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Muthukrishna Naicken Vs. Ramachandra Naicken and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in47Ind.Cas.611; (1919)37MLJ489
AppellantMuthukrishna Naicken
RespondentRamachandra Naicken and ors.
Cases ReferredOmmanney v. Butcher
- - 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. 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. 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.....abdur rahim, j.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.....

Abdur Rahim, J.

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.

4. The main question relates to the construction of the will. In that document the testator says that he left the family while he was young and became Sanyasi. The evidence shows that all the properties were his self-acquisition. It is unnecessary to consider whether he was really a Sanyasi as mentioned by him. The will states : 'As I am now infirm and weak in body, I, in order that charities may be continued after my life (with) the undermentioned immoveable and moveable properties to the following places, viz., Tiruvedanthai, Tirukkadalmalai and Tirupathi, have by this will appointed my younger brother Veeraswami Naicken's son Muthukrishna Naicken who has no share or claim as my 'vars,' and have given him all affairs after my life.' Mr. Rangachariar first contended that under the will his client, the 1st defendant, became the owner of the properties, subject to the carrying out of the directions relating to charity. I am unable to agree with him. The learned vakil argued that the language of the will was ambiguous. He referred to the expression ' in order that the charity to these places. ' There can be no doubt that what the testator meant was that the chanty should be performed in those places. The next suggestion was that there was no direction as to the utilisation of the properties mentioned in the will, because there is no participle governing the words ' undermentioned properties. ' The word ' with ' has been added by the translator. We asked the Bench-clerk to translate it, and he agreed with the previous translation. From my knowledge of Tamil I feel no doubt that these two translators are right in introducing the word 'with' before the words 'undermentioned properties.' Alavandar was an illiterate man, and in construing the will of persons of that class we must put ourselves in their position.

5. The next contention was based on the use of the word 'vars' in the will. The contention of the appellant's vakil was that the 1st defendant was entitled to the whole property, the suggestion being that the term 'vars' was used in its technical sense. I do not think that this contention is well-founded. The word 'vars' in the context only means 'successor.' The testator says in the previous portion that he himself has been conducting the charities. In the very next sentence the testator takes care to say that his brother's son ' has no share or right'; this indicates that this is not a beneficial interest in or ownership of the property that Alavandar was giving to his brother's son, but only the privilege of conducting the charities which he had been performing during his life-time. He further says that the patta should remain in his name notwithstanding that his brother's son was to be his successor. The expression 'I give him all power' does not mean that rights of disposition over the property are given but only full rights of managing the property as trustee. I feel no doubt that the property was dedicated to charity and that the 1st defendant was appointed as the first trustee. Mr. Rangachariar referred to two cases to explain the meaning of the term 'vars', Chuni Lal v. Bai Muli I.L.R. (1899) Bom 420 and Surajmani v. Rabi Nath Ojha (1907) I.L.R. 30 All. 84.P.C. If we accepted the contention of the learned vakil, we would be making a will for Alavandar from the language employed under very different circumstances by a testator in Bombay and by another living on the banks of the Ganges, a procedure not only repugnant to all ideas of construction, but to the decision of the Privy Council in Narasimha v. Parthasarthy I.L.R. (1914) Mad. 199 : 26 M.L.J. 411. In the expressive language of Lord Moulton in that case what the Court has to do is 'to put itself into the testator's arm-chair, to look to the surrounding circumstances consistent with his race and religious opinions,' but not to add under any circumstances to the testamentary disposition. The following sentence is peculiarly applicable to the present case. ' That native testators should be ignorant of the legal phrases proper to express their intentions, or of the legal steps necessary to carry them into effect is one of the most important of the 'surrounding circumstances' which the Court must bear in mind, and it is justified in refusing to allow defects in expression in these matters to prevent the carrying out of the testator's true intentions, but those intentions must be ascertained by the proper construction of the words he uses, and once ascertained they must not be departed from.' Applying this test I agree with the opinion of the Subordinate Judge that the bequest was to the charity and not to 1st defendant subject to the performance of certain charities.

6. The next point argued by the learned vakil was that the dedication was vague and indefinite, and that consequently either the whole of the property or such portion of it as would remain unspent after meeting the special purpose mentioned in the will should be regarded as undisposed of residue. Before dealing with the cases quoted in this connection I might refer to the language itself in which the bequest is clothed. I have already mentioned the fact that the testator referred to the circumstance that he himself was performing the charities in the three shrines already referred to. At the end of the will he says 'after my life-time thaligai shall be given in Swami Kovil at the Tirunakshatram every month.' The contention for the appellant was that the thaligai referred to was not intended for distribution to the poor or in the temple. I am to a certain extent conversant with observances in Vishnu temples. I am aware that when a rich man speaks of giving a thaligai in a temple, he very often stipulates that the food should be offered to the deity, and that after deduction of certain swatantrams, the rest of it should be returned to him for use in his house. But ordinarily when a devotee establishes a fund for thaligai in a temple, it means that the consecrated food is to be distributed among the 'Desantries' as they are called or the worshippers who might assemble at the time of the Aradhanam. The ordinary significance of making thaligai is the latter and not the former one. I must therefore refuse to accept the contention that the thaligai was intended to be offered by the 1st defendant in order to be utilised by him in any way he liked later on. There is no force, however, in the contention of the learned vakil about the way in which the Subordinate Judge has read the sentence referred to above. The Subordinate Judge seems to think that the word 'Swami Koil' only refers to Mahabahpuram or Tirukkadalmalai. I think he is wrong here, The testator meant to refer to all the three temples mentioned by him and not to one alone. I am also satisfied that the Subordinate Judge is wrong in thinking that the Tirunakshatram referred to was the birth-star of the deceased testator. Knowing as I do something of the ceremonies in Vishnu temples, I cannot accept the view that the testator was speaking of his birth-star as Tirunakshatram. Tirunakshatram in the chief Vishnu temples is the birth-star of the deity. Every month that nakshatram falls on a particular day, and that is generally a day in which the God is taken out in procession, or at any rate some peculiar ceremonies are conducted. Therefore the Tirunakshatram referred to by the testator is the birth-star of the deities in the three temples. Subject to these corrections in the view taken by the Subordinate Judge, I agree with him that there is no vagueness in the dedication, The three places in which the charities are to be performed are mentioned; the particular form of charity is indicated, and the particular occasion in which the charity is to be performed is also mentioned. I see nothing vague in such a disposition.

7. Now I shall examine the cases quoted by the learned vakil for the appellant. In Runchordas v. Parvathibai (1899) I.L.R. 23 Bom. 725. P.C there was no specification of the charity or of the locality in which the charity was to be performed. In that case the Judicial Committee quoting Morice v. The Bishop of Durham (1805) 10 Vesay Jun. 522 : 32 E.R. 947 stated : 'Unless the subject and the objects can be ascertained, upon principles, familiar in other cases, it must be decided that the Court can neither reform mal-administration or direct a due-administration.' The defect does not exist in the present case. Here the subject and objects are both ascertained and specified. In the other case Parthasarathy Pillai v. Thiruvengada Pillai I.L.R. (1907) Mad. 340 : 17 M.L.J.379 Subrah-mania Aiyar, J., in a very learned judgment, pointed out that a bequest for dharmam would not by itself be invalid, but felt bound, by reason of the decision of the Judicial Committee in Runchordas v. Parratibai (1899) I.L.R. 23 Bom. 725. P.C to hold that the bequest in the particular case was void for uncertainty. In this Madras case beyond saying that the executors shall utilise the properties for dharmam no place and no mode of charity was indicated. On the other hand the decision in Suraj Kunwari v. Har Narain Ram I.L.R. (1917) All. 311 shows that dispositions like the present are enforceable.

8. The principal consideration where the object mentioned does not exhaust the corpus of the fund is to find out whether there was a general testamentary intention or purpose. Even though the object may be specified and the bequest otherwise definite if the law will not allow the application of the fund for the purpose, it may be that the Courts are not at liberty to infer a general testamentary intention in favour of charity in general and to direct the application of the property to other purposes of a charitable kind. That was in effect the decision in Doraiswami Pillai v. Sandanathammal (1915) M.W.N. 478. to which the learned vakil drew our attention. In that case the properties were endowed for a chatram which the testator intended to build. Before his death the chatram was not built. The learned Chief Justice and Coutts Trotter, J., came to the conclusion that as the object for which the endowment was made had failed, the property lapsed into the residue. But here, as I pointed out already, the places wherein the charities are to be performed are in existence.

9. In recent years the English Courts have viewed with less disfavour similar bequests to charities. In Wordie's Trustees v. Wordie (1915) (Sc.) 310, it was held that 'a bequest to such charitable institutions or societies which existed for the benefit of women and children requiring aid or assistance of whatever nature but the said institutions and societies to be under the management of Protestants ' was not void for uncertainty. Again in Cameron's Trustees v. Mackenzie (1915). (Sc.) 313, a bequest of residue to trustees to distribute the same among such charitable institutions, persons, or objects as they might think desirable was held enforceable And in Bannerman's Trustees v. Bannerman (1916) S.C. 398 a power in favour either of religious or charitable institutions, one or more, conducted according to Protestant principles was held good. The primary rule is to ascertain whether the object aimed at by the testator could be carried out without making a new will for him. Although there may be vagueness in the selection of the places or in the allocation of the funds, so long as it is ascertainable that the testator had a particular object in view and that he intended the funds left by him should be appropriated to that object, Courts are bound to see that the persons appointed by the testator do not misappropriate the funds. The Corforated Society v. Price I.J. and Lat. 498, Bunting v. Marriott (1854) 19 Beav. 163 : 52 E.R. 311, Piscoe v. Jackson (1887) 35 Ch. D. 460 and Attorney-General v. Lawes (1849) 8 Hare 32 : 68 E.R. 261, all show that if the Court can ascertain that there was a general charitable intention, the fact that the particular object for which the charity was intended did not exist or that the fund intended for that charity could not exhaust the whole income will not be any reason for holding that the bequest failed either wholly or in part. As was pointed out in Loscombe v. Wintringham (1850) 13 Beav.87 : 51 E.R. 34 if it appears that the donor intended that in any event the fund should be devoted to charity and that a particular institution was named merely as the channel by which that intention was to be effected, the whole fund will be regarded as having been dedicated to charity and the Court will proceed to carry out the intention of the testator on the principle of Cy pres. The desicion in Salebhai Abdul Khader v. Bai Sa iabu I.L.R. (1911) Bom. 111 is to the same effect. My conclusion on this part of the case is that there is a general charitable intention in the will of Alavandar that the property left by him should be appropriated for the performance of charities in the three temples already mentioned, and therefore no part of the bequest fails for want of definiteness.

10. There is also another consideration which induces me to hold that the bequest is valid. Exhibit A(1) and B, two statements made by the testator, show that he intended to make a will like the present one and that he intended by that will to bequeath properties to the charities. Mr. Rangachariar objected to receiving these two documents in evidence. I think both the documents were properly admitted by the lower Court. It may be the suggestion of Mr. T.R. Ramacbandra Aiyar that Exhibit A(1) should be regarded as a codicil is somewhat far-fetched. The citation from Jarman on Wills Vol. I page 35 that even answers to interrogatories may be regarded as a codicil or will may not apply to testamentary dispositions in this country. Under the Hindu Wills Act and the Indian Succession Act it is doubtful whether such informal declarations could be regarded as testamentary. But I think Exhibit A(1) is ad' missible in evidence under Section 32 Clause (7) of the Evidence Act. It is a statement taken by the Sub-Registrar in the house of the testator before registering the will, and it was made two days after Exhibit A. I think the language of Clause 7 of Section 32 covers this case. I also think that this statement is part of the res gestae and as such receivable in evidence under Section 6 of the Evidence Act. As regards Exhibit B it was a written statement filed by Alavandar in a suit brought against him to declare that part of the properties and some other properties did not solely belong to him. In his written statement he said that he had acquired the properties for the purposes of a charity and that he intended to make a testamentary disposition in that behalf. This is certainly a statement which was opposed to the pecuniary interest of the person making it and as such it comes under Section 32(3) of the Evidence Act. Reading Exhibits A(1) and B with Exhibit A I am of opinion that the testator had a clear testamentary intention in favour of charity.

11. The next point for consideration is whether the trusts declared by the testator are public trusts or only private trusts as contended for by Mr. Rangachariar. I have already pointed out that the use of the word 'thaligai'' should not mislead us. The charities were intended to be performed in three public religious institutions. The object was to feed the devotees. I fail to see how this can be regarded as a private trust. The decision in Sathappayyar v. Periaswami I.L.R. (1890) Mad. 1 which related to a gift by the then Zamindar of Sivaganga to his own religious preceptor with a view to the property being utilised for a special purpose has no bearing upon this question. In that case it was held that the gift was primarily to the preceptor and there was only a direction or a suggestion that the property should be appropriated in a particular manner, and that consequently the beneficial interest vested in the preceptor. Nor has Trimbak v. Lakshman I.L.R. (1895) Bom 495 any bearing on the present question. In Sri Rangachariar v. Pranathaharthihara Chariar (1915) 18. M.L.T. 122, the grant was to a person and an object was specified. It was held that it was not a public trust. These authorities' are not applicable to cases where there is no bequest to any individual but only to charity.

12. Before dealing with the question as to how the funds shall be appropriated, I might deal with the contention of Mr. Rangachariar that his client should be the sole trustee. It is true that the suit was instituted within six months of the death of the testator. None the less the evidence in this case shows that the personal habits of the 1st defendant are of such a nature as would justify co-adjutors being appointed along with him. Moreover I cannot shut my eyes to the fact that the 1st defendant claimed in this suit that no part of the properly should go to the trust. At the same time I am in agreement with Mr. Rangachariar that the 1st defendant should not be wholly removed. The best course is to appoint two more trustees of whom one at least should be a non-brahmin to cooperate with him in the management of these properties. It is desirable also that the 1st defendant should be given a salary to see that the charities are properly conducted. The details of the scheme will be left to the lower Court.

13. This brings me to the last question as to whether it is open to us to direct the application of the income to objects other than the performance of Thaligai in the temples. I do not at present propose to do anything more than indicate in a general way the objects on which the fund may be spent. On a rough calculation the income which is likely to be derived is about Rs. 8,000 a year. After paying the expenses of the management and the remuneration of the trustee, there may be a balance of about Rs. 6,000. In my opinion one-fourth of it, namely, Rs. 1,500 should be spent in the three temples, Rs. 500 in each, for the purpose of feeding people and conducting Utsavams. The balance should be utilized for giving religious instruction. Mr. T. R. Eiamachandra Aiyar without seriously objecting to the allocation of any portion of the income to education made us understand that such a provision in the scheme must not be taken to have been made by consent of the parties. As the question regarding the application of surplus income comes up before the Courts very often, I propose to deal with the jurisdiction of the Court in such matters.

14. Although the extent of jurisdiction over temples exercised by the ancient kings of the land is not traceable in any of the writings handed down to us, there can be no manner of doubt that the affairs of religious institutions were directly under the control of the sovereigns. The Muzerai Department of Mysore, and the conduct of Temple affairs in Travancore and Cochin all point to the conclusion that the administration of Devastanams has been and is a department of the State. Even Mutts are subject to Government supervision. The mutt properties in Mysore often pass into the hands of the Government with a view to the more efficient management. There is no reason for presuming that a different state of affairs prevailed in ancient India. Regulation VII of 1817 states in the pre-amble that 'it is the duty of the Government to provide that all such endowments be applied according to the real intent and will of the grantor. ' It is not unreasonable to assume that such a duty was inherited from the ancient sovereigns of the land, although the notion that the sovereign is bound to administer ecclesiastical affairs properly is an English idea as well. In Koutilya's Arthasastra, in the chapter headed ' Replenishment of the treasury' some Machiavellian advice is tendered to the king regarding the appropriation of the temple income. The minister, like those that served some of the English kings, seems to have been concerned only with aiding the king in securing money for temporal purposes without reference to the morality or the legality of the attempts. I have referred to Chanakya's disingenuous advice to the sovereign only for the purpose of showing that the revenues from the temples were intended upon rare occasions for the general administration of the land. There is evidence that in the days of the East India Company the surplus income from the temple properties was appropriated to general purposes. Controversies are still carried on by individual institutions claiming a refund of such income. In more recent years the legislature has enacted a law (Vide the Tirupathi Devastanom Act) authorising the utilisation of a portion of the temple income for the purpose of advancing secular education. Courts have sanctioned expenditure for imparting instructions in Sanskrit and Tamil (Vide the Scheme for the Rames-varam Devastanom). I see no reason for holding that these instances have been considered by religious devotees as amounting to a misapplication of the temple income. A remarkable letter by the Rajah Sarabhoji of Tanjore dated the 28th January 1801 addressed to the then British Resident shows in what spirit and with what intents religious charities were gifted and administered. After referring to the fact that persons from all over India travel by foot to Ramesvaram where chatrams have been built, the letter says, 'For the accommodation of these travellers principally, the chatrams have been established and to each of them a pagoda, choultries and schools are annexed.' Then the nature of the charities is explained. Then follow these sentences : 'In each chatram, a teacher to teach the four Vedams is appointed and a school-master and doctors skilful in the cure of diseases, swellings and the poison of reptiles. All the orphans of strangers who may come to the chatram are placed under the care of the schoolmaster. They are also fed three times a day and once in four days they are anointed with oil. They receive medicine when they require it. Clothes are also given to them and the utmost attention paid to them. They are instructed in the sciences to which they may express a preference and after having obtained a competent knowledge of them the expenses of their marriage are defrayed.' The above extract explains with what eye ancient kings looked upon the dispensation of charities.

15. I have been at pains to find out whether the Hindu Sastras countenance the distinction between religious and charitable purposes. My research shows that in India, religious purposes have been considered only as a branch of the charitable purpose. Jaimini in his sutras says pksnuky{k.kksFkksZ /keZ% 'Dharma or charity is that which is ordained.' K. L. Sarkar in his Mimamsa Rules of Interpretation rightly points out that this ordaining is not from the Vedas alone, it may be from the Srnritis and some of the accepted Itihasas and Puranas as well. When the Tanjore Rajah in providing for the safe conduct and comforts of the pilgrims considers that education is a form of charity which would enable the donor to attain salvation, he interpreted truly the Shastraic injunctions in this behalf. Vai-dyanatha Dikshitar, who has in his monumental work prescribed the duties of householders, discusses at some length the form and nature of charity best calculated to lead a man to Heaven, He first quotes a very well known text from the Taittiriya Upanishad on the excellence of Dharma:

nkufefr lokZf.k Hkwrkfu iz'kalfUrA

nkus loZa izfrf'Bra rLekkua ijeaonfUr AA bfr-

* * * *Then he quotes a very few apt Slokas from Manu.

rzh.;kgqjfrnkukfu xko% i`Foh ljLorhA

vfrnkuarq nkukuka fo|knkua rrksf/kda AA

fo|kukap ijkfo|k czfo|kk lehfjrkA

vrLrkrqjLR;so ykHk% LoxkZi oxZ;ks% AA

;ksx|kRKkueKkuka dq;kZ}k /keZn'kZuaA

ld`Rluka i`fFkoha n|kr~ rsurqY;a p rHnosr~ AA bfr-

16. In the matter of Dana the Vedas say thus : 'All beings praise Dana. Everything rests on Dana. Therefore it is said that Dana (gift) is the noblest and the Supreme.'

17. Manu says :-There are three classes of the highest gift : the gift of cows, land and Saraswati (learning). But among these vidyadanam (gift of learning) is more praiseworthy than the others. In learning, Paravidya (knowledge relating to the Para Brahman-Supreme Spirit) is considered to be superior. And therefore Swarga (heaven) and Moksha (Salvation) are vouchsafed to the donor of such knowledge.

18. He who imparts knowledge to the ignorant or constructs rest houses attains the same merit as a person who has gifted land.'

19. From the above extract it will be seen that among all the commendable gifts the gift of a cow, of a piece of land and of education are considered to be the noblest. Of these three, the gift of education is more praiseworthy than the other two. In education, 'that which imparts to the donee a knowledge of the Supreme is to be preferred.' It is clear from the above Smriti text that Manu regarded Vidya Dharmam or gift of education of any kind as conducive to salvation. His preference of Paravidya, education relating to aknowledge of Para Brahman shows that in his opinion every endeavour to remove ignorance and to infuse light is acceptable to God. In the face of such a pronouncement, it would be absurd to argue that a general gift by a devotee intended as a propitiatary offering to God would bemis-spent if a portion of it is utilised for secular education. The final scheme approved by the District Board of Tanjore for the utilisation of the surplus funds shows that they carried out the letter and spirit of the instructions given by Raiah Saraboji in the letter already referred to. What the District Board and the Legislature have done is not beyond the competence of Courts which act as the sovereign's delegated authority in conserving and properly administering charitable gifts.

20. The difficulties we are experiencing are traceable to the constitution of committees under Act XX of 1863. The supervision of the sovereign power ceased and with it, the power to apply the surplus income to purposes most conducive to the general welfare and comforts of the devotees. The first committees applied their minds to conserving the income and to spending it on rituals and ceremonials which the common people most desired. They were not given the powers which the sovereign exercised. The Act was so drawn up as to leave most essential matters unprovided for. The earlier trustees owed their appointments, in not a few cases, to the accident of being temporarily in charge of the affairs of an institution. The result has been disastrous. When an effective law is administered by a person anxious to be maintained as trustee, and who feels that he is responsible to no one, there is bound to be speculation and mismanagement. The multiplication of Utsavams is more due to a desire to find channels of expenditure which might give a profit to the spender than to serve the legitimate wishes of the devotees. Moneys have been recklessly allotted to these lamashas, not in a few instances, to the detriment of the more legitimate ceremonials in the temple. I am glad that it has been recently ruled that money borrowed for fire-works is not chargeable on the trust. See Adiraja Arsu v. Sheikh Budan Sahib (1917) 34 M.L.J. 358. I do not believe that sane men would seriously advance the theory that it is more pleasing to God that moneys should be spent in fire-works and in engaging dancing-girls than in imparting education to the sons of the devotees. There can be no manner of doubt as to the wishes of the people on such matters. But we have unfortunately a machinery for the administration of religious institutions which give scope for abuses of a serious kind on the part of those entrusted with the management of such institutions.

21. The Hindu Shastras, as I pointed out, attach great importance to the imparting of knowledge. True religiousness, according to Hindu notions, is possible only to those who are learned. I fail to see why the application of temple income to the promotion of knowledge, which in the main must lead a man aright, should be considered improper. No doubt when a devotee earmarks the offering for a particular purpose, it is not open to the authorities to divert it to other purposes. Even here when the purpose is legitimately satisfied by the application of a portion of the income, the balance can be devoted to the promotion of useful knowledge. But in the vast majority of cases where the offerings are contributed without any set purpose, the management will be justified in applying them to purposes connected with the diffusion of knowledge. A sufficient portion of the income may be spent on spectacular demonstrations which attract and please the ordinary worshippers. He often desires that the deity should have such accompaniments to festivals and ceremonies as would please the eye and give an air of magnificence and of sumptuousness. But panderings to such cravings should have limits. I do not say that a puritanic standard of religiousness should be imposed. But it is not the function of the managers to encourage observances which have no connection with the fundamentals of religious worship. In very many instances, expenditure on tamashas produce the opposite effect. The worship of the deity is lost sight of, in the desire to witness the amusements; and not unfrequently, vice is encouraged and spread by these practices. I have no hesitation in saying that the modern developments regarding processions lead the people far away from the paths of religion and are calculated to bring it into disrepute. I think there is nothing in the religion of . the Hindus, in their traditions and in the consciousness of the people, which will compel Courts to respect prejudices which sap at the root of religion and which pervert and not advance its precepts. Therefore whenever the grants made to religious institutions are not earmarked or, if earmarked, are not intended to exhaust the recurring income and whenever they are made as a general thanks offering, it is proper and legitimate to direct their application to the promotion of knowledge.

22. There is one other aspect of the question. The donations made to a deity often take the strictly legal aspect of charity as understood by English lawyers. Grants for feeding the devotees, for giving them shelter, for giving them water are made in connection with religious institutions. Grants are frequently made to reward persons who chant the Vedas or the prabhandum when the Utsavams are in progress. I cite these instances to show that in the eyes of a donor, the feeding of the poor and the encouragement of educated men are regarded as purposes gratifying to the deity. If that is so, how can a management be charged with misapplication, if it uses the surplus funds to enable young men to gain knowledge or to give them food while reading in schools and colleges. In England it has been held that the advancement and propagation of education and learning ate charitable purposes. See Whicker v. Hume (1858) 7 H.L.C. 124. I think this principle is applicable with greater force to Indian conditions. In Thompson v. Thompson (1844) 1 Col. 381 it was held that where the gift is general and indirect, its application to provide a fund for unsuccessful literary men would be valid. Where the relief of poverty is the object of the donor it has been held that the object can be effectuated by the apprenticing of poor children or by giving pensions to destitute men. See Attorney-General v. Minshull (1798) 4 Vesey 11 and Attorney-General v. Wansay (1808) 15 Vesey 231 In Estlin, In re Prichard v. Thomas (1903) 72 L J Ch. 687 appropriation of such funds for founding homes for lady teachers was upheld. In Hall v. Derby Sanitary Authority (1886) 16 Q. B. Dn. 163 the establishment of orphanages from such funds was held to be proper.

23. Further as pointed out by Mr. Ganapathi Aiyar in his Hindu and Mahomedan Endowments, page 58, the Shastras do not draw a sharp line of distinction between religious and charitable grants. The word 'poorta' which signifies pious acts open to all classes of society connotes both religious and charitable acts. See also West and Buhler pages 206 and 207. It would therefore be idle to impute to Hindu devotees an intention that in making offerings or donations they contemplated purely religious purposes as opposed to charitable purposes.

24. I have thus far endeavoured to show that the trustees of a temple would be acting well within their powers in using temple income to promote knowledge. As regards the functions of the Court in such matters, there can be no doubt. I pointed out in Sitharama Chetty v. Sir S. Subrahamania Aiyar I.L.R. (1915) Mad. 700 : 30 M.L.J. 29. that the Courts in this country have inherited the jurisdiction of the Chancery Courts in England. In a Tinnevelly case Chidambaranatha Thambiran v. Nallasiva Mudaliar I.L.R. (1917) Mad. 124 : 33 M.L.J. 357 which I decided sitting with the learned Chief Justice, I held that just as a Court of Chancery would not allow a trust to die for want of a trustee, so also Indian Courts have ample powers to give directions towards the application of the trust income even though the trustee may not himself be competent similarly to apply it. The doctrine of cypres should receive as extended an application as possible so as to give effect to the true intent and aim of the donor. His lapses, his ignorance and his failure to understand the situation should not fetter the Courts so long as the purposes specified by him are not violated.

25. It was pointed out in 3 Hare 32 the jurisdiction of the Courts of Chancery should be exercised with a view to prevent the failure of the donation altogether. Courts in this country should act on the same principle.

26. In the present case I have held that there is general charitable intention. The mode of carrying it into effect is not provided for with any certainty. It would be absurd to suggest that the Rs, 600 should be wholly spent in Thaligais. The truth is that the donor intended that his earnings should be spent in the temples without taking care to provide how they should be spent. His mention of Thaligai was meant to be illustrative and not exhaustive. The evidence to which Mr. Rama-chandra Aiyar drew our attention shows that in his life-time, Alavandar spent monies for other religious purposes than giving Thaligais. Very likely the testator did not expect such a large income from the properties, He was not educated enough to give the necessary directions in his will for the proper allocation of the income. That duty can be performed by the Court. As was pointed out in Ommanney v. Butcher (1823) Turn.& Rule 260, courts have often to supply defects of this nature in a trust bequest. Again when the mode indicated by the donor cannot reasonably exhaust the income, the doctrine of cypres can be invoked.

27. In England, the appropriate mode of effectuating a charitable trust is by sanctioning a scheme. The case law on the point is thus summarised in 4 Halsbury, paragraph 316. As this judgment has already become lengthy I shall content myself by extracting the passage here 'A scheme is generally necessary on any cypres application of a charitable trust unless the trust is altered merely in detail.'

28. Schemes are also required when the trusts of the instrument of foundation are ambiguous or insufficient and no particular objects are defined, or where there are no trustees, or the trustees are dead or refuse to act or where there has been an increase in the revenue of the charity, or the persons managing the charity have misapplied its property, or where for any other reason it is sought to be expedient to regulate the administration of the charity.'

29. In my opinion Section 92 of the Code of Civil Procedure gives Indian Courts similar powers. In the present case, the scheme should be of such a nature as to give effect to the expressed intention of the testator and to apply the surplus income for educational purposes. Without unduly fettering the discretion of the lower Court, I may indicate the main lines on which the scheme should be framed.

(a) An establishment for collecting the income should be sanctioned, not exceeding Rs. 500 a year.

(b) The 1st defendant should be paid Rs. 40 a month for superintending the charities.

(c) With him should be associated two more trustees of whom one at least should be a non-Brahmin.

(d) Rs. 1,500 out of the net income should be spent in Thaligats, Utsavams, Rs. 500 in Tiruvedanthai and Mahabalipuram to be spent on the Tirunakshatram day, and Rs. 500 to be utilised for purchasing prasadam in Tirupathi during Bramotsavam to feed non-Brahmin worshippers.

(e) The balance should be spent for giving religious education in Tamil prabhandum to non-Brahmin students.

30. With these suggestions the appeal is dismissed. Costs of both parties in both Courts will come out of the trust fund.

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