G. Ramanujam, J.
1. Defendants 1 to 3 and 11 In O.S. No. 213 of 1970 on the file of the District Munsif, Srivaikuntam are the appellants. The said suit was filed by the first respondent herein for a declaration that the settlement deed, dated 30th July, 1964 executed by his grandfather Lakshmana Pillai alias Shanmugam Pillai was void and inoperative so far as the suit lands are concerned and for an injunction against defendants 1 to 3 and their father the fourth defendant, and 10th and 11th defendants from interfering with his alleged possession of the same. The plaintiff's case was that the suit properties belonged to his grand-father Lakshmana Pillai alias Shanmugam Pillai, that the plaintiff and defendants 5 to 9 are the children of Sivakami Ammal, the daughter of Lakshmana Pillai, that on 30th July, 1964 the said Lakshmana Pillai had executed a registered deed endowing the suit properties for certain services to be rendered in Sri. Shanmugasundereswarar Siddhi Vinayagar temple, that under the said deed the settlor has constituted himself as the trustee for life and the male descendants of the settlor's wife's brother's sons are constituted as trustees after settlor's lifetime, but that the said deed of endowment was clearly void and inoperative as Sri Shanmugasundareswara Siddhi Vinayagar temple designated as the object of bounty is only a samadhi of one Shanmugasundareswarar and not an institution capable of taking or holding properties and that, therefore, the suit properties have got to be treated as part of the property inherited by the plaintiff and defendants 5 to 9 on the death of Lakshmana Pillai. The plaintiff also alleged that he and defendants 5 to 9 continue to be in possession of the suit properties notwithstanding the alleged deed of endowment and, therefore, they are entitled to seek an injunction in the suit to protect their possession.
2. Defendants 1 to 4 have filed a joint written statement as also an additional written statement. They have resisted the suit contending that the suit properties having been admittedly owned by Lakshmana Pillai he is entitled to execute the settlement deed dated 30th July, 1964 endowing the properties in favour of Shanmugasundareswarar Siddhi Vinayagar temple, that the said temple is not a samadhi as contended by the plaintiff, and that though Shanmugasundareswarar samadhi exists in the same premises, Shanmugasundareswarar Siddhi Vinayagar temple is separate and independent from the samadhi and, therefore, the settlement deed endowing certain properties for the performance of certain services in the said temple cannot be said to be an endowment for the samadhi. They also contended that even if the settlement deed was void and inoperative on the ground that the endowment was in favour of the samadhi, the suit properties cannot be claimed by the plaintiff under the terms of the will dated 11th September, 1969 executed by Lakshmana Pillai as Lakshmana Pillai had already settled the suit properties on defendants 1 to 3, the sons of the fourth defendant subject to a charge in favour of the feeding charity under the settlement deed dated 30th July, 1964, and, therefore, the suit properties cannot be taken to belong to the testator on the date of his death. They also asserted that the plaintiff has never been in possession of the suit properties and that the 4th defendant as guardian of defendants 1 to 3 has been in possession of the suit properties ever since the execution of the settlement deed, dated 30th July, 1964 and as such, the plaintiff cannot seek the relief of injunction as against the defendants 1 to 4. Defendants 3 to 9 remained ex parte.
3. After the filing of the written statement the fourth defendant died and defendants 10and 11 have been impleaded as two of his legal representatives.
4. The trial Court, after analysing the oral and documentary evidence adduced before it by both parties, held that the settlement deed dated 30th July, 1964 executed by Lakshmana Pillai was perfectly valid under law as the endowment thereunder is not in favour of the samadhi as alleged by the plaintiff but it is in favour of the Vinayagar temple for doing certain services and charities therein. On the question as to whether the defendants 1 to 3 are entitled to the properties covered by the settlement deed subject to a charge in favour of the feeding charity as contended by them, the trial Court held that defendants 1 to 3 are entitled to the same subject to a charity that has been created under Exhibit A-1. On the question as to whether the plaintiff and defendants 5 to 9 are entitled to the suit properties on the basis of the will executed by Lakshmana Pillai on 11th September, 1969, bequeathing all his assets in their favour in equal shares in the event of the settlement deed, dated 30th July, 1964 being held to be void, the trial Court held that as the said settlement deed has been held to be valid, the plaintiff and defendants 5 to 9 are not entitled to any portion of the suit properties. On the question of possession also, the trial Court has held that the plaintiff and defendants 5 to 9 were not at all in possession of the suit properties on the date of the suit. In the face of the above findings the trial Court dismissed the suit.
5. The matter was taken in appeal by the plaintiff, and the lower appellate Court, however, took a different view and reversed the decision of the trial Court. The lower appellate Court found that the dedication contained in the settlement deed, Exhibit A-1 dated 30th July, 1964 was in favour of the samadhi and, therefore, the whole dedication must be held to be void, that the settlement deed cannot be taken to be in favour of defendants 1 to 3 subject to a charge in favour of the feeding charity as has been held by the trial Court and that, therefore, the settlement deed Exhibit A-1 should be taken to be absolutely void and inoperative in law. The lower appellate Court also held that as the settlement deed dated 30th July, 1964 was void and inoperative, the suit properties have to be taken by plaintiffand defendants 5 to 9 in equal shares as per the terms of the will executed by Lakshmana Pillai which has been marked as Exhibit A-11. In this view of the matter the lower appellate Court set aside the decision of the trial Court and decreed the plaintiff's suit as prayed for.
6. In this second appeal by defendants 1 to 3 and 11, it is contended that the findings of. the lower appellate Court that the dedication under the settlement deed Exhibit A-1, dated 30th July, 1964 being one in favour of the samadhi is void, that it also does not confer an absolute title on defendants 1 to 3 subject to a charge in favour of the feeding charity as alleged by them, and that the suit properties will go to the plaintiff and defendants 5 to 9 per the terms of the will executed by Lakshmana Pillai are challenged.
7. For determining whether the dedication under Exhibit A-1 is in favour of the samadhi or not, it is necessary to consider the terms of Exhibit A-1. After referring to the other charities created by him earlier Lakshmana Pillai, the author of Exhibit A-1 proceeds to say:
The above extract does not in terms refer to any samadhi. But it specifically refers to the services to be done in Shanmugasundareswarar Siddhi Vinayagar temple. It also uses the phrase Therefore the services contemplated under Exhibit A-1 have to be done to the deity in the Shanmugasundareswarar Siddhi Vinayagar temple. The learned Counsel for the respondent would contend that even though the nomenclature used under Exhibit A-1 is temple, the settlor's idea was to really endow the properties to the samadhi of Shanmugasundareswarar Swamigal which exists inside the same premises. In support of such a submission, reference has been made to certain other documents such as Exhibits A-1, A-12 and A-14, wherein the word 'temple' has been used to refer to samadhi. Exhibit A-8 is a copy of the trust deed executed by the same Lakshmana Pillai. Under that document Lakshmana Pillai has endowed certain properties for the purpose of certain services and charities in some of the temples in the village. One of the temples referred to therein is Shanmugasundareswarar Siddhi Vinayagar temple. It is said that the reference in Exhibit A-8 is only to the samadhi is clear from the following extract contained therein:
8. Reference is also made to Exhibit A-12, dated 13th December, 1945 executed by one Ranganathan Pillai for the conduct of certain charities for Sri. Shanmugasundareswarar samadhi. That document contains the following recital:
Exhibit A-14, dated 6th December, 1920 executed by Lakshmana Pillai reads thus;
On the strength of the recitals contained in Exhibits A-8, A-12 and A-14 where reference has been made to samadhi of Shanmuga Thavasi Swamigal it is said that the temple referred to in Exhibit A-1 is in fact a samadhi and that the endowment made by Lakshmana Pillai under that document is in favour of the samadhi.
9. The learned Counsel refers to the following decisions in support of the plea that a dedication to a samadhi is invalid under the law. In Draviasundaram Pillai v. Subramania Pillai : AIR1945Mad217 , a Division Bench of the Court held that a bequest for building a tomb of the testator and the installation of an idol on the same place was not an endowment of a public and charitable nature. In Veluswami Goundan v. Dandapani : AIR1946Mad485 , another Division Bench of this Court has held that a bequest made for the performance of gurupooja and annual annadhanam at the samadhi and daily worship at such temple was wholly unlawful and the dedication for such a purpose is invalid. In Saraswathi Ammal v. Rajagopal Ammal : 1SCR277 , it has been held that a settlement deed delicating property for the samadhi kainkariyam, that is to say the worship of and at the samadhi (tomb) was invalid in law for the reason that the worship at a tomb is not valid amongst Hindus. In this decision the Supreme Court has approved the view taken by the Madras High Court in the above two decisions. Therefore the legal position that a dedication to a samadhi is invalid under the Hindu law can no longer be in dispute. In Karuppannan Ambalam v. Tirumalai Ambalam : AIR1962Mad500 , another Bench had also taken, the view that an endowment of properties for the erection of a tomb or samadhi over the grave of the testator and for the maintenance of the samadhi and the nandavanam around it or the services connected with the samadhi like lighting, neivedyam etc., is not valid under the Hindu law.
10. The question in this case is whether the dedication under Exhibit A-1 is in favour of the samadhi. According to the plaintiff-respondent, over the samadhi of Shanmuga Thavasi Swamigal a lingam has been installed and the said lingam has been named as Shanmugasundareswarar and a mandapam has been raised for the said lingam, where the usual poojas are being performed and the deity of Shangugasundareswarar Siddhi Vinayagar cannot be treated as a separate entity apart from the samadhi of Shanmuga Thavasi Swamigal.
11. According to the appellants, however, though Shanmugasundareswarar is the lingam which has been erected on the samadhi of Shanmugha Thavasi Swamigal, there is a separate Vinayagar temple within the same premises and there is no connection whatever between the same and the samadhi. It is their case that the Vinayagar temple and the samadhi over which the lingam called Shanmugasundareswarar has been installed are two separate institutions. In support of this plea the appellants referred to the averments made in the plaint which proceeded on the basis that the institution consists of two buildings western and eastern that the western building is a bigger one where the samadhi of Shanmuga Thavasi Swamigal has been housed, and the eastern building houses the idol of Siddhi Vinayagar which was worshipped originally by Shanmuga Thavasi Swamigal during his lifetime and later by Shanmugam. Pillai. Reference is also made to the following admission of plaintiff as P.W. 1:
It has also been found that the samadhi is 50 feet away from the Siddhi Vinayagar temple. In this case, in the document Exhibit A-1 Lakshmana Pillai refers to the services to be performed in the Shanmugasundareswarar Siddhi Vinayagar temple and no reference has been made to any samadhi, whereas in Exhibits A-8, A-12 and A-14 reference has been made specifically to the samadhi and dedications made to the same. It may be that the dedications under Exhibits A-8, A-12 and A-14 were specifically to the samadhi, but the same cannot be said to be the case in Exhibit A-1, and it is not proper to consider Exhibit A-1 with reference to the recitals in Exhibits A-8, A-12 and A-14. So far as the recitals in Exhibit A-1 are concerned they are clear and unambiguous and the dedication thereunder is only to the Siddhi Vinayagar temple. It may be a fact that Siddhi Vinayagar temple and the samadhi over which a lingam named Shanmugasundareswarar had been erected are located in the same premises. But the facts admitted by the plaintiff as P.W. 1 indicate that Siddhi Vinayagar is the deity which has been worshipped by Shanmuga Thavasi Swamigal and the said deity had been installed in a separate building apart from the building where the samadhi is located. The deity of Siddhi Vinayagar has been in existence even before the death of Shanmuga Thavasi Swamigal as it is admitted that Shanmuga Thavasi Swamigal during his lifetime had been worshipping the deity of Siddhi Vinayagar. It is also clear from the facts that while erecting a samadhi of Shanmuga Thavasi Swamigal they have also constructed a separate temple for the deity of Siddhi Vinayagar which had been worshipped by Shanmuga Thavasi Swamigal. It is not as if Siddhi Vinayagar temple had been erected ever the samadhi, and the evidence indicates that a lingam was installed over the samadhi of Shanmuga Thavasi Swamigal and that lingam has been called Shanmugasundareswarar and that lingam has nothing to do with the Siddhi Vinayagar temple which has got a separate existence of its own though within the same compound or premises. In this case Lakshamana Pillai has chosen to dedicate some properties for the services to be rendered in the Siddhi Vinayagar temple without reference to the samadhi and the fact that the samadhi also exists within the same compound does not make a separate dedication made in favour of the Siddhi Vinayagar temple illegal. It may be that if the dedication is made both for the samadhi as well as the Siddhi Vinayagar temple, a reasonable doubt may arise as to the validity of such a dedication. But when the dedication is specifically made to the Siddhi Vinayagar temple without any reference to the samadhi, the said dedication should be taken to be only in favour of the Siddhi Vinayagar temple.
12. The lower Appellate Court has, however, chosen to treat both the samadhi as well as the Siddhi Vinayagar temple as one unit from the mere fact that they are situate in the same that it is the garden belonging to the family of Lakshmana Pillai. The dedication under Exhibit A-1 cannot be taken to be in favour of both the institutions merely because they are located in the same garden. There appears to be some misapprehension in the mind of the lower Appellate Court when it says that Lakshmana Pillai had not endowed the properties to the Siddhi Vinayagar temple. The learned Judge himself finds that over the tomb of Shanmuga Thavasi Swamigal a sivalingam has been installed and the same is worshipped as Sri Shanmugasundareswarar and that east of the tomb, a deity by name Siddhi Vinayagar worshipped by the said Shanmuga Thavasi Swamigal when he was alive and later by Shanmugam Pillai has teen installed in a separate building and worshipped. The lower Appellate Court has taken the dedication to be in favour of samadhi merely from the fact that Lakshmana Pillai has not merely used the words 'Siddhi Vinayagar temple' in Exhibit A-1. but has actually used the words 'Shanmugasundareswarar Siddhi Vinayagar temple' which will indicate that he intended to benefit the entire institution consisting of the samadhi and the temple of Siddhi Vinayagar. I do not see how if there are two separate institutions, one a samadhi of Shanmuga Thavasi Swamigal and the other the deity of Siddhi Vinayagar which was originally worshipped by him and later installed within the same premises in a separate place and the dedication is made to Siddhi Vinayagar temple, one can say that the dedication is made in favour of the samadhi
13. The view taken by the lower Appellate Court that the Siddhi Vinayagar temple is only an adjunct to the samadhi appears to be quite opposed to the facts of the case and the origin of the said Vinayagar temple. The deity of Siddhi Vinayagar existed even during the lifetime of Shanmuga Thavasi Swamigal as has been admitted by P.W. 1 that the said deity was being worshipped by him. It is also admitted that after the death of Shanmuga Thavasi Swamigal the deity of Siddhi Vinayagar was being worshipped by Lakshmana Pillai. Therefore, the worship of Siddhi Vinayagar has been continuing from the time when Shanmuga Thavasi Swamigal was alive. Therefore Siddhi Vinayagar should have come to be worshipped first and the erection of the samadhi for Shanmuga Thavasi Swamigal had taken place at a later point of time, it cannot, therefore, be said that the Siddhi Vinayagar temple is an adjunct to the samadhi. It can be said to be an adjunct to the samadhi only if the erection of the samadhi has taken place earlier and Siddhi Vinayagar deity was installed later. It is no doubt true that Lakshmana Pillai and members of Kottai Pillaimar community are worshipping the lingam called Shanmuga Sundareswarar installed over the tomb of the said Shanmuga Thavasi Swamigal. But the}) are also worshipping the deity of Siddhi Vinayagar which has been located within the same premises but at a different place. Therefore the dedication made to the Vinayagar temple cannot be equated to be a dedication in favour of the lingam named Sundareswarar erected over the tomb of Shanmuga Thavasi Swamigal. On the facts of this case and on the recitals of Exhibit A-1 which does not refer to the samadhi, the dedication can be said to be in favour of Siddhi Vinayagar temple and not in favour of the samadhi and the lower Appellate Court's observation that as Exhibit A-1 refers to Shanmugasundareswarar Siddhi Vinayagar temple, the dedication should be taken to be in favour of the samadhi called Shanmugasundareswarar is not at all acceptable. If the dedication is only in favour of the samadhi of Shanmugasundareswarar, there need not be any reference to Siddhi Vinayagar temple. On the materials it has to be held that the samadhi of Sundareswarar and Siddhi Vinayagar temple are two different institutions and therefore, the dedication in favour of Siddhi Vinayagar temple should be taken to be a valid one. The mere fact that the samadhi of Sundareswarar and the deity of Siddhi Vinayagar are located in the same belonging to Lakshmana Pillai, they cannot be treated as a single and inseparable entity. Having regard to the fact that the deity of Siddhi Vinayagar was worshipped even before the death of the person for whom the samadhi was erected and there are two separate and independent buildings they can be held to be distinct and severable objects of dedication. It is true where the primary institution is a tomb, the mere presence of some idols around the samadhi and the observance of festivities with reference to them cannot impress the samadhi with the character of a public temple, but where the institution was founded as a temple and a tomb was also erected therein for a sacred person at the time of the erection of the temple did not alter the character as a temple. As already stated, the worship of the deity started long before the death of the person for whom the samadhi was built, and, therefore, the primary institution should be taken to be the Siddhi Vinayagar temple and the samadhi alone should be taken to be an adjunct to the temple. Thus the view taken by the lower Appellate Court that the dedication in favour of Siddhi Vinayagar temple was invalid in law cannot be upheld. Since the other findings rendered by the lower Appellate Court are consequential to its finding that Exhibit A-1 is void and invalid under the law, no separate argument has been advanced in respect of the same.
14. The result is the second appeal is allowed, the decree and judgment of the lower Appellate Court are set aside and that of the trial Court restored. There will, however, be no order as to costs.