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Judgment
P. Shanmugam, J.—Defendants before the Sub-Court, Mayiladuthurai are the appellants herein. The respondents herein are sons of one
K.R.M.P. Kadappa Chettiar of Sirkali. They have filed the suit for a decree to set aside the order of the Commissioner, Hindu Religious and
Charitable Endowment in A.P.112/1982 dated 16.5.1983 and consequently to declare that the suit properties do not belong to any Charitable
Trust or constitute any trust under the Trust Deed dated 5.9.1932 which deed itself is invalid, inoperative, illegal and not binding either on the
plaintiffs or the predecessor-in-title of the suit properties. The learned Sub-Judge decreed the suit and the present appeal is against this judgment
and decree.
The facts of the case are as follows: The father of the respondents Kadappa Chettiar applied to the Deputy Commissioner, H.R. & C.E
Administrative Department u/s 63 (e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act for a declaration that the suit properties
did not belong to any Charitable Trust or constitute any religious endowment within the meaning of the said Act. The Deputy Commissioner, after
enquiry, held that the suit properties constituted the Religious Endowment and dismissed the same on 17.2.1983. Kadappa Chettiar filed an appeal
before the Commissioner, who confirmed the order of the Deputy Commissioner and dismissed the appeal on 16.5.1983.
The sons of Kadappa Chettiar filed the suit u/s 70 of the H.R. & C.E. Act for a declaration as prayed for in the suit. According to them,
Kadappa Chettiar is an adopted son of Palaniappa Chettiar of Alagapuri who died issueless in June, 1931 leaving behind him his widow Alamelu
Achi. By means of a registered deed of Adoption dated 24.1.1934, the said Alamelu Achi recorded the adoption of Kadappa Chettiar as a son of
her deceased husband. Kadappa Chettiar became entitled to all the properties of his deceased adopted father Palaniappa Chettiar, who died in
June, 1931. The wife of Palaniappa Chettiar, viz. Alamelu Achi had only a limited estate and had no power of alienation in respect of the estate of
her deceased husband. However, the said Palaniappa Chettiar, while he was alive, was conducting a Thevara Pata Salai and also Guru Pooja for
Arubathu Moovar. He had not made any dedication or endowment on his properties. On his death, Alamelu Achi continued the Services and
executed a Trust Deed on 5.9.1932 purporting to dedicate the suit properties in favour of Arubathu Moovar Guru Pooja Dharmam. According to
the plaintiffs, the impugned trust deed is invalid, inoperative in law and also not acted upon. Alamelu Achi had no power nor competence to
alienate the suit properties. On the adoption of Palaniappa Chettiar, Kadappa Chettiar became the adopted son of R.M. Palaniappa Chettiar since
the adoption has got the effect from the date of death of the adoptive father.
It is further averred by the plaintiffs that the suit properties have been divided among the plaintiffs during the lifetime of Kadappa Chettiar and the
Poojas and Charities were continued to be performed. While so, the Assistant Commissioner, H.R.& C.E. at Kumbakonam conducted an enquiry
relating to the endowment Kadappa Chettiar submitted an application u/s 63 (e) of Act 22/50 in O.A. 40/76 for a declaration that the properties
did not belong to or constitute any religious endowment and orders were passed as stated above and hence the suit.
The appellants, as defendants, filed a written statement contending that Alamelu Achi executed the trust deed on 5.9.1932 dedicating the suit
properties for the following objects:
Conducting of Thevara Patasala at Sirkali.
Performing Arupathmoovar Gurupooja every year.
Conducting Water Pandal Charity annually during the festival in Sirkali; and
Poor feeding for 100 persons on the day of the death anniversary of her husband R.M. Palaniappa Chettiar.
The objects 1 to 3 are religious in character attracting Section 6(16) and 6(17) of the Tamil Nadu Hindu Religious and Charitable Endowments
Act, 1959 and hence the Act and Rubs made thereunder are applicable to the suit institution. According to them, R.N. Palaniappa Chettiar had
created the trust and was performing certain services from 3.2.1913 till he died in June, 1931. Thereafter, his widow Alamelu Achi continued to
perform the said services as per the wishes of her late husband by creating a trust deed dated 5.9.1932. As per the recitals, the trust deed shows
that the trust was already in existence even from the year 1913, that the services were regularly performed by Palaniappa Chettiar till he died in
June 1931. His widow Alamelu Achi continued the performance of the charities in her lifetime and so, the trust deed did not create a new
endowment. It only recognizes the earlier performances of the services from 1913 and Alamelu Achi had set apart certain properties for the
continued performance of the charities that was already in existence.
The trust deed was executed even before the date of adoption of the plaintiff''s father and hence the question of alienation of any properties does
not at all arise in view of the specific recital in the trust deed. The trust deed was given effect to and the performance of the charities were
continued. There was no reservation in the trust deed. The endowment is an absolute dedication in Character. The objects of the trust deed are
clearly religious in character attracting Sections 6(16) and 6(17) of Act 22 of 1959 although the object of poor feeding for 100 persons may be
secular in nature.
Ex.B.1 the Adoption deed and Ex.B.2 the Trust Deed were marked on the side of the appellants/Defendants. Ex.A.1. The order passed by the
Commissioner was marked on the side of plaintiffs/respondents. The second plaintiff was examined as P.W.1 and one Kandasami was examined
on behalf of the defendants/appellants.
The learned Sub-Judge, on the issue whether Ex.B.2 trust deed is valid in law, binding and created for the public purpose within the provisions
of the H.R. & C.E. Act, found that the document is not valid, unenforceable and it will not bind the suit properties.
The learned Government Advocate appearing on behalf of the appellants submitted that the deed of Endowment dated 5.9.1932, executed by
Alamelu Achi, Ex.B.2 is valid and binding on the plaintiffs/ respondents. The adoption that took place on 24.1.1934 is subsequent to the Deed of
Endowment and after having given effect to the dedication of the properties to the charities. According to him, the Endowment was in continuation
of the earlier Trust created by late Palaniappa Chettiar and therefore, the same was continued in reference to the wishes of the late Palaniappa
Chettiar and it is not a new endowment. It is further submitted that one of the Trustees in Ex.B.2 Kadappa Chettiar, had become an adopted son
in Ex.B.1 about two years after the creation of endowment and he had no right to claim absolute rights over the properties of late Palaniappa
Chettiar. He further submitted that Alamelu Achi had right to alienate and divest the properties for religious and Charitable purposes and it is valid
in Law. After the endowment, Kadappa Chettiar derives no title or right to the properties endowed. He submitted that the order of the
Commissioner is valid and justifiable.
Learned Counsel appearing on behalf of the respondents, while supporting the judgment, submitted that Ex.A.1 order of the Commissioner
cannot be sustained in as much as it did not consider the law of adoption whereby, it takes effect from the time of death of the adoptive father.
Therefore, all the properties belonging to the estate of adoptive father vest with Kadappa Chettiar from the date of death of his adoptive father
Palaniappa Chettiar, and therefore, no property is left and no power is vested with Alamelu Achi to dedicate the properties. He further submitted
that a Hindu widow has no power of alienation in respect of the estate of her deceased husband and it was limited to alienation for the spiritual
benefits only. She could not have alienated the whole of the properties of late Palaniappa Chettiar for the purpose and therefore, he prayed for
dismissal of the appeal.
I have heard the counsel for the appellants and respondents and considered the matter carefully.
The facts that are not in dispute in this case are that one R.M. Palaniappa Chettiar died issueless in June 1931 leaving behind him his widow
Alamelu Achi. On 5.9.1932, Alamelu Achi executed a Trust Deed dedicating the suit properties, and extent of 36.44 acres of Nanja land and 37
Cents of Punja land for the specified objects of conducting Thevara Patasala at Sirkali, performing Arupathu Moovar Gurupooja every year and
Water Pandai Charity annually during festivals in Sirkali and poor feeding for 100 persons annually on the death anniversary of R.M. Palaniappa
Chettiar. There were four trustees to this trust deed and one of them appears to be Kadappa Chettiar alias Kasi Chettiar, son of Palaniappa
Chettiar. Alamelu Achi executed an Adoption Deed Ex.B.1 dated 24.1.1934 adopting Kadappa Chettiar alias Kasi Chettiar, son of Palaniappa
Chettiar of Alagapuri.
The question that arises for consideration is whether Alamelu Achi has power of alienation to endow the properties of late Palaniappa Chettiar
and that whether by the adoption deed, all the properties of the late Palaniappa Chettiar became vested with Kadappa Chettiar from the date of
death of late Palaniappa Chettiar.
Ex.B.2. Trust deed states that Palaniappa Chettiar while he was alive, purchased houses at West Street, Sirkali in February, 1913 for the
purpose of conducting Arupathumoovar Madam and Gurupooja, and that till his death in the year 1931, Thevara Patasala, Gurupooja and other
Charities were conducted sincerely. After the death of Palaniappa Chettiar, as per his command, his wife Alamelu Achi had been conducting the
said Gurupooja and other Charitable functions from the estate expenses. She did this as per the desire of late Palaniappa Chettiar and for the
purpose of his heavenly well-being. She further states that since she has become old and as per her husband''s request and in order to conduct
Charities permanently, she had executed the Trust Deed. She had stated that on the date of the execution of the Deed, she had dedicated the
properties mentioned in the Schedule for the said purpose. She further states that she or anyone of the heirs will not claim any right over the said
properties. One of the Trustees of the Deed is Kandappa Chettiar alias Palakasi Chettiar, son of K.R.M. Palaniappa Chettiar of Alagapuri.
Ex.B.1. Adoption Deed dated 24.1.1934 was made by Alamelu Achi wherein she adopts Kasi Chettiar alias Kadappa Chettiar, son of
K.R.M. Palaniappa Chettiar of Alagapuri. She states that since her only son died in the year 1930 and her husband Palaniappa Chettiar died
issueless in the year 1931 and after him, the estate and the properties of the late Palaniappa Chettiar is in her possession and enjoyment and for the
purpose of family inheritance and continuance she after obtaining permission from her relatives, and with a good intention and for her satisfaction
she had decided and adopted the said Kadappa Chettiar as her son. The estate of late Palaniappa Chettiar hereinafter will be managed by her
adopted son and all the properties in her enjoyment including the properties at Rangoon and the business shops at Colombo, Sirkali and Alagapuri
shall be taken possession and enjoyment by the adopted son. The Charities conducted hither to, shall be continued by him.
We have to go by the recitals contained in the said registered documents, since there is nobody to speak about the nature of the endowment
and adoption which were made in the years 1932 and 1934 respectively. From a reading of the Trust Deed, it is clear that the objects of the Trust
are in continuation of the existing endowment made by late Palaniappa Chettiar. Consequently, it is seen that he had clearly stated that the
endowment is made as per the command and desire of her late husband for his heavenly bliss. Thus, the endowment has been created as per the
request of the late Palaniappa Chettiar. She had specifically stated that on the date of the dedication, neither she nor her heirs will have any right
over the properties contained in the Trust Deed. There is an absolute divesting of the properties in favour of the Trust.
The question that arises here is whether Alamelu Achi, as a Hindu woman, is entitled to divest the properties. The learned Sub-Judge, after
holding that the adoption, though made in the year 1934, takes effect from the death of Palaniappa Chettiar in the year 1931. In that view, learned
Sub-Judge held that the trust deed had lost its validity and not enforceable and will not bind the plaintiff. Learned counsel for the respondent, while
stating that such a view cannot be supported in full, submitted that alienation to the limited extent is permissible. In this case, it has to be seen
whether the endowment is void.
Ex.B.2 is a certified copy of the document creating an endowment in reference to the property. From this document, it is seen that the property
mentioned in the schedule is acquired by her through court auction. Therefore, it cannot be strictly be treated as the property inherited by her from
her husband. Ex.B1 is a certified copy of the adoption dated 24.1.1934 wherein Alamelu Achi adopts Kadappa Chettiar as her son. It is
something unexplained as to why the original copies of the documents, especially the adoption deed were not furnished through the
plaintiffs/respondents herein. In this document, Alamelu Achi specifically says that she adopts Kadappa Chettiar for the purpose of continuing the
family hereditary ship and for the purpose of performing Shradhas to her husband and her family. She states that the properties in her possession
and enjoyment are given over to the adopted son. She also mentions in the body of the adoption deed, the particulars of the property, namely all
the land, and buildings and business interests at Rangoon, Ipon and Joint business at Colombo, Sirkali and Alagapuri. She did not mention the
schedule of properties set out in Ex.B.2 the Trust Deed where detailed particulars of the properties were given. This is not mentioned in Ex.B.1,
the adoption deed. Therefore, it may not be correct to say that Alamelu Achi has inherited the properties of her husband and given away the same
in Trust. The properties were acquired by her through Court Auction.
Assuming that all the properties divested under Ex.B.2, Trust Deed, are properties of her husband, to what extent, she will be able to transfer
them is a question that may arise for consideration. In this context, a reference may be made to the text of the Mulla''s Principles of Hindu Law -
Volume I - 17th Edition:
Alienations by widow - A widow or other limited heir has no power to alienate the estate inherited by her from the deceased owner for the
following purposes, namely;
(I) Religious or charitable purposes (181A)
(II) Other purposes amounting to legal necessity (181B)
For purposes of the first class, she has a larger power of disposition than for purpose of the second class.
A surrender by a Hindu widow in favour of the next revisioner is not an alienation of her husband''s estate.
181A. Alienation by widow for religious or charitable purposes - (1) Extent of power of alienation - A widow or other female heir may alienate the
estate for certain religious or charitable purposes. These may be divided into two classes namely:
(a) The performance of the obsequial ceremonies of the deceased owner mentioned in cl(i) below and the payment of his debts mentioned cl(IV)
below.
(b) The performance of religious ceremonies of persons, other than the deceased owner mentioned in cl(ii) below, and religious or charitable acts
which are supposed to conduce to the spiritual welfare of the deceased owner mentioned in cl(iii) below. The first class relates to acts which are
essential and obligatory. The second class relates to acts, which although not indispensable or obligatory are still for pious purposes, which are
conducive to the benefit of the soul of the deceased.
The Supreme Court, in Kamala Devi Vs. Bachu Lal Gupta, ) laid down the principles on this subject. Their lordships observed as follows:
On examination of the decision, the following principles clearly emerge; (1) It is the imperative religious duty and a moral obligation of a father,
mother or other guardian to give a girl in marriage to a suitable husband:
It is a duty which must be fulfilled to prevent degradation, and direct spiritual benefit is conferred upon the father by such marriage. (2) A Hindu
Widow in possession of the estate of her deceased husband can make an alienation for religious acts which are not essential or obligatory but are
still pious observances which conduce to the bliss of the deceased husband''s soul.
(3) In the case of essential or obligatory acts, if the income of the property or the property itself is not sufficient to cover the expenses she is
entitled to sell the whole of it; but for acts which are pious and which conduce to the bliss of the deceased husband''s soul. She can alienate a
reasonable portion of the property. (4) Gifts by a widow of landed property to her daughter or son-in-law on the occasion of the marriage or any
ceremonies connected with the marriage, are well recognised in Hindu Law. (5) if a promise is made of such a gift for or at the time of marriage,
that promise may be fulfilled afterwards and it is not essential to make a gift at the time of the marriage but it may be made afterwards in fulfillment
of the promise, Case Law fully discussed.
In Mst. Sheo Kuer Vs. Nathuni Prasad Singh and Others, it was held that a Hindu widow possessing a widow''s estate cannot alienate the
property which was devolved on her except for special purposes to support an alienation for purely worldly purposes, she must show necessity
that she has a larger power of disposition for religious and charitable purposes or for those purposes which are supposed to conduce to the
spiritual welfare of the husband. Their Lordships also held that whether the alienation is of a reasonable portion of the property is not a matter to be
decided on precedents because what is reasonable must depend upon the facts and circumstances of each case. In that case, their Lordships held
that an alienation of 1/5th portion cannot be said to be unreasonable and excessive.
As seen earlier, this property was not devolved on her from her husband. The property endowed was a property acquired by her in Court
auction and secondly, she had not utilised the property for the wordly purposes, but she had used it only for Religious and Charitable proposes
which the Supreme Court held that she has a larger power of disposition. Further, the question whether she had alienated only a reasonable portion
of the property depends on the facts and circumstances of the case. It is seen that the property conveyed was only a portion of the landed
properties acquired by her whereas, the property conferred to her adopted son under Ex.B.1 appears to be a vast portion of the property which
she had described as the properties in her possession and enjoyment, besides all the business interests in Ipoh and Rangoon and the financial
interests in shops at Colombo, Sirkali, Alagapuri and other places. She had also included all other properties, both landed and building in her
possession. A Division Bench of the Patna High Court, in Ram Surat Mahton v. Hittanandan Jha (I.L.R.Vol.10 Patna 474) held that a widow
takes the estate of her husband solely for the good of his soul, and she has power to spend the income of the estate and to alienate it, provided it is
done for the good of her husband''s soul. In order to justify an alienation for Religious and Charitable purposes or for those which are supposed to
be conducive to the spiritual welfare of her husband. The widow is not bound to prove the legal necessity or any express direction by her deceased
husband. In Kahublal Singh v. Ajomiya Misser (I.L.R.Vol.43 Calcutta 574), a Division Bench held that a widow has a larger power of disposition
for Religious or Charitable purposes or for purposes which are supposed to conduce the spiritual welfare of her husband than what she possesses
for purely worldly purposes. In Sri Ram and Others Vs. Chandeshwar Prasad Narayan Singh, a Division Bench held that no mathematical limit can
be fixed to the power of alienation of widow of her husband''s property for the purpose of religious acts which will be conducive to his spiritual
benefit. The question whether the property dedicated constitutes a reasonable proportion or the whole estate must depend upon the facts and
circumstances of each case. A learned Judge of the Madras High Court, in Prabhala Krishnamurthi Vs. Valluri Lingayya and Another, held that a
gift by a widow of 1/6th of her husband''s immovable property for building temple for her husband''s and her own salvation is reasonable and valid.
In Gobind Upathya v. Lakhrani (sic) (I.L.R.Vol. 53 515), a Division Bench held the question whether the gift of a portion of the property made by
a widow is made for the benefit of his soul is a question of fact in each case.
As seen earlier, Alamelu Achi has stated in Ex.B.2 the trust deed, that her husband had a desire and commanded that after his death, the
Religious activities and Charities performed by him should be continued and that she had continued them as per his wishes and also for the
heavenly bliss of her husband. She had stated in categorical terms of the Religious and Charitable nature of the trust and specified properties taken
by her in the court auction are endowed. Therefore, it cannot be stated that she had divested of her husband''s property and that vesting of such
properties is illegal.
It is seen that the adoption was made after one year four months of the endowment. The case of the respondent is that the doctrine of relation
back has to be applied and thereby, the adopted son is entitled to all the properties from the date of the death of his adoptive father. In Jivaji v.
Hanmant (1952 Bombay L.R.527 = A.I.R.1950 Bombay 30,) it was held that the doctrine of relation back has no application to the case of any
lawful alienation effected by a female heir since the death of the adoptive father, but before the date of adoption. This seems to be well-settled law.
Therefore, it has to be held that after the adoption, a widow cannot alienate any portion of her husband''s estate for any purpose what so ever, but
an adopted son is bound by the widow of her estate for the necessity. As seen earlier, a widow is entitled to alienate the properties for Religious
and Charitable purposes and in this case, Alamelu Achi has created an endowment for the Religious and Charitable purposes. As a matter of fact,
according to the H.R. & C.E. Department and Ex.B.2, it is clear that the endowment was in existence even during the lifetime of her husband and
continued as per the wishes of her late husband. Further, it is also seen that the vesting of the property is only for a reasonable extent of the
property held by her husband. No contra evidence has been let in by and on behalf of the respondent.
Another aspect of the matter is that the adopted son did not question the vesting of the property for the endowment all these years. The vesting
of the property for Religious and Charitable purposes cannot be now treated as a nullity for the purposes of limitation. While the respondents
concede that the adoption deed is valid. They refuse to accept the trust deed, as according to them, Alamelu Achi had no power. The respondents
have neither filed the adoption deed nor Challenged the trust deed all these years. Therefore, the recitals of these certified copies have to be
accepted. As there is no other evidence excepting the self serving testimony of D.W.1, Practically, the adoption deed is not proved by filing its
original or examining attesters. As late Palaniappa Chettiar very much desired the continuance of those Religious and Charitable Acts commenced
in the year 1913, the action of his wife as a devoted wife, was to continue it by endowing the properties for the same purpose as stated in the deed
cannot be characterised as beyond ... her power or unreasonable. Those acts were considered a pious obligation of a dedicated wife to the
departed soul''s satisfaction and bliss in the heavenly life. Obviously, the plaintiffs ought to have continued the Charities and Religious ceremonies.
The Respondents have not let in any evidence to show that there was no legal necessity and that the endowment was not Religious and Charitable
purposes and that there was an unreasonable extent of alienation. The endowment is of the year 1932 and admittedly, it has been continued all
these years. It is too late to question the validity of this endowment after nearly 70 years of its creation and continuance. A Full Bench of the
Madras High Court, in Vaidyanatha Sastri v. Savithri Ammal (I.L.R.Vol.41 Madras Series 75), held that the alienation was not binding on the
adopted son and he could sue during the lifetime of the widow to set aside the alienation and recover the property so alienated, this cause of action
arising from the time of his adoption. For all these reasons, the findings of the learned Subordinate Judge cannot be sustained and they are liable to
be set aside and accordingly, they are set aside. The suit is, therefore, dismissed and the appeal is allowed. There will be no order as to costs.