Sarkar, J. - (1.) On January 10, 1914, the appellant's predecessors-in-interest executed an instrument which has been described in these proceedings as a deed of settlement. There is some dispute as to the interpretation of this instrument but this much is not in controversy that it provided that the properties set out in Schedule A to it would be responsible for meeting the expenses of the charities specified in Schedule B. Schedule B set out 17 different charities and the amount to be spent on each. The total of the amounts mentioned came to Rs. 4,311-0-0 and the instrument provided that "in respect of the sum of Rs. 4,311-0-0 which has been set apart for the expenses of the aforesaid dharmams we have created a 'charge' on the entire properties mentioned in the A Schedule herein." That the properties were charged with the payment of the amount is not disputed. It is unnecessary to refer to the other provisions in this instrument in detail and it will be sufficient to state that they provided that the balance of the income of the properties in Schedule A left after meeting the expenses of the charities was to be taken by the male members of the family after payment of certain maintenance, marriage and other expenses to various females.
(2.) On November 10, 1953, the Commissioner for Hindu Religious and Charitable Endowments, Madras, an officer appointed under the Madras Hindu Religious and Charitable Endowments Act, 1951, made in exercise of the powers conferred on him by the Act, an order declaring that 21 per cent of the income of the properties in Schedule A would be deemed to form a specific endowment within the meaning of the Act. Thereupon the appellant filed a suit under S. 62 (ii) of the Act against the Commissioner for cancellation of this order. The trial Court decreed the suit, but on appeal by the Commissioner to the High Court at Madras it was declared that a specific endowment was created by the instrument of 15. 9 per cent of the income for the time being received from the properties mentioned in Schedule A. The appellant challenges that decision in the present appeal. The Commissioner is represented by the State of Madras.
(3.) The appellant contends that no specific endowment had been created by the instrument. His contention is that all that was done was to create a charge on the properties to meet the expenses of certain charities but the settlors never divested themselves of those properties or any interest therein. It was said that the mere provision for meeting the expenses of the charities out of the income of the properties and the creation of the charge would not amount to the making of any endowment, for thereby the settlors could not be said to have divested themselves of anything. The main question in this appeal is whether this contention is right.;