The Judgment of the Court was delivered by
Abdur Rahim, J.:— 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 connexion 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 the Hindu religion by endowing certain forms of worship in connexion with those temples.
2. The third question relating to the scheme and the application of the doctrine of cypres 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 Thalikai in the temples mentioned in the will or not. My learned brother has described in his judgment what a Thalikai 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 property however much it might increase in course of time, should be spent in Thalikais 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 Thalikai 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 cypres, whether the ancient texts of 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.:— One Alavandar left a will appointing his divided brother's son, defendant 1 herein, at his vars. The will is dated 22nd June 1914. The testator died on 8th August of the same year. The present suit was brought under Section 92 of the CPC in December 1914, alleging that the property left by Alavandar was dedicated to charity, that defendant 1 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. Defendant 1 contended that the dedication was incomplete and ineffective and that consequently 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 defendant 1 was guilty of acts of malversation. In the result he held that it was not necessary to remove defendant 1 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. Defendant 1 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 defendant 1 in this Court. As in our opinion the compromise was aimed at giving a portion of the trust property to defendant 1, we refused to accept it and directed the case to be argued on the merits. 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 become a Sanyasi. The evidence shows that all the properties were his self-acquisition. It is unnecessary to consider whether he was really a Sanyesi 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 immovable and moveable properties to the following places, viz., Tiruvedanthai, Tirukkadalmalai and Tirupathi, have by this will appointed my younger brother Veerasami Naicken's son Muthukrishna Naicken who has no share or claim as my “vars,” and have given him all affairs after my life.”
3. Mr. Rangachariar first contended that under the will his client, defendant, became the owner of the properties, subject to the carrying out of the directions relating to the 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 charity should be performed in those places. The next suggestion was that there was no direction as to the utilization of the properties mentioned in the will, because there is no participle governing the words “under-mentioned properties.” The word “with” has been added by the translator. We asked the Bench Clerk to translate it and be 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 “under-mentioned properties.” Alavandar was an illiterate man, and in construing the will of persons of that class, we must put ourselves in their position.
4. The next contention was based on the use of the word “vars” in the will. The contention of the appellant's vakil was that defendant 1 was instituted heir 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 this brother's son “has no share or right,” this indicates that it 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 lifetime. 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 powers” does not mean that rights of disposition over the property are given, but only rights of managing the property as trustee. I feel no doubt that the property was dedicated to charity and that defendant 1 was appointed as the first trustee. Mr. Rangaohariar referred to two cases to explain the meaning of the term “vars” Chunilal v. Baimuli(1) and Suraj Mani v. Rabi Nath Ojha(2). 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 Venkata Narsimha Appa Row v. Parthasarathy Appa Row(3). 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.”
5. But not to add under any circumstances to the testamentary disposition. The following sentence is peculiary 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.”
6. Applying this test I agree with the opinion of the Subordinate Judge that the bequest was to the charity and not to defendant 1 subject to the performance of certain charities. 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 reside. Before dealing with the cases quoted in this connexion, 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 circumstances that he himself was performing the charities in the three shrines already referred, to. At the end of the will be says:
“after my lifetime Thaligai shall be given in Swami Kovil at the Tirunakshatram every month.”
7. The contention for the appellant was that 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 deducting 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 defendant 1 in order to be utilized by him in any way he liked later on. There is 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 Mahabalipuram 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 birthstar of the deceased testator. 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 some special 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; a particular form of charity is indicated, and the particular occasion in which such a charity is to be performed is also mentioned. I see nothing vague in such a disposition.
8. Now I shall examine the cases quoted by the learned vakil for the appellant. In Runchordas Vandravandas v. Parvatibai(4) 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. Bishop of Durham(5) stated:
“Unless the subject and the objects can be ascertained, upon, principles, familiar in other ceases, it must be decided that the Court can neither reform maladministration nor direct a due administration.”
9. That defect does not exist in the present case. Here the subject and the objects are both ascertained and specified. In the other case, Parthasarathi Pillai v. Thiruvengada Pillai(6), Subramania 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 Vandravandas v. Parvatibai, to hold that the bequest in that particular case was void for uncertainty. In this Madras case beyond saying that the executors shall utilize the properties for Dharmam no place and no mode of charity were indicated. On the other hand the decision in Surja Kunwari v. Pande Har Narain Ram(7) shows that dispositions like the present are enforceable.
10. 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 Doraisawmy Pillai v. Sandanathammal(8) 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. In recent years the English Courts have viewed with less disfavour similar bequests to charities. In Wordie's Trustees v. Wordie(9) 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(10)
“a bequest of residue to trustees to distribute the same among such charitable institutions, persons, or objects as they might think desirable”
11. Was held enforceable and in Bannermans Trustees v. Bannerman(11)
“a power in favour either of religious or charitable institutions, one or more, conducted according to Protestant principles”
12. 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 Corporated Society v. Price(12), Bunting v. Marriott(13), Biscoe v. Jackson(14) and Attorney General v. Lawes(15), 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 and 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(16), 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 intentien of the testator on the principle of cypres. The decision in Abdul Kader v. Bai Safiabu(17) 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.
13. There is also another consideration which induces me to hold that the bequest is valid. Exs. 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 that the suggestion of Mr. T.R Ramachahdra Aiyar that Ex. A(1) should be regarded as a codicil is somewhat farfetched. The citation from Jarman on Wills, Vol. I, p. 35, that even answers to interrogatories may be regarded either 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 Ex. A(1) is admissible 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 Ex. A. I think the language of Cl. 7, S. 32 covers this case. I also think that this statement is part of the resgestae and as such receivable in evidence under Section 6 of the Evidence Act. As regards Ex. B it was a written statement filed by Alavandar in a suit brought against him to declare that part of the properties in dispute 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 is covered by Section 32(3) of the Evidence Act. Reading Exs. A(1) and B along with Ex. A, I am of opinion that the testator had a clear testamentary intention in favour of charity.
14. The next point for consideration is whether the trusts declared by the testator are public trusts or only private trust 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. One of the objects was to feed the devotees. I fail to see how this can be regarded as a private trust. The decision in Sathappayyar v. Periasami(18), which related to a gift by the then zamindar of Sivaganga to his own religious preceptor with a view to the property being utilized 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 that 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(19) any bearing on the present question. In Sriranga Chariar v. Pranatharthihara Chariar(20) 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. Before dealing with the question as to how the funds should 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. Nonetheless the evidence in this case shows that the personal habits of defendant 1 are of such a nature as would justify coadjutors being appointed along with him. Moreover I cannot shut my eyes to the fact that defendant 1 claimed in this suit that no part of the property should go to the trust. At the same time I am in agreement with Mr. Rangachariar that defendant 1 should not be wholly removed. The best course will be to appoint two more trustees, of whom one at least should be a non-Brahmin, to co-operate with him in the management of these properties. It is desirable also that defendant 1 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.
15. This brings me to the last question, 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 the 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 he 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 Ramachandra 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' 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 Governmental supervision. The mutt properties in Mysore often pass into the hands of the Government with a view to their more efficient management. There is no reason for presuming that a different state of affairs prevailed in ancient India. Regn. 7 of 1817 states in the preamble 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.”
16. It is not unreasonable to assume that such alduty was inherited from the ancient sovereigns of the land, although the notion that the sovereigns 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 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 indented, 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 Tirupati Devastanam Act) authorizing the utilization of a portion of the temple income for the purposes os advancing secular education. Courts have sanctioned expenditure for imparting in struction in Sanskrit and Tamil (vide the scheme for the Rameswaram Devastanam). 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 28th January 1801, addressed to the then British Resident shows in what spirit and with what intents religions charities were gifted and administered. After referring to the fact that persons from all over India travel by foot to Rameswaram 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.”
17. 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 corns to the chatram are placed under the care of the school-master. 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 also are 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 the marriage are defrayed.”
18. The above extract explains with what eye ancient kings looked upon the dispensation of charities. I have been at pains to find out whether the Hindu Shastras 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: “* * * 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 Smritis 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 considered that education is a form of charity which would enable the donor to attain salvation, he interpreted truly the shastraic injunctions in this behalf. Vaidyanatha Dikshitar, who has in his monumental work prescribed the duties of house-holders, 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 taittiriya Upanishad on the excellence of dharma: “***” Then he quotes a few very apt slokas from Manu: ***” In the matter of Danam the Veda says: “All beings praise Danam. Everything rests on Danam. Therefore, it is said that Daman (gift) is the noblest and the supreme.” Manu says:
“There are three classes of the highest gifts; namely, the gift of cows, land and saraswathi, viz., (learning). Gift of learning is more praiseworthy than giving of food. In learning, Para Vidya (knowledge relating to the Para Brahman) — is considered to be superior and therefore Swarga (Heaven) and Moksha (salvation) are vouchsafed to the donor of such knowledge. 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 Para Vidya, education relating to a knowledge of Para Brahman, shows that in his opinion every endeavour to remove ingorance 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 propitiatory offering to God would be misspent if a portion of it is utilized for giving secular education. The final scheme approved by the District Board of Tanjore for the utilization of the surplus funds shows that they carried out the letter and spirit of the instructions given by Raja 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 20 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 ineffective 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 peculation and mismanagement. The multiplication of utsavams is due more 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 for these tamashes, 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 fireworks is not chargeable on the trust. See Adiraja Arsu v. Sheik Budan Sahib(21). 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 fireworks 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 gives 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 ear-marks 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 come, 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 deffusion of knowledge. A sufficient portion of the income may be spent on spectacular demonstrations which attract and please the ordinary worshipper. 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 connexion with the fundamentals of religious worship. In very many instances, expenditure on tamashes produces the opposite effect. The worship of the deity is lost sight of, in the desire to witness the amusements; and not infrequently, 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 ear-marked or, if ear-marked, 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 connexion with religious institutions. Grants are frequently made to reward persons who chant the Vedas or the Prabhandam 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 re garded 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 are charitable purposes: see Whicker v. Hume(22). I think this principle is applicable with greater force to Indian conditions. In Thompson v. Thompson(23) 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(24) and Attorney-General v. Wansay(25). In Estlin, In re; Pritchard v. Thomas(26), appropriation of such funds for founding homes for lady teachers was upheld. In Hall v. Derby Sanitary Authority(27) the establishment of orphanages from such funds was held to be proper. Further, as pointed out by Mr. Ganapathi Aiyar in his Hindu and Mahomedan Endowments, p. 58, the Hindu 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, pp. 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.
23. 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 Sitharam Chetty v. Subramania Aiyer(28) 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(29), which I decided sitting with the learned Chief, Justice, I held that just as a Court of Chancery would not allow a trust to the for want of a trustee, so also the 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. It was pointed out in Attorney-General v. Lawes 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. In the present case I have held that there is a 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. 6,000 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. Ramachandra Aiyar drew our attention shows that in his lifetime. Alavandar spent monyes 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(30), Courts have often to supply defects of this nature in a trust bequest. As I pointed out before, when the mode indicated by the donor cannot reasonably exhaust the income, the doctrine of cypres can be invoked. In England, the appropriate mode of effectuating a charitable trust is by sanctioning a scheme. The case law on the point is thus summarized in 4 Halsbury, para. 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. Schemes are also required where 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 thought expedient to regulate the administration of the charity.”
24. In my opinion Section 92 of the CPC, 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) Defendant 1 should be paid Rs. 40 a month for superintending the charities; (e) 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 Thaligais and Utsavams; Rs. 500 in Tiruvedanthai and Mahabalipuram to be spent on the Tirunakshatram day; and Rs. 500 to be utilized for purchasing Prasadam in Tirupati during Brahmotsavam to feed non-Brahmin worshippers; (e) the balance should be spent for giving religious education in Tamil Prabandam. With these suggestions, the appeal is dismissed. Costs of both parties in both Courts will come out of the trust fund.
S.N/R.K
25. Appeal dismissed.