Judgment

JAGANNATHA SHEITY, J.

(1) THIS is an appeal from the judgment and decree of the Madras High court and it arises out of a suit for partition and possession of certain properties.

(2) THE facts leading to the institution of the suit are as follows: On 3/03/1942, one Karuppanna Pillai (hereinafter referred to as "testator") executed his last will and testament Ex. B-l. Thereunder he disposed of all his properties described in five schedules A, B, C, D and E. He directed that the properties under A, B and C schedules shall be respectively taken and be in the possession of the defendant, the first plaintiff and the second plaintiff. In respect of E schedule properties, he has made a bequest creating an endowment that after his lifetime, it should be managed for the purpose and in the manner mentioned therein. The dispute in the suit was as to the validity of the endowment. One Palaniammal and Chellammal are the sisters of the plaintiffs and the defendant. The testator created a life estate in favour of those sisters in respect of D schedule properties with a direction that after their lifetime the properties shall be dealt with in the same manner as the E schedule properties. We are not concerned in the present litigation with any of the properties in schedules A to D. We are concerned only with the validity of the disposition of E schedule properties.

(3) THE will is in Tamil but we are helpfully provided with the nglish translation of the relevant portion. It is also found incorporated in the judgment of the District Judge. It runs as follows:

"AFTER my lifetime, the aforesaid three persons, Ponnuswami Pillai, Malayalam Pillai and Thangavelu Pillai, shall take and manage the E schedule properties, from out of the income from the said properties pay the kist for the aforesaid E schedule properties, and out of the balance of income for the salvation of my soul after my lifetime, shall enter my body, after my life is extinct, in the land S.F. No. 68/B, Punjai Thottakurichi Village pertaining to the aforesaid E schedule, build structure therefor and put up light everyday, shall plant flower plants in the said land and grow them, shall construct a Matam for annual ceremonies, install pictures therein, put up light in the Matam everyday, conduct Guru Pooja, distribute saffron coloured clothes and on that day, shall feed the poor. Since the aforesaid Ponnuswami Pillai is the eldest of the sons, he shall be the Manager, to conduct the above matters. The surplus income shall be taken in the shares of 2/4 by Ponnuswami Pillai, 1/4 by Malayalam Pillai, and 1/4 by Thangavelu Pillai. After the said Ponnuswami Pillais life, out of his male heirs, the eldest son shall conduct in the same manner as above and the surplus income shall be taken by the said eldest son."

(4) THERE then follows a residuary clause which is as under:

"THE movable and immovable properties belonging to me and not mentioned herein shall be taken and enjoyed by the aforesaid three persons after my lifetime."

(5) THE plaintiffs case has been that the testator could not have ereated the endowment of properties for construction of his own tomb or samadhi and for performing pooja and ceremonies thereat. Since the testator has bequeathed E schedule properties for "Samadhi Kainkaryam", the trust would be invalid and the said properties should be shared by the plaintiffs and defendant under the residuary clause in the will as if they remain undisposed of by the testator. The suit is also for account from the defendant regarding the income of the E schedule properties.

(6) THE defendant has resisted the suit and sought to justify the creation of the trust and its purposes. It was contended inter alia, that the matam and the samadhi were constructed for different purposes. They are separated by a respectable distance. At the samadhi, there is no performance of pooja. It is only at the matam, the ceremonies and