KRISHNASAMI PILLAI Vs. KOTHANDARAMA NAICKEN

JUDGEMENT

(1.) The facts of this case are not in dispute. On the 11th November 1894 one Nilayathakshi executed a deed of trust (Exhibit 1) by which she settled certain properties on a temple. She constituted herself the trustee during her life time and provided in the said deed for the carrying out of the trust by certain individuals after her death. She died on the 12th April 1907. On the day previous to her death she executed a will (Exhibit IV) by which she purported to revoke Exhibit I and to make a new disposition of her properties. The dispositions themselves were in favour of the temple to which she had given the properties comprised in Exhibit I. The present suit is brought for a declaration that the will of 1907 is inoperative and has not the effect of revoking the trust of 1894; and that under the terms of the trust diced the plaintiffs are entitled to possession.

(2.) The question for consideration is whether there was a complete dedication of the properties Exhibit I, to the temple and if so, whether it was competent to Nilayathakshi to revoke the trust. We think there was a complete dedication. In the document itself she says "I have given away by this deed of gift this day to the said Sri Nilayathakshi Ambal the said shops, etc," It is true that later on she says "I shall establish a Kattalai in my name or charity in the night time." This clause should not be construed as indicating an intention to settle the property only in future. It only indicates that the details in respect of the dedicated property shall be settled later on. Much stress was laid upon the statement in Exhibit I to the effect that this deed of gift and some other documents " which are the title deeds for the said shops" have been handed over to Kothandarama Naicker. It is not disputed that the deeds were not handed over. From this it is argued that the settlor never fully carried out the dedication. It is in evidence that this lady contemplated that she would die almost immediately; but she recovered and lived for a considerable time. She therefore rightly held possession of this document as under the terms of the trust she was herself to be the trustee during her lifetime. We do not think that the fact that the deed of gift was not handed over is any indication of the terms of the trust not having been given effect to.

(3.) There is further the fact that in the year 1906 she purported to cancel Exhibit I by a registered document Exhibit III. Exhibit III says " I have hereby cancelled the deed of gift which has been executed by me on the 11th November 1894 to the name of Sri Nilayathakshi Ambal." It is clear from this recital that the lady treated Exhibit I as a valid dedication; only she thought she had power to revoke, it. She says " I am not now willing to act according to that deed of gift". The fact mostly relied upon by the learned Vakil for the appellant is that after Exhibit I Nilayathakshi dealt with the property as if it was her own and never carried out any of the terms of the trust contained in Exhibit I. The argument is that Exhibit I was simply a paper transaction which was never intended to have effect. If there has been a valid dedication the subsequent conduct of the settlor will not render it nugatory At the time of the settlement all that was necessary to give effect to the wishes of the settlor had been done. If the terms of the settlement are not carried into effect it will make the settlor liable for breach of trust. It will not destroy the once validly created settlement. Under the Indian Trusts Act (II of 1882), which no doubt applies in terras only to private trusts, it is not open to a settlor to revoke a completed settlement. The English law is to the same effect. See Newton v. Askew (1848) 11 Beav. 145 : S.C. 50 E.R. 772 Ellison v. Ellison (1802) 6 Ves. 656 : S.C. 31 E.R. 1248. Our attention has not been drawn to any case in which it has been held that after a valid dedication to public uses it is open to the settlor to revoke it. On the other hand in Tudor on Charities it is stated that there can be no revocation after a valid dedication to charitable uses and the case of Re Shum s Trust; Prichand v. Richardson (1901) 91 Law Times 192 is quoted in support of it It was broadly argued by Mr. Ramachandrier that according to decided cases if the terms of the trust have not been given effect to it must be presumed that there has been no valid dedication. The case of Suppammal v. The Collector of Tanjore (1889) I.L.R. 12 M. 387 is chiefly relied upon for this proposition. In the first place it is to be remembered that in that case the property dedicated was the joint family property of two brothers one of whom alone executed the deed of trust. It is true that the language of Parker J. would seem to indicate that when the trust was not carried out to document must be regarded as of no effect; but the learned Judge also referred to the fact that it was by one of the undivided brothers that the settlement was made. We do not think that the learned Judges intended to the down as a matter of law that where the terms of a trust have not been given effect to the defaulting trustee can claim to revoke the trust.