Judgment :- 1. Defendant No. 12 in O.S. No. 234 of 1975 on the file of the Subordinate Judge, Karur is the appellant. 2. Two schedules of properties (A & B) are attached to the plaint. All these items belong to one Periasamy Muthariar who executed the original of Ex. A.1 will on 17.3.1949. In this case we are concerned only with the ‘B’ schedule items in the Will which is described as ‘D’ schedule item. 3. According to the plaintiff, the plaint ‘B’ schedule items are dedicated for charity and none has a right to alienate or encumber the same. It is stated that ignoring the provisions of Ex. A.1 Will, various alienations have been effected and the same are ab initio void. 4. It is the further case of the plaintiff that the entire ‘B’ schedule properties are dedicated to charity and except the right to take the income or to be in possession, defendants 1 and 2 have no right to alienate the same. 5. The appellant contended that there is no will and no reliance could be placed on Ex. A.1. It is further contended that even assuming that the will is valid, there is no dedication to charity and at the most, the properties were burdened with the performance of charity and it did not affect the alienability of the properties. With regard to plaint ‘B’ schedule properties, the suit is liable to be dismissed. 6. The trial Court, as per judgment dated 27.6.1978 held that in respect of ‘B’ schedule properties there is no dedication and there is no evidence to show that under Ex. A.1 the testator divested himself from the properties and transferred the ownership to the Trust. It also came to the conclusion that the subsequent conduct of the parties also would show that they were exercising the right of ownership and at the most the provision under Ex. A.1 is only a charge created for charities and not dedication. 7. Aggrieved by the judgment, the plaintiff preferred A.S. No. 1 of 1979 on the file of the Additional District Judge, Trichy. The lower Appellate Court reversed the finding of the trial Court and came to the conclusion that there was a bona fide intention on the part of the testator to dedicate the property for charities and subsequent conduct is not warranted to consider or to interpret the document. 8. The lower Appellate Court reversed the finding of the trial Court and came to the conclusion that there was a bona fide intention on the part of the testator to dedicate the property for charities and subsequent conduct is not warranted to consider or to interpret the document. 8. The lower Appellate Court was further of the view that there was anxiety on the part of the testator to perform the charities. It further held that the testator has prescribed a line of devolution of the trusteeship and the trustees were only given a right of residence in some of the ‘D’ schedule properties. He has also declared that alienation, if any effected, shall be null and void and the properties shall also not be vested with the Government or Endowment. 9. According to the lower Appellate Court the properties were completely ear-marked for the purpose of charity which implies that there is a complete dedication. After having held that there is a complete dedication of ‘B’ schedule property it declared that alienation in respect of ‘B’ schedule property is null and void and the same will not bind the Trust. 10. It is against this judgment, the 12th defendant has preferred this Second Appeal on the following substantial questions of law: 1. Whether the lower Appellate Court isjustified in admitting the registration copy of the will without the original of Exhibit A-1 as secondary evidence without considering the various criteria referred to in Section 66 of the Evidence Act? 2. Whether the lower Appellate Court is in error in not considering the subsequent conduct of the donor in relation to the suit property in determining whether there is dedication of the property towards a public trust?” 11. While extracting the facts, I have already stated that the 12th defendant has challenged the Will Ex. A.1 itself. But, the learned counsel for the Appellant, at the time of argument did not pursue the matter taking into consideration the evidence of the attestor to prove the execution of the will. P.W.2 is the attestor and he has spoken about the execution and attestation of the will, under Section 63 of the Indian Evidence Act. Both the trial Court as well as the lower Appellate Court have acted on the will, believing the evidence of P.W.2. P.W.2 is the attestor and he has spoken about the execution and attestation of the will, under Section 63 of the Indian Evidence Act. Both the trial Court as well as the lower Appellate Court have acted on the will, believing the evidence of P.W.2. The concurrent findings do not call for interference and therefore the substantial question of law-1 is found against the Appellant. 12. The most important question that requires consideration is whether there is dedication to charity, or whether it is a partial dedication. In fact, the trial Court has held that there is no evidence to show that the property has been dedicated or transferred in favour of the trust. The trial Court held that the subsequent conduct of the parties is a relevant piece of evidence to come to the conclusion whether there was any dedication. Even if there is a dedication whether it is partial or complete is also to be decided. The lower Appellate Court was of the view that the subsequent conduct was not relevant in interpreting the document. Learned counsel for the Appellant also found fault with the findings of the lower Appellate Court in the approach made by it. 13. In B.K. Mukherjea on ‘The Hindu Law of Religious and Charitable Trust - 5th edition at page 165, the learned author says thus: “The conduct of the grantor and the surrounding circumstances have to be taken into account in order to determine whether the donor intended the deed to be real and operative. To complete the gift there must be transfer of the apparent evidences of ownership from the donor to the donee. And so it was held that the mere execution of a deed was not sufficient to constitute a valid endowment, and that it should further be shown that the settler had divested himself of his title to the property dedicated”. “The subsequent acts and conduct of the parties are relevant only for the purpose of ascertaining what the original intention of the grantor was. “The subsequent acts and conduct of the parties are relevant only for the purpose of ascertaining what the original intention of the grantor was. Thus, if the profits of a dedicated property are appropriated by the executant for his own use and not spent for the worship of the idol and his subsequent dealings with the property show that he did not intend to create an endowment, the dedication will be held to be inoperative.” In Brojobala v. Sir Saradiya Durgamata (A.I.R. 1953 Calcutta 285) their Lordships in para 14 of the judgment have held thus: “Mere execution of a Deed although i: may purport on the face of it to dedicate property to an idol is not enough to constitute a valid endowment. The validity of the deed would depend on proof that the executant had divested himself of the property dedicated. Whether he had done so or not is to be determined by the acts and conduct of the parties. Application of the entire income where an absolute debuttar is being created is one of the tests and not the sole criterion.” The learned author Mayne, in ‘Hindu Law’ 14th Edition at page 1291 says: “The mere execution of a deed of a gift or instrument is not enough to constitute a valid endowment. It is necessary that the executant should divest himself of the property; there must be a transfer of the apparent evidences of ownership from the donor to the donee. Whether he has done so or not can only be determined by his subsequent acts and conduct. Where a widow effaced her entire interest in a small item of property reserving a right to enjoy in income subject to the liability to meet the expense s of lighting every day in the temple it was held there was a valid endowment though possession was postponed till the death of the settler. An allocation of specific property or fund to charity is essential both for effecting an endowment under the Hindu Law and for treating a valid trust. A mere credit entry in the donors account books without setting apart and appropriating the sum credited is not sufficient to establish a dedication. Seba Samarpana Patra is the only evidence of dedication in the absence of any other material in proof of invention of divestment of ownership in the donor, there is no valid dedication. A mere credit entry in the donors account books without setting apart and appropriating the sum credited is not sufficient to establish a dedication. Seba Samarpana Patra is the only evidence of dedication in the absence of any other material in proof of invention of divestment of ownership in the donor, there is no valid dedication. But, in the case of creating a valid trust (i) sufficient words to raise it; (ii) a definite subject; and (iii) a certain or ascertainable object are necessary. Where the intention to dedicate is clear the divestiture is contemporaneous, the subsequent acts and conduct of the donor are irrelevant and cannot reinvest the property in him; a valid endowment once created can never be revoked, Where, however, this is not the case and his subsequent dealings with the property show that he did not intend to create an endowment, there will be no trust and the property will not be debuttor and will continue to be his and is liable to be attached and sold in execution of decree against. The words “debuttor Vishnupreeti, or Sivapreeti” in the document without an indication as to dedication would show only to the intention to utilise the property, after satisfying the personal needs, to service of good and there is no dedication.” 14. In view of the said legal position, it cannot be doubted that the subsequent dealings of the properties are relevant to consider the intention of the testator whether he intended to dedicate the property either absolutely or partially or whether the provision itself is fictitious. The subsequent conduct is not to be used for interpreting the document, but only to enter a finding as to what was the intention of the testator. 15. I will consider the question of subsequent conduct at the later stage of the discussion. Now I will consider whether the document itself gives a clue as to whether there was a dedication, absolutely or partially. If the subsequent conduct of the parties are also in accordance with the terms of the document, then that will fortify as to the nature of dedication. 16. The relevant portion of the document as extracted at para 14 of the trial Courts judgment reads thus: Tamil 17. From a reading of the above document it is seen that the testator wanted to perform a few charities. It is both public and private in nature. 16. The relevant portion of the document as extracted at para 14 of the trial Courts judgment reads thus: Tamil 17. From a reading of the above document it is seen that the testator wanted to perform a few charities. It is both public and private in nature. The important words in the document are Tamil Likewise, the testator has further said that after the death of Govindammal, the parties 1 and 2 either jointly or if not possible, take possession of the properties on alternative years and out of the income perform the charities. Tamil He also says that the property cannot be alienated or encumbered. However, the properties shall not vest with the Government or with the Endowment Board. He also says that if there are no male issues for any one of the parties among 1 and 2, then the part) who has a male issue has to perform the charity. A reading of the document makes it clear that the charity has to be performed out of the income. There is no statement anywhere in the document that he has dedicated the property to charity. Title always vested with the testator and he has provided a line of succession as to who shall hold it and regarding the transfer of ownership, to the Trust there is no statement anywhere in the document. 18. What is the effect of absence of a statement regarding the transfer of ownership? I take guidance from the decision in Dasaratha Rama Reddi v. D. Subba Rao (A.I.R. 1957 S.C.-797) wherein their Lordships have held thus: “The principles of Hindu Law applicable to the consideration of questions of dedication of property to chanty are well settled. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. On the other hand, in many cases Courts have to deal with grants or gifts showing dedication of property to charity. 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. On the other hand, in many cases Courts have to deal with grants or gifts showing dedication of property to charity. 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. The use of the word ‘trust’ or ‘trustee’ is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter . (Emphasis supplied) ‘ Is the private title over the property intended to be completely extinguished? Is the title in regard to the property intended to be completely transferred to the charity? The answer to these questions can be found not by concentrating on the significance of the use of the word “trustee” or “trust” alone but by gathering the true intent of the document considered as a whole. In some cases where documents purport to dedicate property in favour of public charity, provision is made for the maintenance of t he worshipper who may be a member of the family of the original owner of the property himself and in such cases the question often arises whether the provision for t the maintenance of the manager or the worshipper from the income of the property indicates an intention that the property should retain its original character and should merely be burdened with an obligation in favour of the charity. If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own priva te purposes, it would be difficult to accept the theory of complete dedication.” Their Lordships, at para 11 at page 803 have further held thus: “Then, after the death of Purushottam, the clause provides that the property should pass on to his grandson Ramalingeswara Rao subject to the purpose of the aforesaid charities. The notion that the property has to pass from Purushottam to Ramalingeswara Rao is consistent with Purshottams title to the property and is inconsistent with the title of the idol in the said property. This clause about the devolution of the title in favour of the grandson clearly and unequivocally suggests that all that Purushottam warn ed to achieve by this clause was to leave his private title unimpaired except with the burden or charge in favour of charity.” (Emphasis supplied) 19. In this case, even though various charities are mentioned to be performed, how much amount has to be spent for those charities is not specified. Naturally that depends upon the discretion of the person in possession of the properties from time to time. There is no statement as to what has to be done with the surplus income. One thing is clear. All the amounts will have to be spent out of the income and that the charities could be performed from the income which may be derived from the properties. If for any reason, any of the parties is incapacitated in performing the charities, there is no statement in Ex. A. 1 regarding the consequence. 20. Along with the absence of statements, the subsequent conduct also shows that there was no dedication of the property and there was no transfer of ownership in favour of the trust. If for any reason, any of the parties is incapacitated in performing the charities, there is no statement in Ex. A. 1 regarding the consequence. 20. Along with the absence of statements, the subsequent conduct also shows that there was no dedication of the property and there was no transfer of ownership in favour of the trust. The testator was not doing the charities, is found by the Trial Court, the said finding has not been upset by the lower Appellate Court. Even the oral evidence let in to prove that a charity was being performed on the date of Ex. A.1, the trial Court has discussed the entire evidence and has come to the conclusion that the oral evidence cannot be believed. It has also come to the conclusion that after the death of the testator in 1954, none of the parties in Ex. A.1 has performed the charities. At the same time, the trial Court came to the conclusion that the properties were being dealt with as if it is unencumbered., and also as if there is no charity to be performed. It also believed the evidence of D.Ws. 1 to 3 to come to a conclusion that after Ex. A.1 none of the charities was performed. In Ex. A1 there is no statement as to the income that could be derived from the properties and expenses to be incurred for the same. It is in this connection, a few decisions of various High Courts require consideration. 21. In one of the earlier decisions in Niranjan Prasad v. Behari Lal (A.I.R. 1929 Allahabad 302) their Lordships have considered this question. In that case the executor earnestly and in good faith has dedicated some properties for charities and he has also nominated his two sons to manage the properties and he also wanted that the religious charitable functions to be performed without fail and he also directed his sons to take the income of the property and perform those charities without fail. Considering the same, their Lordships held thus: “No fixed amount is laid down for being spent upon the purposes of worship etc., but the superintendents are given complete discretion to spend whatever they think fit. It appears that the managers have not kept any accounts whatsoever of the income of the endowed property. Considering the same, their Lordships held thus: “No fixed amount is laid down for being spent upon the purposes of worship etc., but the superintendents are given complete discretion to spend whatever they think fit. It appears that the managers have not kept any accounts whatsoever of the income of the endowed property. The only way in which effect is said to have been given to the endowment is that the superintendents have executed leases of the property in the name of Gangaji. We are not satisfied that any expenditure whatsoever has been incurred for the purposes of the worship etc.: of the idol and in our opinion the endowment is purely illusory or colourable. The testators intention was to preserve the property in his family and to let his two sons and their descendants enjoy the income of the property without having the power of alienation.” In Janardan Jiu v. Khitish Chandra (A.I.R. 1932 Calcutta 419) their Lordships of Calcutta High Court have held thus: “The mere execution of a deed, although it may purport on the face of it to dedicate property to an idol, is not enough to constitute a valid endowment. It is necessary to the validity of a deed of endowment that the executant should divest himself of the property dedicated. Whether he has done so or not is to be determined by the subsequent acts and conduct of the parly or parties. Also the mere fact that the members of the settlers family are nominated shebaits and that they are to be remunerated out of the income of the property is no ground whatsoever for holding that the dedication is not real, provided that the remuneration is reasonable having regard to the income of the property. The question whether the dedication is a complete or a partial one may be decided on the construction of the document. The question is this: whether any beneficial interest is reserved to any person and if so, what is the nature and extent of the beneficial interest so reserved? Is it a mere charge or trust in favour of the idol or whether the property alleged to have been dedicated is property which is descendible to the heirs of the settlors? The question is this: whether any beneficial interest is reserved to any person and if so, what is the nature and extent of the beneficial interest so reserved? Is it a mere charge or trust in favour of the idol or whether the property alleged to have been dedicated is property which is descendible to the heirs of the settlors? If it is the latter, then it is only a partial dedication, that is, a dedication of property alienable and partiabls and heritable in the ordinary way but subject to a charge in favour of the idol.” Division Bench of this Court in Dharma Raja v. Rama Ammal (1978-1 M.LJ.-492) has held thus: “The mere execution of a deed of gift or instrument is not enough to constitute a valid endowment. It is necessary that the executant should divest himself of the properties; there must be a transfer of the apparent evidences of ownership from the donor to the donee and in cases where there is no real dedication of properties but only a creation of perpetuity in favour of ones own descendant the alleged gift in favour of the idol or religious or charitable institution becomes void.” In that case the document which came for consideration and interpretation was similar, to that of this case. Their Lordships have held that only a charge has been created and the settlor has not vested himself with the property. 22. In para 18 of the trial Court judgment a finding has been entered by the Court that either the testator or his other executors never treated the property as belonging to the trust but they were treated as their own. Except for execution of Ex. A1 there was no real dedication to charity and therefore, it is also heritable and alienable. The lower Appellate Court has not entered a finding as to the factual finding of the trial Court. It merely came to the conclusion that on a reading of Ex. A1 the intention is clear and the subsequent conduct is not relevant for the purpose of determining the intention of the parties. This, in my view, is not a correct approach and the learned counsel for the Appellant was justified in criticising the judgment of the lower Appellate Court. 23. A1 the intention is clear and the subsequent conduct is not relevant for the purpose of determining the intention of the parties. This, in my view, is not a correct approach and the learned counsel for the Appellant was justified in criticising the judgment of the lower Appellate Court. 23. Taking into consideration the said legal position, I am of the view that the judgment of the lower Appellate Court has not approached the question in the proper perspective. The procedure to be followed while interpreting a document of this nature was not correctly followed. The lower Appellate Court has committed a legal error in coming to the conclusion that the property has been dedicated. Therefore, the second substantial question of law has to be found in favour of the Appellant. 24. In the result, the judgment of the lower Appellate Court is set aside and the judgment of the trial Court is restored in full. The Second Appeal is allowed. Taking the circumstances of this case into consideration, I feel that the Appellant must also be allowed his costs in all the three Courts and I award the same.