N.S. Ramaswami, J.
1. This Letters Patent Appeal is against the judgment of Veeraswami, J., (as he then was) in Second Appeal No. 548 of 1961. The appellants are the plaintiffs in O.S. No. 109 of 1955 on the file of the Court of the Subordinate Judge, Tiruchirapalli. The two plaintiffs in the suit are one Malayalam Pillai and one Thangavelu Pillai while the sole defendant is one Ponnusami Pillai. All the three of them viz., the two plaintiffs and the sole defendant, are the sons of one Appavu Pillai. The dispute relates to properties originally owned by one Karuppanna Pillai who is the paternal uncle of the abovesaid Appavu Pillai. Appavu Pillai's father Marudanayakam Pillai is still alive and this Marudanayakam Pillai is the brother of Karuppanna Pillai, the original owner of the suit properties. Karuppanna Pillai had no issue. It is common ground that Appavu Pillai, the father of the plaintiffs and the defendant, was the foster-son of Karuppanna Pillai, the testator. The said Karuppanna Pillai, died in the year 1947 leaving his last will and testament Exhibit B-1 dated 3rd March, 1942. He has dealt with his properties in five schedules in that will, described as A, B, G, D and E schedules. We are now concerned with the properties in the E schedule as they are the subject-matter of the suit. The said Karuppanna Pillai has created a trust in respect of the suit properties (E schedule in the will) and the dispute between the parties is regarding the validity of the said trust. The plaintiffs claim partition and separate possession of a 2/3 share (1/3 for each of them) in the suit properties on the ground that the trust created under the will of Karuppanna Pillai in respect of those properties is wholly invalid and that as per the other terms of the will, the said properties should be equally shared by the plaintiffs and the defendant who are the sons of Appavu Pillai.
2. Under the will Exhibit B-1, Karuppanna Pillai (hereinafter referred to as the testator) provided that the properties described in A, B, and C schedules shall be respectively taken and be in the possession of the defendant, the 1st plaintiff and the 2nd plaintiff, who were directed to perform certain charities from out of the income of the respective properties. One Palaniammal and one Chellammal are the daughters of Appavu Pillai (sisters of the plaintiffs and the defendant). The testator created a life--estate in favour of the said Palaniammal and Chellammal in respect of the D schedule properties and directed that after their lifetime those properties shall be dealt with in the same way as the E schedule properties. But we are not concerned in the present litigation with any of the properties in schedules A to D for only the E schedule properties are made the subject-matter of the suit.
3. As far as E schedule properties are concerned the recitals in the will are in the following terms. (The will is in Tamil and the particular portion has been translated by the first appellate Court and the correctness of the same is not in question:
After my lifetime, the aforesaid three persons, Ponnusami Pillai, Malayalam Pillai and Thangavelu Pillai, shall take and manage the E schedule properties; from out of the income from the said properties, pay the kist for the aforesaid E schedule properties and out of the balance of income, for the salvation of my soul after my lifetime, shall inter my body, after my life is extinct, in the land S.F. No. 68/B, Punjai Thottakurichi village, pertaining to the aforesaid E schedule, building structure therefor and put up light every day, shall plant flower plants in the said land and grow them, shall construct a matam for annual ceremonies, install pictures therein, put up light in the matam every day, conduct Guru Pooja once every year and at the time of the Guru Pooja, distribute saffron-coloured cloths to those that wear saffron-coloured cloths and on that day shall feed the poor. Since the aforesaid Ponnusami Pillai is the eldest of the sons, he shall be the manager to conduct the above matters. The surplus income shall be taken in the shares of 2/4 by Ponnuswami Pillai, 1/4 by Malaylam Pillai and 1/4th by Thangavelu Pillai. After the said Poonusami Pillai's life, out of the male heirs, the eldest son shall conduct in the same manner as above and the surplus income shall be taken by the said eldest son.
Lower down in the will, there is a residuary clause, the English translation of which is in the following terms:
The movable and immovable properties belonging to me and not mentioned herein shall be taken and enjoyed by the aforesaid three persons after my lifetime.
4. The case of the plaintiffs has been that the bequest of E schedule properties as found in the portion of the will extracted above is invalid in law inasmuch as the bequest is for samadhi kainkaryam, that the residuary clause under which properties not dealt with by the will shall be shared by the plaintiff and the defendant comes into operation and that therefore they are entitled to partition and separate possession of their 2/3 share in the said properties. They also prayed for an account from the defendant regarding the income from the properties from 27th February, 1949, the date on which the plaintiffs had given notice to the defendant making their demand for partition.
5. The defendant resisted the suit inter alia contending that the suit properties had not been bequeathed for samadhi kainkaryam as sought to be made out by the plaintiffs, that the bequest was for constructing and maintaining a matam wholly unconnected with the samadhi and for performing Guru Pooja, distribution of saffron cloths to mendicants and feeding the poor only at the matam that therefore there is no question of the bequest becoming invalid and that the plaintiffs are not entitled to claim partition and separate possession of the properties treating the same as properties bequeathed to the parties.
6. The trial Judge, viz., the learned Subordinate Judge, Tiruchirapalli, decreed the suit holding that the bequest was invalid and that the plaintiffs and the defendant got the properties under the residuary clause in the will. The defendant went in appeal in A. S. No. 100 of 1958 and the learned District Judge differed from the trial Judge on the question whether the bequest in respect of the E schedule properties is valid or not. Holding that the bequest was valid, he dismissed the suit as far as the same related to the prayer for partition and separate possession of the property. However, as the defendant was bound to render an account regarding the balance of the income (after meeting the expenses conected with the trust) and the will contemplated sharing of the balance of the income between the defendant on the one hand and the plaintiff on the other, the learned District Judge held that it was not necessary to drive the plaintiff to file another suit for accounts. Therefore, while dismissing; the claim for partition and separate possession, he gave a decree only for accounts regarding the income from the properties from 27th February, 1949 Then the plaintiff filed the second appeal which was heard by Veeraswami, J., (as he then was). The learned Judge found that the bequest in respect o f the E schedule properties partly related to the maintenance, etc., of the samadhi of the testator and partly related to the construction and maintenance of the matam in which various functions and charities had to be performed and that the bequest regarding the former part was invalid, while that in respect of the latter part, viz., relating to the matam was not invalid. Therefore the learned Judge directed the matter to be sent to the trial Judge for the purpose of apportioning the properties referable to the tomb (samadhi) and those referable to the matam and the charities to be performed therein. The defendant's liability to render account was confined to the properties that would be apportioned by the trial Court as referable to the matam and' the charities to be performed therein.
7. The first appellate Court as well as the learned Judge who heard the second appeal were of the opinion that, in any event, the residuary clause in the will, on which the plaintiff placed reliance for claiming partition and separate possession of the properties, would not help them because that clause relates only to properties not dealt with under the will. The finding is that the suit properties being those that were actually dealt with under the will, though the bequest is now held to be invalid, it must be held that the testator died intestate as far as those properties are concerned. The first appellate Judge pointed out that under such circumstances there would be no question of the plaintiffs and the defendant sharing the properties inasmuch as their grandfather Marudanayakam Pillai (brother of Karuppanna Pillai, the testator) is still alive and he will be the nearest heir entitled to succeed to properties regarding which there is intestate succession. The learned Judge who heard the second appeal is also of the same opinion and therefore, even though he held that the bequest in respect of part of the properties referable to the samadhi is not valid, he found that the plaintiffs are not entitled to partition and that their suit for partition should fail. The learned Judge said that the properties referable to the tomb will be determined and separated and the same will be regarded as undisposed of by the testator under his will. The plaintiffs have filed the present Letters Patent Appeal pressing their contention that the entire bequest in respect of the E schedule properties is invalid, that the residuary clause in the will did apply to E schedule properties on the bequest relating to the same failing and that therefore they are entitled to partition and separate possession of the properties.
8. In the two Courts below as well as before the learned single Judge who heard the second appeal, the plaintiffs had raised another contention that there was vesting of the E schedule properties in the plaintiffs and the defendant as per the terms of the will and that therefore the further clauses in the will creating a trust over the said properties for the purposes stated therein would have no effect at all. If this contention is accepted, then one need not consider whether the creation of the trust over the E schedule properties is invalid on the ground that it was a bequest to a samadhi and for purposes connected with it. However, the above contention that as per the terms of the will the entire E schedule properties came to be vested in the plaintiffs and the defendant on the death of the testator, has been rightly negatived and the same is not seriously pressed before us. The plaintiffs chose to put forward such a contention on the strength of the word before the other words bequeathing the properties for the purposes stated therein. But the entire provision has to be read as a whole in order to see whether the testator had intended to vest the properties absolutely in the plaintiffs and the defendant on his death. Undoubtedly there was no such intention on the part of the testator as far as the E schedule properties are concerned. Therefore the learned Counsel for the plaintiffs (appellants) rightly does not press that point before us. The question is about the true construction of the particular provision in the will in order to see whether the properties were dedicated to the samadhi of the testator and for purposes connected thereto. In other words, the question is whether the E schedule properties had been bequeathed for samadhi kainkaryam as contended by the plaintiffs.
9. The learned Judge who heard the second appeal states that he should confess to some difficulty in the process of arriving at a conclusion as to the proper construction of the will relating to the E schedule and that his first thought, upon a reading of the E schedule, was that it provided for a single scheme of endowment and that the provision in favour of the tomb was not separable from the provision for matam and performances therein. But the learned Judge ultimately held that the dedication was separable into two parts and one part, viz., that relating to the matam is valid. Though the learned Judge says that he is of the opinion that the view of the learned District Judge as to the nature and scope of the E schedule is correct, the conclusion of the learned District Judge and that of the learned Judge who heard the second appeal are different. As already seen, the first appellate Court held that the entire bequest in respect of the E schedule was valid. But the learned Judge who heard the second appeal came to the conclusion that there is dedication of property to the tomb of the testator and to that extent the bequest should fail, and as the dedication of property under the same schedule to the matam and the performances therein was separable from that in favour of the tomb, the bequest in favour of the former (matam and the performances therein) is valid. That is why the learned Judge remitted the matter to the trial Court for allocating the E schedule properties towards endowments referable to the tomb and that to the matam and the charities to be performed therein. After a careful consideration of the provisions of the will in the light of the Privy Council case Subramania v. Draviyasundaram A.I.R. 1950 P.C. 37 we have to come to the conclusion that the first impression of the learned Judge regarding the validity of the provision in the will is correct. With respect to the learned Judge, we are unable to share his view that the bequest is separable as partly to the tomb and partly to the matam and the performances therein. We are clearly of the opinion that the entire bequest is invalid because it is only an endowment to the tomb of the testator and the matam is only an adjunct to the tomb. We are of the opinion that the matam cannot be considered as a separate entity dissociated from the tomb.
10. It is not in dispute before us that an endowment in relation to a tomb is not valid in law, though dedication of property for annual sradh has always been held to be valid. In Saraswathi v. Raja-gopal Ammal : 1SCR277 the dedication of property was construed as one not meant for the annual sradh or education as such but only as part of samadhi kainkaryam and that dedication was held to be wholly invalid. In that connection, their Lordships of the Supreme Court have referred to with approval three decisions of this Court which have held against the validity of dedication of property to a tomb and for purposes connected with the tomb. Perhaps if the tomb is that of a Hindu saint dedication of property to such tomb might be upheld as valid. Their Lordships of the Supreme Court have observed in the above case at page 909:
There have been no doubt instances of Hindu saints having been deified and worshipped but very few, if at all have been entombed and we are not aware of any practice of dedication of property for such tombs amongst Hindus. Such cases, if they arise, may conceivably stand on a different footing from the case of an ordinary private individual who is entombed and worshipped thereat.
In the present case, admittedly the testator was not a Hindu saint and if the dedication of property is to his tomb and matters connected with it, surely the dedication is not valid.
11. It could not be disputed before us by the learned Counsel for the respondent that there is dedication of property to the testator's tomb and to that extent the dedication should fail. The learned Judge who heard the second appeal has held that there was dedication of property to the tomb, that the same is invalid and that portion of the E schedule property referable to such dedication should be ascertained and the same should be treated as property regarding which the testator died intestate. To that extent the second appeal has been allowed by the learned Judge. But the respondent-defendant is not challenging that part of the judgment of the learned Judge. Therefore the question is whether the bequest can be considered to be in favour of two separate entities, viz., the tomb and the matam, and whether that part of the bequest to the matam and the purposes therein can be considered to be valid. As we said earlier, we are of the opinion that the bequest is to one single entity and the same was only for the tomb and matters connected with it.
12. We have to note the dominant intention of the testator in creating the endowment. He says that he was creating the endowment for the salvation of his soul. For that purpose he directs that his body shall be interred in the land bearing S.F. No. 68/B (one of the items in E schedule) and that tomb should be built over the place where his body is interred. He also directs that there should be lighting at the tomb every day. The further direction is that flower plants should be planted in the land in question. The learned Judge who heard the second appeal has held that the endowment referable to the tomb, lighting of the tomb every day and growing flower plants in the land is invalid. The further direction made by the testator is that for the purposes of conducting the annual ceremonies a matam should be built on the same land (S.F. No. 68/B), that pictures (of Gods) should be installed therein, that this matam also should be lighted every day and once a year Guru Pooja should be conducted in the matam, when saffron clothers should be distributed to mendicants and that poor should be fed on that day. It is in evidence that a tomb as well as a matam have been built on the land in question and the defendant, who has been directed to be the Manager of the endowment as per the terms of the will, has been conducting the lighting, Guru Pooja, poor feeding, etc., as contemplated under the will. It is also in evidence that the tomb and the matam are close to each other on the said land.
13. It has been the case of the defendant-respondent in the trial Court as well as in the first appellate Court that Guru Pooja referred to had nothing to do with the death anniversary of the testator, that 'guru' meant the Adhi Guru, viz., Lord Subramanya and that the Guru Pooja meant only festival for Lord Subramanya on the Thai Poosam day. The learned Subordinate Judge, before whom such contention had been put forward at the time of the trial rejected the same. It is pointed out by him that such a contention is against the pleading in the case inasmuch as the defendant has not stated a word in his written statement that Guru Pooja referred to in the will is festival for Lord Subramanya. The learned District Judge, Tiruchirapalli, who heard the first appeal was of a different view on this point. The learned Judge who heard the second appeal did not decide this point. But we think the question whether Guru Pooja referred to in the will is festival for Lord Subramanya or whether it is one connected with the death anniversary of the testator, has some relevance in deciding the main question. We have no doubt that the view of the learned Subordinate Judge on this point is correct and there is absolutely no warrant for thinking that Guru Pooja referred to in the will related to Pooja or festival for Lord Subramanya. The learned Subordinate Judge has referred to several documents. such as Exhibits A-5, A-6, A-7, A-8, A-9, A-12 and A-13 which make it abundantly clear that Guru Pooja was only in connection with the death anniversary of the testator and that the same was being performed every year on Mirugaseersha Nakshatram day in the month of Margazhi as it was on that date the testator died. The 'earned District Judge who heard the first appeal without giving due weight to the documentary evidence available in the case as well as the pleadings, seems to have thought that ' Guru' meant 'Adhi Guru', viz., Lord Subramanya and therefore Guru Pooja referred to in the will was only pooja for Lord Subramanya. It is not disputed that Guru Pooja was meant to be performed and, as a matter of fact, was being performed only on the date of death anniversary of the testator and not on Thai Poosam day which is the Jayanthi day for Lord Subramanya. This fact makes it abundantly clear that Guru Pooja was not meant to be Pooja for Lord Subramanya, but it was only Pooja connected with the death anniversary of the testator. Evidently, the testator wanted to raise hirnself to the position of a Guru (saint) and he wanted that there should be worship at his tomb not only every day, but there should be specially worship (Guru Pooja) on his death anniversary. It is true that in the matam pictures of Gods have been installed and, as a matter of fact, that is in accordance with what the testator contemplated in the will. The picture of Lord Subramanya is also there in the matam. Much seems to have been made of the fact that the 1st plaintiff's marriage came to be performed in this matam itself and in that connection, the matam was described as Subramanya Sannadhi. Neither the performance of the marriage of the 1st plaintiff nor the abovesaid description of the matam would in any way affect the position regarding what the testator meant by Guru Pooja in that matam. We have absolutely no doubt that Guru Pooja referred to in the will is only in connection with the death anniversary of the testator. If the dedication is only for the performance of sradha, that would not make the same invalid. But performing, Guru Pooja is not the same thing as performing sradha. On a reading of the entire provision wherein the testator directed that a samadhi should be built and a matam also should be built, that the samadhi should be lighted every day, that there should be pooja every day and further there should be Guru Pooja, it is quite clear that the dedication is for the tomb and purposes connected with the tomb. The matam and the performances therein are not separate from the samadhi itself.
14. The Privy Council case referred to above squarely applies to the facts of this case. There the testator directed that his body should be buried in a samadhi and at the same place where the samadhi is made, a matam should be built with a stone inscription in the front portion of the matam 'Kanakasabhapathi Samadhi Matam', that regular worship should be conducted permanently therein and Guru Pooja also should be conducted every year and also provided in clauses 16 and 18 of that will for erecting of a temple for certain idols in the same land and for poor feeding, etc. and endowed certain properties for all the above purposes. Their Lordships of the Privy Council observed at page 38 (column 2) and page 39 (column 1):
It is clear, their Lordships think that the directions embody a single scheme. The testator contemplated that he would be buried as a sanyasi in a samadhi matam, and in connection therewith, and with a view to keeping his memory alive and enhancing his own posthumous reputation, the testator provided for feeding the poor and for erecting a temple for the idols, which would have the effect of attracting pilgrims. It is important to notice that the erection of the matam for the feeding of the poor and the erection of the temple for the installation of the idols under clause 16, were to be on the same item of land as the burial place, and that under clause 17, feeding of the poor was to be conducted during the pujas to be performed in connection with the burial place. If the provisions in clauses 16 and 18 stood alone, they might amount to a good charitable bequest: but they do not stand alone. Their Lordships can find no indication that the testator intended to establish any charity apart from the ceremonies to be conducted at his own burial place.
We are unable to find any difference between the endowment in the case before the Privy Council and that in the present case. It is significant to note that in spite of the fact that a temple for certain idols, quite distinct from the samadhi itself, had to be built on the same land where the samadhi is to be built, their Lordships of the Privy Council held that the endowment was one single scheme and that therefore the entire endowment failed. In the present case, there is not even the question of a separate temple. No doubt the matam has not been constructed actually over the tomb, but it is not disputed that it is close to the tomb and undoubtedly it is only an adjunct to the tomb. It appears to us that a matam close to the tomb has been built for the purpose of providing a convenient place for offering worship, etc. But none-the-less the worship is only connected with the tomb. The learned Judge who heard the second appeal, if we may say so with respect, firstly, rightly thought that because the provision is for constructing a matam on the same land as the tomb and close to the tomb itself, it was possibly a part of the endowment for the tomb. But the learned Judge seems to have been influenced by the fact that the testator had created independent endowments for charitable and religious purposes in respect of A, B and C schedule properties, in changing his opinion and ultimately holding that the endowment in respect of the E schedule is divisible and that, that part of the endowment relating to the matam has nothing to do with the tomb and therefore that part is valid. But we are of the opinion that the fact that the testator did endow A, B and C schedule properties for certain charities and put the properties in each schedule in the possession of the defendant and the two plaintiffs respectively, has not much relevance regarding the question whether the endowment relating to E schedule property is one endowment to the tomb and purposes connected with the tomb or otherwise. Therefore we hold that the bequest in respect E schedule completely fails.
15. The only other question as to whether the residuary clause in the will comes into play. The first appellate Court as well as the learned Judge of this Court are of the view that the residuary clause would have no application to the E schedule properties. It is no doubt true that the words used in the residuary clause, if literally taken without trying to ascertain the intention of the testator from the tenor of the entire will would not cover the E schedule properties, for the words are 'properties not found herein'. The argument is that when the E schedule properties are actually dealt with under the will, they cannot be equated with properties not found in the will. But we have to ascertain what the intention of the testator is. When the testator said in the residuary clause that all properties not found in the will should be taken by the defendant and the two plaintiffs just in the same way as they took A, B and G schedule respectively, it is quite obvious that the testator did not want any property belonging to him going in intestate succession. He was very particular that his properties should go to the possession of the defendant and the two plaintiffs, of course with the endowments created over the same. If the endowment in respect of the E schedule properties failed, we are of the opinion that if the true intention of the testator is to be given effect to, the said properties should be put in the possession of the defendant and the two plaintiffs in equal shares so that they would take the properties just in the same manner they took the properties described in schedules A, B and G respectively. Considering all the circumstances of the case the word occuring in the residuary clause of the will should not be construed narrowly and they should be construed as taking in properties not disposed of by the other clauses in the will occurring earlier to the residuary clause. In respect of the E schedule properties the testator no doubt created an endowment, which however failed. Under the wider connotation of the words which we consider, under the circumstances of the case, as meaning properties not disposed of under the earlier clauses of the will, the E schedule properties should also be governed by the residuary clause of the will.
16. The result is, the Letters Patent Appeal is allowed, the decree of the first appellate Court and that in the second appeal are set aside and the decree of the learned Subordinate Judge (trial Court) is restored, except for the following modifications: It is made clear that the defendant, who has been in possession of the E schedule properties in pursuance of the directions contained in the will, would be entitled to deduct all expenses incurred by him up to this date regarding the purposes mentioned in the will The costs of the parties throughout to come out of the estate.