N. S. Rajabathar Mudaliar v. M. S. Vadivelu Mudaliar & Ors.

Ray, J. This appeal is from the Judgment of the High Court at Madras dated 6 February, 1964 dismissing the appellant's suit. The important question which falls for consideration is whether the deed of trust dated I Jummry, 1908 created an absolute dedicution to charity subject only to a charge fo1· the payment of nrnintenance to the members of charge of the fou;,Jer·~ family or whether the dominant intention of the founder was the maintenance of the family and the ~rant to the charities was secondary. The trust deed was executed on I January 1908 by S. D. Mudaliar in favour of himself. A.P.M. Mudaliar. M.T.S. Muda­ liar and C.V.S. Mudaliar. S. D. Mudaliar and his pre-deceased son D. S. Muda/iar's adopted son S. Mudaliar effected a deed of partition dated 25 November. 1907 in respect of the immovable and movable properties. By the said deed of partition S. D. Mudaliar the sett/or of the deed of trust obtained the property forming the subject matter of the said trust deed. The founder dedicated the said property by the de.ed of trust to the trustees. The trustees were the s.ettlor and the three other Mudaliars, it. A. P. M. Mudaliar. M. T. S. Mudaliar and C. V. S. Muda!iar. Broadly stated. the trust deed contained the following provisions. First. the trustees after excluding the tax and Mara­ math expenses. shall during the lifetime of the sett/or pay him entire income for the purpose of discharging the debt of Rs. 3000/- mentioned in the deed of partition and for the maintenance of the settlor during his lifetime. Secondly. after the death of the sett/or the balance of the debt that might be found due on the date after excluding the payments made by the sett/or is to he paid to the creditors. Tt.ird/1'. after the sett/or's lifetime a sum of Rs. I 0/- per pensem would be paid out of the income to the settlor's daughter-in-law, nmnely. the appellant's grand.mother. vi:.., father's mother "for her lifeti1ne, for her charity expenses". Fourthly, after the lifetime of the appellant's grand-mother the trustees arc to pay a sum of Rs.10/- per mensem permanently to the appellant's adoptive father who was the adopted son of the II II RAJARATHAR \'. VAmVELU (Ray, J.) 301 appellant's grand-mother and of lhe settlor's pre-deceased son and after the lifetime of the appellant's adoptive father "to his male descendants hereditarily". Fifthly, the settlor gave full power to the trustees after meeting the expenses of th~ Utsavam to be celebrated in Nungambakkam Devesthanams. and the trust expenses and the tax and maramath expenses to expand such sum as they might deem proper to maintain and educate the male de~cendants of the settlor·s pre-deceased adopted son. The settlor further provided that if the trustees were not willing they woud stop such maintenance and education expenses. Sixthly. the trustees after the lifetime of the settlor would spend from and out of the aforesaid trust income in such manner as they might deem proper and have the '/asantha Utsavam celebrated for a period of not 1.~ss than three days during the Vasantha Utsavam which would be celebrated every year in the Temples of Sri Agastheeswarar a_nd Venkatesa Perumal installed by the scltlor's ancestors and ensrined in Nungambakkam. Finally, aft.~r the lifetime of the settlor the trustees were directed to accumulate the amout remaining out of the income from the property after ex­ cluding the assessment. quit rent and maramath and the monthly and annual expenses and purchase properties therewith and provide the same as income for the aforesaid charity. In the background of these provisions, counsel for the appel­ lant contende.d that the dominant intention was a provision by way of a settlement for the members of the family and that the charities were subsidiary purposes to the said deed of trust. The provisions or oirection to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly lo purchase properties therewith were to provide income only for the aforesaid charity. The words "for the aforesaid charity" are of important siimificance. The entire accumulation was for the charity. The provisions regarding maintenance and educa­ tion were subordinate to the provision for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regarding maintenance and education were to be at the 'ole dis­ cretion of the trust.~es who could slop the same if the trustees were not willing. This power of trustees to stop maintenance and education expenses is a ccmplete negation of the appellant's c<m­ tention that the intention of the senior was that .education and maintenance expenses wcr.~ the domin"ant purpose of the settle­ ment. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consis­ tent with the intention of the settlor to treat the education and maintenance exp.~nses as secondary objects only after the pTimary purpose of the trust, namely, charities are fulfilled. Tl)e tenor of the document points to the inescapable conclusion that the pre-dominant and overwhelming intention of the settlor was to .benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase of properties out of the said accumulated income only for the purpose of charities. A contention was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs.50/- per mensem. The High Court came to the conclusion that there was no legal principle to sustain this increase in maintenance. In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy-pres doctrine would apply. Tlie ,C)·-pres doctrine applies where a cl.aritable trust is initially impossible or impraciicable and the Court applies the property cy-pres, viz .. to some other charities as nearly as possible, resem­ .bling the original trust. In the present case, .the maintenance and education expenses are neither charitable trusts nor similar object~ of charity. For these reasons, the appeal fails and is dismissed with costs. The appellant will pay ihe court fees. G.C. Appeal dismissed.