N.S. Rajabathar Mudaliar Vs. M.S.
Vadivelu Mudaliar & Ors [1969] INSC 227 (9 September 1969)
09/09/1969 RAY, A.N.
RAY, A.N.
BHARGAVA, VISHISHTHA HEGDE, K.S.
CITATION: 1970 AIR 1839 1970 SCR (2) 299 1970
SCC (1) 12
ACT:
Trust--Dominant purpose whether maintenance
of family or charity-Construction of deed--Cy-pres doctrine Applicability of.
HEADNOTE:
The great-grandfather of the appellant
executed a trust-deed in respect of certain properties. The trustees were
enjoined to. apply the income of the trust towards charities as also for the
benefit of the settlor and his family and descendants. The appellant filed a
suit to enforce his rights under the trust and the trial court granted him
maintenance to the extent of Rs. 50/- per mensem out of the trust properties
instead of the sum of Rs. 10/. allowed under the trust deed. In appeal,
however, the High Court dismissed the appellant's suit and reversed the order
of the trial court granting him the said increased maintenance.
In this Court The contentions of the
appellant which fell for consideration were: (i) whether the dominant purpose
of the trust was the maintenance of the settlor's family, the grant to. the
charities being only secondary; (ii) whether the cy-pres doctrine applied to
the case, justifying the payment of maintenance money as decreed by the trial
court to the appellant.
HELD: (i) The provisions in the deed of trust
and the direction to the trustees, first to accumulate the income after meeting
the expenses of assessment, quit rent and maramath and the monthly and annual
expenses and secondly to purchase properties therewith were to provide income
only for the aforesaid charity. The words "for the aforesaid charity"
were of important significance. The entire accumulation was for charity. The provisions
regarding maintenance and education were subordinate to the provisions for
meeting the expenses of the Utsavam to be celebrated in the specified
Devasthanams. [303 E--F] Further the provisions regarding maintenance and
education were to be at the sole discretion of the trustees who could stop the
same. This power of the trustees was a complete negation of the appellant's
contention that the intention of the settlor was that education and maintenance
expenses were the dominant purpose of the settlement. The settlor could never
have allowed his dominant intention to be repelled by a discretion conferred on
the trustees to stop such expenses. [303 G--H] The tenor of the document thus
pointed to the inescapable conclusion that the predominant and over- whelming
intention of/he settlor was to benefit the charities and provide for the same.
[304 A] (ii) The cy-pres doctrine applies where a charitable trust is initially
impossible or impracticable and the court applies the property cy-pres. viz..
to some other charities as nearly as possible. resembling the original trust.
In the present case, the maintenance and education expenses were neither
charitable trust nor similar objects of charity and the High Court therefore
rightly interfered with the trial court's order granting increased maintenance
at Rs.
50/- per mensem to the appellant. [304 C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1796 of 966.
300 Appeal from the judgment and order dated
January 6, 1964 of the Madras High Court in O.S.A. No. 39 of 1961.
T.S. Sangameswaran and K. Javaram, for the
appellant.
A. K. Sen, M.S. Narasimhan and S.
Balakrishnan, for respondents Nos. 1, 5, 6 and 7.
The Judgment of the Court was delivered by
Ray, J. This appeal is from the Judgment of the High Court at Madras dated 6
February, 1964 dismissing the appellant's suit.
The important question which falls for
consideration is whether the deed of trust dated 1 January, 1908 created an
absolute dedication to. charity subject only to a charge for the payment of
maintenance to the members of charge of the founder's family or whether the
dominant intention of the founder was the maintenance of the family and the
grant to. the charities was secondary.
The trust deed was executed on 1 January 1908
by S.D. Mudaliar in favour of himself, A.P.M. Mudaliar, M.T.S. Mudaliar and
C.V.S. Mudaliar. S.D. Mudaliar and his pre- deceased son D.S. Mudaliar's
adopted son S. Mudaliar effected a deed of partition dated 25 November, 1907 in
respect of the immovable and movable properties. By the said deed of partition
S.D. Mudaliar the settlor of the deed of trust obtained the property forming
the subject matter of the said trust deed. The founder dedicated the said
property by the deed of trust to the trustees. The trustees were the settlor
and the three other Mudaliars, viz., A.P.M.
Mudaliar, M.T.S. Mudaliar and C.V.S.
Mudaliar.
Broadly stated, the trust deed contained the
following provisions. First, the trustees after excluding the tax and Maramath
expenses. shall during the lifetime of the settlor pay him entire income for
the purpose of discharging the debt of Rs. 3000/- mentioned in the deed of
partition and for the maintenance of the settlor during his lifetime. Secondly,
after the death of the settlor the balance of the debt that might be found due
on the date after excluding the payments made by the settlor is to be paid to
the creditors. Thirdly after the settlor's lifetime a sum of Rs. 10/- per
pension would be paid out of the income to the settlor's daughter-in-law, namely,
the appellant's grand-mother, viz., father's mother "for her lifetime, for
her charity expenses". Fourthly, after the lifetime of the appellant's
grand-mother the trustees are to pay a sum of Rs. I0/- per mensem permanently
to the appellant's adoptive father who was the adopted son of the 301
appellant's: grand-mother and or the settlor's predeceased son and after the
lifetime of the appellant's adoptive father "to his male descendants
hereditarily". Fifthly, the settlor gave full power to the trustees after
meeting the expenses of the Utsavam to be celebrated in Nungambakkam
Devesthanams and the trust expenses and the tax and maramath expenses to expand
such sum as they might deem proper to maintain and educate the male descendants
of the settlor's predeceased adopted son. The settlor further provided that if
the trustees were not willing they would stop, such maintenance and education
expenses. Sixthly, the trustees after the lifetime of the settlor would spend
from and out of the aforesaid trust income in such manner as they might deem
proper and have the Vasantha Utsavam celebrated for a period of not less than
three days during the Vasantha Utsavam which would be celebrated every year in
the Temples of Sri Agastheeswarar and Venkatesa Perumal installed by the
settlor's ancestors and ensrined in Nungambakkam. Finally, after the lifetime
of the settlor the trustees were directed to accumulate the amount remaining
out of the income from the property after excluding the assessment, quit rent
and maramath and the monthly and annual expenses and purchase properties
therewith and provide the same as income for the aforesaid charity.
In the background of these provisions counsel
for the appellant contended that the dominant intention was a provision by way
of a settlement for the members of the family and that the charities were
subsidiary purposes to, the said deed of trust. The provisions or direction to
the trustees first to accumulate the income after meeting the expenses of
assessment, quit rent and maramath and the monthly and annual expenses and
secondly to. purchase properties therewith were to provide income only for the
aforesaid charity. The words "for the aforesaid charity'" are of
important significance. The entire accumulation was for the charity. The
provisions regarding maintenance and education were subordinate to the
provision for meeting the expenses of the Utsavam. The matter does not rest
there.
The provisions regarding maintenance and
education were to be at the sole discretion of the trustees who could stop the
same if the trustees were not willing. This power of trustees to stop
maintenance and education expenses is' a complete negation of the appellant's
contention that the intention of the settlor was that education and maintenance
expenses were the dominant purpose of the settlement. The reason is obvious.
The dominant object is never allowed by the settlor to be repelled by a
discretion conferred on the trustees to stop such expenses. This power to stop
is consistent with the intention of the settlor to treat the education and
maintenance expenses as secondary objects only after the primary purpose of the
trust, namely, charities are fulfilled. The tenor 302 of the document points
to. the inescapable conclusion that the predominant and overwhelming intention
of the settlor was to benefit the charities and provide for the same not only
by making the expenses for the charities as. the first and foremost direction
but also by providing for accumulation of income and purchase of properties out
of the said accumulated income only for the purpose of charities.
A contention was raised by the appellant that
the High Court should not have reversed the finding of the trial Court for the
payment of maintenance of the appellant at Rs.50/- per mensem. The High Court
came to the conclusion that there was no. legal principle to. sustain this
increase in maintenance. In this Court the contention which was raised in the
High Court was repeated, viz., that this was a case where the cy-pres doctrine
would apply. The cy-pres doctrine applies where a charitable trust is initially
impossible or impracticable and the Court applies the property cy-pres, viz.,
to some other charities as nearly as possible, resembling the original trust.
In the present case, the maintenance and education expenses are neither
charitable trusts nor similar objects of charity.
For these reasons, the appeal fails and is
dismissed with costs. The appellant will pay the court fees.
Appeal dismissed G.C.
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