Avadh Behari Rohatgi, J.
(1) The founding deed : This is a dispute between father on the one side and mother and sons on the other, The plaintiff Shri R. P. Kapur has instituted asuit under Section 92 of the Code of Civil Procedure against a trust styled Kaushalya. Educational Trust and its trustees, Shrimati Sheila Kapur, his wife and Lov alias Vivek Kapur and Ashok Kapur, his sons. His wife and two sons are the trustees. They are defendants to the suit. The plaintiff, R. P. Kapur, along with one another person has sought directions for the administration of the trust and for framing a scheme.
(2) The plaintiffs urge that Kaushalya Educational Trust is a trust of a public character of a Charitable nuture and that the trustees are misappropriating the trust properties. They have alleged various 'misdeeds' of the trustees. As required by the amended Section 92 of the Code of Civil Procedure leave of the Court is sought to institute the suit. The defendants resist the grant of leave on the ground that the trust is not a public trust of a charitable nature as alleged by the plaintiffs and that Section 92 does not apply. By an application under Order Vii Rule 11, Code of Civil Procedure, the defendants say that the exparte leave granted by the learned Additional District Judge, who was seized of the suit, should be revoked and the jurisdictional fact regarding the public nature of the trust should first be determined. The principal question thereforee for decision is whether Kaushalya Educational Trust is a public trust established for charitable purposes.
(3) Shrimati Kaushalya Devi was the mother of Mrs. Sheila Kapur and mother-in-law of Shri R. P. Kapur. She owned 8 bighas 13 bids was of land in village Kharera, Tehsil Delhi bearing Khasra Nos. 373, 374 and 694|375. These become plots Nos. 3,4,5. and 6 in the sanctioned lay out of Kaushalya Park, Hauz Khas. New Delhi. She was nearly 70 years of age and found it difficult to manage her affairs single handedly. Under Section 6 of the Indian 'Trust Act (the Act) she created a trust called 'Kaushalya Educational Trust'. On January 20. 1972, she executed a deed of trust which was duly registered. The objects of the trust were stated in clause 6. I will state them in the author's own words : 6. Objects : That the said Trust is being created mainly for the purpose of providing education, upbringing, marriage, maintenance in case of need, etc. of the descendants of the Author of the Trust and for providing charitable and culttural facilities to others as the trustees may decide from time to time.'
(4) Kaushalyn Devi appointed helself, her daughter Mrs. Sheila Kapur, and her grand son Lov Kapur as trustees. It is provided in the deed that after her death her other grand son. Ashok Kapur, will take her place as a trustee. Clause 14 of the trust deed provides that in the even of the demissed of the author of the trust.
'If the trustees including the substitute Trustee, Shri Ashok Kapur. decide to disselve the Trust, they shall have the power to do so and apportion the assets and liabilities in such manner as they choose to decide.'
(5) So we find that Shrimuti Kaushalya was the author of the Trust. Plots Nos. 3,4,5 and 6 were the trust property. The object of the trust was 'mainly' the maintenance of author's descendants. In the trust instrument there is an allusion to an agreement dated July 20. 1959. But for purposes of determining the nature of the trust it is not necessary to refer to it. The golden rule is look at the trust instrument always,
(6) In 1979 the trustees submitted plans for building houses on the said plots to the Municipal Corporation of Delhi. These were rejected on the ground that the land was in excess of the limits laid down by the Urban Land (Ceiling and Regulation) Act, 1976 (the Ceiling Act). The four plots were admeasuring 900, 910, 930 and 940 sq. yards. These being in excess of the limits of the land which a person could own, the Corporation did not sanction the plans because in their opinion Kaushalya Educational Trust was not a public charitable trust and was not entitled to the exemption made in favor of such trusts under Section 19 of the Ceiling Act. The legal adviser to whom the case was referred gave the following opinion on May 8, 1979 :
'EXEMPTIONunder section 19(iv) of the Urban Land (Ceiling and Regulation) Act, 1976 is available to public charitable trusts and not to private charitable trust provided always that the land is required and used turn public charitable purposes and for no other purpose. As I go through the Trust Deed, I find that the trust was constituted mainly for the purposes of providing education, upbringing, marriage and maintenance ete of the descendants of the author of the trust. These are ingredients of a private trust and by no stretch be termed as public charity. I feel that. the insertion of the words 'for providing charitable cultural facilities to others' will not convert this trust into a public charitable institution. These words arc superflous and a clever device to override the express provisions.'
(7) Amendment of the object clause : Faced with this difficulty the trustees thought of amending the trust deed. Shrimati Sheila Kapur for herself and as attorney of Dr. Ashok Kapur who has taken up permanent residence in Canada and Shri Vivek Kapur passed a resolution at a meeting held on October 30, 1979. In the resolution the trustees stated that the trust was negotiating with the Ram Partap Charitable Public Trust to collaborate with them in the construction of hospital wards. It was felt that clause 6 of the trust deed did not permit such collaboration and participation. The trustees, thereforee, decided to make the object clause of the original trust deed 'comprehensive to cover the expanding activities of the trust.' Consequently the trustees executed a supplementary deed of trust dated October 30, 1979. In the supplementary deed it was recited that in view of the expansion of the activities of the trust, 'additions' to the objects of the trust as setforth in clause 6 of the trust deed have to be made. The death of Shrimati Kaushalya Devi, the author of the Trust, on December 15, 1978 was recorded. In the deed it is wrongly given as 1979. Clause 6 of the trust deed dated January 20, 1972, was amended in the following manner :
'OBJECTS: To provide education, upbringing, maintonancc in the case of need to the descendants of the author of the Trust and for providing various charitable and cultural facilities to the public in large, as the Trustees may decide from time to time; 2. To establish and run charitable hospitals and clinics where poor patients are given free treatment ; 3. To aid in publication of books us may benefit the largest number of people in the country. 4. To help needy orphans, needy widows, needy authors. needy research scholars, helpless persons or victims of unforeseen calamities, without restriction of castes, colour or creed.'
Now the building plans were resubmitted. The matter was again referred to the legal advisor. On November 12. 1979, he gave this opinion :
'INview of the enlargement of the objects of the trust - -and in view of the fact that the said enlargement of the objects is stated to have been registered by the Registrar of Documents. I am of the view that the nature of the trust has changed from that of a private trust to a public charitably trust. As now Kaushalya Education Trust is a public charitable trust, so it attracts she provisions of section 19(4) of the Urban I-and and Ceiliag Act and is, thereforee, exempt from the provisions of the said Act.'
(8) On receipt of this opinion the Corporation rcquired the trustees to make affidavits and execute indemnity bond which they did. The Corporation then sanctioned the building plans. Now the buildings have been constructed. But disputes have arisen between the plaintiff, Shri R. P. Kapur, on the one sidc and his wife and sons on the other, as I have said, and this lias led to the institution of the suit. The plaintiffs allege that the trustees arc guilty of various breaches of trust and are misappropriating the trust properties.
(9) The chief question turn decision is whether Kaushalya Educational Trust is a 'trust created for public purposes of a charitable nature', to use the words of Section 92, Code of Civil Procedure. This, of course, has to be decided on the allegations of the plaint which for the purposes of granting leave have to be assumed as correct. In my opinion, the trust is a private trust and the supplementary deed dated October 30. 1979, is void and is of no effect. The original trust deed dated January 20, 1972 was executed by Srimati Kaushalya Devi, the author of the trust. Clause 6 of that deed is the crucial provision on which the decision of this case depends. The object of the settler was to create a family settlement in perpetuity. The trust property was to be applied for the benefit of the settler's descendants from generation to generation. It was a trust for the benefit of the settler's family, children and descendants. The whole line of settler's descendants was intended to benefit from the trust. The settler had one daughter Shrimati Sheila Kapur who was married to the plaintiff, Shri R. P. Kapur. They have two sons and two daughters and nine grand children. The primary object of the trust was the aggrandisement of the family. It was essentially a family trust. The primary purpose of the settler was to benefit her descendants and remotely and indirectly to benefit the general public by providing charitable and cultural facilities to them. The members of the family of the settler were the first object of the Trust. thereforee it is not a public trust. The crucial test is this :
'NOtrust under which the beneficiaries are defined by reference to a purely personal relationship with a named propositus can be a valid charitable gift.'
(Gafoor v. Income Tax Commissioner, (1961) A. C. 584(D per Lord Radcliffe).
(10) If, thereforee, persons for whose, benefit, a trust is created derive their title to their benefits by proving their qualification in this way that they arc the descendants of a. named person, the trust must be regarded as a family trust and not a trust created for public purposes. If accident of birth is the sole criterion to qualify for benefits under the trust the purpose is to create a private trust.
(11) The word 'mainly' used in clause 6 is very significant. It is the key word. It shows that the dominant obeject was to benefit the members of the family. It means that the founder gave absolute priority to her own family. The benefit which was reserved for the public under the trust deed was much too remote and much. too illusory to hold that this is a public trust of a charitable nature. The settler desired that her descendants should have the benefit in the main and if there was anything left over, then alone it could be applied to charitable and cultural purposes. It was thereforee, a private trust and not a public trust.
(12) This conclusion is reinforced by clause 14 of the deed which provides that after the death of the settler the trustees shall have power to dissolve the trust and apportion the assets and liabilities in such manner as they thought fit. This shows that the trust can be extinguished. Only a private trust can be dissolved. A public charitable trust can never be dissolved. Charity is indestructible. 'A charity once established does not die though its nature may be changed' (Commissioner of Inland Revenue vs. National Anti-Vivisection Society (H.L.) 28 Tax Cas 311 per Lord Simonds). Public trusts and charitable trusts arc considered in general as synonymous expressions. A public or charitable trust is of a permanent and indefinite character. It has for its objects the members of an uncertain and fluctuating body. [Lewin on Trusts (16th Ed.) pp. 7, 8]. To satisfy the definition contained in the Code of Civil Procedure, thereforee, Kaushalya Educational Trust must be a 'trust created for public purposes of a charitable nature,' to be a subsisting charitable trust at all it must be a trust for the benefit of the public or some section of it. The public character of the trust is the essence. Without the requisite clement of public benefit the trust cannot claim to be a public trust. No purpose is charitable unless it is of a public character.
(13) The Supreme Court in The Trustees of Gordhandas Govindram Family Trust, Bombay v. The Commissioner of Income Tax ., Bombay, Air 1973 S.C. 623 has held that a trust of the nature such as was created by Smt. Kaushalya Devi is not a trust for any public purpose. It is a private trust. They approved of the decision of the Bombay High Court in Trustees of Gordhandas GovindRam v. C.T.T., : AIR1952Bom346 where Chagia Cj and Tandolkar J have had an occasion to interpret a trust deed which in its terms was substantially a similar to the present trust deed dated January 20, 1972.
(14) Validity of the amendment : This being the nature of the original trust deed the question arises : What is the effect of the supplementary deed of trust executed on October 30. 1979 There arc three important things to be considered in this connection. One is the death of the seller. Shrimati Kaushalya Devi died on December 15, 1978. She was the author of the trust. The trustees have no power to amend the objects of the trust. The settler had manifested her intention in the trust instrument. She wanted to benefit the members of her family. That was her primary aim and object.
(15) Secondly, the trustees in the supplementary deed deleted the word 'mainly' from clause 6. This deletion has made all the difference. The founder wanted the bulk of her properties to be devoted to the purposes of the family. The amendment has done away with this restriction and under the garb of 'expansion of activities of the Trust' the objects of the trust have been completely altered which the trustees had no power to do. The trustees are not given the power to alter the nature of the trust and to convert it into a public trust by making 'additions' or amendments to the object clause.
(16) Thirdly, the beneficiaries have not consented to the change. Assuming that Sheila Kapur, Vivek Kapur and Ashok Kapur have assented but what about the children of the sons and daughters. Some of them arc minors. Without the permission of the district Judge nothing can be dene. Under Section 11 of the Act the purpose of the trust can be modified by the consent of all the beneficiaries competent to contract. And where a beneficiary is incompetent to contract, his consent is given by the Court of the district judge. Under Section 78 of the Act where all the beneficiaries are competent to contract they can, by their consent, revoke a trust. Admittedly 9 grand children of the settler have not given their consent either to the modification or revocation of the trust. The two daughters of Shrimati Sheila Kapur arc adult beneficiaries. There is nothing to show that they have consented. Then there are the unborn beneficiaries. A whole line of descendants arc the recipients of benefit under Kaushalya Trust. The afterborn beneficiaries cannot be deprived of the benefit the propositus intended to confer on them.
(17) Delegation : This is not all. Dr. Ashok Kapur is living abroad. His mother is her attorney. On his behalf she voted for amendment and variation of the trust objects in a manner entirely inconsistent with the founding trust deed. Could she act as a delegate in a matter of such vital importance I think not. Ashok Kapur could not employ an agent to destroy the very trust in which he was to act as atrustee on the death of the founder.
(18) In the case of a private trust where there arc mure trustees than one, all must join in the execution of the trust. The settler has trusted all his trustees, and it behoves each and every one of them to exercise his individual judgment, and discretion on every matter and not blindly leave any questions to his co-trustee or co-trustees. Trustees must always exercise their own judgment and not. surrender to agent or attroney. The reason for this is the settler has entrusted the trust properly and its management to all the trustees, and the beneficiaries are entitled to the benefit of their collective wisdom and experience. (Underhill Law of Trusts & Trustees 13th Ed. p. 533-534). In the case of co-trustecs of a private trust, the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee and thereforee must execute the duties of the office in their joint capacity. (Lewin on Trust's p. 181). The amendments are, thereforee, invalid.
(19) Urban Land (Ceiling and Regulation) Act : This brings one face to face with another vitally important question. Was the Municipal Corporation right in its opinion that after the amendment the trust was a public trust established for charitable purposes The answer is 'No'. Apart, from the fact that the additions made to the object clause arc invalid there is the further fact that Secton 1) of the Urban Land set does not apply to the case.
(20) On May 10, 1979 the trust addressed a letter to the Executive Engineer (Buildings), Municipal Corporation. It was said that after the death of Shrimati Kaushalya Devi 'the trust has decided now to go in a big way in achieving its purposes. It will collaborate with the Ram Partap Charitable Public Trust in setting up hundred beded hospital. The plots of the trust are idle and the trustees consider that substantial funds can be raised by converting them into flats. The above scheme will, thereforee, further the objects of the Trust.' A request was made to sanction the building plans and help the Trust in his 'laudable cause'. On May 19, 1979, a declaration was made on behalf of the trust :
'THATthe plots in question are, 'at present, the only immovable property of the trust which arc desired to be converted into liquid money by selling the flats which will be used for the setting up of the hospital at Karnal in collaboration with the Ram Partap Trust.'
(21) This shows that the building fur which sanction was obtained from the Corporation is not to be used for charitable purposes. Under Section 19(iv) of the Ceiling Act in order to quality for exemption the use of land for charitable purposes is essential. Unless the vacant land held by any public charitable or religious trirst (including wakf) is required' and used for 'any public charitable or religious purposes' it will not be entitled to exemption. The trustees now say that they want to convert the land into 'liquid money'. This shows the style of their functioning in the administration of the trust. In the ultimate analysis what has been done is this. The trustees have created a new trust in lieu of that which they were asked to administer. They have arrogated to themselves the overriding power to disgard or rewrite the trust. The family trust has been destroyed. A new trust has been established for charitable purposes. This is against the wishes of the author of the trust. However 'laudable' the cause, however 'big' the way in which that purpose is to be implemented the trutees cannot alter the overriding trust the settler created for the family in the deed she executed. The trust deed expressly refers to Section 6 of the Act. The Indian Trust Act deals with private trusts. Public trusts arc outside its pale. (See Section 1 and the preamble). The Corporation, in my opinion, was mistaken in their view that the land enjoyed the exemption of Section 19(iv). This was the newest dodge on the newest statute.
(22) What is the sum total The private trust founded by Shrimati Kaushalya Devi was destroyed. An area of particular privacy was thrown open to the public. The family was subsumed by charity. There was a considerable shifting of legal gears to change the private trust into a public trust. 'Throughout its history the trust has been used by lawyers as a device to get round inconvenient rules of law' : (Parker & Mellows : The Modern Law of Trusts 4th Ed page 1).
(23) The fundamental principle is that a trustee must faithfully observe the directions contained in the trust instrument. The trustees cannot perform acts with reference to the trust property which are not, on the face of the instrument creating the trust, authorised by the terms. The Court will give effect to the intentions of the settler as expressed in the trust instrument.
(24) The word 'trust' refers to the duty or aggregate accumulation of obligations that rest upon a person described as trustee' (Lewin on Trusts 16th Ed. p. 1). The Indian Act describes it as 'an obligation annexed to the ownership of the property.' It is a 'confidence' reposed by the author of the trust in the trustee. (S. 3). A trustee will be compelled by a court in its equitable jurisdiction to administer the property in the manner prescribed by the trust instrument. As a consequence the administration must be in such a manner that the consequential benefits and additions accrue, not to the trustees, but to the persons called cestui que trust or beneficiaries. True it is that the three trustees in this case are also the beneficiaries under the trust. Because they are descendants of the settlor. Shri R. P. Kapur, the plaintiff is not the settlor's descendant. But the trustees cannot alter the objects of the trust as they please. The application of the trust property is not left to the absolute and uncontrolled discretion of the trustees. If the motives of the trustees are unclouded in this case, we find that the ulterior purpose was to save the land from the operation of the Ceiling Act. The Court will not allow the Ceiling Act to be applied in such a way as to achieve a fraudulent purpose. A basic maxim of equity is that it will not allow a statute to be used as a 'cloak' or 'engine' for fraud. The trustees were trying to hijack the entire trust property in the fond hope that they can convert a private trust into a public trust to secure the sanction of the Municipal Corporation. They pretended that they were a charity though the founder exercised no self-denial. They made a generous gesture for a laudable cause'. But the object was to get round the provisions of the Ceiling Act. 1976.
(25) Summary and conclusion : Is then, the Kaushalya Educational Trust a charitable trust The trust instrument imposes a mandatory obligation on the trustees to spend 'mainly' on the maintenance of the descendants of the settlor's family. It is open to the trustees, without being guilty of the breach of trust, to spend the entire trust. fund for the benefit of the descendants of the settlor. As to the bulk of the property, the settlement is in substance, notwithstanding the use of the words 'charitable and cultural facilities' nothing but a family settlement in perpetuity. Charitable and cultural purposes take nothing, not even the surplus income, until the total extinction of the blood of the settlor, whether lineal or collateral. The descendants of Kaushalya Devi are the only objects of her bounty. There is great deal in the deed which is designed for the aggrandisement of the family and for keeping the property perpetually in the hands of the family. So long as there exists on the earth a person who can claim descent to the propositus and whom the donor really cared to maintain in a. high position nothing will go to charity. Only in the event of the failure of all he grantod's descendants will the charity be benefited.
(26) So the gift to charity is illusory. A gift may be illusory whether from its small amount or from its uncertainty and remoteness. The test is this :
'TOtest whether any particular trust is a charitable one what must be asked is whether the income is bound with certainty to be applied to charitable purpose, not whether it may be so applied.'
(Gafoor v. Income Tax Commissioner (supra) per Lord Radcliffe).
(27) That the trust created by Shrimati Kaushalya Devi was primarily intended for the benefit of the settlor's descendants is clear from the provision in the trust deed which says that the trustees' can bring the trust to end. The dissolution clause is a clear pointer. A reading of the trust deed as a whole shows that charity begins with the family of the settler and possibly ands with it. Kaushalya Devi believed that the charity ought to begin at home. Her first concern was for those who were related to her by the personal tie of blood.
(28) Such is the instrument which Kaushalya Devi propounded as the trust deed. The trustees appointed under the deed changed all this. They made 'additions' to the objects of the trust. This was on the specious ground of expansion of trust activities. Now charity was given a place of pride in the amended objects of the trust. But the question remains whether the trustees can amend or vary the original trust of the settlor. Now it is one of the fundamental principles of the law of trusts that the trustees cannot rewrite the trust instrument or ado to or alter the objects of the trust founded by the author. The object of the trust does not depend on the whims of the trustees because if it is left to them to add to or alter the objects of the trust the courts cannot enforce or control such a trust.
(29) The most important duty of the trustees is the duty to obey directions of the author. They cannot deviate from the terms of the trust. The directions can be modified by the consent of all the beneficiaries collectively, or by the court. On behalf of the beneficiaries who are not sui Jurisdiction the court can give consent. But what about the beneficiaries who are not yet in existence. The trust created by Smt. Kaushalya Devi was designed to benefit her present descendants and the unborn generation of descendants. It is intended to go on till there is failure of all the grantor's descendants and the total extinction of the family. Or until the rule against perpetuity comes into play. Or until the property itself has vanished away under the wasting agencies of litigation such as this or malfeasance or misfortune.
(30) The trustees can bring the trust to an end where there is power of dissolution, as in this case. But they cannot alter the purposes of the trust. They are not authorised by the trust instrument to remodel the trust. The trustees have no power to alter, amend or vary the trust purposes, whether on the ground of 'expansion' or 'addition' or 'enlargement' of the objects of the trust. I decline to accept any suggestion that the trustees can alter a man's intention because they think it beneficial to divert the trust property to charity. It seems to me that is quite impossible. The reason is that a trust is an obligation, that is to say a tie of equity (viniculum juris), whereby the trustee accepts the confidence reposed in him by the author of the trust to hold or apply the trust property for the purposes of the trust.
(31) Now what have the trustees done in this case The trustees have tried to engraft on a private trust the provisions of public trust where there is always a substantial dedication of property to charitable purposes. This grafting or implantation, as we may call it, of new and foreign objects is a breach of trust. A trustee must 'administer the trust in accordance with its terms; otherwise he commits a breach of trust. Here the trustees have destroyed the private character of the trust as a family trust. Shrimati Kaushalya Devi created a private trust. Its primary benefit goes to the settlor's descendants. A private gift to one's ownself or one's kith or kin is riot a charity 8 HCD/82 8 The trustees have transformed a private trust into a public trust by varying or amending the objects of the trust. This is impossible. The amended objects are outside the original trust. The additions of the objects of the trust are not authorised by the trust instrument. The variation is fraudulent because it was made with a view to get round the inconvenient provisions of the Ceiling Act. Counsel for the defendants frankly conceded this. In fact this was the refrain of his argument. The additions made to clause 6 are clearly destructive of the primary objects of the settlor. She wanted to create a family trust for her descendants, born and unborn. What the trustees have done is that they have, by amending the object clause, rearranged the beneficial interests. It is a rearrangement of beneficial interests which, to the extent that it might be of advantage to the members of the public, would correspondingly operate to the prejudice of the settlor's descendants.
(32) The deviation from the terms of the trust is a matter of grave importance. Not only from the point of view of the Ceiling Act but also from the income tax point. It is obvious that revenue considerations are in practice of vital importance in trust matters. If the present trust is a public charitable trust the trustees will be entitled to exemption from the Income tax. But I have held on the whole case that the trust in question is a family trust and not a trust of a public character.
(33) The plaintiff Shri R. P. Kapur argued in person. The burden of his argument was that the Court must accept the allegations of the plaint to be correct at this stage. He referred to various documents where the defendants have styled themselves as a public trust of a charitable nature. I cannot accept this argument. The trial judge is not a passive spectator. He has to play an activist role. He has to construe the trust Instrument and decide whether the trust in question is a public trust. He cannot take the trustees at their word. There is no estoppel against statute in these matters. If on a 'meaningful' reading of the plaint he comes to the conclusion that it is a private trust he must decline leave. He has to see whether on a true construction of the trust instrument the plaintiffs have 'a clear right to sue'. If he does not do this he 'devalues the judicial process'. His duty is to prevent 'flagrant, misuse of the mercies of law in receiving plaints.' This is the role of an activist judge the Supreme Court has defined. (See T. Arivandandam v. T. V. Satyapal : 1SCR742 per Krishna Iyer J.).
(34) On a conjoint reading of the two trust instruments dated November 20, 1972 and October 30, 1979 which are referred to in the plaint and annexed as a part thereof I have come to the conclusion that the trust founded by Shrimati Kaushalya Devi was a private trust. It is not a trust of a public character for charitable purposes. The amendment of the original deed by a supplementary deed is void and of no effect. It is not authorised by the trust instrument. The trust remains a family trust. A suit under Section 92 cannot be maintained in the case of a private trust. For these reasons, leave of the Court to the plaintiffs to institute the suit under Section 92, Code of Civil Procedure is revoked. The suit is not maintainable. The plaint is rejected. No costs.