1. One Kathan Muthirian had two sons, Subramanian and Maruthamuthu. The father acquired considerable properties by his own exertions. He made a Will (Exhibit A) on the 16th July 1893, by which he gave his two sons the A and B schedule properties absolutely. He set apart the C and D schedule properties for performing certain services in the Jambukeswarar temple. He directed that each of his sons should in alternate years contribute Rs. 250 for the performance of these services and that the surplus income should be enjoyed by them absolutely. Subramania had a son, Ponnusami, by his first wife. His widow is the plaintiff in this case. The defendants are Subramania's sons by his second wife, Ponnusami was addicted to bad habits, and consequently the father entered into a partition with him. It is a matter to be decided whether this partition was by any deed, or whether it was oral, or whether it was effected by a deed of release executed by Ponnusami to his father. On the 30th July 1904, Ponnusami executed to his father a deed of release in which it is stipulated that one-half of the payment due to, the temple should be made by the son in consideration of his enjoying a portion of the C schedule properties. He was given a share in the A schedule properties as well. Exhibit B recites that the son should enjoy the properties from generation to generation without powers of alienating them by gift, sale, etc; finally it is stipulated that he will maintain himself from the income, and that after his lifetime his male issue shall also enjoy them likewise and maintain themselves conducting the said charity in every third year.' More than a year after this, on the 27th December 1905, Ponnusami executed a deed of trust in favour of his father (Exhibit C). The reason for executing this deed is stated to be that Ponnusami was unable to attend to cultivation. It provides that the property should be in the possession of the father during the latter's lifetime and that the father should himself pay the amount due to the temple and pay every year 50 kalams of paddy for the maintenance of the son. It concludes: 'After your lifetime either I or my heirs shall take charge of the properties and enjoy them without subjecting them to any simple or usufructuary mortgage or alienating the same in any other manner.' Ponnusami died in 1909. Subramania died in 1911. The plaintiff, the widow of Ponnusami, brings the suit for possession of the properties on the ground that, as the person in whose favour that trust-deed was executed is dead, she as the heiress of Her husband is entitled to recover them. The suit is resisted by the sons of Subramania on various grounds. They plead that notwithstanding the release deed and the trust deed the family continued to be joint and that by survivorship the rights and the properties of Subramania devolved on them; and consequently the plaintiff is not entitled to maintain the suit.
2. The main contention relates to the exact nature of the gift in favour of the temple. The contention of the plaintiff is that the Will gave the properties absolutely to the two sons of Kathan Muthirian, subject only to a trust in favour of the temple. The defendants' case is that the properties were given to the temple and that the sons of Kathan Muthirian wore only trustees with the right of appropriating the surplus income, if any, for their private use. The defendants argue that it was not competent to their father to give away the trusteeship either wholly or in part in favour of his son Fonnusami, and that as both Ponnusami and Subramania are dead, they as the surviving (members of the family are entitled to take possession of the trust properties to the exclusion of the plaintiff.
3. After giving our best consideration to the arguments on either side, we have come to the conclusion that the properties in schedules G and D were only burdened with a trust and were not absolutely dedicated to the trust. The document itself is styled a Will. In paragraph 2, the testator says: 'In view of my attaining salvation, I have set apart certain properties to be devoted to the under-mentioned charity after my lifetime.' Then follow certain absolute dispositions in favour of the sons. Schedule A properties are given to Subramania and schedule B properties to Maruthamuthu. In paragraph 4 it is stated: The properties mentioned in schedules C and D have been set apart by me for the charity. The properties in schedule C shall be enjoyed by Subramania Muthirian and those in schedule D shall be enjoyed by Maruthamuthu Muthirian, who shall after paying from the incomes thereof the circar cist and other expenses spend Rs. 250 from the remaining income and duly conduct the charity mentioned in column 5 thereof.... In this manner they shall be conducting the charity permanently by turns one in each year,'
4. Paragraph 6 runs as follows: Thus, as aforesaid, from the income of the said schedules one of the two shall spend Rs. 250 towards the said charity each year and the rest of the income shall be utilised by Subramania Muthirian and his sons and by Maruthamuthu Muthirian and his sons for their maintenance and other private expenses' and then at the end of the paragraph 'Except doing so neither the said two persons nor their heirs shall for any reason whatsoever be entitled to alienate the said properties ***** and even if they do so such alienation shall not be valid.' In paragraph No. 7 there is a provision for two friends of the testator conducting the charity in case the sons should neglect it, and a further provision that these two friends shall either through Court or in a peaceable manner recover the amount spent from his sons.
5. These are the material portions of Exhibit A. Much stress was laid by the learned Vakil for the appellants upon the clause which prohibit alienation, and it was argued that the intention of the testator was that the properties should be dedicated absolutely to the charity. If the document can otherwise be construed as vesting the property in the sons, the clause prohibiting alienation will be inoperative. In Harbin v. Masterman (1894) 2 Ch. D. 184 : 63 L.J. Ch. 388 : 70 L.T. 357 it was pointed out by Lindley, L.J., 'notwithstanding the general principle that a donee or legatee can only take what is given him on the terms on which it is given, yet by our law there is a remarkable exception.... Conditions which are repugnant to the estate to which they are annexed are absolutely void, and may consequently be disregarded.' Then the learned Judge refers to the previous cases and concludes that words prohibiting alienation will not derogate from an absolute grant. The Transfer of Property Act contains provisions to this effect. Therefore, the first question to be decided is whether there are words in this document which convey an absolute estate to the two sons: (a) In the first place, there is a provision for the application of the surplus income for the private expenses of the sons; (b) there is the fact that the whole of the income in alternate years is left un-disposed of, thereby indicating that in those years the income was at the absolute disposal of the sons; (c) there is the further fact that the two friends who are asked to conduct the charity when the sons neglect it are not given the right to take possession of the property but are only entitled to sue the sons for the recovery of the expenses incurred. These clauses, in our opinion, indicate that the object of the testator was to vest the properties in the sons subject to their liability to conduct the charity. Undoubtedly the property into whosoever hands it may pass will be liable to contribute towards the expenses of the charity mentioned by testator. We do not think it was the intention of the testator to grant the property absolutely to the charity. As has been very often pointed out, decisions relating to the construction of one document should not be pressed into service for interpreting other documents. However, the principles enunciated by their Lordships of the Judicial Committee in Sonatun Bysack v. Sreemutty Juggutsoondree 8 M.I.A. 66: 1 P.C.J. 731 : 19 E.R. 465 point out the tests which have to be applied in cases like the present. In tint case, a Hindu gave all his moveable and immoveable properties by Will to his family idol. He directed that the property should not be divided by his sons, but that they should enjoy the surplus proceeds from son to grandson. The Will directed the sons to manage the estate and to attend to the festivals and ceremonies of the idol. Turner, L.J., in delivering the judgment of the Board says: '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.' The reference here is to the division of the surplus income in a particular proportion. This is a clear expression that even though there may be a gift to the idol, if the surplus income is given absolutely to the sons, the property would vest in the latter, subject to the trust in favour of the idol. The case of Ashutosh Dutt v. Doorga Churn 5 C.L.R. 296 : 6 I.A. 182: 3 P.C.J. 694 : 3 S.L.R. 32 is the strongest on the point. There was a gift by a lady of certain lands for the support of the daily worship of an idol, and the deed contained a clause that in the event of there being a surplus after these uses had been satisfied out of the revenue of the said lands, it should be applied to the support of the family. There was also a direction in the Will that the heirs should have no power of gift or sale over the property bequeathed. Notwithstanding this language, the Judicial Committee came to the conclusion that the property was only burdened with a trust, and that otherwise it vested absolutely in the legatees. In Mojazzul Karim v. Mohammed 2 C.L.J. 166 which was a case of a Muhammadan waqf, Stephen and Mookerjee, J J., held that the dedication of a portion of the income for the purposes of a mosque created at best only a charge upon the land and that the property was heritable and transferable. To the same effect is the decision in Shookmoy Chunder Das v. Monchari Dassi 7 C.s 269. In Ilulada Prasad v. Kalidas Naik 24 Ind. Cas. 893 : 20 C.L.J. 312 and Mahim Chandra Sarkar v. Hara Kumari 30 Ind. Cas. 798, two different Benches of the Calcutta High Court recently construed documents granting the surplus income as conveying an absolute estate subject to a trust. The leaning of these cases is apparently towards vesting property in living persons and to enforce on them obligations to carry on the testator's wishes. It is in consonance with the principles of Hindu Law and with the wishes of pious donors that their heirs should be the owners of the property and that they should maintain the family prestige by conducting the charities. Prima facie a Hindu who desires to devote a portion of his property for religious purposes and who has near relations to whom he bequeathes the bulk of his property, may be presumed to have granted only a charge on the estate to the charity. His primary intention will be that his descendants should have possession of the corps and should maintain the traditions by conducting the charity. It would be otherwise where the donor has no near relations in whose spiritual and material prosperity he has any interest. In the first class of cases, he desires not only his own salvation but also that of his heirs when he directs them to conduct the charity. In the present case, there is absolutely no dedication of the corpus of the property to the charity. It is only a portion of the income that has to be utilised in that behalf. Mr. Krishnaswami Aiyar drew our attention to the decision of this Court in Kolandai Mudali v. Sankara Wiaradhi 5 M.s 302, where the learned Judges held that the grant was not personal, but was primarily intended for the maintenance of a religious endowment, although beneficial to the family by whom the endowment was administered. The document in question is not recited in the judgment. Therefore, that, judgment affords no assistance to us. In Tiupa Jagshet v. Krishnaji Govind 9 B. 169 the dedication in favour of the deity was very explicit. It is clear from the language of the document in that case that there was a complete dedication of properties absolutely for the trust. In the case of Brij Lal v. Suraj Bikram Singh 16 Ind. Cas. 92: 16 C.W.N. 745 : 9 A.L.J. 802 : (1912) M.W.N. 646 : 23 M.L.J. 38 : 14 Bom. L.R. 827 : 15 O.C. 270 there was no provision for the utilisation of the surplus income in favour of the person who was to manage the charity. Lord Macnaghten points out: 'There is no estate at all given to the lady in terms. The only direction is that she is to remain in possession and occupation of the property, and then she is invested with the power of appointing an heir either in her lifetime or by Will'. In the case of Srinibash Das v. Manmohini Dasi 3 C.L.J. 224 also there was no disposition of the surplus income. These are the only decisions to which our attention was drawn on behalf of the appellants. We are clear that they do not affect the principles enunciated in Sanation Bysack v. Sreemutty Juggutsoondree 8 M.I.A. 66 and in the cases following it. We have, therefore, come to the conclusion that Exhibit A evidences a grant of property to the sons burdened with an obligation to maintain certain charities; consequently it was heritable; there was, therefore, nothing illegal in Ponnusami and his father having entered into an arrangement regarding the maintenance of the charity.
6. Mr. Krishnaswami Aiyar's next contention was that as Ponnusami agreed in Exhibit B that the property should be enjoyed in the male line, the plaintiff has no right to recover the properties. It is now well established that provisions of this kind, which are followed up by words conveying an absolute estate, will not affect rights of inheritance. In the case of Sonatun Bysack v. Sreemutty Juggutasundree 8 M.I.A. 66 : 11 Suth. P.C.J. 37 : 1 Sar. P.C.J. 731 : 19 E.R. 465 there was a similar provision and yet the widow was given a decree. Moreover the provision in Exhibit C is that after the death of Subramania Muthirian the property should go to the heirs of Ponnusami Muthirian; and as the widow is undoubtedly his heir, she is entitled to succeed in this case.
7. There is only one question upon which a finding seems necessary. The Courts below seem to have assumed that there was a partition between Ponnusami and his father. It is not clear whether there was an oral partition prior to the date of Exhibit B, or whether the partition was by Exhibit B. Exhibit B is a deed of release by the son. Mo document executed by the father has been exhibited in this case. There are statements in the judgments to the effect that there was an anterior partition. We would ask the District Judge to return a finding as to whether, when and in what manner Ponnusami and Subramania became divided, fresh evidence may be taken. The finding will be submitted within two months and seven days will be allowed for filing objections to the finding.
8. In compliance with the order contained in the above judgment, the District Judge of Trichinopoly submitted the following
I am asked for a finding as to whether ' When and in what manner Ponnusami and Subramania became divided.
9. I find, therefore, that Subramania and Pounusami were divided by Exhibit B on the 30th July 1904 and thereafter Ponnusami became owner of plaint properties, despite the fact that by Exhibit C he left them in his father's possession on terms arranged for the father's lifetime. It appears that the family had 100 acres of wet lands. Ponnusami was entitled to 1/6th share and 17 acres of plaint lands are almost exactly 1/6th.
10. This second appeal coming on for final hearing on the 14th December 1915 and this day, after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following
11. We accept the finding. Mr. Krishnaswami Aiyar says that as the finding as to partition is baaed upon the recital in Exhibit B and that as that document secures only a life-interest to Ponnusami, the widow is not entitled to anything. But we have held in our judgment that an absolute interest was secured by Exhibit B. It is said that Mr. Ivriahnaswami Aiyar had no opportunity of arguing this question and that our judgment is based on an ex parte argument. If that is so, it is open to Mr. Krishnaswami Aiyar to apply for a revision. On the finding and on our previous judgment as it stands, the second appeal fails and must be dismissed with costs.