Interpretation of testamentary provisions to ascertain the intention of the testator in dedicating property to charity.

Alfred Henry Lionel Leach, C.J.

1. The sole question involved in this appeal is whether under the will of one Ramanujakootam Mangamma who died on the 8th August, 1914, there was a dedication to charily of certain immovable property or whether the property was merely charged to charitable uses. Paragraph 3 of the will reads as follows:

I having up to now treated as daughter by affection and brought up Manchukonda Nanugannamma, alias Alamelumangathayaramma, daughter of my deceased younger sister Dachepalli Andalamma, she and her descendants shall take possession of and reside free of rent in one kitchen downstairs and the two rooms upstairs on the eastern side and the halls attached thereto in house No. 25, Venkatachalla Mudali Street. The remaining portion of the said house shall be let on rents and the rents realised shall be utilised for services in the manner described below:

(a) for the Brahmotsavam festival of Sri Venkateswara on the hills in the Tirupati Devasthanam, Rs. 100 per year;

(b) Feeding 25 Vaishnavas on every Dwadasi day in the Bairagimatam or otherwise known as Thiruvengadamudayan temple, Madras, and

(c) Dosaipadi service on every Ekadasi and Amavasai days (eleventh day of the forthnight and new moon days) in Sri Chenna Kesava Perumal temple, Devaraja Mudali Street, Madras.

2. The property in suit is the property referred to in this paragraph and what the Court has to decide is whether Nanugannamma, who has been referred to in this appeal as the residuary legatee, takes the whole property subject to a charge in favour of the charities set out in the paragraph or whether there is a complete dedication to charity of that portion of the house which was not set apart for the residence of Nanugannamma.

3. Having made these provisions the testatrix goes on to direct her executors to sell another property owned by her, namely No. 16, Varadayya Street, Madras, and, after paying her debts to give one half of the balance to the residuary legatee and the other half to the head of the Tirupati Jeer Matam in Tinnanore for the purpose of "daily feeding" in the Mutt. After disposing of her jewels and household articles the testatrix provides that the remainder left after deducting the charity expenses "as detailed above" shall be given to the residuary legatee. The charity expenses detailed above admittedly refer to the charity expenses set out in Clause 3 of the will.

4. Another clause of the *will which has been referred to in the arguments is Clause 7, which reads as follows:

Neither my gnatis nor the executors nor any other kind of relations have any right or title whatever to make gift etc., or sale or to create mortgage in respect of the aforementioned house No. 25, Venkatachalla Mudali Street so long as sun and moon may last.

5. The suit was tried by the Additional Judge of the City Civil Court, who came to the conclusion that there was no dedication of the property No. 25, Venkatachalla Mudali Street to charitable uses, but only of the income. It is common ground that the rents accruing from that property will provide far more than is necessary to meet the expenses of the charities. According to the appellant the gross income is Rs. 1,200; according to the respondent it is Rs. 1,400, but they are both agreed that not more than Rs. 350 will be required to comply with the directions with respect to charity contained in paragraph 3 of the will.

6. In Har Narayan v. Surja Kunwari, the Privy Council had to consider a case where a testator directed that his property should be considered to be the property of a certain idol, but went on to provide that:

Whatever may be saved after defraying the expenses of the temple and the pay of the servants shall be used by our legal heirs to meet their own expenses.

7. Lord Shaw in delivering the judgment of the Judicial Committee observed:

In such cases no fixed and absolute rule can be set up, derived alone from the use of particular terms in one portion of the will. The question whether th