P.K Goswami, J.— In this appeal we have to go back to a period close upon a passing century to divine what a Hindu Joint Family that had separated at that distant date, thought, contemplated, did and above all intended not only then but also for the future. It was the year 1882 and precisely on May 13, of that year an instrument of partition was executed and registered amongst five brothers, namely, Sivaramakrishna Pillai, Kailasam Pillai, Venkatachalam Pillai, Chidambaram Pillai and Navasivayam Pillai, sons of Subramania Pillai. The family appears to be religiously disposed and was keen to perpetuate the pious ancestral ideology. A genealogy given in the statement of case by the appellants gives the appropriate picture for the purpose of this appeal:
“Subramania Pillai
Sivaramakrishna Pillai
Kailasam Pillai
Venlatachalam Pillai
Chidam-baram Pillai
Navasivayam Pillai
Sethusubramanya Pillai
Kailasam Pillai (Junior) (died in 1950)
Venkatachalam Pillai (Jr.) (died in 1953)
Gopalkrishna Pillai (D-6)
Prianayagam Pillai (D-7)
R.V Sethusubramanya Pillai (1st plaintiff)
R.P Sethusbramanya Pillai (2nd plaintiff)”
2. To start with the deed of partition, it appears, the properties of the family were ancestral and were partitioned amongst the five brothers reserving some to be enjoyed in common and allotting certain properties to charities to be administered by one of their brothers, Kailasam Pillai. Reading the entire document it appears that even after the partition Kailasam Pillai and Venkatachalam Pillai desired to enjoy their shares of the property jointly and were in great cordiality while the other three brothers lived and enjoyed their properties separately. It also appears that the second and the third brothers, Kailasam and Venkatachalam were given to piety or, at any rate, were perhaps considered as responsible and solvent persons, who could be entrusted to administer the charities indicated in the deed. There is also reference to family debts and other amicable adjustments amongst the brothers and also to voluntary relinquishment of a share by Sivaramakrishna Pillai. With this brief synopsis we may now extract some material provisions of the partition deed (Ext. A-1) which was written in Tamil and has been officially translated:
“1. Out of the entire properties worth Rs 28,000 belonging to our family and mentioned in the schedules herein, excluding the properties situate in Rasavallipuram held in common as detailed in para 6 and mentioned in the sixth schedule here, excluding the charity properties as detailed in para 8 and mentioned in the eighth schedule excluding the other wet, dry (lands) gardens and all the properties situate in Kattampulimanapadayur excluding the property, kept in common from October 1880 as detailed in para 7 and mentioned in the seventh schedule herein, situate in one crop cultivation village Gananthanparai, in the other properties, settled in favour of us in one month of September 1881, dry and wet lands, palmyra trees, etc. in Kilakadu situate in Alengulam village attached to Naranammalpuram Jamabandi area, where as Sivaramakrishna Pillai has relinquished his share in favour of the other four persons as detailed in para 4'out of the aforesaid properties, excepting the properties held in common as detailed in para 11 and mentioned in the 10th schedule the other properties were divided among the other four persons with reference to good and bad by casting chits in the month of January 1882.”
2. refers to family houses which need not be quoted.
“3. As division was effected as detailed in paras 1 and 2, the first schedule properties fell to the share of Sivaramakrishna Pillai amongst us, the second and third schedule properties to two persons Kailasam Pillai and Venkatachalam Pillai, the fourth schedule properties to Chidambaram Pillai and the fifth schedule properties to Namasivayam Pillai. Ever since the properties were allotted as aforesaid, Kailasam Pillai and Venkatachalam Pillai were enjoying the two shares of their properties in common and the other three persons were enjoying all the other shares of properties separately. That is the second item of Kattampuli land mentioned in fourth schedule which fell to the share of the Chidambaram Pillai and the second item of Kattampuli land mentioned in the fifth schedule which fell to the share of Namasivayam Pillai were enjoyed by Kailasam Pillai under usufructuary mortgage rights.”
“6. As the Kulukuthurai Inam Palmyrah trees situate in Rasavallipuram mentioned in the sixth schedule here and one-third share belonging to us five persons could not be conveniently enjoyed by division, it was to be enjoyed in common and the income derived therefrom should be given to the early morning pooja of the seventh day festival in the month of “That” of Sabhapati Naicker Deity in the Siva Temple situate in Rasavallipuram for expenses for Archana on the 4th Thai Friday every year”.
“7. The dry lands, palmyrah trees, gardens and other buildings situate in Gangathanparai mentioned in the 7th schedule herein should be enjoyed in common. The income from the said dry lands and palmyrah groves should be divided into five shares and two such shares should be enjoyed in common by Kailasam Pillai and Venkatachalam Pillai and the other three shares by the other three persons independently”.
“8. The properties mentioned in the 8th schedule herein and allotted for charity shall be administered in person by Kailasam Pillai and from out of the income of the first item property shall be given to mid-day offering of Thirumanjanam expenses in the Siva Temple in Rasavallipuram. From the second item properties the expenses for the evening pooja of the said temple shall be met, from the third item property the expenses for pooja of Lord Siva at Sepparai on “ani” Uttiram day should be met and from the 4th item of the property they shall feed four brahmins in the Siva Temple Sepparai during Dwadashi days”.
The next Clause 9 which is the bone of contention between the parties may now be quoted:
“9. In the Sepparai Siva Temple established by our parents, for meeting expenses of lamp burning for ever and one measure of rice for daily offering to God and Archana expenses, a sum of Rs 45 is spent annually. Out of this a sum of Rs 5 per year which shall be paid by Sivaramakrishna Pillai, Namasivayam Pillai and a sum of Rs 5 per year by Chidambaram Pillai to Kailasam Pillai and excluding the sum of Rs 13 as given in the three items aforesaid for the balance of Rs 32 the dry land mentioned in the 9th schedule shall be administered in person by Kailasam Pillai and spent from out of the income of the said properties and from out of their own funds Kailasam Pillai and Venkatachalam Pillai shall perform the aforesaid charity without fail”.
“12. Kailasam Pillai and Venkatachalam Pillai shall in respect of their properties in common and the other three in respect of their respective properties separately and absolutely enjoy with powers of alienation by way of gift, exchange, sale etc. In the share of properties allotted to Kailasam Pillai and Venkatachalam Pillai the other sharers have no right and similarly in the share of properties of the other sharers the aforesaid two persons have no right. Likewise in the property held by the other three persons, in the property of which one of them the others have no manner of right”.
3. Then nine schedules are given showing the properties that have fallen to the shares of different brothers. The ninth schedule property, which is the suit property, is described in Ext. A-1 as follows:
“The 9th schedule situate within the jurisdiction of the aforesaid Sub-District Naranathanapuram Jamabandi attached to Alangulam village and CilakaduWet irrigated by well, tamarind trees, and dry and the particulars of these are as follows:
Extent
Dry Wet
Survey No.
Letter
Acres De.
Wet Dry
866 890 343 360 37 6
A-2 C-2 C D A-2
0-47 1-00 0-30 0-83 1-22
The number of tamarind trees standing near the tank bund of the aforesaid Village 72
Dry
377 428 845 901 902 903
A. B-6 C-2 A-2 C-2
0-68 9-37 1-21 0-35 0-45 0-20
In all Wet and Dry
16-05
”
This ninth schedule property is the suit property.
4. It appears that Kailasam Pillai in the meantime died as is apparent from the partition deed (Ext. A-3) executed between Venkata- chalam Pillai and Thirumalai Vadvammal widow of Kailasam Pillai on January 21, 1887. Clause 19 of this deed may be quoted:
“Sivaramakrishna Pillai, Chidambaram Pillai, Venkatachalam Pillai, son of Namasivaya Pillai, these persons were contributing a sum of Rs 13 every year to the said Kailasam Pillai for perpetual burning of lamp at Chepparaiswami Nataraja Sannathi. Henceforth the said Venkatachalam Pillai shall receive the said amount and perform the charity”.
In this partition deed, the properties of Kailasam Pillai and Venkatachalam Pillai were divided and Venkatachalam Pillai took the responsibility of performing the charities entrusted to Kailasam Pillai under clause 9 of the first partition deed of 1882. It appears from Ext. B-1 dated September 8, 1937, which is a sale deed in favour of S. Srinivasa lyengar, that on November 8, 1921, the suit properties had been “usufructually mortgaged for Rs 11,000 in favour of one Maragathammal by Gomathi Ammal for the purpose of discharging the family debts for a period of five years”. The period was extended by a further unfructuary mortgage of the properties for a sum of Rs 7350 on April 26, 1923. It also appears that the rights under the two usufructuary mortgage deeds were assigned to S. Srinivasa lyengar by a deed of assignment in November 1962, executed by the said Maragathammal for a consideration of Rs 18,350. Since S. Srinivasa lyengar made repeated demands for clearing up the debts due under the usufructuary mortgages the said properties along with some other land were sold to him by Kailasam Pillai (Jr.), Venkatachalam Pillai (Jr.), Gopalakrishna Pillai (Defendant 6, briefly D-6) and Prianayagam Pillai (Defendant 7, briefly D-7) for a consideration of Rs 1 8,350. So this sale in favour of Srinivasa lyengar was in “discharge of the said othi (usufructuary mortgage) debts” and the properties which had already been in possession of Srinivasa lyengar continued to remain in his possession now as owner of the properties with “power of alienation by way of gift, exchanges, sales, etc. absolutely”.
5. A third partition deed (Ext. A-10) had been executed on October 19, 1936, amongst Kailasam Pillai (Jr.), Venkatachalam Pillai (Jr.), Gopalakrishna Pillai (D-6) and Prianayagam Pillai (D-7) in order to later facilitate absolute sale of the properties in favour of S. Srinivasa lyengar in 1937. It was stated in this deed (Ext. A-10) that “from the property endowed to the temple of Sepparai Algiakootha we shall keep the eternal lamps burning, collect the sums which our grandfather endowed for our family and use special efforts to perform the charities”. In clause 14(1) of this deed it was stated as follows:
“In as much as sharer No. 1, Kailasam Pillai (reference to Kailasam Junior) has voluntarily relinquished in favour of the other 3 sharers the right to perform and administer the family charities and the properties endowed for the same; sharer No. 1 shall not have at any time any right to said charities or endowments.”
Thus on September 8, 1937, a sale deed for the suit property and other lands (Ext. B-1) was executed in favour of S. Srinivasa lyengar Avergal by Kailasam Pillai (Jr.), Venkatachalam Pillai (Jr.), Gopalakrishna Pillai (D-6) and Prianayagam Pillai (D-7) for a consideration of Rs 18350. Srinivasa lyengar also got his name recorded in the patta. On June 10, 1943, S. Srinivasa lyengar sold by Ext. B-2 the suit property, etc. to Sappani Ahmed Mohideen, father, of the two appellants herein, for a consideration of Rs 22600. Sappani Ahmed Mohideen got his name recorded in the patta in due course. The second appellant, who is the brother of the first appellant, sold some portion of the suit property to Defendants 3 to 5 on April 7,1960.
6. This appears to be the history and, background of the litigation.
7. The plaintiffs (the first two respondents) herein are the great grandsons of Venkatachalam Pillai son of Subramania Pillai. They instituted a suit in the Court of Munsif Tirunelveli on September 5, 1960, impleading the purchasers of the suit property as Defendants 1 to 5 and Gopalakrishna Pillai, uncle of the plaintiffs and Prianavagam Pillai, father of the 2nd plaintiff, as the Defendants 6 and 7 respectively, praying for declaration that the suit properties belong to the trust and that all alienations in respect of them are not binding on the trust and for possession of the suit properties from Defendants 1 to 5 to “the lawful trustees”. One written statement was submitted on behalf of the Defendants 1 to 5 and the suit proceeded ex-parte against Defendants 6 and 7, who were not even examined as witnesses in the trial.
8. Two points were in dispute during the trial, namely, whether the suit was barred by limitation (Issue 2) and whether the deed dated May 13, 1882, creates an absolute dedication of the suit property or only a charge on the income of the said property (Issue 3). The 1st plaintiff who was a young man of 28 years on the date of his giving evidence, examined himself and two other witnesses. The defendants examined only the first defendant. The trial court answered both the above issues in favour of the plaintiffs and decreed the suit. On appeal the Subordinate Judge, Tirunelveli, affirmed the finding of the Munsif on the question of limitation but reversed that relating to Issue 2. He held that the entire income of the suit property was not sufficient even to meet a minute fraction of the expenses and therefore, the question of absolute dedication of the property did not arise. It may be noted here that the trial court as well as the Subordinate Judge held that the income from the property was not sufficient to meet all the expenses of the charities directed to be performed. The value of the suit land in 1882 was found by the Subordinate Judge to be only Rs 40 after elaborate discussion of the value of the neighbouring properties which were subject-matters of different sales at the relevant time. When the matter was taken to the Madras High Court in second appeal, the High Court held that the family had divested itself of the ownership of the suit property and that the deed of partition created an absolute endowment of the suit property for the purpose of performing the charities mentioned therein. It further held that the suit property was not allotted to Kailasam Pillai's share and he was only made a trustee of the properties. In the view the High Court took, the second appeal was allowed and the trial court's decree was frestored. Hence this appeal with special leave.
9. The only question that has been canvassed in this appeal before us by the Learned Counsel for the appellants is that the deed of partition (Ext. A-1) did not create an absolute endowment of the suit properties for performing the three kattalais (endowment for religious charities) mentioned therein. This takes us to the construction of the document as a whole with particular reference to the clauses which we have set out earlier therefrom. The deed of partition discloses a scheme of partial division of the ancestral properties amongst the brothers. Three of the five brothers have taken properties mentioned in the relevant schedules for enjoyment severally and certain properties were kept for enjoyment in common. Two brothers, Kailasam Pillai and Venkatachalam Pillai were enjoying their shares of the properties jointly. Provision was made for discharge of family debts and different mutual adjustments have also been recorded. clause 1 of the deed, which we have set out earlier, is very significant. It excludes from partition properties specified in certain clauses including the charity properties as detailed in clause 8 and mentioned in the eighth schedule. Property mentioned in Clause 9 is not excluded from partition. When we look to clause 8 in this context, we find that the properties mentioned in the eighth schedule are “allotted for charity” and “shall be administered in person by Kailasam Pillai” (emphasis supplied). In this clause four objects of charity have been mentioned, the expenses of which have to be met from four items of property allotted for them. Besides clause 8 refers to mid-day offering of Thirumanjanam expenses in the Siva Temple in Rasavallipuram, and also to the evening pooja of the said temple. There is reference in this clause also to the expenses for pooja of Lord Siva at Sapparai on “An” Uttiram day and also for feeding four brahmins in the Siva Temple Sepparai during Dwadashi days. What is, therefore, excluded for charity purposes in clause 1 is clearly described in clause 8 of the partition deed. Having provided for all these charities in clause 8, clause 9 makes a special provision in connection with the same Sepparai Siva Temple “for meeting all expenses of lamp burning for ever and one measure of rice for daily offering to God and Archana expenses. . . .”. clause 9 takes note that a sum of Rs 45 has been spent annually for these kattalais. Arrangement has been made therein for contribution by two brothers of Rs 5 each per year and a sum of Rs 3 per year by another brother, totalling a sum of Rs 13 which has to be given by them to Kailasam Pillai. It may be noted that these two brothers are unconnected with the suit property after partition. Clause 9 thereafter recites that “for the balance of Rs 32 the dry land mentioned in the ninth schedule shall be administered in person by Kailasam Pillai and spent from out of the income of the said properties and from out of their own funds Kailasam Pillai and Venkatachalam Pillai shall perform the aforesaid charity without fail”, (emphasis supplied). The draftsman, who prepared this deed, had good reasons to mention in clause 8 that “the properties mentioned in the eight schedule and allotted for charities shall be administered in person by Kailasam” while in clause 9 he chose to record that “dry land mentioned in the 9th schedule shall be administered in person by Kailasam Pillai”. There is no reference in Clause 9 that this land shall be “allotted for charity” whereas those words clearly appear in Clause 8 of the deed. In the entire scheme of the deed there must be a legitimate justification for not allotting the lands mentioned in the ninth schedule for charity. Besides, it is clear on the findings of the Courts below that the value of the property in 1882 was inconsiderable and the income out of it was not sufficient to meet the expenses for the charities. A device has, therefore, to be made to keep alive the sacred memory of their parents who were keen to continue these charities out of the ancestral property. Having divided the properties in the manner done in the partition deed, each of the brothers contributed according to his capacity and by mutual adjustment a very substantial share of the expenses was to be borne by Kailasam Pillai and Venkatachalam Pillai, who were entrusted to perform the charities without fail, if necessary, which was even inevitable at the time, out of their own funds. Since it is a common ground that the charities have been performed for years, the burden of the liability must have fallen on Kailasam Pillai and thereafter on Venkatachalam Pillai. It is because of this feature in keeping alive the three charities mentioned in clause 9 that the lands in the ninth schedule were allotted to Kailasam Pillai and Venkatachalam Pillai so that they may get some recompense out of the income of the property if it may somehow or some day be forthcoming. The entire income from the property was little or nil and was not absolutely dedicated to the Temple for the charities. We have got to look at the matter from what the founders intended in the year 1882 and no construction can be given to the document which would frustrate the intention of the founders to keep alive the charities by appropriate performance. If these dry and then barren properties of the ninth schedule were absolutely dedicated to the Temple for performance of the three kattalais the intention of the founders would have been defeated. It would have been nobody's business, income being little or nil. We are, therefore, clearly of opinion that there is no ambiguity about any of the provisions of this deed which clearly go to show that there was no intendment to create an absolute endowment of the suit property to the Temple or the trust.
10. The present value of the property and the present income therefrom will, in our view, not be relevant nor a safe aid to gather the intention of the parties in 1882. We are unable to agree with the High Court that “the wording” of the deed makes it “clear beyond doubt” that there is an absolute endowment of the property. We are also unable to hold, as the High Court has done, that “the family has divested itself of the ownership and Kailasam has been created trustee therefor”. Ext. A-3 on which the High Court relied to reach its conclusion does not, in our opinion, make any departure from the nature of the transaction nor from the original intention of the parties, particularly in view of clause 19 thereof already quoted above. Similarly Ext. A-10 executed in 1936 on which the High Court relied does not unerringly point to any different intention even of the succeeding generation. The first extract quoted earlier from Ext. A-10 does not, in our opinion, relate to the ninth schedule property when the charity has been specifically endowed in the eighth schedule to Ext. A-1. Again the second extract from Ext. A-10, namely, clause 14(1), earlier set out, does not, in our view, run counter to the original intention of their ancestors. The initial intention to be gathered from an ancient document when the provisions are reasonably clear cannot be readily altered to suit changing conditions over the years. Even so, if somehow it is possible to hold that the subsequent dealing with the property is consistent with the intention of the original parties to the document, as interpreted by us on the terms of the original deed, that course has to be preferred by the Court. Besides, in interpreting ancient documents Courts have to be cautious to guard against warping of the issue by reference to subsequent conduct of parties or their representatives which may vary for imponderable reasons, bona fide or otherwise.
11. Clause 3 of the partition deed mentions only such properties as have been allotted to the brothers in full ownership. It could not mention the property specified in clause 9 because it is burdened with a charge in favour of kattalais.
12. We may now refer to some decisions cited at the bar.
13. In Sree Sree Ishwar Sridhar Jew v. Sushila Bala Dasi, AIR 1954 SC 69, 1954 SCR 407, 1954 SCJ 17 it was observed:
“It is quite true, that a dedication may be either absolute or partial. The property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol. The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will': Pande Har Narayan v. Surja Kunwari AIR 1921 PC 20”.
14. Observations to the same effect have also been made by the Privy Council in Sri Sri Iswari Bhubaneshweri Thakurani v. Brojo Nath Dey and Others AIR 1937 PC 185, (1937) 2 Mad LJ 527
15. In Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao, 1957 SCR 1122, AIR 1957 SC 797, 1957 SCJ 835 this Court observed as follows :
“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 trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole”.
16. In Ramkishore Lal v. Kamal Narain AIR 1963 SC 890, 1963 Supp (2) SCR 417 this Court observed:
“The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used”.
It was further observed (at p. 428):
“What was said in this case in connection with the construction of a will applies with equal force to the construction of every other document by which some property is disposed of”.
17. In Gopal Lal Sett v. Purna Chandra Basak AIR 1922 PC 253, (1921) 43 MLJ 116, the Privy Council observed as follows:
“The first question that arises is whether the gift is a gift to the Idols, or whether there was a gift to any other person or persons charged with the maintenance of the Idols. The will is most obscure, but Their Lordships think that there is certainly no direct gift of the whole property to the Idols, nor in the circumstances ought one to be implied. It is consequently necessary to see in what capacity and by virtue of what right the worship of the Idols is to be carried out. The person on whom the duty was cast was undoubtedly Udoy Chand, and the conclusion which Their Lordships have reached, is that if, as they think, there is no gift to the Idols, it is only possible to give effect to the provision of the will by treating it as conferring the property upon Udoy Chand. The will is addressed to him; upon him throughout all the burdens of performing different duties are cast, and this necessarily involves the ownership of the property”.
18. It may be appropriate to refer to a passage in Mayne on Hindu Law and Usage, Eleventh edn. (Reprint) at p. 923 (Section 792) which reads as under.:
“A dedication of property for religious or charitable purposes may be either absolute or partial AIR 1937 PC 185, (1937) 64 IA 203, (1937) 2 Mad LJ 527. In the former case, the property is 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 property comprised in the endowment. (1904) 31 IA 203 Where the dedication is partial, a charge is created on the property or there is a trust to receive and apply a portion of the income for the religious or charitable purposes. (1859) 8 MIA 66 In such a case, the property descends and is alienable and partible in the ordinary way, the only difference being that it passes with the charge upon it.” (1871) 4 Cal 56
19. In this context we may also note a decision of the Calcutta High Court in Hulada Prasad Derghoria v. Kalidas Naik AIR 1914 Cal 813 where the Court had to deal with interpretation of an ancient document:
“The matter may be put briefly in the words of Sugden, L.C, in Attorney General v. Drummond (1842) 1 Dr & Wat 353: ‘One of the most settled rules of law for the construction of ambiguities in an ancient instrument is that you may resort to contemporaneous usage to ascertain the meaning of the deed; tell me what you have done under such a deed, and I will tell you what that deed means’. To this must be added the qualification formulated by Lord Cranworth, L.C, in Sadlier v. Biggs (1953) 4 HLC 435 in the following terms: ‘If there is a deed which says, according to its true construction, one thing, you cannot say that the deed means something else, merely because the parties have gone on for long time so understanding it’ ”.
We have referred to this case although in the case before us the terms of the deed are not at all ambiguous while the Calcutta High Court had to consider an instrument the terms of which were “at best inconclusive”. The principle that the Court may call in aid acts under the deed as a clue to the intention, as was pointed out by Lord Halsbury, L.C, in North-Eastern Railway Co. v. Lord Hastings 1900 AC 260 “does not apply unless there is an ambiguity, for even usage does not justify deviation from terms which are plain: Attorney-General v. Rochester Corporation (1854) 5 De. G.M & G. 797, 43 ER 1079. It was observed by the House of Lords in Drummond v. Attorney-General: (1849) 2 HLC 837, 9 ER 1312
“Consequently, while in a case of ambiguity, the Court will uphold that construction of a deed which justifies a long usage as to the application of trust funds, the Court will not, where there is no ambiguity, accept an erroneous interpretation though consistent with usage, so as to sanction a manifest breach of trust”.
20. Our attention was drawn to a decision of the House of Lords in the Attorney-General v. Master, Wardens, C., of the Wag Chandlers' Co., 1873 Eng. & IA 6 LR 1/19 wherein it was held:
“There is one well-known class of authorities of this sort. A testator devises to a corporate body or to an individual, landed property, and he affixes to that devise a condition that the corporation or the individual shall at their or his own peril, and if necessary out of their own funds, make certain payments or a certain payment, to some object of his bounty. In a case of that kind the devisee is said to take the land upon condition. If the devise is accepted, the condition must be fulfilled, and the money must be paid, whether the land devised is, or is not, adequate to make the payment. The very statement of a case of that kind implies that the land is the land of the devisee, and that every accretion to the value of the land belongs to the devisee; and that the person or the charity which has the benefit of the condition, which receives the payment mentioned in the condition has a right to nothing more than that payment”.
This case meets the requirements of the present case before us. To the same effect there is a passage in Halsbury's Laws of England, Third Edn., Volume 4, at p. 306:
“Speaking generally, the increase will belong to the donee, first, if the gift be to the donee subject to certain payments to others; secondly, if the gift be upon condition of making certain payments subject to a forfeiture upon non-performance of the condition; or, thirdly, if the donee might be a loser by the insufficiency of the fund”. (1846) 12 Cl. & Fin. 812 HL 828
The case referred to in Halsbury is Dr William Jack, Principal, and the Professors of the University and King's College of Aberdeen v. Sir Thomas Burnet of Leys, Bart. (1846) XII Clark & Finnelly, 812, wherefrom the following passage is apposite:
“In searching for the intention of a donor, which is the standard to govern the construction of a deed of gift, the facts, first, that the gift is subject to the condition of making certain payments to others,—secondly, that forfeiture will be incurred by non-performance of that condition,—and, thirdly, that the donee may be subjected to loss by the performance of that condition, are sufficient to raise the presumption that in case of the increase of the fund, the donor intended to give to the donee the benefit of that increase”.
It was held by the House of Lords in that case “that this was a grant upon condition, and not a mere trust, and that the Principal and Professors were entitled, after satisfying the conditions of the deed of gift, to appropriate to themselves any surplus arising from the lands thus given”.
21. Argument was addressed at the bar with regard to the surplus income from the suit property since with progress of time the value of the property has increased and necessarily its income. We are, however, of the view that for the reasons already discussed in this particular case we will not be required to examine the rule of surplus income in charities for the purpose of discovering the intention of the parties at the time of initial partition.
22. The principles that emerge from the above decisions so far as appropriate to the case at hand may briefly be stated.
23. Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous, the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case. As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in clause 8 of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in clause 9 of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of clause 9 read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the Temple or for the charities as claimed by the plaintiffs/respondents. We may, however, add that the conclusion we have reached from the intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties. To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.
24. Having regard to the principles set out above, it is clear that in the present case there was no absolute endowment of the suit property to the Temple or the trust. The property, however, is impressed with the obligation or charge of performing the three kattalais mentioned in clause 9 of the partition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.
25. In the result the appeal is allowed and the judgment of the High Court is set aside and that of the Subordinate Judge is restored subject to the direction that the suit property will be impressed with the obligation to perform the charities mentioned in clause 9 of the partition deed of 1882 and the plaintiff's suit stands dismissed. The parties will bear their own costs in this Court.