Charity mentioned in the Will whether religious endowment.

Abdul Hadi, J.

1. Against the dismissal of O.S. No. 536 of 1977 on the file of Sub Court, Madurai, the plaintiff has preferred this appeal. This suit is under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 for setting aside the order of the Commissioner under the said Act dated 10.2.1977 in the plaintiffs own appeal in A.P. No. 153 of 1975. The said order of the Commissioner confirmed the dismissal of O.A. No. 15 of 1973 by the Deputy Commissioner under the said Act. The said O.A. was filed by the plaintiff under Section 63(b) and (c) of the above said Act for a declaration that the charity mentioned in the will dated 12.12.1937 executed by one Ammakutti Ammal was not a "religious endowment" (as defined under Section 6(17) of the said Act) and that, even assuming the said charity, was a religious endowment, the plaintiff was the hereditary trustee of the said endowment.

2. The Deputy Commissioner, while dismissing the said O.A. No. 15 of 1973, held that the said charity would come under the definition "specific endowment" under Section 6(19) of the said Act and that the plaintiff was not the "hereditary trustee of the said endowment as defined under Section 6(11) of the said Act. The Commissioner under the Act, in the above said appeal, confirmed the said order of the Deputy Commissioner. The trial Court, while dismissing the above suit, also held it was a specific endowment, but did not go into the other question whether the plaintiff was hereditary trustee on the ground that there was no specific prayer regarding the same in the suit. Hence, the present appeal by the plaintiff.

3. The 1st respondent is the said Commissioner. The 2nd respondent is the Madurai Maruthuvar Sangam, which, according to the plaintiff, is the Sangam which was responsible in the Deputy Commissioner framing a scheme in a suo motu action, for the other admitted specific endowment created by the same Ammakutti Ammal in the year 1928 under a deed dated 11.2.1928 for performing mandagapadi of Sri Meenakshi sundareswarar on the fourth day of Chithrai festival. The 3rd respondent, one Ganapathy, is said to be the then existing office - bearer of the said Sangam. But the learned Counsel for the 2nd respondent now says that the 3rd respondent is no longer the office - bearer of the said sangam. Anyway the 3rd respondent remains ex-parte. Respondents 1 and 2 are represented by different counsel.

4. The above referred to 1928 document has not been exhibited, but the succeeding will dated 12.12.1937 is Ex. A-1. The testatrix Ammakutti Ammal belongs to the same barber Community or Maruthuvar community. At the time of the execution of the said Will Ex. A-1, the testatrix Ammakutti Ammal was aged 72 as per the very recital in Ex. A-1. Even though there seems to be no specific evidence that she had died, all the parties proceeded on the footing that she died subsequent to the execution of the Will and the Will had come into force on her death.

5. The said Will of 1937 speaks about the earlier endowment of 1928 by the same Ammakutti Ammal and the material portions of the said Will run as follows:

Under the said deed, she has also appointed 5 trustees, the 5th of whom, is the plaintiff, who was a minor then. Of the other four, one is from another community, viz., Konar community. Regarding the trustees, the will also recites as follows:

6. The Commissioner, in his order has held that the charity under the abovesaid 1937 document and the earlier charity of 1928 constitute a single charity and that since the earlier one is admittedly a specific endowment, it must follow that the endowment of 1937 is also a specific endowment. The trial Court also concurred with the said view and also held that the expression used in Ex. A-1 (1937 document) referred to the entire community, to which the testatrix belongs and that hence the endowment is of public nature and not a private one, as claimed by the plaintiff.

7. The learned Counsel for the app