Madrasdated High Court · 2006

the performance of private Kattalais with a provision forthe line of succession to manage its affairs. Thefounders of the family Trust as trustees were performingthe Karthigai Vanabojanam and suitable festivals to LordDesika in the main shrine situated in SriKothandaramaswami Temple, Madurantakam. The Trust deedprovides for the line of succession and also earmarks theamount to be spent for the private trust in question.There is no specific mention of any particular Kattalaifor Lord Desikar and the choice is left open to thetrustees and therefore it cannot be construed as aspecific endowment coming under the purview of the TamilNadu Hindu Religious and Charitable Endowment Act(hereinafter referred to as the ‘Act’).(ii)It is the further case of the plaintiff that thesuccessors of the founders of the Trust have beenperforming the Kattalais from and out of the income of thesuit properties. At the time of filing the suit SriA.K.Rangachari and one another as hereditary trusteessucceeded to the management of the trust and themanagement of the private Trust had always been vestedwith the plaintiff family and the public at large hadnever interfered with the private trust. The performanceof Karthigai Vanabojanam at Mambakkam and the festivals toLord Desika at Sri. Kothandaramaswami Temple Mathurandagamcannot be construed either as a religious charity or as aspecific endowment so as to attract the definition inTamil Nadu HR and CE Act 22 of 1959. The performance ofKarthigai Vanabojanam has been stopped soon after thedemise of the founders, but the festivals to Lord Desikais being continued. The plaintiff may change the mode offestival from time to time. (iii)While so, the plaintiff filed O.A.No.48 of 1980 before theDeputy Commissioner HR and CE, the second defendant. Byan order dated 31.03.1982 passed therein the plaintiffTrust was declared as a Religious Institution. Againstthe said order the plaintiff filed A.P.No.12 of 1983before the Commissioner HR and CE Board the firstdefendant. But the appeal was dismissed. Therefore thesuit in O.S.No.88 of 1986 has been filed under Section 70of the Tamil Nadu HR and CE Act praying for a decree toset aside the order dated 05.05.1986 passed by the firstdefendant in A.P.No.12 of 1983 and consequently to declarethat the plaintiff Trust is not a religious institutionattracting the provisions of HR and CE Act. 4. A detailed written statement has been filed by the firstdefendant which has been adopted by the second defendant. Theaverments in the written statement are set out below:(i)The allegation that the plaintiff trust is a family trustis not admitted. No Will or Trust Deed was left behind byLakshmi Ammal. In the Trust Deed dated 04.03.1898, it iscategorically stated that the properties have been endowedfor the performance of Thaddiaradanai Kainkaryam in the https://hcservices.ecourts.gov.in/hcservices/ annual Vanamahotsavam of Arulmigu KothandaramaswamyTemple, Mathurandakam at Mambakkam village and for theperformance of the proper charitable Kainkariyams in theAnnual Brahmotsavam of Sri Vedantha Desikar inKothandaramar Temple, Mathurandakam. It is also statedthat their successors have absolutely no right on theproperties. It is not correct to state that it is acharge on the properties whereas it is a total dedicationof the properties. The properties were not set apart forthe performance of the family charities with a provisionfor the line of succession to manage its affairs. TheTrust Deed provides that the Patta should be in the jointnames of Arulmigu Kothandaramaswamy Temple, Mathurantakamand Trustees. (ii)The Trust created is a “specific endowment” only asdefined under Section 6(19) of the Act and it is not aprivate trust. The performance of Kattalais in a publicTemple and the performance of Vanabojanam during theannual Brahmotsavam in a public temple establish thepublic character of the Trust. There has been nosuccession in the management. (iii)It is the further case of the defendants that the TrustDeed which was executed only after the demise of LakshmiAmmal stipulates the performance of both Kainkaryams andthe alleged stoppage of the Kainkaryams is not admitted.On the above said pleadings, the defendants sought for thedismissal of the suit.5. On the above said pleadings, the Trial Court framed thefollowing issues, viz.:i)Whether the declaration declaring the order dated05.05.1986 passed by the first defendant in A.P.No.12 of1983 in respect of the suit trust as invalid can begranted?ii)Whether the suit trust is a private family trust? iii)To what relief the plaintiff is entitled to?6. During Trial, the Trustee A.K.Rangachari has been examined asP.W.1 and one Thiru.Senthamarai has been examined as P.W.2 and Exs.A-1to A-5 have been marked on the side of the plaintiff. On the side ofthe defendants, one Smt. P.Sulochana has been examined as D.W.1 andExs. B-1 and B-2 have been marked. 7. The Trial Court, on a consideration of the oral anddocumentary evidence adduced in the case, dismissed the suit, upheldthe order of the first defendant and held that the suit Kattalai isnot a private family Kattalai. Being aggrieved by that the plaintiffhas filed the above appeal.8. Heard Mr. W.C.Thiruvengadam, learned counsel appearing for theappellant and Mr. G.Sugumaran, learned Special Government Pleader (HR& CE) appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/

9. Mr. W.C.Thiruvengadam, learned counsel for the appellantsubmitted that Ayanam Srinivasachari (brother of Lakshmi Ammal) andArunapuram Venkatachari (father-in-law of Lakshmi Ammal) entered intoan agreement Ex.A-1 on 04.03.1898 setting apart Lakshmi Ammal’sproperty for the performance of two Kattalais and there is nodedication of lands in favour of the Deity. According to the learnedcounsel, Desikar Uthsavam has to be performed in the month ofSeptember every year and no specific item has been indicated in thedocument, but it is stated “crpjk; nghy; bra;at[k;“ and the appellant isperforming “Thirumanjanam” and the amount stipulated is Rs.35/- only.The second item of performance is Vanabojanam to Lord-Kothandaramasamyat Mambakkam Village when the deity is taken on procession inKarthigai month and the amount stipulated is Rs.25/-. The learnedcounsel further submitted that,(i)there is no absolute dedication.(ii)improvement of the property has to be done by thedescendants of the family.(iii)joint Patta to be obtained in the name of Deity and theheirsand hence there is no absolute dedication. The learned counselfurther submitted that when there is a specific direction that templeauthorities cannot question the performance, the said performance ofservice will not attract Section 6(19) of the Act. According to thelearned counsel, Section 38(1) can be invoked if there is non-performance and the Trust Deed, at best only creates a charge on thesuit properties. 10. In support of his contentions the learned counsel relied uponthe following judgments, viz.,(i)91 L.W. 337 (D.B.) (R.M.AR.AR.RM AR. Ramanathan Chettiar Vs.The Commissioner of Hindu Religious and CharitableEndowments, Madras and others).(ii)A.I.R. 1974 A.P. 316 : (V 61 C 69) (M.AppalaRamanujacharyulu Vs. M.Venkatanarasimhacharyulu and Others).(iii)2001 (2) C.T.C. 351 (The Commissioner, H.R. & CE (Admn)Department, Vs. N.A.Ramaswamy Chettiar and two others).(iv)1960 (2) M.L.J. 231 (State of Madras, represented by theCommissioner for the Madras Hindu Religious and CharitableEndowments, Mount Road, Madras Vs. Thuthukudi-KozhumbuVyaparikalin Thuthukudi Sri Subramaniaswami MahimaiParipalana Sangam through its Honourary Secretary).(v)1952 (1) M.L.J. 282 (The Commissioner of Hindu ReligiousEndowments Board, Madras Vs. Sri Vinayakar Arudra TiruppaniSabha). 11. Mr. G.Sugumaran, learned Special Government Pleader (HR & CE)appearing for the respondents submitted that in Ex.A-1 dated04.03.1898 the authors of the document have absolutely dedicated theproperties for the performance of two services namely,(i)performance of Karthigai Vanabojanam i.e.”nfhjz;luhk RthkpahUf;F tUc& thu fhu;j;jpif khj;j;jpy;khk;ghf;fj;jpy; elf;Fk; tdngh$d cr;rtj;jpy; jjpahuhjid jh;kfhupaj;jpw;fhft[k;“ and https://hcservices.ecourts.gov.in/hcservices/ (ii)performance of festivals to Lord Desikar Shrine situate atMadurantakam Sri. Kothandaramaswamy Temple (which is apublic Temple) i.e.“nkw;go njt!;jhdj;jpy; vGe;jUspapUf;Fk; ntjhe;j njrpfh; tUc&thupgpuk;k cw;rtj;jpy; crpjkhd jh;k fhhpa';fis elj;j ntz;oajw;fhft[k;“.The learned Special Government Pleader further submitted that theauthors of the document Ex.A-1 have not retained any right over theproperties i.e. “nkw;go epy';fis gw;wp ekf;fhtJ. ek;ik rhh;e;j re;jjpfSf;fhtJahbjhU ghj;jpaKk; fpilahJ”. According to the learned Special GovernmentPleader, the above recitals in the document would show that the suitproperties have been dedicated absolutely and the property is vestedwith the temple. The authors and their successors cannot deal withthe suit properties. 12. The learned Special Government Pleader referred to Ex.B-1,the Property Register of the Temple maintained as contemplated inSection 29 of the Act and relied upon the entry made at Page. 105 ofthe Register and submitted that the suit properties and theperformance of service had been brought under Ex.B-1 Property Registerof the Temple. Therefore, according to the learned counsel, endowmentis specific endowment coming under the control of the Department. Thelearned Special Government Pleader further submitted that the documentEx.A-1 has to be read as a whole and the intention of the authors ofthe document has to be ascertained and respected. According to himunder Ex.A-1, the successors have to perform the charities and theincome from the property has to be spent for performance of twocharities and for developing the charities and the Patta shall be inthe name of Temple and its trustees. 13. The learned Special Government Pleader further submitted thatto ascertain the intention of the authors of the document, thedocument has to be read harmoniously and in support of the saidsubmission, the learned Special Government Pleader relied upon A.I.R.1963 S.C. 890 and by relying upon the judgment reported in 2000 (2)C.T.C. 559, the learned Special Government Pleader submitted thatperforming Vanabojanam Dathiyarathanai and performing charity duringBramotsavam of the Temple are specific endowments.14. The learned Special Government Pleader referred to paragraph7 of the plaint wherein it is pleaded that performance of KarthigaiVanabojanam has been stopped soon after the demise of the founders ofthe Trust, but the persons in management of the Trust have beenperforming festivals to Lord Desikar. The learned Special GovernmentPleader submitted that though the plaintiff stopped one service namelyperformance of Karthigai Vanabojanam the properties endowed remainedas such and therefore the character of the properties has not beenchanged and the properties still vest with the Temple as evidenced byEx.B-2. The learned Special Government Pleader further submitted thatthe Department can enforce the performance of service under Section 38 https://hcservices.ecourts.gov.in/hcservices/ of the Act. The learned Special Government Pleader relying uponA.I.R. 1966 S.C. 653 submitted that even if the document is construedto create a charge, it will also be a specific endowment. 15. The point for determination in the above appeal is whetherthere was absolute dedication of the properties as a specificendowment under Ex.A-1 dated 04.03.1898. For deciding the issue inquestion, the definitions of certain words as given in the Act arerelevant:Section 6 (16) “religious charity” means a public charityassociated with a Hindu festival or observance of a religiouscharacter, whether it be connected with a math or temple or not;Section 6 (17) “religious endowment” or “endowment” means allproperty belonging to or given or endowed for the support ofmaths or temples, or given or endowed for the performance of anycharity and includes the institution concerned and also thepremises thereof, but does not include gifts of property made asservice – holder or other employee of a religious institution;Section 6(19) “Specific endowment” means any property or moneyendowed for the performance of any specific service or charity ina math or temple, or for the performance of any other religiouscharity, but does not include an inam of the nature described inExplanation (1) to Clause (17). Similarly, the relevant recitals in Ex.A-1 which are necessary fordeciding the issue are set out below viz:-“yc&;kp mk;khSk; mts; g[Uc&d; eurpk;khrhhpaUk; re;jjp ,y;yhky; ,we;J ngha; tpl;lgoahy; nkw;go eurpk;khrhhpah; nguDk;yc;&kp mk;khs; nguDk; rhRtjhkha; jh;kk; elf;f ntz;oajw;fhfehk; ,UtUk; Vnfhgpj;J nkw;go Kf;fhy; g';F epy';fisa[k;mjd; kpuhR tifawh rk!; ghj;jpa';fisa[k; nkw;go kJuhe;jfk;fpuhkj;jpbyGe;jUspapUf;Fk; _ nfhjz;luhk RthkpahUf;F tUc&thhp fhh;j;jpif khjj;jpy; khk;ghf;fj;jpy; elf;Fk; tdngh$dcr;rtj;jpy; jjpahuhjid jh;k if';fhpaj;jpw;fhft[k; nkw;gonjt!;jhdj;jpy; vGe;jUspapUf;Fk; ntjhe;j njrpfh; tUc& thhpgpuk;k cw;rtj;jpy; crpjkhd jh;kk; if';fhpa';fis elj;jntz;oajw;fhft[k; ehk; kdg;g{h;j;jpaha; Vw;ghL bra;Jf;bfhz;L tpl;Ltpl;lgoahy; nkw;go epy';fisg;gw;wp ekf;fhtJek;ikr; nrh;ej re;jjpfSf;fhtJ ahbjhU ghj;jpaKk; fpilahJ““ehsJ njjpKjy; bfhz;L nkw;go epy';fis tUk;go cw;gj;jpbra;at[k; jh;kj;ij rhpahf ghpghydk; gz;zt[k; nkw;go jpU/tujhrhhpah;. _dpthrhhpahh; ,th;fSf;Fk; ghpah;jk; mjpfhuk;cz;L”“moapy; fz;l rhj;jD}h; fpuhk tUc&thhp tUk;goapy; rh;f;fhh;jPh;it nghf kpFjpapy; tdngh$d if';fhpaj;jpw;fhf ,Ugj;jp m";RU:gha;f;F mjpfg;glhkYk; J}g;gy; ntjhe;j njrpfh; nfhapy; https://hcservices.ecourts.gov.in/hcservices/ if';fhpaj;jpw;fhf Kg;gj;J m";R U:gha;f;F mjpfg;glhky; bryt[bra;J tuntz;oajy;yhky; kpFjp tUkhdj;ij tl;of;fp bfhLj;njhmy;yJ jFe;j Chpy; epyk; KjyhdJ th';fpnah tpUj;jp bra;Jte;J tUk;go Fiwg;gLk; gl;rj;jpy; me;j tUc&j;jpw;F K$gh;bra;J a[f;jhdJ rhukhf jh;kj;ij tpUj;jp bra;a ntz;oaJ/nkw;go epy';fspy; nkw;go if';fhpa jpl;lj;jpw;F Fiwtha; tUk;gl;rj;jpy; me;j tUc&';fspy; ehnk nkw;go bryt[ bra;J jh;kk;ghpghydk; bra;a ntz;oaJ/ nkw;go epy';fspd; gl;lh nkw;gonfhjz;luhk Rthkpahh;. ntjhe;j njrpfs; ,th;fs; nghpYk; nkw;gojh;k ghpghyfh; ,th;fs; nghpYk; ,Uf;f ntz;oaJ/ nkw;gocw;rt';fspy; ahuhtJ bat;tpjj;jpyhtJ Rzf;fk; nehpl;lhy;nkw;go if';fhpa';fspy; gj;jpf;fhf itj;jpUf;Fk; jh;k gzj;ijbkk;gh;fs; mjpf mgpg;gpuhaj;jpd; nghpy; gHf;fj;jpd;go jh;kj;ijelj;j ntz;oaJ/ nkw;go rhj;jD}h; fpuhk epy';fspy; tUk;tUkhdk; if';fhpaj;jpl;lj;jpw;F Fiwt[gl;lhy; me;jif';fhpaj;jpw;F nyhgJ kpy;yhky; bkk;gh;fs; a[j;jg;go elf;fntz;oaJ/ ,j;jh;kj;ij gw;wp njt!;jhd jh;k fh;j;jh KjyhdmjpfhhpfSf;F ahbjhU ghj;jpaija[k; fpilahJ”.16. The contention of the learned counsel for the appellant isthat since the improvement of property has to be done by thedescendants of the family and joint Patta has to be obtained in thename of Deity and the heirs, there is no absolute dedication. Thelearned counsel by relying upon the following recitals in Ex.A-1namely “crpjk; nghy; bra;at[k;“ submitted that discretion is given tothe trustees to perform such Kattalais as they deem it proper andtherefore this fact will show that there was no absolute dedication ofthe properties. At this juncture, the decisions relied upon by thelearned counsel in support of his contentions have to be considered.17. By relying upon the following observations made in 91 LawWeekly 337, viz.,“14. It is, therefore, seen that acceptable and cogentmaterial evidencing the intention to dedicate propertyfor the particular purpose followed by an actualdivestment or appropriation of the property to thespecific object is an essential sine qua non to createan endowment16. …. From the documentary evidence let in, which aswe said remains uncontradicted, we gather theimpression that the persons to administer the trustare definite and ascertained individuals belonging tothe family of the donor and they are vested with thediscretion to utilize the fund for performing theAbhishekam in any Siva temple of their choice. Thissolitary element would not make it a publicendowment”. https://hcservices.ecourts.gov.in/hcservices/ the learned counsel submitted that there is no absolute dedication ofthe property and there was no actual divestment or appropriation ofthe property to the specific object to create an endowment. But theabove said observations have been made in the context of the factualbackground of that case. In paragraph 6 of the said judgment theimportant features of Ex.A-4 which was a material document in thatcase have been set out and the same reads as follows:“6. … The so-called intention expressed by the donoris vague. There is a discretion vested in the familyto spend for such abishekams and the choice isobviously with them to choose any particular Sivatemple in any part of our country. Abishekam,therefore, was to be performed only at the behest ofthe donor for his family members. Ex facie andintrinsically it is not possible for any member of thepublic including the person in authority or in chargeof a particular temple to compel the trustees for thetime being in charge of the fund to donate funds. …As no property has been set apart to ensure thecontinued performance of such worship in a particulartemple and as the donor and the members of his familykept for themselves the power to make annual donationsto various unnamed Siva temples in the country for theperformance of abishekams, the element of a publicendowment appears to be absent”. Therefore, the facts of that case are totally different from the factsof the case on hand and hence the above decision is not applicable tothis case. 18. The learned counsel relied upon the decision reported inA.I.R. 1974 A.P. 316, wherein it is observed as follows:“4. An endowment can be created by the execution of adeed of dedication by the donor. But however, it mustbe noted that the mere execution of a deed ofdedication without the donor intending to act upon theterms of the deed, would not create a valid endowment.In other words, to constitute a valid endowment, itmust be established that the donor intended to divesthimself of his ownership in the property dedicated.An endowment may be real or nominal. Whether aparticular endowment is nominal or real, is a questionof fact depending upon the facts and circumstances ofeach case. In order to determine whether an endowmentis nominal or real, the factors relevant and materialare (i) whether, in fact, any endowment has beencreated or not, and (ii) the conduct of the partiesand the surrounding circumstances. Where an endowmenthas, in fact, been created or a trust came intoexistence, the subsequent conduct of the parties withregard to the enjoyment of the property settled orendowed, is not very much material.” https://hcservices.ecourts.gov.in/hcservices/ It was submitted by the learned counsel for the appellant that theauthors of Ex.A-1 did not intend to act upon the terms of thedeed. In the light of the observations made in the above decision,the terms of Ex.A-1 have to be considered.19. The learned counsel relied upon the decision reported in2001 (2) C.T.C. 351, wherein in paragraph 9, it is observed asfollows:“9. In order to constitute a specific endowment, it isnecessary that the donor should divest himself of theproperty and in case of dedication to God or to acharity, the amount should be set apart andappropriated towards the specific object. In theabsence of divesting of property there can be nospecific endowments. In our case, the documentsitself provides for changing the object for whichcertain funds have been allotted. If the object ischanged the allotment of funds to the charities goes.The temple authorities cannot make a demand forperformance of these charities since the settlementdeed under which certain charities are contemplated,itself provides that the settlors are at liberty tochange the object and nobody else except the VanikaVaisya Community people of Mannachannallur has got theright to interfere with the internal affairs of thesociety. The performance of the charities as per thedocument is an internal affair, in which neither thetemple nor others can interfere. Therefore, thetemple, in which the charities are to be performedcannot ask for a charge or insist upon the performanceof the charities and no charge has been created forthe same”.From the said observation it could be easily seen that in that casethe document itself provided for changing the object for which certainfunds have been allotted and if the object is changed the allotment tothe funds of the charities goes. In that context, the Division Benchheld that the Temple in which the charities are to be performed,cannot ask for a charge or insist upon the performance of thecharities and no charge has been created for the same. In this case,Ex.A-1 does not provide for changing the object for which the propertyhas been dedicated and as such the above said decision is notapplicable to the facts of this case. 20. The learned counsel relied upon the decision reported in 1960(2) M.L.J. 231, wherein it is observed as follows:-“In order to constitute a valid endowment it isnecessary that the donor should divest himself of theproperty and in case of dedication to God or to acharity the dedication can be effectuated orallywithout any necessity for a written instrument. But amere credit entry in the account books of the donor https://hcservices.ecourts.gov.in/hcservices/ for a certain charity will not be sufficient to createan endowment unless the amount is set apart andappropriated towards the specific object”.The facts of this case is totally different from the facts of the caseon hand and this Court fails to see as to how this decision will helpthe case of the appellant and in the considered view of this Court,this decision is not applicable to the facts of this case.21. The learned counsel relied upon the decision reported in 1952(1) M.L.J. 282, wherein the object of the society has been set out asunder:-“The object of the society was given as the conduct ofthe festival during Margali month on Arudra Nakshatramday in the temple of the said Vinayakar at a cost notless than Rs.150 out of the income which may bederived from the said property. The balance was to bekept as savings and out of the amount saved in thismanner other immovable properties were to bepurchased. The festival was being performed yearafter year till the year 1947 when the members of thesociety met and passed a resolution at a specialmeeting of the general body altering the object of thesociety. As altered the object ran as follows”.In the above said background, the Division Bench held that“It cannot be said that there was a specific endowmentof the entire or part of the income of the propertyfor a specific religious charity. There was nodivesting of ownership even as regards income andthere was nothing to prevent the society from changingits objects”.But the facts of that case and the facts of the case on hand aretotally different. Ex.A-1 contains clear recitals showing that therewas absolute dedication of the property and as such the above saiddecision is not applicable to the facts of this case.22. Mr. G.Sugumaran, leanerd Special Government Pleader referredto A.I.R. 1966 S.C. 653 in support of his contentions and relied uponparagraph 4 of the judgment which reads as follows:“4. There is no dispute that in order that there maybe an endowment within the meaning of the Act, thesettlor must divest himself of the property endowed.To create an endowment he must give it and if he hasgiven it, he of course has not retained it; he hasthen divested himself of it. Did the settlors thendivest themselves of anything? We think they did. Bythe instrument the settlors, certainly divestedthemselves of the right to receive a certain part ofthe income derived from the properties in question.They deprived themselves of the right to deal with theproperties free of charge as absolute owners whichthey previously were. The instrument was a binding https://hcservices.ecourts.gov.in/hcservices/ instrument. This indeed is not in dispute. Therights created by it were, therefore, enforceable inlaw. The charities could compel the payment to themof the amount provided in Schedule B, and, ifnecessary for that purpose, enforce the charge. This,of course, could not be if the proprietors hadretained the right to the amount or remained fullowners of the property as before the creation of thecharge. It must, therefore, be held that theproprietors had divested themselves of that part ofthe income of the properties, which is mentioned inSchedule B. By providing that their liability to paythe amount would be a charge on the properties, thesettlors emphasized that they were divestingthemselves of the right to the income and the right todeal with the property as if it was unencumbered. Bycreating the charge they provided a security for thedue performance by them of the liability which theyundertook. Further S. 32 of the Act provides thatwhere a specific endowment to a temple consists merelyof a charge on property, the trustees of the templemight require the person in possession of theproperties charged to pay the expenses in respect ofwhich the charge was created. This sectionundoubtedly shows that the Act contemplates a chargeas an endowment”.The learned Special Government Pleader further relied upon paragraph14 of the decision, which reads as follows:“14. …. This Section, therefore, contemplates that“specific endowment” attached to a math or temple mayconsist merely of a charge on property. It is,therefore, not possible to accept the argument onbehalf of the appellant that in order to constitute a“specific endowment” within the meaning of the Actthere must be a transfer of title or divestment oftitle to the property”. 23. The learned Special Government Pleader relied upon thedecision reported in 2000 (2) C.T.C. 559, wherein it is observed inparagraph 26 as follows:“The founder had set apart his house and clearlyintended that the income there from should be utilizedfor feeding pilgrims who visit temples. Therefore allthe elements that are required to constitute aspecific endowment are present in this case. TheSanskrit, English Dictionary (Varan Shivram Apte 1993,ed.) also defines, “Ladiya” (sic) as belonging tothat, his, hers, its this and (sin) “Aradhanam” interalia as worshipping, Adoration, Propitiation (as of adiety) indicating the religious aspect ofThathiarathanai.” https://hcservices.ecourts.gov.in/hcservices/ In the light of the above said observations and considering the factsof that case, the Division Bench held that the founder of thecharities had created a specific endowment for the performance of the“Thathiarathanai Service” to “Desantharis” and the said endowment willdefinitely come within the purview of the Act. 24. Relying upon the above said two decisions, the learnedSpecial Government Pleader submitted that the contention of theappellant that no specific endowment had been created by theinstrument (Ex.A-1) is liable to be rejected. The learned SpecialGovernment Pleader, by referring to the contention of the appellant,that all that was done was to create a charge on the properties tomeet the expenses of charities but the settlors never divestedthemselves of any interest therein and the mere provision for meetingthe expenses of the charities out of the income of the properties andthe creation of the charge would not amount to making of anyendowment, submitted that in the light of the decision reported inA.I.R. 1966 S.C. 653, “specific endowment” attached to a math ortemple may consist merely of a charge on property and therefore thecontention of the learned counsel for the appellant that no specificendowment has been created under Ex.A-1 is liable to be rejected. Thesaid contention of the learned Special Government Pleader meritsacceptance and the law laid down in the decisions reported in A.I.R.1966 S.C. 653 and 2000 (2) C.T.C. 559 squarely applies to the facts ofthis case. 25. In this context it is pertinent to note that an endowment canbe created by the execution of a deed of dedication by the donor. Toconstitute a valid endowment, it must be intended to divest himself ofhis ownership in the property dedicated. Where an endowment has, infact, been created or a trust came into existence a subsequent conductof the parties with regard to the enjoyment of the property settled orendowed is not very much material. In order to establish a validendowment it must be proved that the grant was made with the intentionthat the profits should be applied for the particular religiouspurpose and that the profits have been so applied. When however theacts and conduct of the parties show that the income of the propertywas employed in the performance of religious rites laid down by thefounder, the mere fact that the members of the grantor’s family werenominated shebaits, or they were to be remunerated out of the endowedfund are not proper grounds for holding the dedication to be nominal.Merely because the acts of the trustees are contrary to the terms ofthe endowment it cannot also be regarded as reflecting the intentionof the testators. As laid down in A.I.R. 1963 S.C. 890 to ascertainthe intention of the authors of the document, the document has to beread harmoniously. 26. Applying the aforesaid principles, I shall presently examinewhether there is any endowment in fact in the present case. Therecitals in Ex.A-1, which are very material for the purpose ofdetermining the nature of the endowment created, have to beconsidered. It is not the case of the appellant that no endowment has https://hcservices.ecourts.gov.in/hcservices/ been created under Ex.A-1, but the contention is that it is not areligious endowment or a specific endowment. But it is the contentionof the appellant that a charge has been created over the propertiesfor the performance of a festival in Desikar Sannathi withoutspecifying definitely, as to the festival that has to be performed ina public religious institution. It is the further case of theappellant that in the absence of a definite direction by the founderof the Specific Endowment, the performance of a festival in any templecannot be construed to fulfill the definition of a Specific Endowmentas contemplated under Section 6 (19) of the Act. It is the furthercontention of the appellant that the performance of KarthikaiVanabojanam at Mambakkam is not associated with any religiousinstitution coming under the Act and the performance of some festivalsto Lord Desikar in Sri Kothandaramaswami Temple at Madurantakam cannotbe equally construed either as a ‘Religious Charity’ or as a ‘SpecificEndowment’ so as to attract the definition of Section 6(19) of theAct.27. The above contentions of the appellant are contrary to thevery recitals in Ex.A-1 and as such the same could not becountenanced. A perusal of Ex.A-1 dated 04.03.1898 clearly shows thatthe authors of the document have absolutely dedicated the propertiesfor performance of two services, viz., (i)performance of Karthigai Vanabojanam i.e.“nfhjz;luhk RthkpahUf;F tUc& thu fhu;j;jpif khj;j;jpy;khk;ghf;fj;jpy; elf;Fk; tdngh$d cr;rtj;jpy; jjpahuhjid jh;kfhupaj;jpw;fhft[k;“ and(ii)performance of festivals to Lord Desikar Shrine situate atMadurantakam Sri. Kothandaramaswamy Temple (which is apublic Temple) i.e.“nkw;go njt!;jhdj;jpy; vGe;jUspapUf;Fk; ntjhe;j njrpfh;tUc&thup gpuk;k cw;rtj;jpy; crpjkhd jh;k fhhpa';fis elj;jntz;oajw;fhft[k;“.Further, the authors of Ex.A-1 have not retained any right over theproperties and the same is clear from the following recital viz.,“nkw;go epy';fis gw;wp ekf;fhtJ. ek;ik rhh;e;j re;jjpfSf;fhtJ ahbjhU ghj;jpaKk;fpilahJ”. This recital in Ex.A-1 clearly shows that the suitproperties have been dedicated absolutely and the property is vestedwith the Temple and the authors of Ex.A-1 and their successors cannotdeal with the suit properties. Ex.B-1 is the Property Register of theTemple maintained under Section 29 of the Act and Ex.B-2 is the entrymade in the Register-Ex.B-1 at page 105 and this entry clearlyestablishes that the properties and the performance of services havebeen brought under the control of the department. 28. Further the document Ex.A-1 has to be read as a whole and hasto be read harmoniously to find out the intention of the authors ofthe document and the intention of the authors of Ex.A-1 has to berespected. A reading of the recitals extracted above from Ex.A-1shows the following viz.,:- https://hcservices.ecourts.gov.in/hcservices/ (i)The successors have to perform the charities.(ii)Income from the properties has to be spent for performanceof two charities and the steps to be taken to develop theincome from the properties have also been mentioned.(iii)The minimum amount to be spent for two charities have beenmentioned as Rs.25/- and Rs.35/- and it is also stated as towhat should be done in the case of non-realisation ofsufficient income from the properties.It is further stated in Ex.A-1 as to what should be done with theexcess income after meeting out the expenses of the said twocharities. It is nowhere stated in Ex.A-1 that the excess income canbe utilized for the benefit of the trustees. Ex.A-1 further providesthat the Patta in respect of the properties shall be in the jointnames of the Temple and the Trustees. It is the admitted case of theplaintiff themselves that they are performing “Thirumanjanam” for LordDesikar in Kothandaramaswamy Temple which is a public temple. All theabove said features contained in Ex.A-1 clearly establish that thereis absolute dedication of the properties. Therefore the contention ofthe learned counsel for the appellant based on the isolated words“crpjk; nghy; bra;at[k;“ cannot be countenanced. 29. The following recitals in Ex.A-1 viz.,“nfhjz;luhk RthkpahUf;F tUc& thu fhu;j;jpif khjj;jpy;khk;ghf;fj;jpy; elf;Fk; tdngh$d cr;rtj;jpy; jjpahuhjid jh;kfhupaj;jpw;fhft[k;“shows that the trustees have to perform ‘jjpahuhjid jh;kfhhpak;‘ during“fhh;j;jpif tdngh$d cw;;rtk;” for Lord Kothandaramaswamy Temple; whichshows that the authors of Ex.A-1 have set apart sizeable portion ofthe income and clearly indicated that the income should be utilizedfor feeding pilgrims during the Karthikai Vanabojana Urchavam.Therefore all the elements that are required to constitute a specificendowment are present in this case. The word 'jjpahuhjid' itselfindicates the religious aspect. It is also the admitted case of theplaintiff that the trustees were performing ‘jjpahuhjid‘ during theabove said festival, but subsequently they stopped it. As laid downin A.I.R. 1974 A.P.316, the acts of the trustees contrary to the termsof Ex.A-1 cannot also be regarded as reflecting the intention of theauthors of Ex.A-1. As rightly pointed out by the Trial Court, P.W.1’sevidence is unreliable as it is opposed to the very recitals in Ex.A-1. Similarly, the evidence of P.W.2 is not of much help to theplaintiff and there is no documentary evidence to show that he iscultivating the lands. It must, therefore, be held that there isintrinsic evidence available in the very document Ex.A-1 in the formof recitals which would establish the real and true nature of theendowment. Where the trustees commit a breach of trust in notcarrying out all or some of the objects of the trust, it does not inany way nullify the trust created for a charitable purpose. When oncethere is evidence of divestiture of personal rights to the trustees,the trust is complete. The entries in Exs.B-1 and B-2 clearly show https://hcservices.ecourts.gov.in/hcservices/ that the trust created under Ex.A-1 has been acted upon and a specificendowment has been created. There is no positive evidence on the sideof the plaintiff to show that the trustees are enjoying the propertyon their own right. But on the other hand, there is positive evidenceadduced by the department through D.W.1, Exs.B-1 & B-2 and also theevidence of P.W.1 to the effect that the charitable purposes for whichthe properties in question were dedicated under Ex.A-1 are beingcarried out and continued. The Commissioner / the Appellate Authorityhas considered all these aspects and given a correct finding and I seeno reason to differ from that. 30. As rightly contended by the learned Special GovernmentPleader though the trustees stopped one service namely performance of‘jjpahuhjid‘ during Karthikai Vanabojanam Festival, the propertiesendowed remain as such and therefore the character of the propertieshas not been changed and the properties still vest with the temple asevidenced by Ex.B-1. The submission of the learned Special GovernmentPleader by relying upon A.I.R. 1966 S.C. 653, that even if thedocument is construed as creating a charge, as contended by thelearned counsel for the appellant, then also it will be a specificendowment has to be accepted. 31. Therefore, in any view of the matter the recitals in Ex.A-1unmistakably establish that a specific endowment has been created.Therefore, I see no reason to interfere with the well reasonedjudgment of the Trial Court and therefore the judgment and decree ofthe Trial Court are confirmed and the appeal is dismissed. However,no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrkToThe Principal Subordinate Judge, Chengalpattu.Copy to:The Section Officer,VR Section, High Court, Madras.+1cc to Mr.W.C.Thiruvengadam, Advocate Sr 23489+1cc to the Govt. Pleader SR 23500JRG (CO)km/22.8. A.S.No.172 of 1992