V. Ramaswamy, J.
1. The fourth defendant is the appellant. The first plaintiff is a temple represented by its trustee the second plaintiff. Plaintiffs 5 to 6 are the worshippers. The plaintiffs have filed the suit for a declaration that the suit properties are owned by the first plaintiff temple and for recovery of possession with mesne profits. The case of the plaintiffs was that the suit properties were originally owned by one Chidambara Asari. He died leaving his widow and a son and on the death of her son, the widow succeeded to the entirety of the properties. While thus in possession and enjoyment, she executed a settlement deed on 9th December, 1931, endowing the properties in favour of the first plaintiff-temple retaining a life interest in herself but subject to the condition that she was under a liability to light the temple with one lamp everyday at an annual cost of Rs. 5. The suit properties which were two items were the subject-matter of attachment and sale in execution of decree against Vadivammal the widow of Chidambara Asari. The life interest in item No. 1 was purchased by one Subbiah Konar from whom defendants 1 to 3 claim some right in the same. Since that item of property is not the subject matter in the second Appeal, no further details need to be mentioned relating to the same. The second item was sold in execution of another decree and was purchased by one Peramu Ammal. There were successive sales of this property and ultimately the fourth defendant had purchased the same on 26th October, 1968. On the death of Vadivammal, the present suit has been filed for a declaration of the title on the basis of the settlement deed dated 9th December, 1931.
2. The fourth defendant contended that Vadivammal had only a life estate in the property and she had no right to settle the property or endow the same in favour of the temple, which will enure beyond her lifetime. Any creation of an interest in favour of the temple, which will enure beyond the lifetime of Vadivammal will be invalid. On the construction of the settlement deed, the fourth defendant also contended that there was no present disposition of Vadivammal's life estate and if the document is to be construed as an endowment to take effect after the death of Vadivammal, it would be invalid as an endowment of a person who had no absolute estate in the property. If settlement deed was thus not valid, the plaintiffs not being reversioners as such the suit is not maintainable.
3, Both the Courts below held that even though Vadivammal had only a life interest there was a present disposition of the entire property in favour of the temple by way of an endowment and such disposition being for pious and religious purposes it was valid and binding on the fourth defendant and those who purchased the property in Court auction.
4. At this stage we may refer to the relevant recital in the document dated 9th December, 1931. After stating as to how Vadivammal came into possession and enjoyment of the property after the death of her husband and SOD, the document stated:. Since I have no other heirs and with a view to attain salvation of my soul, I shall pay a sum of Rs. 3 per annum from out of the income of the schedule property for lighting a lamp daily in the temple of Sami Visva Vinayagar situated in Brahmadesam Kammalar Street during my lifetime.
I have endowed the schedule property to the aforesaid Sami Vinayagar by my enjoying same during my lifetime without alienating the same in any manner.
After my lifetime, the five persons namely (1) Gopalan Asari son of Sudalaimuthu Asari (2) Sami Asari son of Sudalaimuthu Asari (3) Velayutham Asari son of Chockalingam Asari (4) Andi Asari son of Arunachalam Asari (5) Arunachalam Asari son of Alangaram Asari, residing in the aforesaid street shall perform daily abishegam (Bathing the deity) decoration, neivedyam (offering of food) and deepam (lighting of lamp) to the aforesaid Visva Vinayagar with the balance amount of income from the Schedule property after paying the Government tax permanently for ever hereditarily.
On the construction of the document, Mr. Kesava Iyengar, the learned counsel for the appellant strenuously contended that there was no disposition by way of an endowment in favour of the temple and despite a self imposed restraint on alienation, she remained the owner of the property and at best it should be construed only as a partial dedication to the extent of Rs. 3 per annum.
5. There could be no doubt that Vadivammal had woman's estate known to Hindu law and she could dispose of a reasonable portion of the estate for religious and pious purposes. It may be mentioned that though the settlement deed covered the entire properties of the settlor, item No. 2 in only 10 cents and even the other item, which is not the subject-matter of the Second Appeal is stated to be only 46 cents of dry land. Since no spliting of the estate is possible being small portions we have to uphold the validity of the gift on the principle that a widow is entitled to dispose of the property for pious and religious purposes. In this case the document recites that she executed the same with a view to attain salvation to her soul'. In Khublal v. Ajodhava (1916) ILR 43 Cal 57, Justice Mukherjee on the point as to whether a religious act, for which the alienation is made, could be said to be conducive to the spiritual welfare of the husband pointed out that according to a text of Brihaspati the husband and the wife participate in the effects of good and bad action and their mutual relation was not dissolved by the death of either partner. The position thus as pointed out in the text book, Hindu Law of Religious and Charitable Trusts by Mukherjee, Fourth edition comes to this, that whatever secures religious merit to the wife is spiritually efficacious to the husband as well. The disposition by Vadivammal therefore could not be questioned if really there was a fractional disposition under the settlement deed in favour of the temple.
6. The contention of the learned counsel is that there was a partial dedication to the extent of Rs. 3 per annum and it may be even construed as a charge to the extent of Rs. 3 per annum on the estate but it could not be construed as an endowment as such. According to the learned counsel, there is no extinction or cessation or termination of the settlor's interest in the property despite the self-imposed restraint on alienation and that therefore, no valid title was vested in the temple. If the endowment is to be construed as to take effect subsequent to the death it is also not valid. I am unable to agree with the learned counsel that there is no present disposition or endowment in favour of the temple. The document is in vernacular and a translation of a relevant portion has been already extracted. The ban imposed under the document on alienation during her lifetime could only be on the basis that she had settled the property on the temple as otherwise it would be otiose. This ban in other words brings out the intention to settle absolutely. She dealt with the property as if it is her own and wanted to efface her entire interest in favour of the temple reserving only a right to enjoy the income from the property subject to a further liability to meet the expenses of lighting a lamp daily in the temple from and out of such income during her lifetime. This in my view is a present disposition subject to reserving certain rights of enjoyment to the extent of the excess income that remained after paying the Government taxes and other dues and also meeting the lighting expenses. Therefore I agree with the Court below that there was an endowment though possession was postponed till the death of the settlor. The temple therefore had title to the property and it is entitled to file the suit for a declaration of its title. There are no grounds to interfere with the findings of the Courts below. The second appeal accordingly fails and is dismissed. But there will be no order as to costs.