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PETITIONER: N.S. RAJABATHAR MUDALIAR

       Vs.

RESPONDENT: M.S. VADIVELU MUDALIAR & ORS.

DATE OF JUDGMENT: 09/09/1969

BENCH: RAY, A.N. BENCH: 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

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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]

JUDGMENT: 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

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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 o.f 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 amout 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 o.f 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

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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. 303