MALAYAMMAL AND ORS. versus A MALAYALAM PILLAI AND ORS.

Citation: [1990] SUPP. 2 S.C.R. 235 · Decided: 10-10-1990 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

Judgment (excerpt)

MALAY AMMAL AND ORS. 
v. 
A MALAY ALAM PILLAI AND ORS. 
OCTOBER 10, 1990 
[K. JAGANNATHA SHETTY, N.D. OJHA AND 
R.M. SAHAI, JJ.] 
Hindu Law-Creation of endowment under Will-Provision by 
Testator for construction of his Samadhi and Matam and performance 
of poojas and ceremonies thereat-Validity of. 
Will-Principles of construction-Bequest for worship of God with-
out specifying a particular deity-Validity of. 
K. bequeathed his properties describing them in five Schedules, 
A, B, C, D and E. In respect of the 'E' schedule properties, he created 
an endowment stating that after his death it should be managed for 
construction of his owu tomb or samadhi and for performing poojas and 
ceremonies thereat. 
· Two of the legatees under the will filed a suit against the third 
legatee, the manager of the trust, for partition and p0ssession of the E 
schedule properties as well as for rendition of accounts pertaining to the 
income from the said properties contending: (i) that under Hindu Law 
the testator could not have created an endowment of properties for 
~onstruction of his own tomb or samadhi for performing poojas and 
ceremonies thereat; (ii) since the testator had bequeathed his properties 
for "Samadhi Kainkaryam", the Trust was invalid; and that the said 
properties should be shared by the plaintiffs and the defendant under 
the residuary clause of the will as if they remained undisposed of by the 
testator. 
The defendant resisted the suit contending that Matam and the 
Samadhi were constructed for different purposes and it is only at the 
Matam that the ceremonies and Guru Pooja were performed with feed-
ing the poor and distribution of saffron clothes; and that these acts were 
distinctly and substantially religious and charitable purposes. 
The subordinate judge accepted the plaintiff's case declaring that 
the dedication of the 'E' schedule properties was invalid and accord-
ingly he decreed the suit. 
235 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
236 
SUPREME COURT REPORTS 
[1990] Supp. 2 S.C.R. 
On appeal the District Judge dismissed the suit with a direction to 
the defendal1t for rendition of accounts of the surplus income Crom the 
properties on the ground that dedication of properties by the testator 
was for charitable or religions in nature. 
On second appeal a single Judge of the High Court dismissed the 
suit for partition but afrmned the decree for accounting the surplus 
income from the properties referable to the Matam and charities by 
holding (i) that the trust in respect of the properties for construction of 
sarnadhi was not valid as it was not recognised under the Hindu Law; (it) 
but the endowment and directions as to application of the property for 
construction of Matam and performance of ceremonies and pooja were 
valid since they were religions and charitable in nature. 
On further appeal by Letters Patent the Division Bench of the High 
Court, relying upon the decision of tbe Privy Council in N. Subramania 
Pillai v. A. Draviyasundaram Pillai. AIR 1950 PC 37, held that the 
entire endowment was invalid under Hindu Law. Hence this appeal. 
Allowing the appeal, this Court, 
HELD: 1. The perpetual dedication of property for construction 
of a samadhi or a tomb over the mortal remains of an ordinary person 
and the making of provisions for its maintenance and for performing 
E 
ceremonies in connection thereto ·is not recognised as charitable or 
religions purpose among the Hindus. But the Samadhi of a Saint stands 
on a different footing. 'fherefore, the provision made by the testator for 
construction of a Samadhi over his burial place and for its maintenance 
cannot be regarded as valid. [242A-B & F] 
F 
Kunhamutty v. T. Ahmad Musaliar & Ors., I.L.R. (1958) Mad. 
204; A. Draviyasundaram Pillai v. N. Subramania Pillai, I.L.R. 1945 
Mad. 854 and Veluswami Goundan v. Dandapani, [1946] 1M.L.J.354, 
approved. 
·--
-
Saraswati Am ma/ v. Rajagopal Ammal, [1954) S.C.R. 277 and 
G 
Nagu Reddiar & Ors. v. Banu Reddiar & Ors., [1978] 2 S.C.C. 591, 
referred to. 
2. It is one of the cardinal principles of construction of Wills that 
wherever it is possible, effect should be giv"n to every bequest of the 
testator unless it is opposed to law, custom or practice. If the testator 
R 
has set apart the property intended for endowment and disclosed his 
\, 
MALAYAMMAL v. A.M. PILLAI 
237 
charitable intent in any one of his directions, such direction may be 
extricated leaving aside the directions which are

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