G DORAISWAMY PILLAI Vs. SANDANATHAMMAL

JUDGEMENT

(1.) This is a suit by the plaintiffs claiming as trustees under two deeds of trust, Exhibits A and B, executed in the years 1851 and 1853 by the deceased Selvanayagam Pillai, a Roman Catholic Christian, to recover from the defendants possession of the suit properties, which are alleged to be the subject of the trust. The Subordinate Judge has found that it was not the intention of Selvanayagam to create any trust by these instruments, and that if it was otherwise, the trust was merely for the maintenance of the institution therein referred to, a chattram on the Tanjore Road in Trichinopoly alleged to have been built by the settlor, that this purpose failed as the institution never came into existence and that, as no general charitable intention can be gathered from the deeds, there is no occasion for applying the cypres doctrine and the gifts must be held to have failed and a resulting trust to have arisen for the settlor and his heir.

(2.) According to the translation of Exhibit A given by the Subordinate Judge, the property was given as sarvamanyam (or endowment) "to the chattram which I have built for charity in the new road to Tanjore opened by the Engineer, Mr. Lapport, east or Varaganeri village and near the Vayakondan river, for the expenses of the upkeep and maintenance of the said chattravi and for the daily feeding of poor paradesis in the said chattram" Paradesi means stranger and is frequently applied to the Hindu religious mendicants who wander about the country and to pilgrims. Now it is quite clear that the object of the charity which was not varied by Exhibit B, was the maintenance of the chattravi at that particular spot and the feedings of paradesis there. As already stated, the settlor had not constructed any such chattram at the date of the deed, Exhibit A, and did not do so subsequently and in fact there never was any such chattram. It may be that at the time he intended to construct one, and that he afterwards abandoned the idea because, as suggested somewhere in the evidence, the local Brahmins successfully opposed the grant of a site for the building, or as alleged in Exhibit I, because his female grandchild subsequently gave birth to a son. However this may be, it is quite clear the chattram never came into existence and that the gift under Exhibits A and B cannot be applied for the specific charitable purpose therein stated. We are asked, however, to hold that Exhibits A and B indicate a general charitable intention on the part of the settlor and the Court is invited to give effect to it cypres. Assuming that the decisions of the English Courts on this subject are applicable here as part of the rules of justice, equity and good conscience, I think that, as observed by Kennedy, L.J., in In re University of London Medical Sciences Institute Fund, Fowler v. Attorney-General (1909) 2 Ch. 1 at 9 : 78 L.J. Ch. 562 : 100 L.T. 423 : 53 S.J. 302 : 25 T.L.R. 358 the question is correctly stated in Theobald on Wills, 7th Edition, at page 373: "if the gift is for a charitable purpose, the question is, is the testator s intention to promote some specific and well-defined purpose and that only, or is there a general charitable intention, which the testator wishes to carry out in a particular way," in which latter case, the Court will give effect to his wishes cypres. On the facts I do not think that any such general intention is sufficiently made out. Chattrams or feeding places for poor paradesis, mostly religious mendicants, were to be found on all the. main roads in pre-railway days and it wag probably thought that one was required at the place indicated on the new load from Trichinopoly to Tanjore opened by the Engineer Mr. Lapport as mentioned in Exhibit A. At the same time this form of charity is not likely to have appealed very strongly to an Indian Christian, and when the settlor came forward to supply the want, he was probably actuated by a desire to show his munificence and public spirit and to enhance his consideration with his fellow-citizens of all classes who joined in attesting these deeds. Subsequently in circumstances which cannot now be precisely ascertained, he abandoned the intention of erecting the chattram for the maintenance of which provision was made in these deeds, and shortly before his death and most probably with his knowledge and at his suggestion, part of the endowment was diverted to the support of a convent of nuns of his own religion. In the circumstances, I do not think we should be warranted in finding that he had any general charitable intention of feeding religious mendicants elsewhere than at the institution to be founded by him which never came into existence. A great many English decisions have been cited, but in none of them did the facts resemble those of the present case and I do not think it necessary to refer to them. They show, however, that the general charitable intention must be clearly made out and this, I think, has not been done.

(3.) There is one point taken for the respondents which it is desirable to notice. It is said the plaintiffs are not entitled to claim to succeed to the trusteeship under Exhibit B, as the settlor had no power to alter the succession to the office of trustee provided for in Exhibit A, which did not reserve any power of revocation. Exhibit A provided that after the settlor s decease those members of his family who were competent to manage the affairs of the said chattram should manage it. It seems to me that this was bad for uncertainty and did not preclude the founder from subsequently exercising his right in Exhibit B to provide for the succession to the trust. In Jarman on Wills, Volume I, Chapter XIV, III, page 470, there is a reference to Webb s case 1 Roll Ab. 609 (D) 1 where it was held that if a man devise to twenty of the poorest of his kindred, this is void for uncertainty who may be adjudged the poorest. I think the provision in Exhibit A is void for the same reason, and that the Court cannot be required to undertake an investigation as to the competency of the various members of the family to manage the endowment. However, the appeal fails on the other grounds and must be dismissed with costs. Coutts-Trotter, J.