SHRIPATPRASAD BEHARILALJI ACHARYASHRI Vs. LAKSHMIDAS DUNGARBHAI BAROT

JUDGEMENT

(1.) His Lordship, after narrating the history of the foundation, proceeded : I have dwelt on all these matters at some length not merely because they afford an answer to the appellant (the Acharya) out of his own words, but because they show a vital flaw in the appellant's title or claim to the properties themselves as private properties. All or practically all the suit properties were acquired before Laxmiprasad's deposition. If then it be said that they were the private property of Laxmiprasad, the appellant can only claim them in some way through Laxmiprasad. But Laxmiprasad released all his claims in the properties to the general assembly in return for a money payment. This release was not to the appellant. It was made before the appellant was even installed on the Gadi. Nor is the appellant the next of kin of Laxmiprasad. As I have already pointed out, Laxmiprasad left a minor son who endeavoured unsuccessfully to carry on the High Court Suit No. 365 of 1912.

(2.) Counsel was accordingly forced to abandon his original contention which was one of complete private ownership subject to a moral but not any legal obligation to maintain the temple, etc. He accordingly next argued that the suit properties passed from Acharya to Acharya, but that each Acharya had a general power of disposition of both corpus and income inter vivos, and was not accountable as a trustee or at all. But this contention is equally hopeless, for such a devolution of property involves a perpetuity, and can only be valid if it is for a public charitable purpose. This exception from the law of perpetuities is of general application see Yeap Cheah Neo V/s. Ong Cheng Neo (1875) L.R. 6 P.C. 381 394 and Fatmabibi v. The Advocate General of Bombay (1881) I.L.R. 6 Bom. 42; but the charity must be for the benefit of the public or some section of it see Cocks V/s. Manners (1871) L.R. 12 Eq. 574 585; In re Delany : Conoley V/s. Quick [1902] 2 Ch. 642 and Transfer of Property Act 1882, Sub-sections 14 and 17. Accordingly Section 92 of the Civil Procedure Code only applies to public trusts.

(3.) In the result, therefore, counsel had still further to modify his position, and in effect to lay claim to the surplus income only, on the ground that by the practice and usage of this institution the Acharya was entitled to any surplus income after its needs were first satisfied.