The mere execution of a document purporting to dedicate property to charity does not constitute a valid endowment. The intention of the testator and the subsequent conduct of the parties are relevant in determining whether there was a complete dedication or a partial dedication creating a charge on the properties.

1. Defendant No. 12 in O.S. No. 234 of 1975 on the file of the Subordinate Judge, Karur is the appellant.

2. Two schedules of properties (A & B) are attached to the plaint. All these items belong to one Periasamy Muthariar who executed the original of Ex. A.1 will on 17.3.1949. In this case we are concerned only with the ‘B’ schedule items in the Will which is described as ‘D’ schedule item.

3. According to the plaintiff, the plaint ‘B’ schedule items are dedicated for charity and none has a right to alienate or encumber the same. It is stated that ignoring the provisions of Ex. A.1 Will, various alienations have been effected and the same are ab initio void.

4. It is the further case of the plaintiff that the entire ‘B’ schedule properties are dedicated to charity and except the right to take the income or to be in possession, defendants 1 and 2 have no right to alienate the same.

5. The appellant contended that there is no will and no reliance could be placed on Ex. A.1. It is further contended that even assuming that the will is valid, there is no dedication to charity and at the most, the properties were burdened with the performance of charity and it did not affect the alienability of the properties. With regard to plaint ‘B’ schedule properties, the suit is liable to be dismissed.

6. The trial Court, as per judgment dated 27.6.1978 held that in respect of ‘B’ schedule properties there is no dedication and there is no evidence to show that under Ex. A.1 the testator divested himself from the properties and transferred the ownership to the Trust. It also came to the conclusion that the subsequent conduct of the parties also would show that they were exercising the right of ownership and at the most the provision under Ex. A.1 is only a charge created for charities and not dedication.

7. Aggrieved by the judgment, the plaintiff preferred A.S. No. 1 of 1979 on the file of the Additional District Judge, Trichy. The lower Appellate Court reversed the finding of the trial Court and came to the conclusion that there was a bona fide intention on the part of the testator to dedicate the property for charities and subsequent conduct is not warranted to consider or to interpret the document.

8. The lower Appellate Court was further of the view that there was anxiety on the part of the testator to perform the charities. It further held that the testator has prescribed a line of devolution of the trusteeship and the trustees were only given a right of residence in some of the ‘D’ schedule properties. He has also declared that alienation, if any effected, shall be null and void and the properties shall also not be vested with the Government or Endowment.

9. According to the lower Appellate Court the properties were completely ear-marked for the purpose of charity which implies that there is a complete dedication. After having held that there is a complete dedication of ‘B’ schedule property it declared that alienation in respect of ‘B’ schedule property is null and void and the same will not bind the Trust.

10. It is against this judgment, the 12th defendant has preferred this Second Appeal on the following substantial questions of law:

1. Whether the lower Appellate Court isjustified in admitting the registration copy of the will without the original of Exhibit A-1 as secondary evidence without considering the various criteria referred to in Section 66 of the Evidence Act?

2. Whether the lower Appellate Court is in error in not considering the subsequent conduct of the donor in relation to the suit property in determining whether there is dedication of the property towards a public trust?”

11. While extracting the facts, I have already stated that the 12th defendant has challenged the Will Ex. A.1 itself. But, the learned counsel for the Appellant, at the time of argument did not pursue the matter taking into consideration the evidence of the attestor to prove the execution of the will. P.W.2 is the attestor and he has spok