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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 444 of 1963. Appeal from the judgment and decree dated March 26, 1958 of the Madras High Court in Appeal Suit No. 355 of 1955. M. S. K. Sastri and M. S. Narasimhan, for the appellant. A. Ranganadham Chetty and A. V. Rangam, for the respondent.

The Judgment of Sarkar and Raghubar Dayal JJ. was delivered by Sarkar J. Ramaswami, J. delivered a separate Opinion. Sarkar, J. On January 10, 1914, the appellant's predeces- sors-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. 4,31 1-0-0 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. 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 64 5 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. 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 settlers 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 settlers could not be said to have divested themselves of anything. The main question in this appeal is whether this contention is right.

In the result, we dismiss the appeal subject to the variation earlier mentioned. There will be no order for costs.

Ramaswami, J I agree with the order proposed by my learned brother Sarkar, J. but I prefer to rely on rather different reasons.

The endowment known as Gade Rao Sahib Endowment attached to Sri Pushpavaneeswarar temple was created by one Sri Gopal Rao Gade Rao Sahib by the execution of a Settlement deed Ex. A. I dated January 10, 1914. Seventeen items of charities were mentioned in detail in Sch. 'B' to Ex. A. 1 and the amount to be spent was Rs. 4,311/- every year from out of the net income of the properties mentioned in the document. The Deputy Commissioner, Hindu Religious and Charitable Endowments, Thanjavur sup./65-13 by his order dated February 25, 1953 held that the endowment known as Gade Rao Sahib Endowment attached to Sri Pushpava- neeswarar temple was a "specific endowment" as defined in the Madras Hindu Religious and Charitable Endowments Act, 1951 (XIX of 1951) (hereinafter referred to as the Act). Thereupon, the appellant took the matter in appeal to the Commissioner. The Commissioner, by his order dated November 10, 1953 in Appeal no. 46 of 1953 while confirming the order of the Deputy Commissioner that the endowment in question was a "specific endowment", held that out of the charities mentioned in Sch. 'B' to Ex. A. 1, items 1, 4, 10, 1 1, & 12 were secular charities. The appellant then filed a suit under s. 62 (1 ) (ii) of the Act for cancellation of the order of the Commissioner. It is contended on behalf of the appellant that none of the charities constituted a "specific ,endowment" within the meaning of the Act and, in any event, all the charities are private family charities. The contention of the appellant was accepted by the Subordinate Judge who granted a decree in his favour. Against the order of the Subordinate Judge the defendant-respondent filed First Appeal A.S. 355 of 1955 in the Madras High Court which allowed the appeal and restored the order of the Commissioner except with regard to item 17 which was treated as secular charity and not falling within the purview ,of the Act. The present appeal is brought on behalf of the plaintiff against judgment and decree of the High Court of Madras ,dated March 26., 1958 in the appeal. The question presented for determination in this case is whether the 11 items of charities mentioned in Sch. 'B' to Ex. A. I which have been held to be of religious nature are "specific endowments" within the meaning of s. 6(16) of the Act which states "6. In this Act, unless there is anything repugnant in the subject or context-

923). In my opinion, the expression "religious endowment"

as defined in s. 6(14) and "specific endowment" as defined in s. 6(16) of the Act must be construed so as to include both absolute and -partial dedication (1) 64 I.A. 203.

of property. This view is supported by reference to s. 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."

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. Sastri is, therefore, unable to make good his argument on this aspect of the case.