State of Uttar, Pradesh Vs. Bansi Dhar
& Ors  INSC 235 (11 December 1973)
CITATION: 1974 AIR 1084 1974 SCR (2) 679 1974
SCC (1) 416
Public Trust-Doctrine of cypres, if
applicable to nontestamentary gifts Conditions for its applicability-General
object, when inferred-Applicability of s. 83, Trusts Act (2 of 1882) to public
In 1945, a donation of Rs. 30,000 was made
for building a 6bed hospital for women on an approved chosen spot, according to
the approved plan, to be constructed by the donor with a matching contribution
from the government and with any other voluntary donation. The donor died in
1947 and all that was done by that time was to lay a foundation stone. In 1952,
the sons of the donor filed a suit for return of the Rs. 30,000 on the ground
that the conditions subject to which it' had been given had been violated and
that the contemplated charity never materialised.
The trial court and the High Court in appeal
decreed the suit.
Dismissing the appeal to this Court,
HELD : (1) A hospital for women is a
charitable object and since the beneficiaries are a section of the public, it
constitutes a public trust.
(2) The doctrine of cypres is applicable to
both testamentary and non-testamentary gifts for public charitable purposes.
[686G] Nori Venkata Rama Dikshitulu v. Ravi Venkatappayya, A.I.R.
1960 A.P. 35 and Potti Swami v. Rao Saheb D.
Govindarajulu, A.I.R. 1960 A.P. 605, referred to.
(3) The conditions for the application of the
doctrine are(a) The settlor has shown a general charitable intentionthat is,
the charitable object is of a general and not of a specific nature, and the
original trust has failed ab initio; (b) there must be impossibility, not in
the strict physical sense but in the liberal diluted sense, of impracticability
of carrying out' the settlors intention;
and (c) there must be a completed gift.
[689B-E] In re Hilsom  1 Ch 314, In re Ulversion and District New
Hospital Building Trust,  1 Ch. 622, Commissioner, Lucknow Division v.
Deputy Commissioner of Pertapgarh, A.I.R. 1937 P. C. 240 and In re Rymer,
 1 Ch. 19, 31, referred to.
(4) The present is a borderline case is to
whether there was a general intention to benefit the community, but Courts
should lean in favour of the charity taking effect by imputing, without
straining the languages an intention to help the people of the area with a
maternity hospital. The rule of law must rise to this rule of life by a
facilitating thefulfillment of benevolent objects but vigilantly guarding
against perversion, diversion. subversion, inaction and unjust enrichment,
where public donations have been raised. [691B] (5) But the transaction in the
instant case was not a gift simpliciter but was subject to a matching grant
from the Government the building being required to be constructed by the donor
with such augmented money etc. Assuming substantial compliance as sufficient in
law, one of the conditions has been carried out by the State. [693F] 680 Harish
Chandra v. Hindu Sharma Sewak Mandal, A.I.R. 1936 All. 19 lit re University of
London Medical Sciences institute Fund,  2 Ch. 1;8-9, In re White's
Trust,  Ch. Div 449, Tudor on Charities and Halsbury's Laws of England
3rd Edn., referred to.
(6) :The conditions having failed, the
charity proved abortive, and the legal consequence is a resulting trust in
favour of the door. Though s. 83 of the Trusts Act, 1882 does not apply proprio
vigore, it embodies a universal rule of equity and good conscience and may be
held to be applicable to public charitable trusts also. [688A-B; 693FG]
Government litigation involves expenditure of public money and should not be
permitted to become an occasion for abusing the legal process regardless of the
morality of the please and indifferent to any offer of settlement of the claim
on fair terms.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1844 of 1967.
Appeal by Special Leave from the Judgment and
Order dated the 10th August 1965 of the Allahabad High Court at Allahabad in
First Appeal No. 435 of 1954.
G. N. Dikshit and O. P. Rana, for the
R. K. Garg and S. C. Agarwala, for respondent
The Judgment of the Court was delivered byKRISHNA
IYER, J.-A litigation launched by the sons of a frustrated philanthropist, who
is no more, has reached the last deck of the justice edifice as a civil appeal,
by special leave, a little over 22 years after its institution.
While illustrating the injustice of delayed
justice this case more provocatively exposes the damage done by the
administration's dilatory indifference to a clear commitment of an enthusiastic
Collector to construct quickly a 'female' hospital out of a donation from a
compassionate gentleman in Kannauj on certain conditions which were breached by
Government, according' to the findings of, the courts below.
These socially disturbing features will be
better appreciated, regardless of the legal result, when the facts are set out,
which we now proceed to do.
An old, affluent man called Dubey, in a
munificent mood, responded to the request of Shri Govind Narain, then Collector
of Farrukhabad District, way back in 1945. A promise to donate Rs. 30,000/was
made, on the basis of a matching contribution by Government, for the good cause
of a women's hospital in sacred memory of the donor's deceased wife, Gomti
Devi. Apprehending the tardy ways of government, this anxious soul insisted on
his being put in charge of the construction so that the hospital may come into
existence, through his diligent hands and in his lifetime, aided of course by
government grant and auxiliary voluntary contributions. The activist Collector
accepted these conditions, received the philanthropic cheques, moved swiftly to
get the foundation-stone laid ceremonially by the British Indian Governor of
the Province, all in 1945. This sentimental stone had the name Gomti Devi
inscribed thereon, and the donor, believing the brave words of the Collector
about quick 681 acquisition of land, government contribution and making over of
the agency for construction to himself, started collecting the necessary bricks
for the building. But Shri Govind Narain in the usual course left, the District
charge and once his back was turned on the District, things got stuck. For the
next Collector, Shri Bhagwan Sahai, noticing official stagnation in this matter
wrote to the Civil Surgeon in March 1946-four months after Sir Maurice Hallet
had planted with, pomp the first stone at the hospital sitethat "the
proposal has been, hanging since long which is certainly not fair to the
donor". Shri Sahai tepidly concluded his note thus "For the balance
of non-recurring expenditure I presume we shall have to apply to Government. If
so who will do it ? C.S. or 1.
I am prepared to do so if I have a clear cut
scheme with all loose ends tied up." Nothing happened however, and to add
insult to injury the District Supply Officer sent a chill into the chest of the
expectant donor by proposing to freeze the bricks collected by him for the
hospital. building and to divert them for the construction of a school, thus,
showing the lazy unconcern of the officials for the hospital project. Exhibits
18 and 19 betray this neglect of Govind Narain's undertaking, on behalf of
The old man, Dubey, continued to correspond
with the District authorities on the hospital project till he was spirited away
by death in July 1947 and his human agency for construction thus became
unavailable, No doubt, no postmortem repentance was manifested in the official
quarters even after Independence came to the country and nothing was done for
years, suggesting that slow-motion administration, a die-hard heritage has
survived British rule in India.
The subsequent part of the story discloses
dereliction of duty, as it were, for instead of constructing the proposed
six-bed hospital expeditiously with the additional sum to be brought into the
hotchpotch by Government, what transpired was that the plans were changed, the
agency visualised in the original understanding given up, government's matching
sum never granted and even the foundation stone laid by the Governor of the
Province removed. Apparently the officials engaged themselves in paper work of
no import like the routine reply to the reminder by the sons of the donor, Ex.
A-6, which chanted "that the proposal of
constructing a 6bedded Women's Hospital at Kannauj is under the active
consideration of Government." If six Vears after the receipt of the
donation of Rs. 30,000/for the urgent execution of a hospital construction, the
matter was "under the active consideration of Government" its sense
of time had suffered somnolence or its officialese had indolent semantics. Even
a formal suit notice under s. 80 of the Civil Procedure Code for return of the
sum given to the Collector on account of the failure of the charity did' not
shake the Government out of its neglectful tranquility. These lethargic
official exercises in the present case remind one of the word,.;, 682 Of Lord
Curzon about the administrative apparatus, which bear repetition and find 'Some
contemporary echo. The Viceroy wrote to his Secretary of State "I am
prodding up the animal with most vigorous and unexpected digs, and it gambols
plaintively under the novel spur. Nothing has been done hitherto under six
months. When I suggest six weeks, the attitude is one of pained surprise; if
six days, one of pathetic protest; if six hours, one of stupefied
resignation." Had August 1947 accelerated the process the Dubeys might
have avoided the court.
The present suit, if it has served nothing, has
at least awakened ,the State Government to some extent to its obligation. For,
Government at long last constituted a new committee for the construction of the
hospital building, drew up a new plan and built a 22-bed hospital in the same
place. All this was after the legal action was instituted and perhaps on
account of it. It must be mentioned in fairness to the ,plaintiffs that they
offered to withdraw the suit for the return of the money if the original
undertaking was substantially complied with and half the costs of the
suit-which was not much-upto then incurred were also paid by Government.
However, this public body chose to continue what we regard, in the light of
fuller facts, its cantankerous defence despite defeat in two courts.
Government litigation involves expenditure of
public money and cannot become an ,occasion for abusing the legal process
regardless of the morality of the plans and indifferent to any offer of
settlement of the claim on fair terms. Here we may quote what one of us had observed
in an .earlier appeal(1) about litigation to which Government is a party
"In the context of expending dimensions of State activity and
responsibility, is it unfair to expect finer sense and sensibility in its
litigation policy. . . . .. the Law Commission of India in a recent report(2)
on amendments to the Civil Procedure Code has suggested the deletion of s. 80,
finding that wholesome provision hardly ever utilised by Government, and has
gone further to provide a special procedure for government litigation to
highlight the need for an activist policy of just settlement of claims where
the State is a party.... certain observations I had made in a Kerala High Court
decision(3)........... I may usefully excerpt here "The State, under our
Constitution, undertakes economic. activities in a vast and widening public
sector and inevitably (1) Dilbagh Rai Jarry v. Union of India, Civil Appeal No.
1898 of 1967; Judgment delivered on November 5, 1973.
(2) Law Commission of India, 54th reportCivil
(3) P.P. Abubacker V. Union of India; A.I.R.
1972 Ker. 103; 107; Para 683 gets involved in
disputes with Private individuals. But it must be rememberedthat the State is
no ordinary party. trying to win a case against one of its own citizens by hook
or by crook; for, the State,s interest is to meet honest claims, vindicate a
substantial defence and never to score a technical point or overreach a weaker
party to avoid a just liability or secure an unfair advantage, simply because
legal devices. provide such an opportunity. The State is a virtuous litigant
and looks with unconcern on immoral forensic successes. so that if on the
merits the case is weak, government shows. a willingness to settle, the dispute
regardless of prestige and other lesser motivations which move private parties
to fight, in court. The lay-out on litigation costs and executive time by the
state and its agencies is so staggering these days because of the large amount
of litigation in which it is involved that a positive and wholesome policy of
cutting back on the volumeof law suits by the twin methods of not being tempted
into forensic show-downs where a reasonable adjustment is, feasible and ever
offering to extinguish a pending proceeding on just terms, giving the legal
mantors of government some. initiative and authority in this behalf." To
complete the human side of the story, we reach its anticlimax-. when, the
forgotten foundation-stone laying notwithstanding, a fresh, ceremony of stone
placing for the new hospital was gone through with the then Health Minister,
Shri C. B. (Gupta, as the dignitary to repeat what the former Governor had once
done. This presumably hurt the donor's sons who prayed, to the Collector at
least for the return of the former lapidary momento. Be that as it may, we are
assured happily that a hospital has been constructed although it was a total
departure from the project which induced the alleged conditional gift.
The sons of the donor brought the present
suit on the ground that the conditions subject to which the sum-of Rs. 30,000/had
been given had been violated that the charity as contemplated had never
materialised and a totally different scheme had been belatedly executed. The
defendant, the State of Uttar Pradesh, contested the facts but failed in that
effort, Shri Govind Narain having wisely declined to be a witness to the
Government's version and the documents having testified to the truth of the
plaintiff's case. Some legal contentions were raised, but rejected and have
been repeated before us by Shri Dixit, learned counsel for the, appellant
The facts as found by the trial Judge were
accepted by the State before the High Court and affirmed by the learned Judges.
Before proceeding to discuss the issues of law we may set out the findings
of,fact concurrently recorded. The High Court held,:
"The learned counsel for the appellant
has rightly conceded that for the Purpose of this appeal all the findings of
fact arrived at by the learned Civil Judge, might be accepted as correct. We
have gone through the entire evidence and we..
684 .feel no hesitation in accepting the
findings of fact arrived at by the learned Civil Judge.
it is fully established from the ,evidence on
the record that the sum of Rs. 30,000/bad been .advanced by Pandit Surj Prasad
Dubey on the understanding ,that the hospital would be constructed.
(1) on the approved site;
(2) according to the approved plan; and (3)
at an early date through his agency.
the entire amount of Rs. 60,000/was to be
paid to Sri Dubey for the construction of the hospital." Since the
appellant had accepted the findings of fact recorded by the Civil Judge we may
notice,those findings before proceeding further. The trial Judge held :
"There is overwhelming and unrebutted
oral and documentary evidence which leaves me clear that Pandit Suraj Prasad
Dubey, the deceased father of the plaintiffs gave Rs. 30,000/as his
subscription on the terms and conditions challeged in the plaint."
"These letters and the evidence of P.W. 1 Sri Hari Har Nath Vakil
conclusively prove that the following terms were :settled between the Collector
1. That the hospital would be constructed on
Kannauj Makrand Nagar Road near Phoolmati Temple.
2. That the hospital will be named after the
name of person suggested by Dubeyji and which name was to be communicated by
him, to the D.M. subsequently. Dubeyji suggested the name of the hospital as
"Gomti Devi" by his letter dated 30th October, 1945 which name was
accepted by D.M.
3. That the hospital would be constructed by
Dubeyji according to the plan approved by Government with nice arrangement for
maternity and child welfare.
4. That a sum of Rs. 30,000 would be paid by
Dubeyji for that purpose.
5. That the aforesaid sum along with the plan
necessary help for procuring raw materials would soon be given to Dubeyji after
the foundation laying ceremony was over so that Dubeyji might be able to get
the hospital constructed at the earliest through his own agency." "It
is thus clear that all the terms set out in the plaint ,were settled and have
been definitely proved by the evidence discussed above. The entire matter was
settled with Sri Govind Narain and although several adjournments were taken 'by
the defendant to produce Sri Govind Narain but he was 685 not examined. It
seems he was not found in a position to say any thing to the contrary or in
rebuttal to plaintiffs' evidence. There is thus not a word in rebuttal of
plaintiffs' case on the matter of terms settled between the parties."
"In this connection I think it will not be unimportant to point out that
District Government Counsel was examined under 0. 10 rule (r) C.P.C. he
admitted that plaintiffs settled term with defendant Government through Sri
Govind Narain the then District Magistrate. He also admitted that the then
Collector had agreed that the building be constructed according to the approved
plan through the agency of plaintiffs' father. He further admitted that
defendant agreed to invest at least Rs. 30,000/for the construction of that
hospital. The only fact which he appears to deny is that there was no
understanding that the hospital would be completed and established in the near
All other conditions set out in the plaint
were practically admitted by him." "I therefore hold that plaintiffs'
father donated Rs. 30,000 for a specific object viz.
for the construction of Gomti Devi Female
Hospital with child welfare and maternity ward at Kannauj Makrand Nagar Road
near Phoolmati Devi temple under his own agency on the terms contained in para
2 of the plaint. Issues answered correctly in favour of the plain"As I
have held above plaintiffs father gave a handsome subscription of Rs. .30,000
on the terms and conditions contained in para 2 of the plaint. There is
overwhelming unrebutted evidence which point to the irresistible conclusion
that the defendant left the scheme in the cold and venture came to an end in
the life time of Pt. Suraj Prasad Dubey." These concurrent findings of
fact have been rightly rendered in our view, counsel Shri Dixit having taken us
through the relevant papers. Of course, he did not canvass the correctness of
these findings before us so that we have to proceed on the footing that given
these facts, has the appellant made out a case to dislodge the liability to
disgorge the sum of Rs. 30,000 decreed by the courts below.
We need hardly say that the cleemosymary
venture agreed upon between the late Dubey and the then Collector in 1945
remained a humanitarian essay, not a charity accomplished, but the legal
question still remains whether the plaintiffs stepping into the shoes of the
donor have the right to demand repayment of the amount already made over. It is
proper to condense and formulate the legal frame of the longish submissions
made by Mr. Dixit. He argued that the donation was 'without strings', if we may
use a cliche, that Dubey had made an outright gift with general charitable
intent and the pious wishes superadded to the do-nation did not make it a
conditional gift. In his view, the nonfulfillment of these wishes did not
amount to the 686 failure of a, condition precedent making the gift
inoperative. His further contention was that the gift having been accompanied
by a general charitable purpose of benefiting the local people with hospital
facilities the cypres doctrine applied to the case even it the object of the
charity could not be literally carried out. Therefore, he argued that the Court
may issue directions appropriate to the broad purpose so as to salvage the
substance of the charity. Finally, he urged that the plaintiffs ad, subsequent
to the suit, agreed to give up the claim in the light of a new hospital having
been built and they could not now resile therefrom or recall the sum their
father had irrevocably given away for a public cause. Mr. Garg, learned counsel
for the respondent, has sought to meet the challenge of law by law, facts by
facts and unfilial imputation of withdrawing from the paternal bounty by proof
of a better public charity by starting a school in Gomti Deevi's name with a
much larger input. We will examine the validity of these various contentions.
The essential issue turns on the nature and
efficacy of the gift itself but before we discuss it the deck may as well be
cleared by disposing of the, plea of agreement to withdraw the claim, estoppel
on account of the defendant having acted thereon, and the consequent
untenability of the action.
Both the courts have overruled it and we are
in agreement with them.
After the institution of the suit Shri V.
Kumar, the then District Collector, discussed the closure of the litigation
with Murli Dhar, one of the plaintiffs. The latter offered not to press for the
refund on certain terms. He desired that the hospital be constructed through
the agency of the plaintiffs now that Shri Dubey was dead, according to the old
approved plan on the approved site. Ex.A-4 evidences this offer. The Collector
did not, and perhaps could not without the consent of Government, accept the
said offer but merely replied that the matter would be referred to Government.
Nothing more was done, apart from internal correspondence. The long wait was in
vain. Thereafter, the plaintiffs had to pay the full court-fee although to
start with they had filed the suit with a nominal court fee. Ex.
25 indicates that the Government would not
agree to the agency of the plaintiffs for the construction of the hospital. It
is further seen that in Ex. 27 the plaintiffs again made an offer to withdraw
the case provided they were also paid half the costs of the suit till then
Papers moved but the agreement did not click.
The trial Court, going through the documentary evidence on this aspect,
concluded "It is therefore, clear that there was no finally accepted
contract between parties.
There have been offers and counter offers
without any final acceptance by either of them....... It is, therefore,
erroneous to say that' defendant started construction on the assurance of
plaintiffs that they would withdraw the suit as soon as the work started.
Consequently it cannot be said that defendant
incurred any expenditure on account of plaintiffs' assurance. Thus no question
of estoppel arises." 687 In the High Court the contention was repeated and
the learned Judges disposed of the contention with the observation "The
plaintiffs agreed to withdraw the suit provided certain conditions laid down by
them were fulfilled. However, nothing seems to have materialised because those
conditions were not fulfilled. : In the circumstances the, plea of estoppel
raised by the defendants had no substance in it and was rightly given up at the
time the appeal was argued before us," In the light of the abandonment of
the plea, no weight can be attached to its repetition in this Court, apart
from, the lack of intrinsic substance in the submissions.
Let us have a close look at the terms and
conditions of the donation and spell out their legal effect. The law of gifts
is, in a sense, a collection of equitable principles but crystallised for India
under the British from Anglo-Saxon jurisprudence. Since Independence
collections from the public have escalated and in India today popular
contributions to public charitable purposes are a new dimension of community
involvement in developmental activities. And so the rule of law mustrise to
this rule of life by facilitating the fulfillment of benevolent objects but
vigilantly guarding against perversion, diversion,subversion,. inaction and
unjust enrichment, where public donations have been raised. The law of
charitable trusts must undergo an evolutionary adaptation to Indian social
environs, illumined of course by the, well-settled rules in this branch of
jurisprudence developed over-the centuries by great English judges. Maitland's
remark is 'valid even now for us : "Of all exploits of Equity the largest
and most important is the invention and development of trust." The
principles relevant for our case may now be considered.
Was the contribution of Rs. 30,000/for a
charitable purpose ? Lord Sterndale, M. R., said in the Court. of Appeal in In
re Tutley(1) :
"I .... am unable to find any principle
which will guide one easily, and safely, through the tangle of the cases as to
what is and what is not a charitable gift. It is possible I hope sincerely that
at some time or' other a principle will be laid down. The whole subject is in
an artificial atmosphere altogether." While in India we shall not be
hidebound by English decisions on this point, luckily both sides agree here-and
that accords with the sense of the law-that a hospital for women is a
charitable object, being for medical relief.
Moreover, the beneficiaries are a section of
the public, women-that still silent, suffering half of Indian humanity.
Therefore, this 'elecent connotes a public'
trust. The next question is whether the Indian Trusts Act, 1882, applies 1.
(1923) 1 Ch. 258, 266.
L748SCI/74 688 to the present case. The
Courts below have argued themselves into an application of s. 83 of the Trusts
Sri Dixit rightly objects to this course
because that Art relates only to private trusts, public charitable trusts,
having been expressly, excluded from its ambit But while these provisions
proprio vigore do not apply, certainly there is a common area of legal
principles which covers all trusts, private and public, and merely because they
find a place in the Trusts Act, they cannot became 'untouchable' where public
trusts are involved.Care must certainly be exercised not to import by analogy
what is not, germane to the general law of trusts, but we need have no
inhibitions in administering the law by invoking the universal rules of equity
and good conscience upheld by the English Judges, though also sanctified by the
statute relating to private trusts. The Court below have drawn inspiration from
s. 83 of the Trusts Act and we are not inclined to find fault with them on that
score because the provision merely reflects a rule of good conscience and of
general application. The details of the argument on the basis of this principle
will be discussed a little later.
Accepting that Dubey intended a charitable
gift the first question that falls fordecision, as preliminary to the
application of the cypres doctrine, in as to the nature of the charitable
object-whether general or specific. if the former, the doctrine is attracted
but if the latter it is repelled. We will revert to this aspect later.
Sri Garg objected to the application of the
cypres principle to cases of gifts as, in his view, only wills attract this
Jurisdiction. There is much in the precedents tending this way but the opposite
is not bereft of authority. Nori Venkata Rama Dikshitulu v. Ravi
Venkatappayya(1) and Potti SWami v. Rao Saheb D. Govindarajulu (2) , for
instance, ire two authorities in the same volume supporting the rival
positions. We have come across other cases, Indian and English, where even
gifts inter vivos have been enforced cypres by courts although the general run
of trusts where failure has been saved ,relates to testamentary dispositions.
There is perhaps a reason. Why courts should, in the case of wills, step in to
supply a near intent and apply the funds cypres where otherwise the charity
will fail on sticking to the literal object, the author being dead and unable
to speak. For gifts inter vivos. the donor is ordinarily available to suggest
the mutation in the event of impossibility or impracticability of the original
object. Even so, we are inclined to the view that, both testamentary and
non-testamentary gifts for public charitable purposes must be saved by a wider
intervention of court, for public interest is served that way. Neither
principle nor precedent bars this broader invocation of the court's beneficent
jurisdiction. But there are two other limitations on the cypres doctrine which
come into play here. Where the donor has determined with specificity a special
object or mode for the course of his benefaction the Court cannot innovate and
undo, but where a general charitable goal is projected and particular objects
and modes are indicated the Court, (2) A.I.R. 1960 A.P. 605.
(1) A.T.R. 1960 A.P. 35.
689 acting to fulfill the broader benevolence
of the donor and to avert the frustration of the good to the community,
reconstructs, as. nearly as may be, the charitable intent and makes viable what
otherwise may die. The judges have set this restraint on their power to
resurrect, or rather to vary and validate. The twin conditions to be satisfied
are "(1) The settlor must, in general, have shown a general charitable
intention .... It will only apply where the original trust has failed ab
initio. The absence of a general charitable intention will not be fatal to
those trusts which have taken affect but have failed .... Once money has been
effectively and absolutely dedicated to charity, whether in pursuance of a
general or a particular charitable intent, the testator's next of-kin or
residuary legatees are for ever excluded.
This will mean that the material date for the
purpose of deciding whether the cypres doctrine is applicable is the date when
the trust came into effect (e.g. in a will, on 'the death of the testator )
." (2) The second condition for the application of the cypres doctrine
used to be that it was or had become "impossible" to carry out the
settlor's intention or alternatively that a surplus remained after fulfillment
of the purpose......
In short. there must be a larger intention to
property, in the first instance; secondly,
there must be impossibility not in the strict physical sense but in the
liberal. diluted sense, of impractibility. Even here it must be mentioned,
however, that the cypres application of the gift funds assumes a completed
gift. It is essential that a gift has been made, effectively before, its actual
implementation by application of the funds, literally or as nearly as may be,
Parker, J., as be then was, in re Wilson (2)
stressed the presence of a paramount general intention as distinguished from a
particular limited purpose. "Where, on the true construction of the will,
no such paramount general charitable intention can be inferred, and where the
gift, being in form a particular gift,-a gift for a particular purpose-and it
being impossible to carry out that particular purpose, the whole gift is held
to fail." We need not deal with cases of anonymous donors, for in those
cases the Court would be inclined to read a general intention in favour of
charity. In re, Elverson and District New Hospital Building Trust(3) the Court
held that in the case of a certain fund collected with the sole object of.
building and maintaining a new hospital and not for the general charitable
purpose of improving facilities for medical. and surgical treatment in the
districts to be served by the (1) The Modern Law of Trusts-Parker and Mellow-2n
edn. pp 204,.208.
(2) (1913) 1 Ch. 314;
(3) (1956) 1 Ch. 022.
690 hospital, no general charitable intent
could be imputed to the donors and that the particular charitable purpose for
which the fund was intended having.failed ab initio, the money in the hands of
the trustees received from identifiable sources was held on resulting trusts.
The Privy Council in an Indian case,
Commissioner, Lucknow Division v. Deputy Commissioner of Partapgar(1) had to
deal with the subscriptions paid to a committee (for the purpose of fulfilling
a specific and (well-defined charitable purpose which could not be carried out
on account of impracticability. Lord Maugham observed that "there is no
general charitable intent shown in this case and that the subscriptions were
paid to the committee for the purpose of fulfilling a specific and well-defined
charitable purpose and that only." (Emphasis supplied). He further
"The money having been paid over to the
committee, a complete trust was created to apply the funds in carrying out the
object mentioned. If the object has become impracticable, the subscribers ....
have a clear right to the return of their subscriptions pro rota. ... The
present members of the committee .... are trustees in either event;
in the event of impracticability being shown,
they are trustees for the subscribers; if, on the other hand, impracticability
is not shown, they still have to carry out the trust." Lord Herschell,
L.C., in the case of In re Rymer (2 ) laid down the law early in the day and it
holds good even to-day.
On a construction of the document before the
Court the bequest was read as meant to benefit a particular institution and not
a general class in, a general way, and, that institution having ceased to exist
in the testator's lifetime, the legacy could not be applied cypres, but lapsed
and fell into the residue. The proposition as laid down in that decision with
precision is just this "There is a distinction well settled by the
authorities. There is one class of cases. in which there. is a gift to charity
generally, indicative of a general charitable purpose, and pointing out the
mode of carrying it into effect; if that mode fails, the Court says the general
purpose of charity shall be carried out. There is another class, in which the
testator shows an intention, not of general charity, but to give to some
particular institution;. and then if it fails, because there is no such
institution, the gift does not go to charity generally; that distinction is
clearly recognised; and it cannot be said that wherever a gift for any
charitable, purpose fails, it is nevertheless to go to charity." (Passage
excerpted in the judgment from Clark v. Taylor(3) .
Mr. Garg's contention is that there is no
general charitable intention in the, present case while Mr. Dixit plausibly
urges that Shri (1) A.I.R. 1937 P.C. 240.
(3) 1 Drew.642;644.
(2) (1895) I.Ch. 19, 31, 691 Dubey wanted his
townsmen to enjoy the facility of a "female hospital". However, the
findings of the courts below negatives any such general intention to benefit
the community and the, old mail while donating a large sum had taken care to
particularise that the female hospital should be a six-bedded one on a chosen
spot to be constructed by himself with matching contribution from government
and other voluntary donations. We are inclined to think that this is a
borderline case and, if at all, we should lean in favour of the charity
taking,effect by imputing, without some legal straining, an intention to help
the people of the area with a maternity hospital.
This does not see the end of the matter
because, we have to be-gin by asking whether there is a gift in existence. Then
alone the object being general or specific and the application of the cypres
doctrine, etc.. will arise. This takes us to the primary contention of Mr. Garg
.that Shri Dubey made a conditional gift and the, conditions not having been
fulfilled it just did not take effect. We see considerable force in this
contention and will proceed to examine it.
There may be cases where a donor makes a gift
for a specific charitable purpose, the performance of which is rendered
impossible. In such cases courts have to consider the gift as a conditional one
(vide the ruling in Harish Chandra v.
Hindu Sharnm Sewak Mandal(1). In that case as
the gift had failed the land reverted to the successor-in-title to the donor.
The University of London was minded in 1902
to found an institute of medical sciences and appealed for funds in that
behalf. One donor responded. by making a handsome gift by his will.(
Unfortunately, the supervening circumstances prevented the proposed scheme for
an institute of medical sciences coming to pass. The question arose, as to what
should happen to the gift. Farewell, L.J., observed in this context in re
University of London Medical Sciences Institute Fund(2).
"I do not think that anybody who was not
a lawyer could for one moment doubt that the University were, bound to return
at once, to the living subscribers the moneys which had been sent to them for a
scheme which they had abandoned; but we are asked to say that although that may
be so-and I am not sure whether the Attorney-General admits it or not we ou ght
to construe, a will, which contains words in all probability similar to those
which the testator wrote in every letter in which he enclosed a subscription,
as showing an intention to give this money for general charitable purposes. and
not to the, particular institute conditionally upon that institute being called
into existence. I am wholly unable to follow Mr. Sergant's suggestion founded
on a contract between the parties. When money has once been paid ever to the
(2) (1909) 2 Ch. 1;8-9.
(1) A.I.R. 1936 All 197, 692 trustees in, the
lifetime of the donor a complete trust is created, and the money must be held
on the trusts declared by the donor;
the right of the donor to a return of ..the
money arises when the trust is on the face of it contingent on the proposed
institute being called into being.( I can see to difference between that case
and the case of the testator. It is well settled law that a legacy may be given
to a charity upon a condition, which condition may be express or implied,
precedent or subsequent." (emphasis supplied).
In this connection reference may also be made
to In re White's Trust(1) where we may glean the same law laid down.
The law has been correctly stated by Delany
(The Law relating to Charities in Ireland) at p. 128 thus "if a gift is
made, to a charity on a contingent event and the happening of the even is a
condition precedent to the gift then, if the condition is too remote or for any
other reason illegal, the gift to the charity is void. This has been expressed
by Melbourne L.C. in Chamberlayne v. Brockett(2)) in the following words :
"If the gift in trust for the charity 'is itself conditional upon a future
and uncertain event, it is subject, in our judgment, to the same rules and
principles any other estate depending for its coming into existence, upon a.
condition precedent. If the condition is never fulfilled, the estate never
arises,. . . .
Tudor on Charities sums up the law in one
sentence "Condition precedent : Wherethe charitable intention is subject
to a condition precedent which is not satisfied, the charitable gift fails to
take effect." (p. 132) In Halsbury's Laws of England (3rd edn.) the rule
has been thus expressed :
"Where, however, the particular mode of.
application prescribed by the donor was the
essence of his intention (which may be shown by a condition or by particularity
of language) and that mode is incapable of being performed, there is nothing
left upon which the Court can found its jurisdiction so that in such
circumstances the Court has no power to direct any other charitable application
in place of that which has failed." (p. 318; para 654) So much so,
although a charity once established does not die (though its nature may be
changed) the gift must first take effect which takes us to the question of
The law is clear in this area and is found
stated in Halsbury "611. Conditions precedent A charitable gift my be made
subject to conditions precedent, as that the institution (1)  Ch. Div.
(2) L.R. 8 Ch. 206;211.
693 which is too benefit shall perform some
act or that if the trust is declared unlawful it shall revert, or that the gift
shall take effect only if the testator's estate be sufficient for the intended
object, or amount to a certain sum or that a bequest to a hospital shall not
take effect if at the testator's death the hospital has ceased to be run on a
voluntary system and come under state, control, or if it comes under government
control. The gift fails if the condition precedent is impossible, or is not
satisfied, or need not be fulfilled within the perpetuity period.
A legacy to t fund which has been raised for
the purpose of effecting a particular charitable object is construed as a gift
to take effect upon the happening of a condition precedent, namely, the
effecting of that particular object." (pp. 295-96) "613. Acceptance
of conditional gift. Where a gift subject to a condition is accepted the
condition must be fulfilled whether the subject-matter of the gift is adequate
for the purpose or not... . .
In the, law of real property the vesting of
an estate can be made to depend on a condition precedent and the transfer fails
if the contion is not fulfilled (c.f.ss. 25 & 26, T.P.
Act). We. may sum up the situation now. If
the donation by Dubey was conditional the Government was a mere custodian of
the cash till the condition was complied with and if the performance thereof
was defeated by Government, the gift did not take effect.
The factual findings, as already set out,
leave no doubt in our mind that the transaction was not a gift simplicitor but
was subject to the matching grant from Government, building having to be made
with such augmented amount by Shri Dubey, etc. Assuming substantial compliance
as sufficient in law, the defendant has no case that any of the conditions has
been carried out, not even the equal contribution, from Ox State exchequer
without which the construction of the hospital would have been a half-done
project. Thus the conditions failing, the charity proved abortive, and the
legal consequence is a resulting trust in favour of the donor. The State could
not keep the money and the suit was liable to be decreed. The Kannauj
community, as the happy sequel to this unhapy litigation has turned out, has
now got a bigger hospital and a memorial college.
Shri Dixit has prayed for the dismissal of
the suit for non joinder of other donors and the charity. We mention it out of
deference to counsel but negative it as undeserving of consideration. The
appeal fails and we dismiss it with costs, an added injury to the public
exchequer which we regret we cannot help. May we hazard the hope that out of
deference to the memory of Gomti Devi in posthumous furtherance, of Dubey's
project, the plaintiffs will donate the costs when realised, to the charity
chest of the Kannauj Female hospital.