Ratnavel Pandian, J.
1. Defendants 1 and 3 to 10 in O.S. No. 73 of 1969 on the file of the Court of the Subordinate Judge of Ramanathapuram are the appellants herein.
2. The suit was filed by the respondents-Pla'ntiffs for partition and separate possession of an 1/6 share in the plaint A and B schedule properties in favour of the second plaintiff or in the alternative for directing framing of a scheme for the effective management of the plaint-A schedule properties, making due provision for the participation of the second plaintiff therein and for his receiving an 1/6 share in the surplus income and also directing the division of the plaint B Schedule properties and delivering an 1/6 share therein to the second plaintiff: (2) for directing the defendants to render a true and proper account for the income derived by them from 13th June, 1967 from the plaint A schedule properties and also as regards the sale proceeds of the third item in the schedule attached to the trust settlement deed, dated 13th July, 1931 (Exhibit B-l) and for due payment of the plaintiff's 1/6 share therein to the second plaintiff, and (3) for a permanent injunction restraining the defendants and their men from leasing out or cutting the teakwood plantations in item-1 of the A schedule properties without refererce to the plaintiffs, and for costs of suit.
3. The plaint allegations may be briefly stated as follows: The plaint A schedule properties, items 1 and 2, are situate in the villages of Ayan Kollankondar and Vadakku Venganallur, Srivilliputhur Taluk, and the plaint B schedule properties are in Melapattam, Karisalkulam, Sammandapuram, Rajapalayam and Pudupalayam, Srivilliputhur taluk. The said properties belong to the families of the plaintiffs and the defendants. The common ancestor of the parties was one M.R. Subba Raja, son of Ramaswami Raja. For the purpose of better understanding of the relationship of the parties the following genealogical tree may be usefully referred to:
| | | | | | |
M.S. Ramaswamy | M.S. Muthaiya | M.S. Krishnama Raja | M.S. Bheema Raja
Raja | Raja (Died) | (died) wife M.K. Rama | (dead) (3rd Deft.)
(Died) | | | (1st Plff.) (died on | |
| | | | 5-4-'75 | |
M.R. Subba | | | | | |
Raja | Adopted son | | | M.S. Balasubra-
(4th | M.M. Raghupathi Raja | | | maniam Raja
Defendant) | (5th Defendent) | | | (6th Deft.)
| | | |
M.S. Annamma Raja M.S. Dharma Raja | |
(Died unmarried) (1st Deft.) | |
| | |
| M.K. Venkateswara Raja |
| (2nd Plff.) |
______________________________________|_____ (adopted son) |
| | |
| | M.S. Kumaraswamy
M.S.D. Chandrasekhara Raja A.K.D. Subbulakshmi Raja (2nd Deft.)(since dead)
= wife M.S.K. Seethal
| | | |
M.K. Raghava Raja M.M. Raghupathy Raja M.K. Sankara Raja P.J. Padma
(7th Deft.) (8th Deft.) (9th Deft.)
It will be found from the above that defendants 1 to 3, late Ramaswamy Raja (father of the 4th defendant), one Muthaiya Raja (adoptive father of the 5th Defendant), late Krishnama Raja (husband of the first plaintiff and adoptive father of the 2nd plaintiff) and another Annama Raja were the sons of the said Subba Raja. The 6th defendant is the eldest son of the third defendant. The said Subba Raja had by Exhibit B-l dated 13th July, 1931, a so-called trust deed, set apart the plaint A schedule items (1-A), 2 and 3 for the purposes mentioned therein, with the direction that out of the income derived from the said properties, the settlor, his sons and their descendants should perform during the month of Purattasl every year, Thirumanjanam, Sahasranama Archana and Neivedyam to Lord Venkatachalapathi Swami of Thiruvannamalai near Srivilliputhur, at an expense of Rs. 25 and that after the demise of the settlor and his wife Lakshmi Ammal, it should be performed at an expense of Rs. 25 per annum on each of their annual Shradha days. The balance of income from the properties after meeting the kist and other expenses, should be equally divided between all his seven sons and their descendants. The document, for this purpose, recited that the settlor should be the trustee during his lifetime and thereafter his seven sons and their male descendants should be the trustees and manage the trust by annual rotation. It was further provided that in case his sons or their male descendants did not have any male issue of their own or if any body is adopted by them outside the family, the adopted son would not have any right to the trusteeship or to any share in the surplus income. The plaintiffs submit that the said document was evidently executed only with a view to tie up the said items 1(a) and 2 of plaint A schedule in the family in perpetuity and that the trust is an illusory one and that there was no real dedication of the properties in favour of the trust. Even on the date of the execution of the deed, the net annual income from items 1 to 3 was not less than Rs. 3,500 and the expenses towards annual kist, kaval expenses and agricultural expenses came to not more than Rs. 400 per annum and therefore since the amount to be expended towards the trust was only Rs. 75 there was really no objection on the part of the settlor to dedicate the properties for the said trust and it was only a device to tie up the properties in the family in perpetuity. According to the plaintiffs, the other terms and. conditions incorporated in, the said document are all invalid and inoperative and cannot affect the right of the plaintiffs on the other descendants of the settlor since the scheme of succession laid down in the said document is opposed to law. Out of the seven, sons of the settlor Subba Raja, his second son Annama Raja died unmarried and consequently his remaining other five sons and the 4th defendant, who is the son of his deceased son Ramaswami Raja, have been enjoying the properties by dividing the income therefrom after performing the trusts enumerated in the said document. Subsequently, his third son Muthiah Raja died leaving behind his adopted son, the 5th defendant herein, who has ever since been receiving his share of the income. M.S. Krishnama Raja, husband of the first plaintiff and the adoptive father of the 2nd plaintiff, died on 13th June, 1967 leaving behind the plaintiffs alone as his heirs. Since then, according to the plaintiffs defendants 1 to 5 have been wrongfully refusing the plaintiffs their due share in the surplus income derived from the plaint A schedule properties on the besis of the terms and conditions of Exhibit B-l mentioned above. The 6th defendant, who is not a trustee even according to the terms and conditions of Exhibit B-l, is allowed to manage the plaint A schedule properties by defendants 1 to 5 and he is in management thereof since 1967 ever since the death of Krishnama Raja. Now, the plaintiffs submit that since the properties are not trust properties, the defendants have no right to deny the plaintiffs their share in the plaint schedule properties. Though the plaintiffs made a demand in February-March, 1969 for partition of the properties, they have been evading to do so. While so, the first plaintiff has now executed two settlement deeds, one on 20th December, 1967 (Exhibit A-4) and another on 16th June, 1969 (Exhibit A-5), conveying her interests in the properties in favour of the 2nd plaintiff and consequently the 2nd plaintiff is now entitled to an 1/6 share in the properties. Consequent to the execution of Exhibit B-l and after the demise of the settlor, his seven sons have added some more items of properties to the so-called trust in their registered partition deed dated 15th May, 1939 (original of Exhibit A-2) which are described in the 11th Schedule thereto. According to the plaintiffs, the said item was fetching not less than Rs. 150 per annum even on that date and the amount directed to be expended towards the trust was only Rs. 20 per annum, thus making it clear that even the said item was not absolutely dedicated to the trust, but was only burdened with the trust and therefore the said item is also liable to be divided between the parties, the plaintiffs' share being 1/6. The family of the parties was entitled only to a half share in the properties comprised in the 11th schedule to Exhibit A-2 since the other half belonged to one T.A.K. Alaga Raja's family. In the partition subsequently entered into between the sons of Subba Raja and the family of Alaga Raja, the properties described in item 1(b) of plaint A schedule have been allotted to Subba Raja's son. Pursuant to the said allotment, the properties in the plaint A schedule item 1(b) have been incorporated in the so-called trust framed by Subba Raja. There cannot be any objection to the relief of division of piaint B schedule properties since the said properties have been set apart to be enjoyed in common between the parties in Exhibit A-2 and the plaintiffs are also in joint possession of the said items along with the defendants. So far as the plaint A schedule, item 3, is concerred, it was Subsequently disposed of by the members of the family and the sale proceeds amounting to Rs. 6,000 is now remaining in the hands of the defendants and therefore they are bound to render proper accounts with regard to the said amount. They are equally bound to render accounts with regard to the income derived from the plaint A schedule items 1 and 2 since the death of Krishnama Raja, viz., 12th June, 1967 and give the plaintiffs an 1/6 share therein. The defendants, after ignoring the protest and demand of the plaintiffs, have leased out a portion of the plaint A schedule item 1 on 19th March, 1969 for cutting teakwood trees to third parties and are trying to lease out the teakwood plantations in the remaining portion and secrete the lease amount to themselves. In the circumstances, the plaintiffs seek a permanent injunction restraining the defendants from leasing out the teakwood plantation or cutting the same. In case the plaint A schedule properties are found not to be partible, the plaintiffs pray the Court to frame a scheme in regard to the management of the said items making due provision for their participation in the management of the trust and for the payment of their 1/6 share in the surplus income therefrom. Hence the suit.
4. Defendants 1 to 3 filed a written statement contending as fellows;-The plaintiffs suit for the various reliefs is not maintainable. They do not admit the correctness of the particulars, the description and value of the properties in the plaint A and B schedules. They deny the correctness of the genealogical tree appended to the plaint. They-deny that the 2nd plaintiff is the adopted son of Krishnama Raja whose widow is the first plaintiff. The defendants deny the plaint allegations regarding the terms and conditions of the trust deed and the income from the properties etc. According to the defendants, late Subba Raja, the founder of the trust, and his wife were pious people. Subba Raja had a very large extent of self-acquired properties and he executed the trust deed Exhibit B-l in respect of a small extent of his Self-acquired properties. The terms and conditions of this document were faithfully followed and complied with by the defendants and the husband of the first plaintiff as well. In Exhibit A-2, they have, clearly mentioned about the trust deed. Though it is true that Krishnama Raja died on 13th June, 1967, leaving behind his widow, the first plaintiff, it is false to state that the 2nd plaintiff is the adopted son of Krishnama Raja. There was no valid adoption and therefore the 2nd plaintiff cannot become a trustee of the said trust and he cannot be a beneficiary of the trust. Even assuming without admitting that the 2nd plaintiff is the adopted son of Krishnama Raja, he cannot succeed to the trusteeship as per the conditions laid down in the trust deed Exhibit B-l. As the 6th defendant's father is not able to effectively manage the affairs of the trust, the 6th defendant is representing the trustees; but by this fact the 2nd plaintiff cannot claim any right to the trust, In the circumstances, the plaintiffs cannot have an 1/6 share in the trust properties. The allegation about any demand made in February, 1969 for a share in the properties is false. Further, the two settlement deeds dated 20th December, 1967 and 16th June, 1969 executed in favour of the 2nd plaintiff by the first plaintiff cannot confer any right in respect of the trust over the second plaintiff. The allegation that the properties in item 3 of plaint A schedule are not endowed or dedicated for the purpose of the trust created by late Subba Raja is false. The palaintiffs cannot claim any share in the said properties also. According to the defendants, the plaint B schedule properties are not trust properties. They have been added to the present suit by the plaintiffs only to give a colour to their false claim in respect of the trust and its properties. As they are not divisible the said properties are kept common along with the other properties under schedule-8 to the partition deed Exhibit A-2. Most of the Properties therein have been already sold by the sons of Subba Raja after partition The remainin a properties in the said B schedule are lying fallow, deriving no income. The particulars of the properties in the B schedule are not correctly given. The first plaintiff has got only a 1/7 share in the said properties, since one of the sons of Subba Raja, vtz., deceased Annama Raja bequeathed his share to the fourth defendant and his wife, and in the circumstances the defendants have no objection for the first plaintiff's getting 1/7 share in the said properties. As per the wishes of the founder of the trust, item 3 of the plaint A schedule, which was described as item 3 in the trust deed, has been already sold for purchasing properties in favour of the trust. Since suitable properties were not available, the sale proceeds have been invested in the Subba Raja Ginning Factory at Rajapalayam and the amount is fetching interest. Regular accounts are maintained in respect of the trust and they are checked and verified periodically by all the trustees including Krishnama Raja and they have been found correct and as such there was no mis-management. Since they are endowed to the trust, they cannot be divided. The plaintiffs cannot question the lease of item 1 of plaint A-Schedule. The small trees growing in Pattukadu viz., item 1 of plaint A schedule, have to be leased out periodically for cutting the same for firewood and other purposes and it has been so done periodically from the time of the founder of the trust. One such public auction was held on 19th March, 1969 in respect of 10 acres 33 cents and another auction on 6th July, 1969 in respect of 53 acres 65 cents in item 1 of A-schedule for reasonable lease amount and therefore the plaintiffs cannot have any relief of injunction. In the above circumstances, the plaintiffs have no cause of action to file the present suit. The suit has been filed at the instigation of one Ramaswami Raja, sister's husband of the first plaintiff and father of the second plaintiff, who has got some grudge against the family members of Subba Raja and who is not on talking terms with the defendants. Hence the suit should be dismissed with costs.
5. Defendants 4 to 6 have adcpted the written statement filed by defendants 1 to 3.
6. Defendants 7 to 10 have only reiterated the contentions raised by defendants 1 to 3.
7. The 5th defendant filed an additional written statement disputing the correctness of the survey numbers and the extent of some of the suit properties.
8. On the above pleadings, the following issues were framed for trial:
1. Whether the A-schedule properties attached to the plaint have not been absolutely dedicated for the trust or are they merely burdened with the trust?
2. If the A-schedule properties are partible, to what share are the plaintiffs entitled therein?
3. Whether the plaintiffs are entitled to any share in the surplus income from A-schedule properties even if they are found to be trust properties and as such not partible?
4. Whether the 2nd plaintiff is the adopted son of the late M.S. Krishnama Raja?
5. Whether the 2nd plaintiff is not entitled to any interest in the A-schedule properties as contended by the defendants?
6. Whether the settlement deeds dated 20th December, 1967 and 16th June, 1969 executed by the 1st plaintiff in favour of the 2nd plaintiff are true and binding on the defendants?
7. Whether the plaintiffs are entitled to have a scheme framed for the management of the A-schedule properties and division of surplus profits therefrom even if they are found to be trust properties?
8. Whether the plaintiffs are entitled to the relief of injunction restraining the defendants, their men and agents from leasing out the trees in A-schedule properties without reference to them?
9. Whether the defendants are liable to render accounts to the plaintiffs for the income derived from the said properties from 13th June, 1967 and also for the sale proceeds of A-schedule item 3?
10. What is the share to which the plaintiffs are entitled in B-schedule properties?
11. Whether the leases of the trees in 10 acres and 37 cents on 19th March, 1969 and another extent of 53 acres and 63 cents on 6th July, 1969 in A-schedule in item No. 1 by the defendants are true and valid and binding on the plaintiffs?
12. To what reliefs are the plaintiffs entitled?
13.Whether the defendants 9 and 10 have no right in the A-schedule property or in the office of the trusteeship?
14. Whether the plaintiffs are entitled to partition and separate possession of l/6th share in all or any of the suit properties?
9. Even at the outset it may be mentioned that the learned Counsel appearing for the plaintiffs in the lower Court made an endorsement on the plaint to the effect that the second plaintiff was content to base his claim on the basis of the settlement deed dated 16th June, 1969 and that therefore no finding need be given on issue-4 relating to his adoption by late Krishnama Raja. In the circumstances, we are not called upon to go into the dispute with regard to the validity or otherwise of the adoption of the 2nd plaintiff.
10. Likewise, it is seen that issue No. 8 regarding the relief of injunction was not pressed before the lower Court. On a consideration of the entire oral and documentary evidence, the lower Court found on issue 11 that there was nothing to suspect the genuineness of the conduct of the lease of the trees by the defendants and therefore issue 11 was found in favour of the defendants. Issues 1 to 3, 5, 6 and 14 were answered in favour of the plaintiffs. Since the lower Court granted the relief of partition to the plaintiffs, issue No. 7 relating to the alternative relief of framing of a scheme did not arise. It is seen that the plaintiffs have given up their claim of partition in respect of items 4 and 6, as per their endorsement on the plaint and further they also conceded that they were entitled only to a l/7th share in the plaint B-schedule properties and therefore the lower Court held that the plaintiffs would be entitled to a declaration in respect of a l/7th share in items 1, 2, 4 and 6 of B-schedule and for partition of the said share in respect of items 3 to 5 only. In other respects, the plaintiffs' claim in the B-schedule properties was dismissed as not pressed. On issue-13 it was found that defendants 9 and 10 were also entitled to a share in the plaint A-schedule properties. On issue-9 the lower Court found that in view of its findings on other issues, the defendants were liable to render a true and correct account in respect of the income and profits derived from the plaint schedule properties from 13th June, 1967. Consequently, the plaintiffs' suit was decreed for partition and separate possession of their 1/6th share in A-schedule properties and l/7th share in items 3 and 5 of B-schedule and for a bare declaration of their l/7th share in items 1, 2, 4 and 6 of B-schedule, and for rendition of accounts from the defendants for the rents and profits of the plaint A-schedule properties with effect from 13th June, 1967. Costs of suit were directed to come out of the estate. In other respects, the suit was dismissed without costs. Aggrieved by this judgment, defendants 1 and 3 to 10 have preferred this appeal.
11. Mr. S, Ramalingam, learned Counsel, appearing for the appellants, has raised the following contention's:
(1) As the trust properties are not partible, the plaintiffs cannot claim any share in the A-schedule properties nor partition of the same and the B-schedule properties are incapable of any useful purpose.
(2) The lower Court ought to have found that the plaintiffs have no right to demand any account for the income from the properties from the defendants and the plaintiffs have no right to question the leasing out of the properties.
(3) The trial Court has erred in finding that there is no material in Exhibit B-l to infer that there is any real dedication or endowment to any deity or religious institution either absolute or partial, and that it is rather difficult to hold that Exhibit B-l is a deed of dedication or endowment to beexempted from the rule against perpetuity.
(4) The consideration by the trial Court of the question as to whether the mode of succession as prescribed in Exhibit B-l can be valid in law, has not been properly and legally done.
(5) The second plaintiff is not entitled to the first plaintiffs husband's share in the suit properties and the finding of the Court below on this aspect is unjustified both in law and on facts.
(6) The settlement deed Exhibit A-5 has no binding force against the defendants.
(7) The finding given by the lower Court on issues 1 to 3, 5 and 14 in favour of the plaintiffs cannot be sustained.
(8) The decree passed in favour of the plaintiffs that they together would be entitled to l/6th share in the plaint A-schedule properties and the sale proceeds of the caidamom estate which are now in fixed deposit, is not correct. Similarly, the finding that the defendants must render account for the income and profits derived from the suit properties from 13th June, 1967 cannot be supported.
12. As per the pedigree given by the plaintiffs, the common ancestor Subba Raja, son of Ramaswami Raja, had seven sons viz., Ramaswami Raja, Annama Raja, Muthia Raja, Dharma Raja, Krishnama Raja, Kumaraswami Raja and Bheema Raja, of whom Annama Raja died unmarried and Muthiah Raja and Krishnama Raja died issueless. It is said that this Muthiah Raja had adopted one Raghupathi Raja, who is the 5th defendant in this action, and that Krishnama Raja, who was the first plaintiff's husband, adopted the 2nd plaintiff who is no other than his wife's (1st Plaintiff's) younger sister's son. This adoption of the 2nd plaintiff is challenged by the defendants. Though there was an issue (issue-4) as to whether the 2nd plaintiff is the adopted son of late M.S. Krishnama Raja, at the time of the trial, the plaintiffs have given up that question of adoption and as such no finding has been recorded. That point also is not pressed in this appeal.
13. During the pendency of this appeal the appellants-defendants have filed C.M.P. No. 997 of 1976 stating that the first respondent Rama Ammal died on 5th April, 1975 and therefore her share in the joint decree in this suit has devolved upon her husband's brothers surviving at the time of her death, who are appellants 1 and 2, and as such it is preyed that appellants 1 and 2 be recorded as the legal representatives of deceased first respondent viz., M.K. Rama Ammal.
14. They have filed another application C.M.P. No. 996 of 1976 stating that the 2nd appellant Bheema Raja (third defendant) also died on 8th January, 1976 and therefore his legal representatives viz., appellants (defendants) should be added as the legal representatives of the second appellant. We shall advert to these applications and the resultant position at the end of the judgment.
15. It is the common case that the common ancestor Subba Raja had executed a registered trust settlement deed Exhibit B-l dated 13th July, 1931 in respect of the three items of properties, of which the first is called Pattakadu, otherwise known as Karuppukkal Kadu. This corresponds to item 1(a) of plaint A-schedule, which is shown as item 1, of the schedule to Exhibit B-l. The property mentioned in the second item of the schedule to Exhibit B-l is a thope situate in Vadakku Venganallur, extending to an area of 16 acres 84 cents comprised in S. Nos. 708 and 710/1, which corresponds to item-2 of plaint A-schedule. It may be noted that out of the total extent of 16 acres 84 cents, an area of 6 acres 8 cents is said to have been transferred in exchange for some other property adjacent to this, which is said to have been annexed. Therefore, the present extent is only 10 acres 76 cents. The last item of property is the cardamom estate in Kerala State, measuring 29 acres 54 cents. This property was sold in the year 1955 itself i.e., even during the lifetime of the first plaintiff's husband under the original of Exhibit A-3 dated 17th April, 1955, for a consideration of Rs. 7,500 though the sale deed recites only a consideration of Rs. 6,000. This item of property corresponds to item-3 of plaint A-schedule. As this third item of property is sold away, only the sale proceeds are available which are in fixed deposit. These three items of properties alone are mentioned in Exhibit B-l, registration copy of which is marked as Exhibit A-l. In a partition held in the year 1939 among the sons of Subba Raja under the original of Exhibit A-2, item 1(b) of plaint schedule was included in the trust and this item is now said to have been annexed to plaint item 1(a) of Schedule A.
16. In plaint B-schedule, there are seven items of properties, of which the 7th item is only a right of pathway and easementary right. The plaintiffs claimed l/6th share in all the suit properties. However, the counsel for the plaintiffs, at the time of arguments before the lower Court made the following endorsement:
As regards B-schedule, the plaintiffs, will be content to get a partition of items 3 and 5 of B-schedule. As regards items 1, 2, 4 and 6 of B-schedule, they will be content to have a declaration of their right to l/7th share therein alone. Claim for partition as regards 1, 2, 4 and 6 of B-Schedule alone is given up.
From the above endorsement, the present claim boils down to this viz., to the entire plaint A-schedule properties and items 3 and 5 of plaint B-schedule properties and the sale proceeds of the cardamom estate as mentioned in Exhibit B-l. Further, it appears from para. 17 of the judgment that the learned Counsel for the plaintiffs has stated that his clients would be entitled to only l/7th share in the plaint B-schedule and l/6th share in the plaint A-schedule and the sale proceeds of the cardamom estate. It is seen from paragraph 18 of the judgment of the Court below that the defendants had no objection as regards the 1st plaintiffs l/7tn share in the plaint B-schedule properties. The main contention of the defendants-appellants is that the plaintiffs could have absolutely no title to the plaint A-schedule properties and the sale proceeds of the cardamom estate and consequently they could not lay any claim for partition and separate possession of any such share, nor could they ask for framing of any scheme in respect of those properties or being put in management of the properties mentioned in Exhibit B-1 or even for the participation in the rents and, profits of the income therefrom.
17. The case of the plaintiffs is that a careful reading and scrutiny of the terms and conditions of Exhibit B-l would reveal that there was no real intention on the part of the settlor Subba Raja to dedicate the properties absolutely to any trust, but on the other hand, it would show that the said document was evidently executed only with a view to tie up the properties mentioned in Exhibit B-l in perpetuity in his family for the sole benefit of his sons and their descendants, of course with a direction that they should perform Thirumanjanam, Sahasranama Arehan 2 and Neivedyam to Lord Venkatachalapathi Swami presiding at Thiruvannamalai near Srivilliputhur every year in the month of Purattasi, at an expense of Rs. 25, and with a direction that after the demise of the senior Subba Raja and his wife Lakshmi Ammal, they should perform poor feeding at an expense of Rs. 25 per annum on each of their annual Shraddha days. After defraying the expanses in this regard like payment of kist etc., and the maintenance charges of the properties mentioned in Exhibit B-l, the residue was to be appropriated by all his seven sons end their descendants in equal moieties. According to the plaintiffs, the trust created is an illusory one and even on the date of the said trust deed, item 1 of A-sehedule was fetching not less then an income of Rs. 1,500 per annum and similarly item 2 of A-schedule and item 3 appended to the said document was also each fetching an annual income of not less than Rs. 1,000 the aggregate amount from all these three items being not less than Rs. 3,500 even in the year 1931, i.e., the year in which Exhibit B-l was executed. They would further state that the expenses for the upkeep of the properties would not be more than Rs. 400 and the expenses to be incurred in connection with the religious obligation as well as the expenses to be made on the Shradha days of Subba Raja and his wife would be only Rs. 75 per annum and that after giving credit to those sums of money, there was a large residue in the properties and this should be, according to the terms of the document, divided among the heirs of the settlor inequal moieties. Further it is urged by the plaintiffs that the terms and conditions incorporated in Exhibit B-l are all invalid and inoperative in law as there was no absolute dedication or disposition at all to any deity or trust and as the scheme of succession laid down by the settlor in the said document is clearly opposed to law and the settlor had absolutely no right to create a new form of trust or to alter the law of succession. On the other hand, the properties in question according to the plaintiffs, were intended to be tied up with the family in perpetuity for the benefit of the male descendants of the settlor and as such the trust created is an illusory one and there is no real dedication of the property and therefore Exhibit B-l offends the rule against perpetuity. Hence, the plaintiffs would be entitled to a share in there properties. Alternatively, it is pleaded that in case the Court finds that Exhibit B-l is a valid document, then in view of the fact that there is no absolute transfer in favour of anybody, the plaintiffs would be entitled to a share in the suit properties fastened with the obligation of performing the charities. Resisting the above contention of the plaintiffs, the defendents have urged that Exhibit B-l is a valid and enforceable document in all respects and therefore the plaintiffs would not have any right to the properties mentioned therein.
18. The pivotal question around which all the issues revolve is whether there is a total and absolute dedication or only a partial dedication of the properties. In order to decide this question, we have to microscopically examine the intention of the settlor as can be gathered from the terms and recitals of the will ExhibitB-1. According to Mr. Ramalingam, this will Exhibit B-l is not hit by the rule against perpetuity, and what is made by the said document is a total and absolute dedication. Alternatively he would plead that even if it is to be held as not one absolutely dedicating the properties, we have to see, in the light of the provisions of Sections 14 and 15 of the Transfer of Property Act, whether the clause that the properties should not be alienated is hit by the rule against perpetuity.
19. Even at the outset, we may point out that the truncated fashion in which the learned Counsel wants to read this document Exhibit B-l, cannot be made available to him as it would then be against the fundamental canon of construction of documents. Every instrument must be read, understood and interpreted as a whole. If this principle is not adopted, then it will lead to an anomalous result. In the instant case, learned Counsel for the plaintiffs concedes that the latter part of Exhibit-B-1 offends the rule against perpetuity. Under such circumstances, the argument of the learned Counsel that the rest of the clauses in Exhibit B-l, other than the one offending the rule against perpetuity should be given effect to, cannot be accepted since such acceptance would lead only to an absurd construction which has to be avoided in order to perpetrate the well-known principle of harmonious construction of documents.
20. learned Counsel relied upon a decision in Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer : 4SCR232 , in support of his contention that the rule against perpetuity would hit only the offending clauses of the document but not the entirety of the document. The above decision is not helpful to the appellants-defendants since in the present case a substantial pertion of Exhibit B-l is opposed to law and as such void and it is not as if only a portion of it is offending, the rule against perpetuity and as if the other clauses are valid and operative. About this peculiar feature of this case, we shall presently deal.
21. The lower Court has held that the document Exhibit B-l has to be treated as void in view of the fact that under this document the settlor had only intended to keep the properties intact in perpetuity in his family there being no dedication or endowment to any deity or religious institution, and found issues 1 to 3 and 5 in favour of the plaintiffs. According to Mr. Ramalingam, the con clusions arrived at by the trial Court in paragraphs 36 and 37 on which the findings are based, are totally incorrect. Mr. N.G. Raghavachary, learned Counsel for the respondents, submitted that the properties settled in favour of the second plaintiff by the first plaintiff on the strength of Exhibit A-5 (settlement deed dated 16th June, 1969) in respect of her deceased husband's share in the Suit properties which had devolved upon her on his death can at the most be said to be burdened with the Charge of performingthe charities. In other words, the alienee would take the properties subject to the charge of the trust. Now, we shall scrutinise the document to see whether it is hit by the rule against perpetuity or is completely void or whether any portion of the document can be saved and whether the properties are absolutely dedicated.
22. A dedication of properties for religious or charitable purposes must be either absolute or partial. In the former case, the properties are given out and out to an idol or to a religious or charitable institution and the donor divests himself of all beneficial interest in the properties comprised in the endowment. In the latter case of partial dedication, a charge is created on the properties or there is a trust to receive and apply a portion of the income for the religious and charitable purposes. In such case, the property descends and is alienable and partible in the ordinary way, the only different being that it passes with the charge upon it.
23. The mere execution of a deed of gift or instrument is not enough to constitute a valid endowment. It is necessary that the executant should divest himself of the properties; there must be a transfer of the apparent evidences of ownership from the donor to the donee and in cases where there is no real dedication of properties but only a creation of perpetuity in favour of one's own descendant, the alleged gift in favour of the idol or religious or charitable institution becomes void. This position of law is clearly laid down in various decisions of which we shall refer to a few presently.
24. In Menakuru Dasaratharami Reddi and another v. Duddukuru Subba Rao and Ors. : 1SCR1122 , the Supreme Court has observed thus :
Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial a trustin favour of the charity is notcreated but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character.... If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as whole.
The Supreme Court in Nimala Bala Ghose and another v. Balachand Ghose and Ors. : 3SCR550 , have laid down the following proposition:
The question whether a deed of dedication of properties to deities, creates an absolute or partial dedication must be settled by a conspectus of all the provisions of the deed. Where the property is wholly dedicated to the worship of the idol without reserving any beneficial interest to the settlor, his descendants or other persons, the dedi- cation is complete; if the intention of the deed is to create a charge in favour of the deity and the residue vests in the settlor, the dedication is partial.... The Court has to ascertain the intention of the settlor and for that purpose to take into consideration all the terms of the deed. If it appears on a review of all the terms that after endowing property in favour of a religious institution or a deity, the surplus is either expressly or by implication retained with the settlor or given to his heirs, a partial dedication may readily be inferred, notwithstanding the apparently comprehensive words of the deposition in favour of the religious endow ment.
In S. Shanmugam Pillai and Ors. v. K. Shanmugham Pillai and Ors. : 1SCR570 , the Supreme Court has reiterated the proposition of law laid down in Dasaratharami Reddy's case : 1SCR1122 .
25. A plain and careful reading of the recitals of Exhibit B-l in the light of the legal proposition laid down by the Supreme Court as above would unambiguously and clearly show that there is no absolute or total dedication of the properties either to any deity or to any religious institution. But, on the other hand, the settlor had intended under Exhibit B-l to tie up the properties mentioned therein in perpetuity in his family, which clause would undoubtedly clearly offend the rule against perpetuity.
Now, we shall extract the relevant portion of Clause 6 of Exhibit B-l:
Clauses 7 and 10 read thus:
If we go through the entire document Exhibit B-l, the intention of the settlor is reflected to the extent that the testa-tor intended that the estate should remain intact and be kept by his family from generation to generation. Further, the testator had intended that the properties should remain in his family in the male line without power of alienation. The income of the properties in Exhibit B-l is substantially intended to be used for the benefit of the family and only an insignificant and minor portion of it is allowed to be used for the performance of archana to Sri Venkatachalapathi in the Tiruvannamalai Temple at Srivilliputhur and for the pcor-feeding on the Shraddha days of the testator and his wife. This in our view, would amount only to a charge created over the properties covered under Exhibit B-l. Thus, the settlor has not divested himself of the properties. The parties to the document have by their conduct also treated these properties as family properties. Subsequent to Exhibit B-l, a portion of item 2 of plaint A-schedule was divided amongst some of the sons of the settlor Subba Raja in a family partition. The explanation now put forth by the defendants is that this was only an exchange and in substitution of this land some other land was given. This explanation cannot be accepted in view of the tenor of Exhibit B-l which does not contemplate any such exchange; on the contrary it prohibits all kinds of alienations. The second circumstance relating to the conduct of the parties is that the income from these properties v as being utilised for the upkeep and maintenance of pannai properties of the settlon, as seen from the accounts. Vide Exhibits D-6 and D-7. Admittedly, D.W. 1 (the 1st defendant) had received a sum of Rs. 500 from the interest amount that had accrued on the sale proceeds of the cardamom estate. Further, there is no separate account for these so-caled trust properties. Contrarily, the income and expenditure for these properties are written in common account books which relate to other properties as well as the properties covered under, Exhibit B-l. The clubbing of the income of these properties would also be a circumstance indicative of the fact that there was no divesting of the interests or rights in these properties. For the above-stated reasons, we uphold the finding of the Court below that there is no absolute or total dedication of the properties under Exhibit B-l.
26. Under the Hindu Law, no estate can be created which is unknown to it and a bequest in favour of unborn children is invalid by virtue of Section 114 of the Indian Succession Act as it offends the rule against perpetuity, refer M. Kesava Gounder v. D.C. Rajan : (1976)1MLJ56 , to which judgment one of us was a party. In the case on hand, the settlor has imposed a perpetual bar against alienation of the properties by stating that they must be in his family that too with the male descendants from generation to generation. About this fact there is no dispute. Hence we see no reason to displace the finding of the Court below that this provision will offends the rule against perpetuity.
27. Then arises the question as to whether the mode of succession created in Exhibit B-l can be held to be valid in law. Exhibit B-l was created in the year 1931. Krishnama Raja died on 13th June, 1967, leaving behind his wife the first plaintiff, as his legal heir. Besides the first plaintiff, the second plaintiff, the adopted son, was also alive as his legal heir. But, as this question about adoption has not been pressed, we do not want to traverse much on that point. At any rate, it is clear that Krishnama Raja, the husband of the first plaintiff, died after the introduction of the Hindu Succession Act, 1956. Clause 10 of the will prohibits the female members and their heirs from inheriting the properties There cannot be any doubt that an individual cannot create a new form of estate or alter the line of succession allowed by the law for the purpose of carrying out his own wishes or views or his policy contrary to statutory law. The line of succession created under Exhibit B-l is not for the mere management of the properties, but it is for the inheritance to the proceeds of the properties and as such the said line of succession created under Exhibit B-l viz., excluding the females from inheriting the properties, is opposed to law. The factthat the pattas Exhibits B-50 and B-51 stcod in the name of the huqdars and that the kist was paid by them under Exhibits B-16 to B-44 and that the 10(1) account in respect of properties stood in the name of the defendants under Exhibits B-52 to B-54 would never advance the case of the defendants any further.
28. From the above discussions therefore, we hold that the findings of the Court below given in favour of the plaintiffs under issues 1 to 3 cannot be dislodged and that the first plaintiff under Such circumstances would be entitled to the due shares of her husband in the properties mentioned in Exhibit B-l.
29. The first plaintiff, after the death of her husband, had executed a settlement deed Exhibit A-4 dated 20th December,. 1967 in favour of the 2nd plaintiff in respect of the properties of her husband that had fallen to his share under the partition deed Exhibit A-2 dated 15th May 1939, after having reserved a life estate in her favour. P.W. 2, is one of the attestors to Exhibit A-4, and he speaks to the execution of the Said document. Tre lower Court placing reliance on the evidence of P.W. 2, has held that Exhibit A-4 is a true and valid document. Thereafter, the first plaintiff had executed another settlement deed. Exhibit A-5 dated 16th June, 1969 in favour of the 2nd plaintiff in respect of her deceased husband's share in the properties which, according to her, had devolved upon her on her husband's death. By this document she has conveyed absolutely all her right, title and interest in the suit properties to the 2nd plaintiff. P.W. 2 has also attested this document. The lower. Court has held that Exhibit A-5 is also a true document. As the suit is not in respect of the properties mentioned in Exhibit A-4, no question as to the binding nature of Exhibit A-4 would arise. As regards the binding nature of Exhibit A-5 on the defendants, it depends upon the rights of the first plaintiff to the suit properties. Since we have held that the first plaintiff was entitled to the share of her husband in the properties covered under Exhibit B-l the 2nd plaintiff would automatically get the share that had devolved upon the first plaintiff by virtue of Exhibit A-5, subject to the charge created under Exhibit B-l. Hence, we confirm the finding of the Court below on this aspect of the case.
30. Regarding the question of rendition of accounts for the rents and profits in respect of the plaint A-schedule properties with effect from 13th June, 1967, it was contended by Mr. Ramalingam that there cannot be any account; but the first plaintiff, in case she establishes her rights over the due share of her husband, would be entitled only to the mesne profits for a period of three years prior to the date of the filing of the suit. But, we are unable to accept this contention for the reasons mentioned by the Court below. Accordingly, we confirm its finding on issue No. 9.
31. The appeal is dismissed. There will be no order as to costs.
32. In view of our above findings, C.M.P. No. 996 of 1976, a petition to bring on record the legal representatives of the deceased second appellant, is allowed. In so far as C.M.P. No. 997 of 1976 is concerned, it is dismissed in view of our judgment as above.