Ganapatia Pillai, J.
1. The decision of this appeal turns upon the true interpretation of a settlement deed. Exhibit A-1, executed by one Nallamuthu Ambalam. The first respondent to this appeal brought the suit, as plaintiff, in his capacity as managing trustee of the Poolampatti Nallamuthu Ambalam Samadhi Nandavanam Trust for recovery of possession of the plaint mentioned properties with mesne profits.
2. The first defendant to the suit, who is the first appellant before us, along with defendants 4, 5 and 6 who are also co-appellants, it was alleged, trespassed upon items 11 to 19 of the plaint schedule some time in 1951 and upon item 1 some time in August, 1953. Defendants 2 and 3 were appointed trustees along with the first respondent by the settlement deed of Nallamuthu Ambalam executed on 3rd March, 1950. The deed was registered on 10th March, 1950. Nallamuthu Ambalam died on 24th March, 1950. Nallamuthu Ambalam had no near relations or issue except his wife Ayyammal. By the settlement deed he gave a life estate to his wife Ayyammal over items 1 to 4 and the whole of items 5 to 19 for the following objects : (1) The construction of a Samadhi with Nandavanam for himself after his death, (2) for maintenance of the Samadhi by lighting it every day, offering camphor and incense on every Tuesday and Friday, and offering neivedyam at the Samadhi on seven days in the year, and (3) to provide funds for the food and education of poor pupils. The first respondent was appointed managing trustee for his life and provision was made in the trust deed for succession to the office of both managing trustee and trustees according to the hereditary principle. One item of property described in Schedule ' B ' to the settlement deed was given to the first appellant on condition that he should perform the funeral ceremonies of Nallamuthu Ambalam and his wife. Two other relations of Nallamuthu Ambalam were indicated as the donees of this gift in case the first appellant refused to perform the funeral ceremonies;
3. According to the tenor of the settlement deed , the managing trustee was given immediate possession of a portion of the dwelling house of Nallamuthu Ambalam, item No. 1, and the properties dedicated to the trust described in Schedule ' C '. to the settlement deed. By the time the plaint in this case was filed the widow of Nallamuthu Ambalarri had died and it was alleged that the managing trustee had taken possession of the four items of properties given to the widow under Schedule ' A' to the settlement deed. Soon after the alleged trespass by the first appellant the matter was reported to the police and Section 145 proceedings were started before the Additional First Class Magistrate, Madurai, in which an order was passed restoring possession to the managing trustee. It was alleged in the plaint that even after this Order there was trespass committed by the first appellant and hence the suit.
4. The first appellant (first defendant) was the main contesting defendant. His plea was that Ayyammal was not the legally wedded wife of Nallamuthu Ambalam, that he was the next reversioner to the estate of Nallamuthu Ambalam, and, that he took possession of the entire properties of Nallamuthu Ambalam on his death. He denied that Exhibit A-1 was executed by Nallamuthu Ambalam as a free agent and contended that it was brought about by fraudulent means. He also contended that in so far as Exhibit A-1 purported to create a trust for certain purposes it was a void document and that the suit was barred by limitation.
5. The learned Judge in the Court below found that Exhibit A-1 was validly executed by Nallamuthu Ambalam out of his free will and that it created a trust for two objects : (1) the establishment of a Samadhi and Nandavanam and (2) the charity for education of poor boys. In regard to the attack upon the validity of the trust deed, the learned Judge found that the trust for the creation of a Samadhi and for its maintenance was invalid, and, applying the doctrine of cypres, the learned Judge further found that the whole income of the trust properties should be devoted for the education trust. Finding that the suit was not barred by limitation, the learned Judge gave a decree declaring the ' A ' Schedule properties as properties endowed for the educational trust mentioned in Exhibit A-1, giving possession of the ' A ' Schedule properties to the plaintiff as managing trustee, and awarding Rs. 3,000 for past mesne profits and Rs. 1,000 per annum towards future mesne profits from the date of plaint till the date of recovery of possession.
6. The learned Counsel for the appellants did not attempt before us to canvass the finding of the learned Judge on the question of the execution of the trust deed and its validity based upon the allegation that it was procured by fraudulent means. We therefore confirm the finding of the learned Judge that Exhibit A-1 was voluntarily executed by Nallamuthu Ambalam out of his free will and was a valid settlement deed.
7. Mr. Gopalaswami Ayyangar argued that the doctrine of cypres could not be applied to this case as the gift was under a settlement deed and that since the settlement deed did not disclose any general charitable intent, the consequence of the gift in favour of the Samadhi failing would be, that there was no gift at all to charity,, as the true construction of the settlement deed would indicate, according to counsel, that the gift in favour of charity was only a contingent gift and not an independent gift.
8. After the Supreme Court approved the decisions of this Court in Kunhamutty v. T. Ahmad Musaliar (1934) 68 M.L.J. 107 : I.L.R. Mad. 204, Draivasundaram v. Subramania : AIR1945Mad217 and Veluswami Goundan v. Dandapani : AIR1946Mad485 , in their pronouncement in Saraswathi Ammal v. Rajagopal Ammal : 1SCR277 , on the question of the validity of an endowment of properties for the purpose of a Samadhi by a Hindu it is no longer open to dispute that the provisions in Exhibit A-1 setting apart properties for the erection of a tomb or Samadhi over the grave of Nallamuthu Ambalam and for the maintenance of the Samadhi or the Nandavanam around it, or the services connected with the Samadhi like lighting, neivedyam, etc., are not valid under the Hindu Law.
9. Mr. Natesan, appearing for the first respondent, advanced a two-fold argument. The first was that the principles of construction of wills applicable to residuary bequests where a prior bequest was invalid for any reason should be applied to this case, and, applying that principle, the endowment in favour of the Samadhi should be carried over for the benefit of the education charity. The second argument was that even if the principle of benefit to the residuary bequest should be held inapplicable, the deed in question establishes a general charitable intent and since the charity in favour of the Samadhi has failed ab initio the doctrine of cypres should be applied and the properties and the income set apart for the Samadhi should be applied to the education charity. In invoking the doctrine of cypres counsel contended that the gift in favour of the education charity was an independent gift and not a contingent gift.
10. Before discussing the arguments addressed to us on these topics we would examine the provisions of the deed and decide the questions whether the gift in favour of the education charity is a contingent gift or on independent gift.
11. It will be noticed that though the document took the form of a settlement deed or gift inter vivos it was executed at a time when Nallamuthu Ambalam realised that he had not many days to live. Indeed, within two weeks of registration of Exhibit A-1 Nallamuthu Ambalam died. He had no one to provide for except Ayyammal whom he called his wife though there was some dispute about it in the evidence. It is unnecessary for our present purpose to decide this point since Ayyammal was also dead on the date the plaint in this case was filed.
12. Nallamuthu Ambalam was contemplating his early death. That was why he provided for the performance of his obsequies and the obsequies of his wife Ayyammal. He set apart one property in Schedule ' B' to be taken by his heir at law who was directed to perform these obsequies. It is argued that except for this one item of property given to the heir at law, Nallamuthu Ambalam had no intention of leaving any of the other properties which belonged to him absolutely to his heirs. The document provided that the managing trustee was to get possession of certain rooms in the family house of Nallamuthu Ambalam immediately and the fifteen items of properties described in Schedule ' C ' to the deed to be vested in the trustees then and there for the purposes mentioned in the deed. It will be found that the four items of properties given to the wife under 'A' Schedule were directed to be added to the trust properties on the death of the wife.
13. On the question whether the gift in favour of the education charity was a contingent gift, we have to scrutinise the provisions in the deed a bit carefully to find out what was the intention of Nallamuthu Ambalam. It was argued by Mr. Gopalaswami Ayyangar that the trustees were directed to construct a tomb over the grave of Nallamuthu Ambalam and there was no indication as to the amount of money to be expended for this purpose. Counsel also pointed out that the extent of expenditure for this purpose was in a way indicated by the direction in the gift deed that the trustees were to accumulate the income for some years for this purpose. The income receivable from the properties was put at the highest by the first respondent at about Rs. 1,100 per year while the appellants contended that the income was only Rs. 500 per year. Having regard to this modest income from the trust properties, we are not prepared to accede to the contention of Mr. Gopalaswami Ayyangar that the direction as to accumulation of the income for some years for the purpose of finding funds for the construction of the Samadhi gave an unrestricted discretion to the trustees to incur any expenditure for that purpose. The intention of Nallamuthu Ambalam in regard to this matter has to be gathered from a number of circumstances. He did not contemplate the sale of any of his properties for the purpose of raising money for the expenditure over the construction of the Samadhi. The direction as to accumulation might only mean that there were no liquid funds available in the estate which the trustees could utilise for the construction of the Samadhi and consequently the accumulation of the profits of the properties for a period of years was the only feasible way of finding money for that purpose. This, in our opinion, does not necessarily mean that the trustees could spend any large sum for this purpose. In this connection we can also take note of the prevailing notions among Hindus of the class to which Nallamuthu Ambalam belonged, in regard to the size and character of a building usually erected over graves and called Samadhis. We notice that except lighting and offering neivedyam at the tomb on particular days no other ceremonies or festivals were directed to be celebrated at the Samadhi which might require spacious halls or buildings. Having regard to all these circumstances we are of opinion that though Nallamuthu Ambalam did not indicate the amount to be expended for the construction of the Samadhi he expected that it would not consume more than one or two years' income of the trust properties. We note that he directed that a Nandavanam should be maintained the compound of the Samadhi and a compund wall should be erected for the Samadhi and that doors were also to be put up in the Samadhi building. A Nandavanam does not require any large outlay of money and a compund wall in a village where the Samadhi was to be erected may not involve any large outlay of capital expenditure. It was not therefore likely that Nallamuthu Ambalam expected any large portion of his estate to be expended over the construction of the Samadhi. It would be seen that the expenditure to be incurred by the trustees for the maintenance of services at the Samadhi was strictly limited having regard to the nature of the ceremonies, viz., lighting a lamp every day in the Samadhi, offering incense on two days in a week and offering neivedyam for seven days in the year. It is true Nallamuthu Ambalam directed that a servant should be engaged for attending to these services at the Samadhi and for the upkeep of the Nandavanam and he directed that a particular salary should be paid to the servant. Making due allowances for all these purposes we are satisfied that the entire income of the trust properties could not be expended over these ceremonies.
14. Nallamuthu Ambalam was careful to point out in his deed even the quantity of neivedyam that should be offered at the Samadhi on seven days in the year which he limited to half a measure of rice. There is therefore no possibility of concluding that the charity in favour of the Samadhi was likely to consume all the income from the trust properties. Indeed, there are clear indications in the trust deed to show that Nallamuthu Ambalam expected a surplus to remain and he also made provision for augmentation of income of the trust properties. He directed the trustees to lay out vacant sites conveyed to the trust for house building purposes for earning income to the estate. He also directed that items 1 to 4 in Schedule ' A' to the trust deed should go to the trust after the death of Ayyammal. All these indications, according to Mr. Natesan, show that Nallamuthu had a general or overriding object, viz., of endowing the properties to charity.
15. That question we will presently discuss. But, for our present purpose, it is enough to show that the interpretation of the language used in the deed in respect of the education charity contended for by Mr. Gopalaswami Ayyangar could not be accepted. It is not possible to construe the gift to education charity as a contingent gift dependent upon the existence of surplus income after the expenditure over the tomb was incurred and further dependent upon the discretion of the trustees to expend all the income over the tomb. Factually we arc satisfied that Nallamuthu Ambalam did contemplate a surplus remaining out of the income of the trust properties after meeting the limited expenses directed to be incurred for the tomb and did not contemplate his trustees expending all the income over the tomb. We are satisfied that he intended the gift to education charity to be an independent gift not only because of the language employed in the deed but also because of the other factors indicated, viz., the detailed provisions made for the expenses to be incurred over the education charity and the directions given in the deed for accumulation of the income of the trust properties, both by improvement and by ' A' Schedule properties also being taken over by the trustees after the lifetime of Ayyammal.
16. In this connection it should be mentioned that ' B' Schedule item is valued at Rs. 350 and ' C ' Schedule properties which are fifteen items are valued at Rs. 8,700 while the ' A ' Schedule items are valued at Rs. 7,450. It will be seen from these figures that the augmentation of the trust estate contemplated by Nallamuthu Ambalam to take place on the death of Ayyammal was not an insignificant addition to the trust estate.
17. We now take up the next question whether the rule of construction of wills as to residuary bequests could be applied to cases of gifts inter vivos. Mr. Natesan contended that the law in regard to wills and deeds in respect of this matter was the same, and, in support of that proposition he cited the following passages in Tudor on Charities, Fifth edition:
If the gift to charity is residuary upon a void gift, the general rule is that it fails if the Court finds that the precedent gift is of unascertainable amount....
Where the gift is construed as devoting the whole fund to charitable objects subjects to payment for a void object the failure of the latter will result in the whole becoming available for the charity.(Page 61).
Where a bequest for superstitious purposes fails, it falls into residue....(page 87).
Authority quoted for this proposition is Heath v. Chapman (1854) 2 Dr. 417, Re Blundell's Trusts (1861) 30 B 360. These general propositions which apply in English law to gifts inter vivos to charity cannot without any more authority be made applicable to settlement deeds like the one we are concerned with in this case.
18. Counsel also relied upon the leading case, Fisk v. Attorney-General L.R.(1867) 4 E. Cas. 521, in support of his proposition. In that case there was a gift of a fund to the Rector and Churchwardens and part of the income from the funds was directed to be expended in keeping in repair the family grave of the testatrix. The residue was directed to be utilised for giving gifts to the old poor of the Parish at Christmas time every year. On the construction of this will it was held that though the amount of money necessary for the repair of the grave was not specified, the Court, if necessary, could have estimated the amount required for the purpose and thus prevented the gift of the residue from being void for uncertainty. However, the case really decided that the testatrix gave the whole fund to the Rector and the Churchwardens and therefore the gift to the poor did not fail by reason of its being a bequest of the residue after a void bequest and that there was a good gift of the whole fund to charity, discharged, from the obligation to repair the grave.
19. An attempt to apply the principle laid down in this case to Indian conditions was made before a Bench of this Court in Draiviasundaram v. Subramania : AIR1945Mad217 . Leach, C.J., delivering the judgment of the Bench, repelled this attempt in the following passage after referring to the case in Rogerson, In re Bird v. Lee L.R. (1901) 1 Ch. 715, which followed Fisk v. Attorney-General L.R. (1867) 4 Equity Cases 521,
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.
The Bench declined to apply the rule of cypres for the application of the funds allotted to the gift which failed to another gift on the ground that the testator had no general charitable intent and consequently the Bench rules that the testator should be regarded as having died intestate to the extent of the gift in favour of the Samadhi which was the illegal gift in that case. This case went up on appeal to the Privy Council in Subramania v. Draviyasundaram A.I.R. 1950 P.C. 37, but the observation of Leach, C.J., on the point quoted above was not dissented from by the Privy Council.
20. A few more decisions were cited by counsel on both sides, but really it serves no purpose to refer to all of them. We would like to clear the ground before stating why we do not agree with Mr. Natesan that the law as to residuary bequests contained in wills should be applied to this case. The English Law as to trusts is mostly based upon the peculiar characteristics of that law by which trusts are created vesting the estate in trustees and mentioning the charitable purposes as merely beneficiaries. Where a void gift is made to a charity under English Law either by means of a testment or by means of a deed inter vivos if there is a charitable intention to give away the whole property to charity, that transfer to the trustee becomes absolute and does not revert to the donor. On this principle English Courts have always leaned in favour of upholding gifts for charity and evolved special sets of rules either based upon the doctrine of cypres or the special rule contained in Fisk v. Attorney-General L.R. (1867) 4 Equity Cases 521, for upholding such donations. Owing to this special nature of the law as to trusts in England, distinction was not sought to be made between bequests made under wills and gifts made inter vivos. But, in our country the juristic principle of vesting the legal estate in the trustee for purposes of giving property to a charity is not usually adopted. Here where a person wishes to make a donation to a charity, the charity itself is conceived of as the juristic person in whom the property vests. Though a trustee is appointed for the charity he is merely the manager of the charity. In him there is no legal estate in the properties endowed. Therefore, if a gift in our country is made inter vivos for a charity which fails for illegality there is no scope for the application of the doctrine of upholding the gift to the charity either on the principle of the property given to the illegal charity falling into the residue or on the principle of the application of the cypres doctrine except in cases where a general charitable intent can be gathered from the deed. In the case of a will as distinct from a settlement or transfer inter vivos the donor is not alive either to get back the property in the case of failure of the object of the gift or to make other dispositions in the place of the disposition that failed. Technical rules of construction of wills on this point have been embodied in the Indian Succession Act and those rules are held applicable to most wills executed in this country. Except to the limited extent indicated by these sections of the Indian Succession Act there is no warrant either on principle or on authority to extend these technical rules of construction to transfers inter vivos.
21. This would be sufficient to negative Mr. Natesan's argument that in this case though the gift to the samadhi failed the property endowed for that gift should fall into the residue, viz., the gift in favour of the education charity except as we would presently point out on other grounds like the application of the doctrine of cypres where there is a general charitable intent which is really in the nature of exception to the rule indicated by us. We do not, therefore, consider that on the failure of the charity in favour of the samadhi the properties or the fund or the income intended to be utilised for the samadhi could be taken over to the education charity on the principle of the residuary bequest benefiting by the failure of a prior bequest.
22. The next contention of Mr. Natesan was that the principle of the doctrine of cypres would apply here and consequently the properties endowed for the samadhi should be allowed by us to be utilised for the education charity. The first objection to this argument is that the doctrine of cypres would apply in this country only to wills and not to deeds or settlements or transfers inter vivos. It was pointed out that though it was assumed that the cypres doctrine would apply to deeds the basis for such assumption is really erroneous. Mr. Natesan referred to the leading case in Santana Roy v. The Advocate-General of Bengal I.L.R.Cal. 124 and endeavoured to show that the authorities relied on by Mookerjee, J., in support of his proposition that the preponderance of authority in England was to restrict the application of the cypres doctrine only to gifts by wills and not to gifts by deeds were really not authorities on that point but merely contained obiter dictum of eminent Judges. Some of these authorities are Brundenell v. Elwes (1801) 1 East 442, Adams v. Adams (1777) 2 Cowp 651. In the former case Lord Keynon, C.J. observed:
The doctrine of cypres goes to the utmost verge of the law even in the construction of wills; and we must take care that it does not run wild. But it has never been applied to the construction of deeds.
A similar view was expressed by Lord Mansfield in the other case.
23. Though there is some justification for the criticism that these cases on the applicability of the cypres doctrine to deeds contained merely obiter dicta yet the fact remains, as was pointed by Mookerjee, J., that the preponderance of judicial opinion in England did not favour the application of the cypres doctrine to deeds. The rule in English law upon this point has been thus stated in Halsbury's Laws of England, Hailsham edition, Vol. XXV, page 166:
But it never applied to deeds or to gifts of personal estate.
Brundenell v. Elwes (1801) 1 East 442, Adams v. Adams (1777) 2 Cowp 651 and other cases are relied on as authorities for this proposition. This rule substantially supports the view taken by Mookerjee, J., that the preponderance of judicial opinion in England is that the cypres doctrine was not applied to gifts by deeds. This view was followed by the Andhra Pradesh High Court in Potti Swami and Bros. v. Govindarajulu : AIR1960AP605 .
24. But, Mr. Natesan brought to our notice another decision in Dikshitulu v. Venkatappayya (1959) 1 An.W.R. 357, which, according to him, supported his contention. There, there was no written document showing how the property had been gifted, but the Inam Register of 1868 described the property as Dharmadayam. The learned Judges in that case ruled that the cypres doctrine applied to all transfers other than testamentary where a general charitable intention could be found to exist. Really this is no authority for the contention that the cypres doctrine could be applied to gifts inter vivos. How far this rule is nullified by the law as to trusts founded upon a general charitable intent will be discussed by us presently, but, it is enough for our present purpose to say that this decision is no authority for the contention of Mr. Natesan that the cypres doctrine had been applied in India to gifts inter vinos.
25. In our opinion a more valid objection to the application of cypres doctrine to gifts inter vivos is the fact that the principle upon which the doctrine is founded, viz., the giving effect to the intention of the testator as far as possible could not apply to deeds. Literally the expression cypres means approximation. Courts have acted on the principle that where a gift is made to charity and that charity failed for any reason, the object of the donor or testator should not be defeated but the property endowed should be applied to another object approximating as closely as possible to the objects which the testator had in view. It would be seen that two assumptions underlie this rule. First, the testator was not in a position to carry out his object to give the property to charity by dedicating it over again as in all these cases of bequests by wills the question comes up for decision only when the wills take effect, viz., after the death of the testator. The second principle is that the law always favours charity and tries as far as possible not to defeat a bequest to charity. Neither principle can apply to a gift to charity made by a deed inter vivos except in cases where a general charitable intention is disclosed. We can visualise an extreme case where the settlor is alive and on being told that the gift he made to an object of charity was illegal there would be nothing in law to prevent the settlor to treat the property as still his own property and to dispose of it again as he pleased. In this case let us suppose Nallamuthu Ambalam lived for some years after the settlement deed and a dispute had arisen between the trustees and Nallamuthu Ambalam in which it was declared that the dedication in favour of the samadhi was illegal and that the trustees could not hold the properties for that purpose could it be said that Nallamuthu Ambalam would not be free to deal with the properties as he pleased?
26. We are not for this purpose considering the other question whether there was a general charitable intent disclosed by the deed and whether the education charity would not be an independent charity which would take the properties by any other rule of law. Strictly we confine our comment to the case of a simple gift to an illegal charity or a charity which failed by a rule of law and the settlor or the donor being alive when a competent Court declares the dedication to be invalid in law. It will be thus seen that the very basis of the application of the rule of cypres, viz., the anxiety of the Court to do something for a donor who is unable by reason of death to carry out his object, is found to be non-existent in the case of gifts inter vivos. We do not, therefore, agree with Mr. Natesan's contention that the principle of cypres could be invoked in this case.
27. The next contention of Mr. Natesan was that a general charitable intent was disclosed by the settlement deed in this case and consequently the Court should apply the rule of cypres to prevent the trust in favour of education failing. This principle of English law is stated in the following terms in Lewin on Trusts, Fifteenth edition, page 455:
Again a much greater latitude of expression is allowed in gifts to charity than in gifts to individuals, and a gift to charity will never fail for uncertainty. Where a trust instrument once shows a clear intention to devote the property to charity it is immaterial that the particular mode in which the intention is to be carried into effect is left uncertain for the Court will carry the intention into effect.
28. Before we consider the application of this rule to India we must be satisfied that the instrument in this case discloses a general charitable intent. Tudor on Charities defines the general intention of charity, thus:
The notion of the general intention of charity being so largely a matter of history is hardly susceptible of accurate definition. From the language of Lord Eldon, for example : ' Where a legacy is so given as to denote that charity is the legatee' it might be inferred that a gift with a general intention of charity is essentially a gift to charity considered as an abstract person.(page 145).
Lewin on Trusts lays down the following proposition upon this point:
What is sufficient to indicate a general intention in favour of charity is a question of some difficulty but it seems that a general charitable intention may be inferred where it is possible taking the instrument as a whole to say that notwithstanding the form of the gift the paramount intention, according to the true construction of the instrument is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose and to graft on to the general gift a direction as to the desires or intentions of the donor as to the manner in which the general gift is to be carried into effect.(page 456).
29. Before we consider the principle underlying these definitions we may point out that the Court would not be entitled to infer a charitable intent merely because of the two charities mentioned in the deed one has failed and the other is a charity which is valid in law. For this purpose we have to consider the entire document and find out a general or overriding intention to devote all the properties to charity. It may not be possible to lay down any precise rule for finding out a general charitable intent from a deed. Naturally it must vary with the circumstances of each case. But, in this case we are able to see that the primary objects of the donor were the establishment of a samadhi, the maintenance of services in the samadhi and the utilisation of the income from the endowed properties for these purposes. The intention of the donor to benefit the education charity was only in a sense a secondary intention for the following reasons. In regard to the samadhi charity he was careful to lay down the amount that should be expended, the number of days in which the celebration should be performed and even the salary that should be paid to the servant who was to look after the nandavanam and the samadhi. This discloses an anxiety on the part of the testator that the trustees should be given no discretion to cut down the expenses for these services at the samadhi. On the other hand, in respect of the education charity, the words in the deed indicate that it was to be a charity carried out with the surplus funds available after the services at the samadhi had been carried out. Even here an absolute discretion is given to the trustees to carry out the charity without fixing any minimum. It is true the entire surplus remaining after meeting the expenses for the samadhi charity is directed to be utilised for the education charity. From this alone one cannot infer that the primary intention of the donor was to establish an education charity. We are therefore unable to find any general charitable intent in this case. It follows, that we are relieved of the duty of considering whether the rule of English law as to gifts to charities not failing on the ground of a general charitable intent should be applied to settlements or gifts inter vivos in this country.
30. We have already pointed out that this rule of English law is an exception to resulting trusts and to some degree is based upon the peculiar feature of the English law, viz., the legal estate vesting in the trustee and the charity being only a cestui que trust. That has no parallel in our country where the charity itself is the donee and could own property just as it were a juristic person. That is the device adopted by Nallamuthu in Exhibit A-1.
31. The last question for our consideration is whether on the samadhi charity failing as being illegal it would be open to us to uphold the gift in favour of the education charity on any ground. Mr. Gopalaswami Ayyangar contended that the education charity was vague and indefinite and it could not be viewed as an independent charity. We have already dealt with his argument on the question whether the donation in favour of the education charity was a contingent gift. Once we have held that it was not a contingent gift but an independent gift we are unable to find any substance in the other argument that the gift in favour of education was either vague or indefinite. It is true that the trustee is directed to look to the application of the gift by purchasing books for poor children and by providing food for them without actually paying them the money necessary for their food and books. These indications in the deed do not, in our opinion, make the trust unworkable or vague. These only indicate the anxiety of the donor that there should be no room for misappropriation of the moneys by the trustees or by the donees themselves. The object of the charity was to provide school fees, books and food to poor deserving children to enable them to continue their education. There is nothing vague or indefinite either in the object or in the provisions of the deed with regard to this charity which we hold is a valid charity.
32. The result of our conclusions is that since the gift in favour of the samadhi failed that portion of the endowed properties properly attributable to that gift must go to the heir-at-law as the donor is now dead and his widow is also dead. The rest of the endowed properties must be declared to be properties validly given to the education charity. This Court has power to direct an enquiry by the lower Court for the purpose of ascertaining what portion of the endowed properties should be legitimately ascribed or allotted to the samadhi charity. While holding this enquiry which we direct the lower Court will keep in mind only the probable cost of the services to be conducted in the samadhi. After ascertaining this sum, it should be capitalised. The procedure for this purpose would be to find out the total income of the endowed properties and allocate to the samadhi services that portion of the endowed properties which would be sufficient to produce the income necessary for the carrying out of the samadhi services. It is some years now since the donor died, and therefore, there is no practical importance to the question of the expenditure which the donor intended to be incurred for the construction of the samadhi building. We can well assume since more than eleven years have now elapsed after the death of the donor that the income which has accrued in the hands of the trustees from the endowed properties would have been more than sufficient to meet any expenditure for the construction of the samadhi. The lower Court can therefore, leave out of account this consideration and proceed to apportion the properties which could be notionally endowed for the samadhi trust on the lines indicated by us above. After ascertaining this, the lower Court will allot the rest of the properties to the education charity, and, a final decree will be passed by the lower Court in respect of those properties allotted to the education charity as asked for in the plaint. The rest of the claim in the plaint relating to those properties which arc to be allotted notionally to the samadhi trust fails and the plaintiff will not get a decree for recovery of possession or other reliefs in respect of those properties which will be allotted notionally to the samadhi charity and in this respect the suit is dismissed. A final decree will be passed by the lower Court on these lines for all the reliefs asked for in the plaint, including mesne profits. In regard to profits already realised and deposited into lower Court the same proportion will apply and parties will be allowed to draw out their respective shares.
33. The costs of both parties in both Courts will come out of the estate. Memorandum of objections filed by the respondent is allowed. No costs in the memorandum of objections.