1. No issues are raised in this suit because none of the parties are disposed to take up a contentious attitude. The position with which I am confronted is certainly very unusual. In form the present suit may be defective. I think that the relief that is asked for is too large. I do not think that I am in a position, or have jurisdiction, to set aside the decree of a Court of concurrent authority. Nevertheless, the plaintiffs are suffering what appears to be a substantial injustice, and there must be some remedy.
2. It appears that a Jain of some wealth died, bequeathing considerable sums of money to two charities. The first of these was merely described as Jiva Daya, that is, in the ordinary sense, the feeding of animals or insects. The other half was the bestowal of clothes and food upon sadhus and sadhavis, shravaks and shravikas within the territorial limits of the State of Palitana, and, doubtless according to the intention of the trustor, while performing the sacred pilgrimage to the temples on Satrinja. In 1910, an originating summons was taken out before Mr. Justice Robertson. The trustees were the plaintiffs. The Advocate-General was made a defendant and so were four members of the Jain community, one residing in Bombay, one in Poona, one in Cutch and one in the State of Palitana. It is quite clear that this originating summons was not a suit under Section 92 of the Civil Procedure Code. It is also quite clear that the four Jain defendants were not representing the intended beneficiaries under Order J, Rule 8. But it is not at all clear what this rather heterogeneous array of parties really meant or what it conveyed to the learned Chamber Judge. The Advocate-General merely submitted to the decision of the Court and appears to have taken no interest whatever in the subject-matter of the summons. Affidavits were put in by the Jain defendants supporting the suggestion of the trustees that the designated objects of the testator's bounty were already amply supplied, and that as regards the first half of the charitable bequests, the meaning of the words 'jiva Daya' might and ought to be extended so as to include benefits to the soul, of which not the least was primary education. Accordingly, the learned Chamber Judge made an order directing the trustees to apply all the funds at their disposal cy pres to a certain local educational institution situated in Bombay.
3. The present plaintiffs have come in under Order I, Rule 8, as representing the intended beneficiaries in the territorial limits of the State of Palitana. We have now the Advocate-General, the trustees of the charity and the trustees of the local School amongst the defendants and there is a 7th defendant, who has taken up a position of his own and claims that the interpretation put upon the words 'Jiva Daya' in the proceedings before Mr. Justice Robertson was entirely wrong and that that learned Judge's order has, through the incorrect information supplied by these affidavits, wholly misapplied that part of the charity. The difficulty which I have felt throughout lies in the fact that there is a decree, in form, seemingly a decree in rem, of a Court of co-ordinate authority and concurrent jurisdiction, directing the trustees to apply the entire funds of this charity to a particular local object. With respect, I am clearly of opinion that had the matter been properly represented by the Advocate-General to the learned Judge sitting in Chambers, he would have seen at once that touching, at any rate, so much of the charity as was in the plainest and most unmistakable language intended to be given within the limits of foreign territory it was not competent for him, applying the cy pres doctrine, to divert the charitable funds from their destined object to a totally different object within the jurisdiction of his own Court. The principle has long been established and is perfectly well settled in the English Courts that where the charitable objects lie without the jurisdiction of the Courts, the most the Courts can do is to safeguard the funds intended to be applied to those charitable purposes where such funds lie within the Court's jurisdiction and thereafter leave the application of them to the intended objects of the testator's bounty to the Courts of the country within whose jurisdiction those objects are. If that principle had been represented to Mr. Justice Robertson he could hardly have taken upon himself, as a Judge on the Original Side of this Court, the territorial jurisdiction of which is restricted to the town and is land of Bombay, to determine, first, upon the question whether certain charitable objects in the State of Palitana were or were not already sufficiently supplied, and assuming that they were, then, on the cy pres doctrine to divert the funds to other like charitable uses.. That is clearly a matter for the Courts of the State of Palitana and one lying wholly without the jurisdiction of the Original Side of this Court. The case in its present development is very much the same as that in which this Court may have construed a Will in such a way as to direct the executors to distribute all the funds to named persons and there after a suit be brought by a legatee who was not a party to those proceedings proving that he himself was entitled to the money in the hands of the executors. In such a case notwithstanding the decree of the first Court, a Court of concurrent jurisdiction might, and indeed in my opinion ought to, make a decree in the second suit which would necessarily operate to modify, if not wholly annul, the decree first made. So here the result of Mr. Justice Robertson's decree has been to deprive the intended beneficiaries residing within the limits of the Palitana State of the bounty intended to be conferred upon them by the founder of this charity. They were no parties to the proceedings in which that decree was made. It is contended that the Advocate-General was a party and that the Advocate-General represents all charities. That is true, and that is a point which has occasioned me the most difficulty. But for the purposes of such a matter as was under the consideration of Mr. Justice Robertson it may be thought that the functions of the Advocate-General were restricted to safeguarding the funds within this Court's jurisdiction. Certainly the Advocate-General seems to have made no attempt to protect the interests of the intended objects of the testator's bounty. Nor did the Advocate-General point out, as he well might have done, at the time that the learned Judge had no jurisdiction to apply the cy pres doctrine extra territorium.
4. In these circumstances and keeping in view the considerations I have briefly outlined, I think that I shall be within my competence in so far varying the decree made on the Chamber summons as to direct that the trustees shall expend half the charitable funds in their hands upon the purposes for which they were intended, that is, the feeding and clothing of sadhus and sadhavis and shravaks and shravikas in the Palitana State; and should there be no scope for these uses, then it will, be for the trustees to apply to the Courts of the Palitana State for directions as to the manner in which the funds in their hands may best be applied cy pres.
5. As to the other half of the charity, it is not contended that it has been limited definitely to any locality, and, therefore, I cannot say that the order of Mr. Justice Robertson in dealing with so much of it was without jurisdiction, or that I have any authority, whatever my own opinion may be as to the correctness of his application of the cy pres doctrine to the matter before him, to interfere in any way in this suit with so much of the decree he passed upon the Chamber summons.
6. Decree will now be drawn in the suit directing the trustees to apply half the charitable funds in their hands to the purposes I have mentioned, that is to say, feeding and clothing of the sadhus, etc., in the Palitana State, or, should it appear that the money cannot be usefully so expended, then to apply to the Courts of the Palitana State for directions how best to apply it cy pres.
7. The costs of all parties to this suit may come out of the charitable funds, those of the Advocate-General and defendants Nos. 2 and 3 as between attorney and client and of the plaintiffs and defendants Nos. 4, 5 and 7 being party and party costs.