for an indefinite period was equivalent to the devise of the land itself. These decisions lend great support for the contention of the appellants that the will was intended to operate as a dedication of the properties named in it for charitable uses and not merely to create charges in favour of the charities. We hold that as Sethuraman accepted the will and took up the office as trustee there is a valid dedication to charitable uses and the plaintiff has no right to any of the properties covered by the will. It may be mentioned that after the trial had commenced she applied to amend the plaint by pleading that if there, was a valid dedication to the charities named by her father the trusteeship had devolved upon her. The Subordinate Judge refused the application and the case proceeded merely as a claim by the plaintiff to the properties as the heir of her brother. The trust was not represented.
9. It follows from what we have said that, the title to the properties which are covered by the will and which were alienated by Swarnavalli cannot be decided in these proceedings. The validity of alienations of properties dedicated to charity can, of course, be challenged by a person interested in the trust in a suit properly framed. For instance, an interested person could with the leave of the Advocate-General file a suit for the framing of a scheme and, on the framing of the scheme, the trustees appointed thereunder could take necessary action for the recovery of properties improperly alienated. In O.S. No. 90 of 1942 the plaintiff sought a decree setting aside the alienations of twenty two items of property. Except in the case of three all these properties are covered in. their entirety by the will. In each of the three excepted items, 17, 20 and 21, Sundaram possessed only a moiety at the time he made his will. In each case the other moiety was purchased by Sethuraman after Sundaram's death. At the time of the institution of the suit defendant 14 was in possession of Nos. 20 and 21 and defendants 15, 16 and 17 in possession of No. 17. The learned Subordinate Judge set aside all the alienations challenged in the plaint, but the only alienees named in O.S. No. 90 of 1942 who have appealed are defendants 5 and 6, the former being in possession of item 3 and the latter of item 2. As the plaintiff possesses no title to these properties the appeal of defendants 5 and 6 (No. 113 of 1944) must be allowed with costs against her. As we have already indicated, the appellant in Appeal No. 436 of 1944 is defendant 2. She claims to be an assignee of a usufructuary mortgage of one of the items of property dedicated by the will to charity. The Subordinate Judge allowed the plaintiff's claim. He considered that this item was not covered by the will and that the plaintiff as the heir of her brother was entitled to it. No necessity for the mortgage by Swarnavalli was shown. We consider that this decision was right. The property was purchased by Sundaram twenty days after he made his will. The terms of the will do not provide justification for holding that the dedication included all the properties of which the testator died possessed. To the will was annexed a schedule of movable and immovable properties which he intended should constitute the endowment for the charities. As this property was not included in the schedule and as there is no evidence that it was purchased out of any of the outstandings mentioned in the schedule, it must be held that to this extent the testator died intestate, which means that the plaintiff acquired a title to it on the death of her brother. Appeal No. 436 of 1944 is dismissed with costs in favour of the plaintiff.