Alfred Henry Lionel Leach, C.J.
1. The Court is here concerned with the interpretation of the will of one Kanakasabapathi Pillai who died on the 13th August, 1940. The testator had married twice, but no children were born to him and both his wives predeceased him. He appointed as his executors the plaintiff and the defendant. The ' plaintiff is a brother of the testator's second wife. The defendant is a son of the testator's brother and is the heir at law.
2. In 1934 the testator contemplated retiring from the world and of becoming, to use the expression found in his will, a Tathra Sanyasi. It is apparent from the will that despite his religious inclinations he was a man of considerable vanity and he was anxious to erect a monument to himself, which would ' serve to place him before the eyes of the public even more prominently than any dharmam performed when he was alive.' We are here quoting from the judgment under appeal. The main question involved in it is whether the will, which was executed on the 29th April, 1934, constitutes a dedication of the residue of the estate for public charitable purposes.
3. On the death of the testator his nephew, the defendant, took possession of the estate. The will had been registered, but the defendant decided to repudiate it. He alleged that the testator had publicly stated that he was cancelling the will and consequently had torn it up. As the result of the defendant's attitude the plaintiff was compelled to file this suit. He asked the Court to hold that the defendant had forfeited his office as joint executor by reason of his conduct and that a decree for possession should be granted to him. The defendant persisted in his averment of the revocation of the will. In addition he pleaded that its main provisions were contrary to law and that, as the heir of Kanakasabapathi Pillai, he was entitled to the whole of the residue of the estate. The suit was tried by the Subordinate Judge of Tuticorin, who held that the plea of revocation of the will was false, but he agreed with the defendant that the testator's main directions were invalid, inasmuch as the dominant motive in his mind was the erection of a samadhi in which he was to be buried and that money could not be devoted to such a purpose. On appeal the District Judge of Tinnevelly upheld the decree of the Subordinate Judge.
4. It is common ground that the testator did not become a sanyasi and that he continued living as before until he was murdered on the 13th August, 1940. He was cremated in the usual manner and the arrangements for the cremation were admittedly carried out by the defendant. Even if he had become a sanyasi the cremation prevented him from being buried as such and this has been stressed in the Courts below. Moreover, a person who is not a sanyasi cannot be buried in a samadhi.
5. The most important clauses of the will are 16 and 17. They read as follows:
16. In the thatched house situate in item 8 of schedule III, I am conducting poor feeding for the mendicants who come there. From and out of the properties aforesaid the executors shall in the place where the thatched house is standing build for not less than Rs. 4,000 a matam facing east for the purpose of conducting the poor feeding and one temple for installing Vinayakar and Nataraja; and in accordance with the funds then available the building shall be constructed as required by Sastras with chunam and baked bricks, shall prepare the images of Vinayakar and Nataraja, shall install them, shall perform the mandala pooja and conduct the Atta festival, monthly festival and daily pooja; and besides this shall carry on these permanently for ever. A person shall be appointed for preparing food in the poor feeding matam and the poor feeding shall be conducted for the mendicants who come there without refusing food to any one.
17. I have intended to construct a building in my lifetime itself in the southwest corner of the site which is set out as item 8 aforesaid and which is adjacent to the nanja land for keeping me in samadhi. If it is not completed the executors shall from and out of the properties aforesaid spend to the extent of Rs. 300, shall keep me in samadhi in the said place, shall build the matam, shall inscribe on stone the words ' Kanakasabapathi samadhi Matam ' and shall fix the stone in the front portion of the matam and the said stone with the inscription shall be included in the construction of the building; and besides this, a Sivalingam shall be installed in the said Samadhi and the mandala pooja, the daily pooja and also the yearly Guru pooja shall be conducted permanently. For this purpose a person shall be appointed and the same shall be carried on. The poor feeding of the mendicants with food served on leaves spread shall be performed during the mandala pooja and the yearly Guru pooja.
It is accepted by both sides that the concluding portion of Clause 17 does wot mean that the mendicants should be fed in the samadhi matam but in the matam referred to in Clause 16.
6. In Clause 18 of his will the testator gave directions that the poor should be supplied with buttermilk from the 1st April to the 1st June each year.
7. The appellant says that the Courts below were wrong in holding that the main object of the testator was to erect a samadhi in which he was to be buried and that the separate matam was intended merely to be an adjunct of the tomb. We consider that there is much force in this contention. In the first place, it is obvious that the matam contemplated in Clause 16 of the will was to be a much bigger building than the matam which was to be erected over the tomb. The samadhi was to be built in a corner of the plot and only Rs. 300 was to be spent on it. The matam which was to be used for the feeding of the poor was to cost, not less than Rs. 4,000 and within its precincts idols were to be installed, one of Vinayakar and the other of Nataraja. In these temples within the matam there was to be daily pooja as well as pooja on festival days. We consider that the directions contained in Clause 16 of the will are valid. They have the effect of constituting a public charity. The direction in Clause 18 with regard to the supply of butter milk to poor persons also constitutes a bequest for a public charity. Therefore, the will must stand so far as these directions are concerned.
8. We now turn to the question whether the provision in the will that the testator should be buried in a samadhi and a matam erected over it where pooja to Siva was to be performed daily can be regarded as a dedication of property to a public charity. The direction that money should be spent on the building of a tomb and its maintenance would certainly not constitute a charitable endowment. See Kunhamutti v. Ahmed Musaliar (1934) 68 M.L.J. 107 : I.L.R. 58 Mad. 204 and the judgment given in the footnote which commences on page 211: The matam over the tomb could only be regarded as an adjunct of the tomb and therefore such a building could not be deemed to be a building erected for a public charitable purpose, even though daily worship was to take place there. Therefore we regard the directions contained in Clause 17 as being unlawful. It is said that nevertheless the Court should here apply the doctrine of cy-pres.
9. The Court cannot apply the doctrine of cy-pres unless it can be gathered from the will that the testator had a general charitable intention. If such an intention is clearly expressed it will be given effect to in another way, should the way intended by the testator be open to objection or be impracticable. The fact that a person makes a charitable bequest in order that his name shall be kept prominently before the public will not render his action invalid. Regard can only be had to the nature of the bequest. Therefore where there is a general charitable intention the fact that vanity lies behind it will not matter. We are unable to read this will as expressing a general charitable intention. The testator's charitable intention is limited, being confined to the provisions of Clauses 16 and 18 of the will. The directions in Clause 17 are not of a charitable nature. There the testator is really making provision for-the erection of a monument to his memory. A general charitable intention being absent we are unable to apply the cy-pres doctrine to Clause 17.
10. As an alternative to the application of the doctrine of cy-pres Mr. A.V. Viswanatha Sastri has asked us to apply the principle referred to in In re Rogerson: Bird v. Lee (1901) 1 Ch. 715. There a testator left a sum of 1,000 to his trustees with a direction that it should be invested in the names of the vicar and the churchwardens of a certain church upon trust to maintain and repair his tomb in the churchyard and to distribute the balance that there might be out of the income among certain almshouses. It was held that as the gift to maintain the tomb was invalid, the whole of the income went to the vicar and the churchwardens on behalf of the almshouses. This decision followed Fisk v. Attorney-General (1867) L.R. 4 Eq. 521; Dawson v. Small (1874) L.R. 18 Eq. 114 and in In re Birkett (1878) 9 Ch.D. 576. It is pointed out in Tudor on Charities, fifth edition, page 61, that cases relating to a gift of the income of a fund for the upkeep of a tomb followed by a gift of the particular residue to charity have received exceptional treatment in England. We are not prepared to apply an exceptional rule of English law in a case like this. Moreover, we think it follows from the decision in Kunhamutti v. Ahmed Musaliar (1934) 68 M.L.J. 107 : I.L.R. 58 Mad. 204 that so far as Clause 17 of the will is concerned, the gift fails and the testator must be regarded as having died intestate to that extent.
11. The result is that the appeal succeeds in so far as the directions in Clauses 16 and 18 of the will are concerned and the case will have to be remanded to the trial Court for a further hearing in the light of this judgment. The residue of the estate will be devoted to the objects set out in those clauses after deducting what falls to the heir at law by reason of the failure of the directions in Clause 17. The Subordinate Judge will inquire and ascertain what proportion of the estate shall be attributed to Clauses 16 and 18 and what proportion to Clause 17. When the proportions have been ascertained the plaintiff will be entitled to possession of the proportion of the estate attributed to Clauses 16 and 18. The defendant will have as the heir the proportion attributed to Clause 17.
12. Inasmuch as the defendant repudiated the will and set up a false case of cancellation, he should not be allowed to remain in possession of the estate pending the further hearing. A receiver was appointed to hold the estate pending the hearing of this appeal and we consider that there should be a receiver to hold the estate until the case has been finally decided. The plaintiff is willing to act as receiver without remuneration and undertakes to furnish security. We think it is fit and proper that we should appoint him receiver on these terms and we make an order accordingly. He will furnish security to the satisfaction of the trial Court in the sum of Rs. 3000. We may add that we consider that in due course there should be a scheme framed for the management of the trust, and the plaintiff has intimated his intention of taking steps in this direction.
13. The parties will pay and receive proportionate costs throughout, but the plaintiff will get his costs out of the estate.