Judgment : The petitioner has come forward with this writ petition praying for a Writ of certiorari calling for the records pertaining to the order dated 211. 2006 made in A.P.No.40 of 2005-D2 passed by the first respondent and quash the same. 2. The case of the petitioner is as follows: The petitioners grandfather Late. Kathirvel Chettiar was the absolute owner of the property bearing old Door No.264, new Door No.149, Rasappa Chetty Street. Park [own, Chennai, who executed a settlement deed dated 12. 1953, which is a family arrangement, thereby he constituted a private trust. In and by the said settlement deed, the settler expressed his pious wish that out of the income of the said property, the trustees to spend not less than Rs.25/-for the abishegam on the dwajarohanam day of Thai Brahmotsavam in the Sri Muthukumarasamy Temple, popularly known as Sri Kandasamy Temple, Park Town, Madras and pay Rs. 5/- every year to the trustees of Sri Dharma Siva Achari Mutt No.38, Kachaleswarar Agraharam, George Town, Madras to be spent on the Dadayathi day of the yearly Navarathri festival." According to the petitioner, he along with his family members are fulfilling the said wish of the settlor. The said settlement not prohibits alienation. The property also not divested to any endowment. The petitioner filed his nomination seeking to contest for the post of trustee of Sri Muthukumarasamy Devasthanam and one Balasubramaniam also contested in the election but he could secure lesser votes than the petitioner. The said Balasubramaniam, having failed in his attempt to defeat the petitioner, instigated, his election agent, the third respondent herein to file W.P. No.22059 of 2002 seeking for a writ of mandamus forbearing the respondents namely Commissioner and Joint Commissioner of HR & CE Department from declaring the result of the election of the trustees of Sri Muthukumarasamy Temple Devasthanam held on 16. 2002, which was dismissed by this Court on 19. 2002 directing the third respondent herein to work out his remedy elsewhere or under HR & CE Act. 2002, which was dismissed by this Court on 19. 2002 directing the third respondent herein to work out his remedy elsewhere or under HR & CE Act. Thereafter, the petitioner has filed an application under Section 26(3) of HR & CE Act before the second respondent, which was also dismissed holding that under settlement deed, a private trust was constituted for the welfare of the family members, there was no divesting of property either to the deity or to the temple in any manner, the trust came to an end when the last of the grand son attains majority, hence the alienation of the property not attract any disqualification under Section 26 of the HR & CE Act. As against the said order, an appeal was preferred by the third respondent, which was erroneously allowed by the first respondent. 3. The case of the third respondent is as follows: The petitioner has tiled his nomination and contested the election for the trustees. One Ramasamy, an employee of the temple raised objection that the petitioner suffered disqualification as contemplated under Section 26(1) of the Act for having acted adverse to the interest of the temple by selling a house, which has been endowed by his ancestors under the said settlement deed thereby the corpus of the endowment has been destroyed. The election officer has ignored the objection and permitted the petitioner to participate in the election, thus, the petitioner von the election and became senior trustee of the temple. The election has paved the way for a disqualified person to hold the office of the senior trustee. The petitioner has filed W.P.No.22059 of 2002, which was disposed of by this Court finally directing the petitioner to invoke the provisions of HR & CE Act. The third respondent has filed an application under Section 26(3) of the Act before the second respondent, who erroneously rejected it, however, the appeal filed before the first respondent was rightly allowed. 4. Mr. T.V. Ramanujun, learned senior counsel appearing for the petitioner submitted that the property covered under the settlement deed continued as family property all along, not divested to any endowment. 4. Mr. T.V. Ramanujun, learned senior counsel appearing for the petitioner submitted that the property covered under the settlement deed continued as family property all along, not divested to any endowment. The ancestors of the petitioner created a private trust for the welfare of the family wherein he expressed his pious wish to spend not less than Rs.25/- for the abishegam on the dwajarohanam day of Thai Maha Urchavam in the Sri Muthukumarasamy Temple, popularly known as Sri Kandasamy Temple, Park Town, Madras and pay Rs.5/- every year to the trustees of Sri Dharma Siva Achari Mutt, No.38, Kachaleswarar Agraharam, George Town, Madras to spend on the Dadayathi day of the yearly Navarathri festival. Even the temple is not aware of the terms of the said private trust; that one Mr. Balasubramaniam, erstwhile senior trustee of Sri Muthukumarasamy Devasthanam arranged the temple employee to oppose the petitioners nomination on false ground that the petitioner had acted averse to the interest of the institution by selling the property, which was allegedly endowed by his ancestors to the temple, which was rightly ignored by the election officer; that the petitioner secured more votes than the said Balasubramaniam, and became senior trustee: that the said Balasubramaniam, having failed in his attempt has arranged his election agent, the third respondent herein to file the vexatious petition under Section 26(3) of the HR & CE Act before the second respondent which was rightly dismissed on the ground that the trust was a private trust, which came to an end soon after the settlors grand son attained majority, however, the petitioner has been performing the poojas satisfying the pious wish of the settlor; that the properly was not divested to the temple, hence, the question of the petitioner acted against the interest of the institution does not arise and that the disqualification sought for cannot be ordered. In support of this contention, the learned senior counsel for the petitioner relied on the below mentioned decisions: i) M.R. Goda Rao Sahib v. State of Madras AIR 1966 SC 653 wherein the Honourable Supreme Court in Para Nos. 8 and 14, it was held thus: 14. I am unable to accept this argument as correct. In Hindu Law a dedication of property may be either absolute or partial. -Iswari Bhubaneshwari v. Brojo Nath Dey AIR 1937 PC 185 : 64 Ind App 203. 8 and 14, it was held thus: 14. I am unable to accept this argument as correct. In Hindu Law a dedication of property may be either absolute or partial. -Iswari Bhubaneshwari v. Brojo Nath Dey AIR 1937 PC 185 : 64 Ind App 203. 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. 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 purpose. 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. (MAYNES HINDU LAW, Eleventh Edn., p. 923). In my opinion, the expression "religious endowment" as defined in Section 6(14) and "specific endowment" as defined in Section 6(16) of the Act must be construed so as to include both absolute and partial dedication of property. This view is supported by reference to Section 32(1) of the Act which states: "32.(1) Where a specific endowment attached to a math or temple consists merely of a charge on property and there is failure in the due performance of the service or charity, the trustee of the math or temple concerned may require the person in possession of the property on which the endowment is a charge to pay the expenses incurred or likely to be incurred in causing the service of charity to be performed otherwise. In default of such person making payment as required, the Deputy Commissioner may, on the application of the trustee and after giving the person in possession a reasonable opportunity of stating his objections in regard thereto, by order, determine the amount payable to the trustee.” This Section, therefore, contemplates that "specific endowment" attached to a math or temple may consist merely of a charge on property. It is, therefore, not possible to accept the argument on behalf of the appellant that in order to constitute a "specific endowment" within the meaning of the Act there must be a transfer of title or divestment of title to the property. In my opinion, Mr. It is, therefore, not possible to accept the argument on behalf of the appellant that in order to constitute a "specific endowment" within the meaning of the Act there must be a transfer of title or divestment of title to the property. In my opinion, Mr. Sastri is, therefore, unable to make good his argument on this aspect of the case." ii) R.M.AR.AR.RM.AR. Ramanathan Chettiar v. Commissioner for Hindu Religious and Charitable Endowments, Madras and Others 1978 (91) LW 337 wherein a Division Bench of this Court in Para Nos.11, 14 and 16, it was held thus: ;;itU7) 4 MU C.R. Palanidoss v. Commr., I.R. & C. Endowments Board Mad 933 Edn., p. 923). In my opinion, the expression Act 22 of 1959, which is not far different "religious endowment" as defined in See- from the definition in the earlier I 951 Act as tion 6(14) and "specific endowment" as de- well. It reads as follows: fined in Section 6(16) of the Act must be construed so as to include both absolute and partial dedication of property. This view is supported by reference to Section 32(1) of the Act which states: "32. (D Where a specific endowment attached to a math or temple consists merely of a charge on property and there is failure in the due performance of the service or charity, the trustee of the math or temple concerned may require the person in possession of the property on which the endowment is a charge to pay the expenses incurred or likely to be incurred in causing the service of charity to be performed otherwise. In de-fault of such person making payment as required, the Deputy Commissioner may, on the application of the trustee and after giving the person in possession a reasonable opportunity of stating his objections in regard thereto, by order, determine the amount payable to the trustee." This Section, therefore, contemplates that "specific endowment" attached to a math or temple may consist merely of a charge on property. It is, therefore, not possible to accept the argument on behalf of the appellant that in order to constitute a "specific endowment" within the meaning of the Act there must be a transfer of title or divestrnent of title to the property. In my opinion, Mr Sastri is, therefore, unable to make good his argument on this aspect of the case." ii) R.M.AR.AR.RM.AR. In my opinion, Mr Sastri is, therefore, unable to make good his argument on this aspect of the case." ii) R.M.AR.AR.RM.AR. Ramanathan Chettiar v. Commissioner, for Hindu Religious and Charitable Endowments, Madras and Others 1978 (91) LW 337 wherein a Division Bench of this Court in Para Nos. 11, 14 and 16, it was held thus: "11. A religious endowment or endowment is defined in Section 6, Clause 17 of Madras Act 22 of 1959, which is not far different from the definition in the earlier 1951 Act as well. It reads as follows: ….. ……. ……. ……… From the above definitions, it is seen that every endowment made by a donor may not squarely come within its meaning. It should he clear either by express dedication or by necessary implication that a particular property has been given for the performance of any service of a public nature connected with a temple. Such giving or endowing the property for the performance of any service or charity in a temple, etc., should be apparent from the evidence let in a particular case. It cannot be a matter of assumption or presumption unless by a course of conduct for years such Inference is possible…….The person, who is deputed to perform the Abhishekam has to render an account. All these features which formed the foundation of the so called endowments clearly indicate that it is a private endowment in the sense that it is a fund created by late, Arunachala Chettiar and administered by his successors according to their choice and whim without being controlled by any extraneous authority. 14. It is therefore, seen that acceptable and cogent material evidencing the intention to dedicate property for the particular purpose followed by an actual divestment" or appropriation of the property to the specific object is an essential sine quo non to create an endowment. 16…. From the documentary evidence let in, which as we said remains uncontradicted, we gather the impression that the persons to administer the trust are definite and ascertained individuals belonging to the family of the donor and they are vested with the discretion to utilize the fund for performing the abhishekam in any siva temple of their choice. This solitary element would not make it a public endowment. The endowment in question examined through lens of Hindu notion certainly revolves round a religious ceremony. This solitary element would not make it a public endowment. The endowment in question examined through lens of Hindu notion certainly revolves round a religious ceremony. Who are the beneficiaries of the service is the question. It is not uncommon for Hindus to be present at the time of Abishekam in a temple, though they have nothing to do with it in the sense that they did not provide any material for the purpose of the Abhishekam. It is equally not uncommon for individual donors performing such abhishekam for their personal benefit. Even, such Abishekams are witnessed by the public along with the donor or his representative. Such a participation by the public in the course of the performance of a private service in a public temple would not make the service or the fund which prompts the making of such service a religious endowment or a specific endowment. In the light of the above decisions, we are unable to accept the unexplained verdict of the learned Subordinate Judge that the said trust is a religious endowment and not a private trust." iii) Commissioner, HR & CE Administration Department, Nungambakkam High Road, Madras-34 v. C. V Sudharsan and Another (2000) 3 MLJ 23 : 2000 (2) CTC 559 wherein a Division Bench of this Court held in Para Nos. 18 and 27 as follows at pp. 28 & 29 of LLJ: "18. The learned counsel for the respondent also relied on the decision of a Division Bench of this Court reported in R.M.AR.AR.RM.AR. Ramanathan Chettiar v. Commissioner for HR & CE, Madras 1978 (91) LW 337 which was also relied on by him before the learned single judge where this Honourable Court held that Abishekams to be performed in a Siva Temple in the country from out of an endowment would not made the endowment a public one but it was a mere private endowment. The Division Bench held that even in the Abishekams were witnessed by the public along with the donor or his representatives, such participation by the public of a private service in a public temple will not make the service of a religious endowment or a specific endowment. 27. The Division Bench held that even in the Abishekams were witnessed by the public along with the donor or his representatives, such participation by the public of a private service in a public temple will not make the service of a religious endowment or a specific endowment. 27. The decision relied on by the learned counsel for the respondent which related to the performance of "Abishekam" in Siva temples will not apply to this case, since in that case there is no element of public interest or participation by the public or derivation of some benefit by the public in the performance of the Abishekam. Therefore, that decision will not help the respondent." 5. The learned Additional Advocate-General appearing for the first respondent submitted that after careful consideration of the relevant clauses of the settlement deed, the first respondent has rightly come to the conclusion that the settlor dedicated the property and created a charge on it, which amounts to specific endowment; that the specific endowment includes both absolute and partial dedication; that the settlor in more clear terms mentioned in the deed of settlement that the religious charity should continue and put it as a pre-condition for the legal heirs to enjoy the balance income from the properties; that the shares indicated by the settlor in the settlement deed and the shares of the rental income from the properties are not the sale proceeds, thus, the original dedication continues in favour of Kandasamy temple; that the finding of the joint commissioner that it is a private trust is incorrect; that the corpus created from and out of the sale proceeds for performing religious charities will not hold water as the sale itself is null and void and the petitioner incurred disqualification as he acted against the interest of the institution as contemplated under Section 26 of the Act. 6. Mr. 6. Mr. Thiruvengadam, learned counsel appearing for the third respondent submitted that the election was held in the year 2002 to select trustees of Sri Muthukumarasamy @ Kandasamy temple situate in Park Town, Chennai; that though the petitioner was selected, he suffered disqualification to hold the of trustees within the meaning of Section 26(1)(h) of the Act; that the third respondent approached this Court by filing W.P. No. 22059 of 2002 for a writ of mandamus which was disposed of by this Court with an observation to seek remedy before the appropriate forum or under the HR & CE Act, pursuant to that M.P. No. 9 of 2002 was filed by the third respondent before the second respondent, which was erroneously rejected on the ground that the trust is only a private trust created for the welfare of the family and that it is not a specific endowment and the petitioner has created a corpus from and out of the sale proceeds and performing the religious charities indicated in the deed and the petitioner continuously performing the pious obligations of the settlor are invalid reasons; that indeed the properties were absolutely dedicated to the temple, though it is stated in the settlement deed that endowment come to an end but it does not mean that the purpose of endowment to the deity in question has come to an end since the author of the deed has specifically pointed out that performance of Kattalai in the temple would continue and did not contemplate creating any corpus for the purpose of charity in their institution; that under Section 34 of the Act, for selling any properties belonging to the temple or when the property was specifically endowed or created for the purpose of the temple, prior permission is required from the commissioner and before such sanction is accorded, particulars relating to the properties transaction shall be published, in such a manner as may be prescribed inviting objections and suggestions with respect thereto and all objections and suggestions received from the trustees or other persons having interest would be duly considered by the commissioner but in this case, no such permission was obtained by the petitioner; that the petitioner has acted against the interest of the institution, hence, he gets disqualification. In support of his contention, the learned counsel for the third respondent relied on the below mentioned decisions: i) Menakuru Dasaratharani Reddi and Another v. Duddukuru Subbu Rao and Others AIR 1957 SC 797 wherein in Para-11, it was held thus: "11……Reading the clause as a whole, it seems to us fairly clear that Purushottam wanted the property to devolve on his grandson and treated the property as his private property in that behalf. Since that was the intention of Purushottam no restraint has been imposed on the absolute title of Ramalingeswara Rao and he has been apparently given full liberty to deal with the property as he likes except that he was under an obligation to the charity in question. The last portion of the clause authorises Ramalingeswara Rao to conduct the above mentioned charities and to enjoy the property. This clause again is wholly inconsistent with the theory of complete dedication and merely suggests that in the hands of Ramalingeswara Rao as well as in the hands of his successors or transferees the property would stand burdened with the obligation to perform the charities in question." ii) M.S. Vadivelu Mudaliar and three Others v. N.S. Rajabadar Mudaliar 1965 MLJR 174 wherein it was held in Page No. 175 thus: "Where a property is set apart for a charitable or religious purpose, the endowment generally takes one of two forms; (1) an absolute transfer of the property for the benefit of the intended trust. In such a case, vesting of property can co-exist with minor dispositions out of the Income from the property In favour of other persons or even the settlers successors. (2) A case where there is no disposition of property as such in favour of the charity but where it is merely kept or treated as a fund or source out of which the charity, has to be performed. In such a case what the charity obtains is only a charge over the property, which will continue to remain at the disposal of the senior and if he makes dispositions in favour of other persons, they will take the property subject to the charge in favour of the charity. In such a case what the charity obtains is only a charge over the property, which will continue to remain at the disposal of the senior and if he makes dispositions in favour of other persons, they will take the property subject to the charge in favour of the charity. If he does not create any such disposition, his successors will inherit the property as heirs as on intestacy, they also being liable to pay out of the property amounts needed for the charity founded." iii) M.R. Goda Rao Sahib v. State of Madras AIR 1966 SC 653 wherein the Honourable Supreme Court in Para Nos.13 and 14, held thus: 13…..The argument was stressed on behalf of the appellant that there was merely a charge on the properties and there was no divesting of the title of the properties or vesting of such title in any body of trustees or in the temple itself. It was, therefore, submitted that there is no religious endowment within the meaning of Section 6(14) of the Act and consequently there is no specific endowment within the meaning of Section 6(16) of the Act and the finding of the nigh Court on this question was defective in law. 14. I am unable to accept this argument as correct. In Hindu law a dedication of property may be either absolute or partial. -Iswari Bhubaneshwari v. Brojo Nath Dey AIR 1937 PC 185 : 64 Ind App 203. 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. 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 purpose, 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. (MAYNES HINDU LAW, Eleventh Edn., p. 923). In my opinion, the expression "religious endowment" as defined in Section 6(14) and "specific endowment" as defined in Section 6(16) of the Act must be construed so as to include both absolute and partial dedication of property. (MAYNES HINDU LAW, Eleventh Edn., p. 923). In my opinion, the expression "religious endowment" as defined in Section 6(14) and "specific endowment" as defined in Section 6(16) of the Act must be construed so as to include both absolute and partial dedication of property. This view is supported by reference to Section 32(1) of the Act which states: "32.(1) Where a specific endowment attached to a math or temple consists merely of a charge on property and there is failure in the due performance of the service or charity, the trustee of the math or temple concerned may require the person in possession of the property on which the endowment is a charge, to pay the expenses incurred or likely to be incurred in causing the service or charity to be performed otherwise. In default of such person making payment as required, the Deputy Commissioner may, on the application of the trustee and after giving the person in possession a reasonable opportunity of stating his objections in regard thereto, by order, determine the amount payable to the trustee." iv) In R.M.AR.AR.RM.AR. Ramanathan Chettiar v. Commissioner for Hindu Religious and Charitable Endowments, Madras and Others 91 LW Part 22, Page No. 337 a Division Bench of this Court, in Para Nos. 11, 14 and 16, it was held thus: "11. We have already summarized the modus operandi adopted by the trustees. Even contributions collected by them are credited in their books of account and it became merged with the personal fund. Even otherwise, the contributions according to Exhibit A-4 must have been done years ago. There is no evidence that such contributions are flowing into the fund continuously year after year. The fund is identifiable in the light of the evidence as the fund of the author of the trust. Not only the trustees have control over the fund, they do not part with the possession of either the corpus of the income. They send various amounts to persons known to them, for the performance of abishekam and archanai in a Siva temple of their choice and the archanai is performed in the name of the Chettiar and Vibudhi prasadam was received only by the representative of the trustee. Thereafter, the prasadam is distributed to persons who are known to Arunachalam Chettiar and related to him, The person, who is deputed to perform the Abhishekam has to render an account. Thereafter, the prasadam is distributed to persons who are known to Arunachalam Chettiar and related to him, The person, who is deputed to perform the Abhishekam has to render an account. All these features which formed the foundation of the so-called endowments clearly indicate that it is a private endowment in the sense that it is a fund created by late Arunachala Chettiar and administered by his successors according to their choice and whim without being controlled by any extraneous authority." v) Commissioner, HR & CE Administration Department, Nungambakkam High Road, Madras - 34 v. C. V. Sudharsan and Another (supra) wherein a Division Bench of this Court held in Para No. 26 as follows: "26. The founder had set apart his house and clearly intended that the income there from should be utilised for feeding pilgrims who visit temples. Therefore, all the elements that are required to constitute a specific endowment are present in this case. The Sanskrit, English dictionary (Varan Shivram Apte 1993, ed.) also defines "Ladiya" (sic) as belonging to that, his, hers, its, this and (sic) "Aradhanam" inter alia as worship-ping, Adoration, Propitiation (as of a deity) indicating the religious aspect of Thathiarathanai." 7. This Court carefully considered the argument of counsel on both sides. The third respondent has tiled W.P. No.22059 of 2002 to for bear the respondents 1 and 2 herein not to declare the results of election of the trustees of Muthukumarasamy Temple held on 16. 2002 and while disposing of the said writ petition, this Court granted liberty to the petitioner to work cut his remedy elsewhere or under the HR & CE Act. Besides that, he is a worshipper of Sri Muthukumarasamy Temple and hence, he is a person having interest, as has been held in the case of R. Shanmugham Sundaram v. Commissioner, Hindu Religious and Charitable Endowments and Others (1991) 2 MLJ 582 . Hence he has locus standi to maintain the said M.P. No. 9 of 2002. In the said petition, he prayed for setting aside the election of the petitioner herein as trustee of Arulmighu Muthukumarasamy Devasthanam @ Kandasamy Temple on the basis of Section 26(1) (h) of the Act which contemplates that a person shall be disqualified for being appointed as, and for being, a trustee of any institution, in which he has acted adverse to the interest of the institution. 8. 8. Before the second respondent, the third respondent herein was examined as P.W.1 and marked Exhibit A-1, settlement deed dated 12. 1953. The petitioner herein examined himself as R.W.1 and examined N. Rathinasabapathy, Accountant of the temple as R.W.2 and marked Exhibits B-1 to B-19. The second respondent appointed one Mrs. Padmavathy as Court witness and through her Exhibit C-1, report was marked. The evidence let in by the parties disclose that the charities not even informed either to Kandasamy temple or Dharmasivachariyar Mutt, which are covered under clauses (a) and (b) of the settlement deed. The settlement constitutes only 3 private trust, there is no divestment of the property and it is an internal affair of the family in which neither the temple nor the trust or others can interfere. The trust also comes to an end soon after the grandson of the settlor attains majority, besides nothing whispered about the alienation of the properties. The one other property which was already sold was not challenged and the third respondent also admitted the fact that the petitioner is continuing the charity mentioned in the settlement deed without default. 9. The first respondent beyond the scope of the petition has framed three issues namely (i) whether according to the terms of the trust deed, the charge on the property for performance of charities constitute a specific endowment as per the Act? (ii) whether such charge abated in 1980 when the trust comes to an end because of C.R. Srinivasamoorthy (C.K. Rathinasabapathis second son) attained majority and (iii) whether the specific endowment created through deed continues to retain its character inspite of the trust coming to an end in 1980? The first respondent, while setting aside the order of the second respondent held that the settlor has totally divested himself of the property and set apart a specific sum from and out of the income from the properties for performance of certain religious activities attached to the temple, hence, it is a direct dedication and creates a charge on the property, thereby it satisfied the ingredients of specific endowment. The first respondent further found that the settlor felt that there would not be any need for continuance of the trust after his grand children born through his second son attains majority, however, he has stated in more clear terms that the religious charity can continue and put it as a precondition for the legal heirs to enjoy the balance income from the properties, thus, the original dedication continues in favour of the temple and ultimately came to a conclusion that the petitioner has incurred disqualification under Section 26 of the Act as he unauthorisedly sold the property covered under the settlement deed dated 12. 1953, which amounts to acting against the interest of the institution. 10. The entire issues depends on the interpretation of the settlement deed dated 12. 1953 executed by late Kathirvelu Chettiar. The case of the petitioner is that Late Kathirvelu Chettiar was the absolute owner of the properties and the properties covered under the settlement deed has neither been dedicated nor endowed absolutely by him in the name of devasthanam or charity; that the intention of the settlor was that the right of possession of the property shall be retained by his son Rathinasahapathy and his son-in-law Saravana Sabapathy; that the settlor never divested the ownership of the property to any one, more particularly to the temple or trust. The case of the third respondent is that dedication of the property of the said religious and charitable purpose is absolute. 11. The relevant portions of the settlement deed dated 12. 1953 is extracted below: 4. Out of the net income the Trustees are hereby authorised and directed; .(a) To spend not less than Rs.25/-(Rupees Twenty Five) for the Abishekam on the Dwajarohanam Day of Thai Brahmotsavam in the Sri Muthu Kumarasamy Temple popularly known as Sri Kandaswami Temple, Park Town, Madras. .(b) To pay Rs.5/- (Rupees Five) each year to the Trustees of Sri Dharma Siva Acharya .Mutt at No. 38, Katchaleswarar Agraharam, G.T. Madras to be spent on the Dadayathi day of the yearly Navarathri festival. .(c) To spend not less than Rs.50/-(Rupees Fifty) every year for the performance of the yearly ceremony for my deceased first wife Unnamalai Ammal which falls on the Dwadasi day after the New Moon In the month of Karthigai. .(c) To spend not less than Rs.50/-(Rupees Fifty) every year for the performance of the yearly ceremony for my deceased first wife Unnamalai Ammal which falls on the Dwadasi day after the New Moon In the month of Karthigai. .(d) To spend not less than Rs.35/-(Rupees Thirty Five) each year for the annual ceremony of my deceased daughter Chockammal which falls on the Sapthami day in the month of Karthigai after the New Moon. .(e) To spend Rs.25/- (Rupees Twenty Five) every month out of the balance after defraying the expenses referred to in Item A to D in clause 3 for the maintenance and education of my grand daughters by my second son i.e.. Papathy Ammal and Senji Ammal and such other children male and female that may be born to my second son until each of the female child gets married and until each male child gives up study. .The ceremonies mentioned in item C and D in clause 4 above shall be performed until such tine as are usually enjoined by religious usage and customs upon Hindus to be performed. .(f) To spend such sums as my Trustees shall think fit and reasonable for making the usual presents on the Pongal day of each year and other festival occasions for my daughters Unnamalai Ammal, Lakshmi Ammal and Chockammal as and when they arise. This Trust will come to an end when the last of my grand children by my second son Rathinasabhapathy attains the age of majority subject to the condition that the performance of the charity mentioned in items A and B in clause 4 above shall be done by the senior most of my male grand children and his lineal male descendants in succession, the expenses for the same being met by contribution from the several sharers of the properties. The balance that may remain after such provision being made and all accumulated surplus cash available on hand shall be divided equally amongst such of my grand children (male and female) by my second son C.K. Rathinasabhapathy and each of them shall take their respective shares absolutely." 12. Now, the issue arisen for consideration is as to whether the petitioner shall be disqualified for being appointed, and for being a trustee of the temple. 13. Now, the issue arisen for consideration is as to whether the petitioner shall be disqualified for being appointed, and for being a trustee of the temple. 13. A suit against the petitioner and others was filed by the 3rd respondent for declaration and recovery of possession, which is pending before the competent civil Court. 14. This Court carefully read the settlement deed. It is stated in the settlement deed that the trust would come to an end as soon as the last of his grandson attains the age of majority subject to the condition that the performance of the charity mentioned in items A and B in clause 4 above shall be senior most his male grandson and his lineal male descendants in succession, the expenses for the same being met by contribution from the several sharers of the properties. The balance that may remain after such provision being made and all accumulated surplus cash available on hand shall be divided equally amongst such of his grand children (male and female) by his second son C.K. Rathina Sabapathy and each of them shall take their respective shares absolutely. It is not in dispute that the minor mentioned above attained the age of majority. Controversy in this case is as to the scope of dedication, which is a mixed question of law and fact. A comprehensive suit more or less identical to this issue is pending in which the parties can very well let in oral and documentary evidence. .15. Any endowment made by donor should be clear either by express dedication or by necessary implication, it cannot be an assumption or presumption unless by a course of conduct for years, such inference is possible but in the case on hand the said factors are missing. In this case, fund is identifiable as the rental income from the properties. The trustees have control over the funds, they do not part with the possession of either the corpus or the in come. The temple authorities are not even informed of such performance. However, the trustees are directed to spend not less than Rs.25/-for abhishekam on a particular day of That Brahmotsavam of Sri Muthukumarasamy Temple and to pay Rs.5/- to he spent on Dadayathi day of the yearly Navarathri to the trustees of Sri Dharma Siva Acharya Mutt. The temple authorities are not even informed of such performance. However, the trustees are directed to spend not less than Rs.25/-for abhishekam on a particular day of That Brahmotsavam of Sri Muthukumarasamy Temple and to pay Rs.5/- to he spent on Dadayathi day of the yearly Navarathri to the trustees of Sri Dharma Siva Acharya Mutt. "The expenses for the same is directed to be met by contribution from the several sharers of the properties. The balance that may remain after such provision being made and all accumulated surplus cash available on hand shall he divided equally." The said recitals show that a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the trustees, in such cases the property descends and is alienable and is partiable in the ordinary way. .16. In this context, it is useful to refer to the judgment of the Honourable Supreme Court rendered in S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others AIR 1972 SC 2069 : (1973) 2 SCC 312 , in paragraph 32, it was held as under: ."32. As observed by this Court in Dasaratharami Reddy v. Subba Rao AIR 1957 SC 797 that dedication of a property to a religious or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of a 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 a dedication is complete would naturally he a question of fact to be determined in each on the terms of the relevant document, if the dedication in question was made under a document. In such case it is always a matter of ascertaining the true intention of the parties, it is obvious that such intention must be gathered by clear and reasonable construction of the documents considered as a whole. If the income of the property is substantially intended to be used for the purpose of charity and only an insignificant and minor portion of it is allowed to be used for maintenance of the worshipper or the manager, it may be possible to take the view that dedication is completed. If the income of the property is substantially intended to be used for the purpose of charity and only an insignificant and minor portion of it is allowed to be used for maintenance of the worshipper or the manager, it may be possible to take the view that dedication is completed. If, on the other hand, for the maintenance of 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 worship-per for his own private purposes, it would be difficult to accept the theory of complete dedication….." 17. In the decision of the Honourable Supreme Court reported in M.R. Goda Rao Sahib v. State of Madras AIR 1966 SC 653 their Lordships have held that if 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, the dedication is absolute, 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 purpose. 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. In this case, on perusal of available evidence, it is seen that there is no such factor of partial dedication is found, hence, even no charges can be made on the property. As held by the Honourable Supreme Court, even the eases where the charge is on the property, it is alienable and partiable, hence, it is not difficult to hold that the properties in dispute are alienable. 18. In this context, it is necessary to refer that it is not the case of the respondents, particularly the third respondent that there is a failure in the due performance or service by the petitioner. 19. In view of the above said discussion, this Court is of the considered view that the petitioner cannot be disqualified for being appointed, or for being, a trustee of the temple, hence, the order of the first respondent is quashed and the order of the second respondent is confirmed. 19. In view of the above said discussion, this Court is of the considered view that the petitioner cannot be disqualified for being appointed, or for being, a trustee of the temple, hence, the order of the first respondent is quashed and the order of the second respondent is confirmed. The judgments relied on by the counsel for the third respondent no way support the case of the third respondent. 20. The conclusion is arrived, at by this Court with the available records, it is made clear that the findings made in this order Is relating to the issue of disqualification of the petitioner and it no way fetter the hands of the civil Court while deciding the suit on merits. 21. The writ petition is allowed in the above terms. No costs. Consequently, connected miscellaneous petition is closed. Writ petition allowed.