MUTHUKRISHNA NAICKEN Vs. RAMACHANDRA NAICKEN

JUDGEMENT

(1.) I agree in the conclusions arrived at by my learned brother in his learned and exhaustive judgment which I had the advantage of reading. On the question of the interpretation of the will of Alavandar there can be little doubt that he intended to devote all his properties to charity and did not desire to make a gift of them to the appellant. It will be superfluous on my part to add anything to the reasons given in my learned brother s judgment on this point. Nor can I usefully add anything to what he has said on the question whether the provisions of the will constitute such a definite and certain gift to religious and charitable objects as the Courts could give effect to. The testator was a religious-minded and charitable person and was particularly attached to certain temples at Mahabalipuram and Tirupathi; and, reading the will in connection with the other relevant evidence in the case and in the light of the history of Alavandar s life, it seems to me that his intention was clearly to further the interests of Hindu religion by endowing certain forms of worship in connection with those temples.

(2.) The third question relating to the scheme and the application of the doctrine of Cy pres has, I must admit, given me some difficulty. This is not a case of an ancient foundation where owing to changes in the circumstances since the date of the foundation surplus income has become available that was not in the contemplation of the founder and about which he has given no specific directions. The suit has been instituted immediately after the death of the founder and the question is whether he intended that the entire income of the property should be devoted to the performance of thaligai in the temples mentioned in the will or not. My learned brother has described in his judgment what a thaligai consists in. But there is nothing clearly to show either that Alavandar himself devoted all the income of the property merely to offerings of food to the deity or that he intended that the entire income should be devoted to that purpose alone. My learned brother is of opinion that Alavandar could not have intended that the income of the property however much it might increase in course of time should be spent in thaligais alone, and having regard to his intimate knowledge of these matters I should not be justified in suggesting any doubt as to the soundness of this conclusion. I accept his conclusion that the mention of thaligai was, to use his own language, meant to be illustrative, and not exhaustive, and I have no hesitation in holding that a general charitable intention is apparent from Alavandar s will. In that view of the intentions of the donor, the application of the surplus income in the way outlined in my learned brother s judgment would be substantially carrying out the testator s intentions. As to the law on the question of the doctrine of Cy pres, whether the ancient texts on Hindu Law clearly enunciate such a doctrine in so many words or not, I am persuaded that the rule is quite in harmony with the teachings of Hindu Sastras and has been applied in many cases relating to charitable gifts by Hindus, I therefore agree in the decree proposed. Seshagiri Aiyar, J.

(3.) One Alavandar left a will appointing his divided brother s son, the 1st defendant herein, as his vars. The will is dated the 22nd June, 1914. The testator died on the 8th August of the same year. The present suit was brought under Section 92 of the Code of Civil Procedure in December 1914 alleging that the property left by Alavandar was dedicated to charity, that the 1st defendant had misappropriated the funds, that therefore he should be removed from the trusteeship of the charity, and that a scheme should be framed for its management. The 1st defendant contended that the dedication was incomplete and ineffective and that consequen t- ly he was entitled to the property left by the will. The Subordinate Judge came to the conclusion that the property was dedicated to certain charities and that the 1st defendant was guilty of acts of malversation. In the result he held that it was not necessary to remove the 1st defendant from his position as trustee, but that a co-trustee should be appointed with him and that a scheme should be framed for the management of the trust properties. The 1st defendant has appealed. It may be stated at the outset that the plaintiffs who obtained the sanction of the Advocate-General for instituting the suit presented a compromise along with the 1st defendant in the Court. As in our opinion the compromise was aimed at giving a portion of the trust property to the 1st defendant, we refused to accept it and directed the case to be argued on the merits.