S. Mohan, J.
1. These two Letters Patent Appeals can be dealt with under a common judgment. The facts leading to the Letters Patent appeals may be traced briefly as follows:
Three items of properties of which two form the subject-matter of these two appeals belonged originally to one Hamsa Mohideen Maraikayar. He executed a deed of wakf under the original of Exhibit A-1 on 7th January, 1944 covering the three items of properties. The deed styles itself as wakf and under the said deed certain charities are directed to be performed, the details of which we would mention a little later, from out of the income from the properties forming the subject-matter of the wakf deed. It is stated expressly in the deed that on and from the date of the execution of the document, the executant would be the muthavalli and he shall have no power of alienation and he will carry on the charities during his lifetime. It was further stated that after his lifetime, his son Naina Mohamad Bhuhari and his heirs will take the properties according to the law of primogeniture and perform the charities as muthavallis. Those muthavallis as well have no power of alienation or power of creating any encumbrance. After the death of Hamsa Mohideen Maracayar, his eldest son, the first defendant, became the muthavalli of the trust. He filed O.S. No. 44 of 1946 on the file of the Sub-Court, Tuticorin, in respect of item 1 of the suit properties on the basis that it belonged to the trust, while the other side contended that the property had already been sold in execution of the decree in O.S. No. 6 of 1930 on the file of the Sub-Court, Tuticorin. This defence prevailed with the learned Subordinate Judge, who dismissed the suit. Aggrieved against that dismissal, the first defendant preferred A.S. No. 391 of 1947 on the file of the District Court, Tirunelveli. However, during the pendency of the appeal, the first defendant had to go to Ceylon and therefore he executed Exhibit B-8, power-of-attorney on 10th January, 1948 in favour of the second defendant authorising him inter alia to deal with the properties covered under Exhibit A-1, the wakf deed; for the purpose of the conduct of the litigation and other incidental purposes. The second defendant acting on Exhibit B-8 created an othi in respect of item 2 of the suit properties under Exhibit B-7, dated 17th February, 1958 in favour of one Ramaswami Nadar. This othi was assigned in favour of one Arumuejia under Exhibit A-7, dated 1st July, 1963. In order to discharge the othi, the second defendant executed Exhibit B-6, sale deed dated 5th July, 1963, for a sum of Rs. 5,000 in favour of Arumusrha himself. Out of the sale consideration of Rs. 5,000. Rs. 3.000 was adjusted towards the amount due under the othi and the balance alone was received by the second defendant. As regards he third item of the suit properties, the second defendant sold the same under Exhibit A-2 dated 21st March, 1950 to none else than his wife, the 8th defendant. She, in her turn, mortgaged the same under the original of Exhibits A-5 and A-6, dated 3rd January, 1957 and 30th November, 1959 respectively in favour of defendants 9 and 10. Contending that the alienation of these two items of properties under Exhibit B-6 and Exhibit A-2, dated 5th July, 1963 and 21st March. 1950, respectively by the second defendant in favour of the persons above referred to were not valid and were not binding on the wakf the State Wakf Board instituted O. S. No. 22 of 1967, on the file of the Sub-Court, Tuticorin, for recovery of possession.
2. In defence, the principal point urged was that there was no absolute dedication under Exhibit A-1 and the properties were merely charged for the performance of certain charities. If that be the position, the fact that alienations have been made would not matter, because all that could be availed of by the Wakf Board will be the requirement of the performance of the charities. Therefore, that will not enable them to contend that the alienations were bad.
3. The learned Principal Subordinate Judge after framing 14 issues came to the conclusion that Exhibit A-1 created a wakf and the alienations under Exhibit B-6 and Exhibit A-2 dated 5th July, 1963 and 21st March, 1950, respectively were bad and would not be binding upon the Wakf Board, the plaintiff. In the result, he decreed the suit leaving the question of mesne profits to be decided in appropriate proceedings. Against this judgment and decree, two appeals were preferred to this Court in A.S. Nos. 103 and 108 of 1972. A.S. No. 103 of 1972 was by defendants 3 to 6 whose, predecessor-in-title (Arumugha) purchased item 2, while A.S. No. 108 of 1972 was preferred by defendants 2 and 8 who were respectively the power-of-attorney-holder and the alienee of item 3. Both the appeals came up for final disposal before Ismail, J., (as he then was). The only point that was argued before the learned Judge was as to the nature of the document Exhibit A-1. The learned Judge after going through the various clauses mentioned under Exhibit A-1 was of the view that it did not create a charge; on the contrary, there was every indicia for holding that it was a wakf deed. He gave the following reasons in support of his conclusion:
(1) The document itself was styled as wakf deed;
(2) The document states that the object of creating wakf was to make the performance of the charities perpetually from generation to generation;
(3) The wakf deed provided a particular line of succession to the wakf as well as for performing the charities, viz., the line of primogeniture, which is not in accordance with Mphamedan Law or succession;
(4) The executant of the document expressly and in categorical terms stated that neither himself nor his successor trustees will have any power either to encumber or alienate the properties.
4. If all these factors are taken into consideration, the statement in the earlier part of the document as
would not have the effect of creating a charge for the performance of the charities mentioned in the document. In the result, both the appeals were dismissed. Thus these two Letters Patent appeals have been preferred. L.P.A No. 108 of 1976 is against Appeal No. 103 of 1972 and L.P.A. No. 118 of 1976 is against Appeal No. 108 of 1972.
5. As was urged before the learned Judge, before us as well, Mr. M.R. Narayanaswamy, the learned Counsel for the appellants, would urge that the interpretation placed by the learned Judge on the terms of Exhibit A-1 cannot be accepted. According to him, in so far as in clear and express terms, a provision has been made creating a charge over the properties forming the subject-matter of Exhibit A-1 in relation to the performance of the charities, and once such a charge is accepted, the fact that a restraint on alienations is put will be of no significance. According to the learned Counsel, the learned Judge erred in placing more reliance upon the clauses in relation to restraint on alienations, rather than the clauses creating a charge in specific terms. In such a case, whoever purchased the proper ties, the purchases will merely be subject to the performance of the charities; but that will not make the alienations themselves bad. Consequently, the Wakf Board cannot succeed in recovering possession. Further it is con tended that having regard to, the amounts that are to be spent on the charities mentioned in the document, which are small, as against the income derived from the properties, it should be held that a mere charge was created on the properties forming the subject-matter of the Exhibit A-1. The trial Court as well as the learned Judge of this Court ought to have at least made an attempt to find out what exactly was the income on the date of the document and whether the amounts that are required to he spent on the charities constituted a negligible part, in which event his contention could easily be accepted. In support of his submissions, the learned Counsel cites Ashutosh Dutt v. Doorga Churn Chatterjee ILR(1880) Cal. 438, Thiruvengadamudayaaniya v. Narasimhaswamiaiya : AIR1941Mad591 , and Murugesamuthu Pillai v. Arumugamammal (1970) 83 L.W. 223. The purpose of his citing these rulings, according to him, is that the mere fact that there is a restraint on alienations would not have the effect of defeating the earlier provision in relation to the creation of a charge. From these decisions also, it can easily be seen that an attempt should be made to find out the exact income that was derivable from the properties and if the amount that was spent on the charities was a negligible one, the intention would be to create a charge. Further the clauses relating to the restraint on alienations would be invalid.
6. With regard to the nature of the dedication, the learned Counsel cites Sappany Mahomed Mohideen v. Sethusubramama Pillai : 2SCR594 , and then contends that in that particular case a clear distinction was brought out between Clauses 8 and 9, the former evidencing the fact of absolute dedication, while the latter was illustrative of a mere creation of a charge.
7. Tested in the light of these authorities, the judgment of the learned single Judge cannot be accepted.
8. As against this, the learned Counsel appearing for the Wakf Board submits that the deed itself clearly mentions it as wakf and a pious Muslim like the executant of Exhibit A-1 in 1944 would not have intended anything but an absolute dedication. On a reading of the entire document, the object of the executant seems to be as if there must be a perpetual performance of the charities mentioned in the document. He was more anxious in the performance of the charities and that is why he had from the date of the document styled himself as muthavalli, curbing his power of alienation. Further the document itself provided as to the line of succession according to the law of primogeniture which is alien to the Muslim t Law and even those persons who are to succeed after the executant were to get the properties as muthavallis. Then again, these muthavallis have no power of alienation or creating an encumbrance. Therefore, the document is undoubtedly a deed of dedication. None of the rulings cited by the other side could have any application to the facts of this case, because the three rulings, namely Ashutosh Dutt v. Doorga Churn Chatterjee ILR(1880) Cal. 438, Thiruvengadamudayaanaiya v. Narasimhaswaminiya : AIR1941Mad591 , and Murugesamuthu Pillai v. Arumugamammal (1970) 83 L.W. 223, relate to the testamentary disposition. It is also noteworthy that in each one of these cases, there was a provision in relation to the surplus, which is totally absent in this case. That absence is very significant because under the Muslim Law with regard to the surplus, the doctrine of cypree would apply. Sappani Mohamed Mohideen v. Sethusubramama Pillai : 2SCR594 , again cannot advance the case of the appellants for the very simple reason that that was a case of partition and the document itself provided under Clause 8 for absolute dedication, while Clause 9 was for a charge for the performance of the charities. Such a position is not obtainable under Exhibit A-1. Therefore, no exception whatever could be taken to the judgment of the learned single Judge.
9. We will first refer to the salient features of Exhibit A-1.
(1) The deed is styled as a wakf deed;
In this connection, it may be pertinent on our part to state that this was created by a pious Muslim in the year 1944, who, under normal circumstances, could not have thought of anything but a Wakf to create a method by which there should be a perpetual performance of certain charities mentioned therein.
(2) The charities mentioned therein are:
(i) For reading of Koran, five times a day Rs. 5 per month.
(ii) For imparting instructions in the school Rs. 10 per month.
(iii) For lighting--Rs. 1-8-0 per month;
(iv) For drawing water from the tank--Rs. 1-8-0 per month;
(v) In addition to these, a sum of Rs. 3 was to be spent at the end of every month for the purpose of distribution of Harasa (equivalent of irrasadam);
(vi) Rs. 50 to be spent on Dharmam by way of feeding annually.
(3) The properties worth a sum of Rs. 3,000 shall be subject to the above charities;
(4) The executant shall have no power of alienation, but shall have power only to enjoy the properties and from and out of the income from the properties the above charities are to be performed;
(5) After the death of the executant, his son Naina Mohamad Buhari and his heirs, according to the law of primogeniture, shall take possession of the properties and from and out of the income, they are to perform the charities mentioned above as muthavallis;
(6) The said muthavallis shall have no power of alienation or creating encumbrances;
(7) During the lifetime of the executant he alone shall be the muthavalli and perform the charities. He will also pay the kist, land cess etc.;
(8) In accordance with recitals in the deed, the charities shall be performed by the muthavallis who would succeed the executant.
10. By a reading of all these clauses and the document as a whole, we gain the one and only impression that this is a deed of wakf. However, what is pressed before us is that clause wherein it is stated that
According to Mr. M.R. Narayanaswamy, these words are clear enough to indicate the creating of a charge. We are unable to accept this contention and the reasons for our conclusion are as under:
(1) On and from the date of creation of the document, the executant ceases to own the properties in his personal capacity and he assumes the role of muthavalli. Therefore, there is a clear divestiture.
(2) The executant has no power of alienation, but has a mere power to enjoy;
(3) The line of succession in relation to muthavalli is something which runs counter to Muslim Law, because it is stated very emphatically that the succession shall be according to the law of primogeniture.
(4) Those muthavallis who would succeed will have also no power of alienation, nor the power of creating an encumbrance.
11. If only one of the clauses as pressed into service by the learned Counsel for the appellants is taken into consideration, all the other clauses to which we have alluded will be rendered as otiose or nugatory. However, the argument is that once the clause relating to charge is accepted, the restraint on alienation is bad. It is in support of this argument, Ashutosh Dutt v. Doorga Churn Chatterjee ILR(1880) Cal. 438, it cited. That was a case in which the relevant clause in the testament reads:
I dedicate the auction-purchased property, No. 3496, Lot Panchgatehia, Pargana Baligori, Zilla Hooghly, standing in my name to the Thakur Ishwar Raj Rajeswar that is in my house.
This case cannot be of help to the appellants because clearly after the creation of this dedication as to how the surplus is to be dealt with was also mentioned in the document, namely, the will executed by Saraswati Debi, since the relevant clause in the will stated:
You will pay my debts, and, collecting the sums due to me you will incorporate them with my estate, and from the proceeds thereof you will meet the expenses described above; and if there be a surplus after deducting the same expenses, it will also be disbursed in the manner aforesaid. 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 profits 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.
If really there was an absolute dedication, there was no question of any clause in relation. to the surplus.
12. In Thiruvengadamudayaaniya y. Narasimhaswamiayya : AIR1941Mad591 , also a similar clause in relation to the surplus is found. It was pointed out 'that the will provides that a portion of the property which was not to be occupied by the residuary legatee should be 1st and the rents utilized for specific purposes, but later the testatrix provides that the surplus shall go to the residuary legatee. The amount of surplus was and is far greater than what is required to comply with the directions of the testatrix with regard to religious charities'.
13. In the instant case, there is no such clause in Exhibit A-1 and therefore this case also will not be of any assistance to the appellants.
14. Turning to Murugesamuthu Pillai v. Arumugamammal (1970) 83 L.W. 223, the learned Judge, Ramamurti, J., himself stated at page 225 the relevant considerations to be borne in mind in interpreting the document of this character.
The relevant considerations are : (1) whether the charity is an expanding charity and whether the manager of the trustee who is to conduct the charity is enjoined to spend the entire income upon the charity; (2) whether the charity would exhaust the entire income or whether there will be a substantial surplus or margin left after meeting all the expenses; and (3) the provision as to the ultimate destination of the surplus.
It is the third clause, namely the provision as to the ultimate destination of the surplus, which is essential that is missing in the instant case. We may also refer to another passage occurring in the judgment at page 225:
If reading the document as a whole it is clear that whatever remains, whether substantial or otherwise, after the charities are performed, is not to form an accretion to the corpus but can be utilised and taken by the manager or the trustee as his own without any liability to render an account and with no obligation to hold it on behalf of the trust the endowment will not be an outright dedication but a charge only is created in favour of the charity for the expenses or Dhittam specified in the deed of endowment.
This along with Clause (11) in that particular deed, namely the residuary clause which clearly mentioned as to the ultimate destination of the surplus, makes this ruling inapplicable to the facts of the present case.
14. Now, we proceed to consider the applicability of S.M. Mohideen v. R.V.C. Pillai : 2SCR594 , In that case, the relevant clauses which came up for interpretation are set out at page 742. They are Clauses (8) and (9) which may be extracted:
Clause (8) : The properties mentioned in the VIII Schedule herein and allotted for charity shall be administered in person by Kailasam Pillai and from out of the income of the first item property shall be given to mid-day offering of Thirumanjanam expenses in the Siva Temple in Rasavallipuram. From the second item properties the expenses for the evening pooja of the said temple shall be met, from the third item property the expenses for pooja of Lord Siva at Sepparai on 'Ani' Uttiram day should be met and from the 4th item of the property, they shall feed four brahmins in the Siva Temple Sepparai during Dwa-deshi days.
Clause (9) : In the Sepparai Siva Temple established by our parents, for meeting expenses of lamp burning forever and one measure of rice for daily offering to God and Archana expenses, a sum of Rs. 45 is spent annually. Gut of this a sum of Rs. 5 per year which shall be paid by Sivaramakrishna Pillai, to Namasivayam Pillai and a sum of Rs. 3 per year by Chidambaram Pillai to Kailasam Pillai and excluding the sum of Rs. 13 as given in the three items aforesaid for the balance of Rs. 32 the dry land mentioned in the IX Schedule shall be administered in person by Kailasam Pillai and spent from out of the income of the said properties and from out of their own funds Kailasam Pillai and Venkatachalam Pillai shall perform the aforesaid charity without fail.
On this it was held at page 745:
The draftsman, who prepared this deed, had good reasons to mention in Clause (8) that 'the properties mentioned in the eighth schedule and allotted for charities shall be administered in person by Kailasam' while in Clause (9) he chose to record that 'dry land mentioned in the ninth schedule shall be administered in person by Kailasam Pillai'. There is no reference in Clause (9) that this land shall be 'allotted for charity' whereas those words clearly appear in Clause (8) of the deed. In the entire scheme of the deed there must be a legitimate justification for not allotting the lands mentioned in the ninth schedule for charity. Besides, it is clear on the findings of the Courts below that the value of the property in 1882 was inconsiderable and the income out of it was not sufficient to meet the expense for the charities. A device had, therefore, to be made to keep alive the sacred memory of their parents who were keen to continue these charities out of the ancestral property. Having divided the properties in the manner done in the partition deed, each of the brothers contributed according to his capacity and by mutual adjustment a very substantial share of the expenses to be borne by Kailasam Pillai and Venkatachalam Pillai, who were entrusted to perform the charities without fail. If necessary, which was even inevitable at the time, out of their own funds. Since it is a common ground that the charities have been performed for years, the burden of the liability must have fallen on Kailasam Pillai and thereafter on Venkatachalam Pillai. It is because of this feature in keeping alive the three charities mentioned in Clause (9) that the lands in the ninth schedule were allotted to Kailasam Pillai and Venkatachalam Pillai so that they may get some recompense out of the income of the property if it may somehow or some day be forthcoming. The entire income from the property was little or nil and was not absolutely dedicated to the Temple for the charities. We have got to look at the matter from what the founders intended; in the year 1882 and no construction cam be given to the document which would frustrate the intention of the founders to keep alive the charities by appropriate performance. If these dry and then barren properties of the ninth schedule were absolutely dedicated to the temple for performance of the three Kattalais the intention of the founders would have been defeated. It would have been nobody's business, income being little or nil. We are therefore clearly of opinion that there is no ambiguity about any of the provisions of this deed which clearly go to show that there was no intendment to create an absolute endowment of the suit property to the temple or the trust.
It also requires to be noticed that the value of the property as on 1882 would have been the proper guide and not the pesent value. Having regard to the language of the clauses it came to be ultimately held in para. 14 at page 748 as follows:
As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in Clause (9) of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in Clause (9) of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of Clause (9) read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the temple or for the charities as claimed by the plaintiff-respondent. We may, however, add that the conclusion we have reached from the intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties. To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.
Certainly the case on hand is very different from the one dealt with in the above authority.
15. In so far as Mr. M.R. Narayanaswamy argues that attempts ought to have been made by the trial Court as well as the learned Judge to find out the income from out of the properties and the amount spent on charities in order to ascertain whether it was a significant or insignificant part, we may observe that it was the duty of the appellants to have let in evidence in this regard. Since no evidence was let in, the blame has to lie only at the doors of the appellants. Here again as to what was the income in 1944 would have been the relevant criterion to be ascertained. With regard to such ascertainment no materials were placed by way of oral or documentary evidence by the appellants. Therefore, it is too late on the part of the appellants, to complain that an attempt ought to have been made to find out the income from the properties.
16. We may also point out that Ashutosh Dutt v. Doorga Charan Chaterjee ILR(1880). Cal. 438; Thiruvengadamudayaaniya v. Narasimhaswamiaiya : AIR1941Mad591 and Murugesamuthu Pillia v. Arumugathammal (1970) 83 L.W. 223, all related to testamentary dispositions and, therefore they could be revoked during the lifetime of the testator, as rightly contended by the learned Counsel for the Wakf Board.
17. Having regard to the above, we see no difficulty in upholding the judgment of the learned Judge. Accordingly we dismiss both the appeals. However, we make no order as to costs.