- (1.) This appeal arises out of a suit for partition. The Plaintiff and defendant 1 are daughters of one Kanakasabapathi Piilai. Defendant 2 is the husband of defendant 1. Kanakasabapathi was a self-made man and built up a flourishing motor bus service and also acquired substantial properties, movable and immovable. He died on 24-8-1942 without any male issue and left him surviving a widow, Gomathi Ammal, and two daughters, the plaintiff and defendant 1. His widow continued the motor service and managed the other properties with the help of defendant 2 as her Manager and died on 7-3-1944. Defendant 1 and her husband were throughout living with her mother. On her mother's death they both, got into possession of all the properties including the motor service. The plaintiff accordingly brought the present suit originally as one for administration but later amended it as one for partition and separate possession of her half share in the properties. Both the Courts below have decreed partition with ancillary reliefs. There are some minor variations in the decree of the High Court from that of the Subordinate Judge, details of which it is not necessary to notice. The defendants are the appellants before us.
(2.) Shortly before her death, the widow, Gomathi Ammal, executed two documents both on the same day namely 4-11-1940, (1) a sale-deed by which she conveyed the entire bus service as a going concern to defendant 2 for consideration of Rs. 80,000/- (vide Ex. D-6) ; and (2) a settlement deed by which she dedicated some immovable properties worth about Rs. 27,000/- for the performance' of certain services purporting to be of a religious and charitable character (vide Ex. D-8). The main dispute between the parties was as to the validity of those two deeds, apart from certain minor contest as to whether some of the suit properties were part of the Kanakasabapathi's estate and liable for partition. As regards the sale-deed (ExD-6) both the Courts below have concurrently. found that it was executed for grossly inadequate consideration and brought about by undue influence and fraud of defendant 2. The sale-deed was accordingly set aside. With reference to the dispute as regards the individual items of property, the Subordinate Judge found that item 25 of Sch. II, item 6 of Sch. III-C. and item 5 of Sch. IV did not form part of the estate of Kanakasabapathi and that all the other items belonged to the said estate. The finding also has been confirmed by the High Court. There is no further appeal to this Court as regards these matters
(3.) The only questions before us are those arising out of the settlement deed (Ex. D-8) and relate to the properties comprised in Schedules I and II attached thereto. They form Sch. II of the plaint. For a proper appreciation' of the points that arise on this appeal, it is desirable to set out the settlement deed (Ex. D-8) executed by Gomathi Ammal which reads as follows : ' "The properties described in Sch. I herein are the properties which belong to the estate of my husband the late T. G. Kanakasabapathi Pillai Averagal aforesaid. They were purchased by him in his name and after his death, they belong to me and are in my possession and enjoyment. All the properties described in Sch. 2 herein are my private properties which were purchased in my name from out of my own funds and which are in my possession and enjoyment. My husband aforesaid who had been sick for about two months prior to 24-8-1942 died on 24-8-1942 My husband, while he was so sick. expressed to me his wish that if per chance he should die, he should be entombed in the property forming the first item property of schedule 1 herein. that the vacant lands forming items 2 to 6 of the said schedule 1 should be annexed to the first item property of the said schedule 1 as part and parcel thereof utilised for the benefit of and free access to the said tomb that the incomes derived from the properties forming items 7 to 17 of the said schedule 1 should be utilised for the Kainkariyam (services) expenses relating to the samadhi (tomb) that the said first schedule properties should be managed and enjoyed and the kainkariyam relating to the said samadhi performed by me during my life-time and after me, by the persons who may be appointed by me according to my discretion that the said properties should be charged solely with the said kainkariyam (services) in the manner stated above and that no one else should have any right or interest therein, that no one should alienate the said properties in any manner, that all necessary interest should be taken in improving the said properties and that I should make a settlement in writing, mentioning the above particulars, and within a few days thereafter, my husband passed away. As desired by him, he has been entombed in the property forming the first item of schedule 1 herein. A person was appointed for (doing) pooja in respect of the said samadhi and daily pooja as well as special Gurupooja and annadhanam (charity of feeding), etc. in Avani (August September) of the first year in Tiruvona Nakshatram when he died, have been conducted. In having so conducted them a sum of Rs. 200 has been spent in connection with the expenses of daily pooja and for the salary of the person and a sum of Rs. 1000 for Gurupooja and annadhanam, etc. in the aforesaid one year. The properties forming items 7 to 16 of Sch. 1 fetch only an income of Rs. 400 per year. Since it is not sufficient for conducting the said kainkariyams (services) and as I intend that the said kainkariyams shall be regularly and decently conducted by contributing the amount required for the expenditure over and above the said income, that the said acts shall be hereditarily and permanently performed for ever and that necessary arrangements must be made therefor. I have with a view to discharge my duties which I have towards my husband and also realising the necessity of utilising also the income derived from my private properties described in Sch. 2 herein for the expenses in connection with the kainkariyam of the said samadhi, executed this settlement deed including also my private properties mentioned above. I have therefore charged all the properties mentioned in schedules 1 and 2 herein solely with my husband's samadhi kainkariyam. I have decided that out of the incomes derived from the aforesaid properties the Revenue, Union and other thrives payable in respect of the aforesaid properties and the expenses in connection with repairs and improvement shall be deducted, that, from out of the balance income, the expenses in connection with the daily pooja of the said samadhi, the expenses in respect of the salary of the person conducting the said daily pooja and the expences in connection with Gurupooja and annadhanam, etc. performed on the day of Thiruvona Nakshathram in the month of Avani of every year shall be regularly met and the said Kainkariyams decently performed that after deducting the expenses incurred in the manner started above the surplus that may be left over shall be spent for matters connected with education and that the properties described in schedules 1 and 2 herein shall be enjoyed and all the acts performed in the manner stated above with the income derived. therefore during my lifetime and after my death by K. Ramaswami Doss Avargal, my junior son-in-law, who has married my younger daughter, son of Krishna Konar Avargal Yadhava, Vaishnavite, manager of my Motor Service, since I fully believe that only the said K. Ramaswami Doss Avargal is the fit and proper person to perform all the above acts truly, regularly and efficiently after my lifetime, and offer him his male descendants in hereditary succession as hukdars and I have executed this Settlement. Koilpatti, where the properties described in schedules 1and 2 herein, being a place growing in importance from day to day, the vacant land in the properties described in schedules 1 and 2 herein may be sold if and when they can fetch suitably and profitably high price, and for the amounts realised by such sale, other substantial properties capable of yielding income may be purchased. Except under such circumstances no one has the right to make dull other alienations whatever. Should any such alienations be made, it shall not be valid. No one has the right to cancel this settlement or make altertions therein." As appears from the above, Kanakasabapathi was entombed after his death and the question is as to the validity of the dedication made therefor. It will be seen that the settlement deed proceeds on the footing that the dedication was made in pursuauce of the desire of the husband and that the items in schedule 2 thereto which are items 18 to 24 of Schedule II attached to the plaint in this suit are the widow's own property and not part of the estate of Kanakasabapathi. The Courts below have found both these assertions not to be true. But no question has been raised before the Courts below or before us that the settlement, even if otherwise valid, was beyond the powers of the limited owner, Gomathi Ammal. The Courts below in coming to the conclusion that the dedication was invalid (partially as held by the Subordinate Judge and Wholly as held by the High Court) relied on - 'Kunhamutty v Ahmad Musaliar', AIR 1935 Mad 29 (A); and other cases following it. Learned counsel for the defendants-appellants contested the correctness of this line of decisions and also urged that the dedication in the present case was substantially one for religious and charitable purposes like, Gurupooja, annadhanam and education and trial, therefore: this does not come within the scope of these cases. It will be convenient to consider this latter contention first.;