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The only questions before us are those arising out of the settlement deed (Exhibit D-8) and relate to the properties comprised in Schedules I and 11 attached thereto. They form Schedule 11 of the plaint. For a proper appreciation of the points that arise on this appeal, it is desirable to set out the settlement deed (Exhibit D-8) executed by Gomathi Ammal which reads as follows:

"The properties described in schedule I herein are the properties which belong to the estate of my husband the late T. G. Kanakasabapathi Pillai Avargal aforesaid. They were purchased by him in his name and after his death, they be- long to me and are in my possession and enjoyment. All the properties described in schedule 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 24th August, 1942, died on 24th August 1942. My husband, while he was so sick, expressed to me his wish that if perchance he should die, he should be entombed in the property forming the first item property of schedule I herein, that the vacant lands forming item:, 2 to 6 of the said schedule I should be annexed to the first item property of the said schedule I 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 I 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 lifetime 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 I 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. 1,000 for Gurupooja and annadhanam, etc. in the aforesaid one year. The properties forming items 7 to 16 of Schedule I 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 therefore. I have, with a view to discharge my duties which I have to- wards my husband and also realising the necessity of utilising also the income derived from any private properties described in schedule 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 I 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 theer-

From the recitals in the settlement deed set out above, it will be seen that items I to 6 are vacant sites, and that the samadhi is in item 1, while items 2 to 6 have been set apart along with item I for the benefit of and free access to the samadhi. All the other items 7 to 25 have been dedicated in order that the income thereof may be utilised for the following services. (1) Expenses in connection with the daily pooja of the said samadhi and the salary of the person conducting the daily pooja; (2) Gurupooja and annadhanam to be performed annually at the samadhi on Thiruvona Nakshathram day in Avani when he died, that is, the day of the annual sradh of late Kanakasabapathi; and (3) any balance left over after meeting the above expenses to be spent for matters connected with education. Learned counsel for the appellants points out 'that the recitals in the deed show that only a sum of Rs. 200 (1) I.L.R. 58 Mad. 204.

had been spent by the widow in connection with the expenses, of daily pooja and that as much as Rs. 1,000 had been spent for Gurupooja and annadhanam on the day of annual sradh and that it was to enable the Gurupooja and annual sradh to be performed regularly on more or less the same scale that items 7 to 25 of Schedule 11 to the plaint with their income has been dedicated. It is urged, therefore, that the performance of the pooja and the feeding at the annual sradh on a substantial scale and the utilisation of the balance, if any, for educational purposes, were the main destination of the income and hence the main object of the settlement and that accordingly the dedication is valid. We are unable to accede to this contention. There is no evidence in the case as to what "Gurupooja" contemplated in the deed consists of and whether it is not merely worship of the deceased entombed in the samadhi. Though the word "Guru" ordinarily refers to a preceptor, it is not inapplicable to an ancestor considered as Guru. However that may be there is enough in the settlement deed to show what the dominant motive of the dedication is. A careful perusal of the document shows that Gurupooja and annadhanam on the sradh day were contemplated as being parts of the worship at the tomb. There can be no doubt about it at least so far as items 1 to 10 are concerned which fetch only a small income. The inspiration and motive for the dedication therefor is the alleged desire of the husband that the properties and their income are to be utilised for the kainkariyam (services) expenses relating to the said samadhi. The dedication of additional items 11 to 25 is only in pursuance of the same impulse. It is recited that during the first year after her husband's death she herself got the daily pooja as well as Gurupooja and annadhanam on the sradh day conducted and spent for the same. Her spending as-much as Rs. 1,000 for Gurupooja and annadhanarn on the day of sradh was clearly as part of the smadhi kainkariyam which she had undertaken. It is for the continuance of the samadhi kakariyam, an the same scale that she endowed additional properties over and above what was said to have been endowed at the desire of her husband. It is clear, therefore, that all these various items of expenses are contemplated as expenses for the samadhi kainkariyam and not for any other kind of religious or charitable purpose as such. That the dedication was meant not for the annual sradh or education as such but only as part of samadhi kainkariyam is clinched by the term in the deed, Exhibit D- 8, which runs as follows: -

"I have, therefore charged all the properties mentioned in schedules 1 and 2 herein (Schedule 11 of the plaint) solely with my husband's samadhi kainkariyam".

Hence notwithstanding that the major portion of the income may have to be spent for Gurupooja and annadhanam in connection with the annual sradh, it is clear that the domi- nant purpose of this dedication was the samadhi kainkariyam, that is to say, that worship of and at the samadhi (tomb). The validity or otherwise, therefore, of the dedication must be determined on that footing and not as though it was a dedication for the performance of the annual sradh on a sub- stantial scale or for annadhanam as such. Nor does it make any difference in this case that the surplus is contemplated to be utilised for educational purposes. That surplus is contigent and indefinite as well as dependent on the uncontrolled discretion of the 2nd defendant as to the scale on which he chooses to perform the samadhi kainkariyam. The validity, therefore, of such a dedication as was made under Exhibit D-8 for the worship primarily connected with the tomb of a deceased person falls to be considered. As already stated the Madras High Court has pronounced against it in a number of cases, viz., Kunhamutty v. Thondikkodan Ahmad Musaliar and two other(1); A. Draivaisundram Pillai v. N. Subramania Pillai(2) and Veluswami Goundan v. Dan- dapani(3). It has been brought to our notice that the said High Court in a case which came up for its consideration subsequent to the judgment in the present case felt that the (1) I.L.R.58 Mad.204 at 2ll.