1. This appeal is preferred against the judgment of Mr. Justice Odgers dismissing with costs Second Appeal No. 401 of 1922. The plaintiff is the appellant before us and the main question involved in this appeal is whether the suit properties which originally belonged to one Panchanathier were by his Will dated 8th January, 1928, (Ex. A in the case) dedicated absolutely for the performance of a charity styled by him as Dwadeshi Dharmam and the persons expressly nominated by him in the Will for the conduct of the said charity, viz., his nephews Venkataramaiyer and Sivaswami were constituted as mere trustees for the performance of the said charity or whether under the said Will Panchanathier bequeathed the suit properties to Venkataramier personally subject to a trust in favour of the said charity which was to be conducted by him, and after his death by his younger brother Sivaswami Iyer and after the latter's death by their heirs in perpetuity.
2. The plaintiff's case is that the properties are absolutely dedicated to the charity and that Venkataramaiyer had no beneficial interest therein but was constituted only as a trustee for the performance of the charity with a wide discretion as to the manner of performing it and that after Venkataramaiyer's death, he, the plaintiff is the trustee for conducting the said charity. Venkataramaiyer, however, in breach of the trust mortgaged the suit properties to Sadayappa Chetti the father of defendants Nos. 1 to 3 under Ex. B. After the death of Sadayappa Chetti and Venkataramaiyer, defendants Nos. 1 to 3 brought a suit against Venkataramaiyer's widow to enforce the said mortgage and obtained a decree for the sale of the said properties. The present suit was instituted by the plaintiff before the properties were sold in execution of the mortgage- decree, the reliefs sought by the plaintiff being a declaration in his favour so trustee of the charity that the mortgage of the suit properties by Venkataramaiyer and the decree obtained thereon are not binding on the trust and for an injunction to restrain the defendants from interfering with the possession of the property. While the suit was pending in the trial Court, defendants Nos. 1 to 3 purchased the suit properties in the sale held in execution of their decree and got into possession thereof. The defendant No. 4 is the widow of Venkataramaiyer, She has been ex parte throughout.
3. The main pleas of defendants Nos. 1 to 3 are (1) denial of the genuineness of Panchanathier's Will (2) suit barred by limitation as it was not brought within 12 years from the date of the mortgage to their father. No plea was raised by them in the alternative that even if the Will is found to be genuine, the devise of the suit property therein is not to the charity absolutely; but to Venkataramaiyer burdened with a trust in favour of the charity. The trial Court held that the Will is genuine and that under it the suit properties are dedicated in trust for the charity. It overruled the plea of limitation. At the trial a further point was raised by the defendants that as they themselves had then got into possession of the properties, the suit for a bare declaration and injunction was not maintainable. With reference to that objection the plaintiff prayed for an amendment of the plaint by adding a prayer for possession but the District Munsif rejected that application. He, however, held that the suit was maintainable in the form in which it was brought as on the date of the plaint the defendants were not in possession. In that view he gave a decree for plaintiff for the declaration and injunction prayed for.
4. Against that decree defendants Nos. 1 to 3 preferred an appeal which was heard by the Subordinate Judge of Mayavaram. The learned Subordinate Judge affirmed the finding of the District Munsif as to the genuineness of the Will. He further held that the suit was barred by limitation under Article 134 of the Limitation Act as it was not brought within 12 years from the date of the mortgage. He then allowed a further question to be raised, viz., whether on the construction of the Will the devise of the lands was in trust for the charity or to Venkataramaiyer personally burdened with an obligation to perform the charity, and he held that the lands were not given in trust for the charity but that they were given to Venkataramaiyer for his own enjoyment with a burden of obligation to conduct the charity with the income thereof. As regards the objection taken to the maintainability of the suit he held that as the suit in its inception was rightly framed, it was maintainable. On this point, however, we find that the Subordinate Judge in another place in his judgment expresses the opposite opinion. He says: 'Therefore, though the suit was properly laid with a consequential relief on the data of suit, yet, it was not a suit which could be maintained on the date of the trial as it was then only a suit for a bare declaration without a prayer for possession and without any consequential relief'. The Sub-Judge also observes that the District Munsif was wrong in rejecting the plaintiff's petition for amendment of the plaint by adding a prayer for possession. Upon those findings the Sub-Judge holds that Venkataramaiyer had the right to alienate the properties and that the only right which the plaintiff has is to see that the charity is duly performed and that the persons in possession of the properties whoever they may be should contribute for the same out of the income of the properties. By his decree, however, he dismissed the suit with costs. Against the Subordinate Judge's decree the plaintiff appealed to this Court in Second Appeal No 401 of 1922 which came on for hearing before Mr. Justice Odgers. The learned Judge has dealt with only two questions in his judgment as sufficient for the disposal of appeal and they are: (1) limitation and (2) the construction and effect of the Will. On the first question he observes that the defendants gave up their contention that the suit was barred by limitation. On the second question he agreed with the Subordinate Judge's construction of the Will that the properties were not dedicated absolutely to the charity, but were given to Venkataramaiyer personally burdened with the obligation to conduct the charity. In that view no farther question arose and the appeal was dismissed with costs.
5. On behalf of the appellant it is contended that the construction put upon the Will by the learned Judge and the Subordinate Judge is erroneous and that on its right construction the suit properties are dedicated to the charity that Venkataramaiyer has no beneficial interest therein and that the plaintiff is entitled to a decree as prayed for. The appellant also contends that the amendment of the plaint by adding a prayer for possession should be allowed and a decree for possession given to him in this suit.
6. The respondents' Advocate supports the decree appealed from not only on the ground taken by the learned Judge but also on a further ground, viz., that the mortgagee their father was a bona fide transferee of the suit properties in good faith and for consideration and that as such he acquired a valid title thereto which in any view of the construction of the Will would prevail against the trust.
7. The main question we have to consider relates to the construction of the Will whether, according to its terms, there is an absolute dedication of the suit properties to the charity or whether the suit properties were given to Venkataramaiyer in perpetuity subject to a charge in favour of the charity. Under the Will the testator purports to deal with his self-acquired immoveable properties consisting of nanja and punja lands of the total extent of 16 mahs and 77 kulis and also with certain sums of money belonging to him. Out of the immoveable properties he gives 9 mahs and 42 kulis to his adopted son. As regards the remaining immoveable properties and the sums of money the Will provides as follows: 'Barring those (lands given to the adopted eon) the remaining 7 mahs and 35 kulis my sister's son Venkataramaiyer enjoying permanently (Saswathai Anubhavithukondu) shall with the income of the said lands and the interest derivable from the capital amount of Rs. 584 kept, by me for that purpose feed in his own house at Mayavaram every Dwadeshi day according to his pleasure not less than ten brah-mins. With the income and the interest on Rs. 200 I have reserved with the said Venkataramaiyer Archand should be done and offerings presented to Srimath Saba Nayagar of Chidambaram at Pradhosha times and Archana with Kunkumam is to be performed every Friday for Sivakama sundari. All these things the said Venkataramaiyer himself shall conduct permanently (Saswathai nadathivandu) and after him his younger brother Sivasami shall conduct and afterwards their heirs should conduct them'. It will be seen that so far as the provisions of the Will go, the income of the properties is to be devoted entirely to the charitable and religious purposes mentioned therein. The Rs. 584 the income of which is to be utilised for the Dwadeshi Dharmam consists of two decree amounts and three simple loans which were outstanding and which Venkataramaiyer would have to realise for the purpose of conducting the charity. Both the charity and the Archanas at the temple are to be performed for ever. As regards the persons who are to see to the performance? of the said charity and the Archanas, the Will says that they should be conducted by Venkataramaiyer himself permanently during his lifetime and after him by his younger brother Sivaswami and after the latter's death by their heirs-at law: and it is also quite clear that the persons who have successively to conduct the charities have to do so with the income and the funds provided therefor, viz., in the case of Dwadeshi Dharmam the income from 7 mahs and 35 kulis and the interest derived from the funds of Rs. 584 and as regards Archana from the income of the Rs. 200 kept with Venkataramaiyer. As regards the manner of conducting the charity, the Will leaves a large amount of discretion to Venkataramaiyer who may conduct it in his own house at Mayavaram; but he should feed not less than 10 Brahmins every Dwadeshi day. As regards his successors there is no similar provision. They are merely required to conduct the charity out of the income of the lands and the fund of Rs. 584. Nor is there any provision in their case as to their permanently enjoying or permanently conducting the charities as there is in the case of Venkataramaiyer. It is, however, quite clear that Venkataramaiyer's permanent enjoyment of the land (whatever that may mean) is subject to, firstly, his feeding not less than 10 Brahmins every Dwadeshi day and secondly to the corpus of the charity funds, i. e., both the lands and the money passing intact to his successors who have to conduct the charity. If the testator's intention was (as, in our opinion, the Will clearly shows) that after Venkataramaiyer's lifetime the entire income from the lands and the fund of Rs. 584 are to be devoted to the charity is there anything in the Will to indicate a different intention on the part of the testator as to the disposal of the income from the land during Venkataramaiyer's lifetime. It is argued that as the Will says that he is to enjoy permanently (Saswathai anubhavithukondu) the testator intended to benefit him also personally and the benefit intended is not only to enure during his lifetime but permanently. As the learned Judge puts it he is to have an estate in fee simple hough subject to the trust created in favour of the charity. In that view the property will descend to the personal heirs of Venkataramaiyor and will also be alienable but in the hands of the heirs of alienees it will be subject to the trust. In other words those who own the property for the time being will be bound to makeover to the person who has to conduct the charity according to the Will, the amount which may be required for it. This construction seems to us to be unwarranted. It rests chiefly on the expression 'Venkataramaiyer shall permanently enjoy'. But the tamil word (Sashwathai) is also used later on with reference to Venkataramaiyer himself conducting the charity and it must be taken that the testator used the word in the same sense in both the places. In our opinion both those provisions relate only to the lifetime of Venkataramaiyer. In this view even if the construction were possible that some beneficial interest was intended in the property for Venktaramayer it will enure only during his lifetime. After his death the duty of conducting the charity is cast upon his younger brother Sivasami and after him upon his successors as provided in the Will. For the due performance of that duty Sivaswami and his successors in the office of trustee must be in possession of the income from the properties devoted to the trust as it is with those incomes the charity is to be conducted. The view that Venkataramaiyer is to have some beneficial interest in the property is based on the provision in the Will that he should feed not less than 10 Brahmins according to his pleasure. It is argued from this that during some years there may be a surplus which he may utilise for himself and, therefore, the testator intended to benefit him also personally, but it may also happen that during some years the income of the property may not be sufficient to feed even 10 Brahmins every Dwadeshi day. But all the same the testator enjoins that not lees than 10 Brahmins should be fed every Dwadeshi day. The properties are after all comparatively small about 2 acres of wet and dry lands in the Mayavaram Taluk and a fund of Rs. 584 which had yet to be realised from the debtors. If the testator had limited the number of persons to be fed there may be some plausibility in the view taken. But instead of that he says that not lees than 1(tm) Brahmins should be fed which indicates that the feeding of the Brahmins as far as the income will permit 'was his chief concern. The view taken by the learned Judge and the Sub-Judge involves the further anomaly that the property is to be held by Venkataramaiyer's heirs or alienees but they were bound to make over the income thereof to Sivaswami and the other persons who are to conduct the charities and who if they liked could devote the whole of its income to charity, if indeed they are not bound to do so. The ownership of the property is under those circumstances reduced nothing and such an owner cannot be expected to take any real interest in the management of the property the income of which he is to hold subject to the control of another. In our opinion a construction which leads to such a result can hardly be attributed to the testator. The main object of the testator is to provide permanently for the conduct of the charity and Archanas which he founded for his own spiritual welfare which purpose cannot be secured unless the properties he had set apart for the trust remained intact. That the testator's only object was to pro-vide for the permanent conduct for the charity is made clear from the recitals in the schedule which, however, were not referred to during the arguments. There he classifies the properties as follows: (1) Properties given to his adopted son, (2) details as to the fund of Rs. 584 kept for the aforesaid Dwadeshi Dharmam(3) particulars as to the remaining lands (after deducting those given to the adopted son) which Venkataramaiyer is to enjoy permanently for the purpose of conducting the aforesaid Dwadeshi Dharmam. This recital clearly shows that the sole object of the permanent transfer to Venkataramaiyer was for the conduct of the charity and for nothing else. Looking at the provisions of the Will as a whole we are of opinion that the entire income of the lands is dedicated to the trust and that Venkataramaiyer, Sivaswami and their successors were constituted only as trustees for the conduct of the charities and that the provisions relating to Venkataramaiyer only show that during his lifetime he should alone conduct the charities and he should not be held accountable so long as he continued to feed not less than 10 Brahmins every Dwadeshi day. The gift of the entire income being devoted to charity amounts, in our opinion, to the gift of the corpus itself to the charity and Venkataramaiyer was only in the position of a trustee for the charity. It was not, therefore, competent to Venkataramaiyer to alienate the property except for the necessary purpose of the trust but such contingency can hardly arise in this case because, it is only out of the income of the property the charity is to be conducted and the corpus need not, therefore, be alienated at all. It, therefore, follows that neither the mortgage of the property by Venkataramaiyer under Ex. B in favour of the father of defendants Nos. 1 to 3 nor the decree obtained by defendants Nos. 1 to 3 on the mortgage nor the purchase of that property in execution of that decree can affect the rights of the plaintiff as trustee for the charity.
8. The respondents' Advocate, however, sought to support the decree on another ground, viz., that the mortgage was a bona fide purchaser of the property without notice of the trust and, therefore, the alienation in his favour cannot be impeached. This also is a question which was not raised in the trial Court. In the lower Appellate Court, however, these defendants raised the plea of limitation and in support of that plea they relied upon the said allegations. The plea of limitation was given up before the learned Judge of this Court. Now before us it is contended that the Subordinate Judge has found that the father of these defendants had been duped by Venkataramaiyer into believing that it was his private property and that he bona fide believing the same took the mortgage for consideration. The contention thus advanced is, in our opinion, no less startling than untenable. If it is sound the only result will be that no public trust is safe because all that a fraudulent trustee has to do is to convey it to somebody who is foolish enough to believe what the fraudulent trustee says, viz., that the property conveyed is his personal property and does not make any inquiries. In this case the mortgage in favour of the father of defendants Nos. 1 to 3 was a simple mortgage executed in 1903 and if , the mortgagee had taken the ordinary precaution which every purchaser is expected to make of requiring the vendor to procure an encumbrance certificate he would have become aware of the trust created by the Will in 18a8. A trustee of a religious or charitable trust has no power to make any alienation of trust property except where it is rendered necessary in the interests of the trust and any alienation which is not justified by real necessity or by reasonably accredited necessity for the purposes of the trust is void and the decisions have gone to this extent, viz., that in the case of public trusts, religious or charitable even the trustee who alienates can bring a suit for the recovery of the property and he is not personally estopped from doing so. See Mr. Ganapathy Iyer's Hindu and Muhammadan Endowments, 2nd Edition, page 532 and foot-note (7) where all authorities are collected. The respondents' Advocate relies on Section 64 of the Indian Trusts Act in support of the contention but that section does not help him, because in the first place the Act does not apply to public or private religious or charitable trusts, secondly, even if the rule embodied in that section can be applied by way of analogy to religious or charitable trusts, the protection afforded by the section is only with reference to property in the hands, i.e., in the possession) of the alienee and not to a transfer by way of simple mortgage as in the case before us, on which possession did not pass to the transferee. Further according to the terms of the section itself, a judgment creditor of the trustee who purchases trust property in Court auction is not entitled to the benefit of the section. We have, therefore, no hesitation in overruling this contention as altogether untenable.
9. The next question we have to consider is what is the decree to be passed in this case. Defendants Nos. 1 to 3 are now in possession of the suit properties though they were not in possession at the date of the suit. The plaintiff's application for the amendment of the plaint should have been allowed by the trial Judge and not dismissed and the lower Appellate Court has taken a correct view on that point. The question whether the suit as framed is maintainable has to be judged with reference to the circumstances as they existed at the date of the plaint and the plaintiff's suit cannot, therefore, be dismissed as it has been done by the lower Appellate Court whose decree has been affirmed in Second Appeal No. 401 of 1922.
10. We set aside the decree of this Court and of the lower Appellate Court and remit the case to the Court of first instance with the direction that the plaintiff should be permitted to amend the plaint by adding a prayer for possession of the suit properties and praying the Court -fee thereon within a fortnight after the receipt of this order by the Court of first instance and on such amendment, being made the decree of that Court will be modified by awarding to the plaintiff possession of the suit properties.
11. We award to the appellant his costs in this Court and in the lower Appellate Court to be paid by the contesting respondents (defendants Nos. 1 to 3).