A. Draiviasundaram Pillai v. N. Subramania Pillai, Madras High Court, Judgment, Law, casemine.com

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Case Number

Second Appeal No. 26 of 1944.

Advocates

Mr. A.V Viswanatha Sastri for Appt.
Messrs. B. Sitarama Rao and R. Ramamurthi Ayyar for Respt.

Judges

Leach, C.J
Lakshmana Rao, J.

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Smart Summary

Factual and Procedural Background

The opinion concerns the interpretation of the will of Kanakasabapathi Pillai, who died on 13 August 1940. The testator had married twice but left no children; both wives predeceased him. He appointed two executors: the plaintiff (a brother of the testator's second wife) and the defendant (a son of the testator's brother and his heir at law). The will was executed on 29 April 1934 and reflected the testator's religious inclinations and desire to erect a monument to his memory.

On the testator's death the defendant took possession of the estate, repudiated the will and asserted that the testator had publicly cancelled and torn up the will. As a consequence, the plaintiff filed suit seeking a declaration that the defendant had forfeited his office as joint executor by reason of his conduct and sought a decree for possession. The defendant pleaded that the will had been revoked and, alternatively, that the principal provisions were contrary to law and that, as heir, he was entitled to the entire residue.

The Subordinate Judge of Tuticorin found the plea of revocation false but held that the testator's main directions were invalid because the dominant motive was to erect a samadhi (tomb) and money could not be devoted to such a purpose; the District Judge of Tinnevelly affirmed that decree. The present opinion (delivered by the Chief Justice) considers the correctness of those conclusions and the legal effect of Clauses 16, 17 and 18 of the will.

Legal Issues Presented

Whether the will, particularly Clauses 16 and 18, constitutes a dedication of the residue of the estate to public charitable purposes and is therefore valid as a charitable bequest.
Whether Clause 17 — directing the building of a samadhi (tomb), the keeping of the testator in samadhi, and daily pooja in a matam over the tomb — can be regarded as a valid dedication to public charity or is invalid as a provision for a monument to the testator.
Whether, if Clause 17 is invalid, the doctrine of cy-près can be applied to carry the gift into effect in some other charitable form (i.e., whether a general charitable intention exists permitting cy-près relief).
Whether the English line of authorities (exemplified by In re Rogerson Bird v. Lee and allied cases) providing an exceptional treatment for gifts for the maintenance of tombs should be applied to transfer benefit to charity in this case.

Arguments of the Parties

Appellant (Plaintiff) / Supportive Arguments

The Courts below erred in treating the main object of the testator as being the erection of a samadhi and in construing the matam of Clause 16 as merely an adjunct of the tomb. The matam in Clause 16 was intended to be a much larger public charitable building (cost not less than Rs. 4,000) for poor feeding and temple worship, distinct from the small samadhi building (Rs. 300) mentioned in Clause 17.
Clauses 16 and 18 embody instructions to conduct public feeding and to supply buttermilk to the poor seasonally and thus constitute valid public charitable bequests which should be upheld.
As a remedy, it was contended (or at least urged that the court consider) that the appellant should be entitled to possession of the portion of the estate devoted to the valid charitable objects and that the defendant, having repudiated the will and asserted a false cancellation, should not be permitted to retain possession.

Respondent (Defendant) / Key Contentions

The defendant alleged that the will had been publicly revoked by the testator, who supposedly tore it up; accordingly he repudiated the will and claimed the estate as heir at law.
Alternatively, the defendant maintained that the main provisions of the will were contrary to law (because they amounted to provision for a tomb/samadhi) and therefore invalid, entitling him as heir to the residue.

Other Counsel Submissions Noted

Mr. A. V. Viswanatha Sastri (for the appellant) urged the Court, as an alternative, to apply the principle discussed in In re Rogerson Bird v. Lee — namely, that where a gift to maintain a tomb is invalid but there is a subsequent gift of residue to charity, the income can be applied to the charitable purpose. The Court considered and rejected this exceptional English rule for the present case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kunhamutti v. Ahmed Musaliar	Authority for the proposition that a direction to spend money on building and maintaining a tomb is not a charitable endowment; a tomb and its adjuncts, serving principally as a monument, cannot be regarded as a valid public charitable purpose.	The Court relied on this reasoning to hold that Clause 17 (the samadhi/tomb and its maintenance) was unlawful and that the gift in Clause 17 therefore failed, leaving that portion of the estate as intestate (to fall to the heir).
In re Rogerson Bird v. Lee	English authority where a gift to maintain a tomb, being invalid, resulted in the income being applied for charitable purposes (an exceptional treatment where a subsequent gift favored charity).	The Court considered this line of authority but declined to apply the exceptional English rule in the present case; it refused to import that treatment into the facts here and therefore did not redirect the failed gift in Clause 17 to charitable objects on that basis.
Fisk v. Attorney General	One of the English cases forming part of the exceptional line of authorities related to gifts for upkeep of tombs followed by gifts to charity.	Not applied; the Court declined to adopt the exceptional rule evidenced by these English authorities in the present matter.
Dawson v. Small	Another English decision cited as part of the exceptional treatment afforded to gifts of income for tomb upkeep followed by charitable dispositions.	Not applied; the Court will not follow this exceptional English approach for Clause 17.
In re Birkett	English authority related to disposition of income where a gift to maintain a tomb failed and subsequent provisions favored charity.	The Court noted the decision as part of the exceptional English line but declined to apply the rule to the present will.

Court's Reasoning and Analysis

The Court analysed the will clause-by-clause, focusing on Clauses 16, 17 and 18.

On the factual point of burial: the Court observed that the testator did not in fact become a sanyasi, was cremated in the usual manner on his death (13 August 1940), and the cremation — carried out by the defendant — precluded burial in a samadhi; moreover, a person who is not a sanyasi cannot be buried in a samadhi. These facts were relied upon in the Courts below and noted again.

The Court distinguished the objects of Clause 16 and Clause 17 on size, function and expenditure. Clause 16 directed the construction of a substantial matam (cost not less than Rs. 4,000) for poor feeding and the installation and worship of idols (Vinayakar and Nataraja) with daily and festival poojas — a public, ongoing charitable and religious function. Clause 17, by contrast, contemplated a small samadhi structure in the south-west corner of the site to keep the testator in samadhi, a stone inscription "Kanakasabapathi Samadhi Matam", installation of a Sivalingam within the samadhi and daily and yearly observances — primarily serving as a monument to the testator's memory. The Court accepted the appellant's point that the matam of Clause 16 was distinct and substantially larger than the samadhi-related structure in Clause 17.

Applying legal principle, the Court held that Clause 16's directions (and Clause 18's direction to supply buttermilk seasonally to the poor) constituted valid public charitable bequests. In contrast, Clause 17's primary object was the erection and maintenance of a tomb/monument for the testator and therefore was not a charitable endowment; this finding was supported by the authority of Kunhamutti v. Ahmed Musaliar.

The Court then addressed whether cy-près could salvage Clause 17 by applying the testator's general charitable intention. It emphasised the settled law that cy-près can be invoked only where a general charitable intention can be clearly gathered from the will. Here the Court found no general charitable intention embracing Clause 17: the testator's charitable intentions were limited to the express provisions of Clauses 16 and 18. The presence of personal vanity behind a charitable gift does not, of itself, negate cy-près if a general charitable intent is shown, but in this will such a general charitable intention was absent. Consequently the cy-près doctrine could not be applied to Clause 17.

As an alternative, counsel relied on the exceptional English line of cases (In re Rogerson Bird v. Lee and related decisions) where gifts to maintain tombs, though invalid, were treated so that subsequent charitable dispositions received the income. The Court declined to adopt that exceptional English rule in this case and refused to apply it to redirect Clause 17 to charity. The Court therefore concluded that the gift in Clause 17 failed and that, to the extent of Clause 17, the testator died intestate.

Practically, the Court directed a remand to the trial Court to ascertain the proportions of the estate attributable to Clauses 16 and 18 (the valid charitable objects) and to Clause 17 (the failed provision). Once proportions are ascertained, the plaintiff will be entitled to possession of the portion attributed to Clauses 16 and 18, and the defendant will have, as heir, the portion attributed to Clause 17. Because the defendant had repudiated the will and advanced a false cancellation claim, the Court held that he should not remain in possession pending further proceedings; a receiver (previously appointed) was to continue and the Court appointed the plaintiff as receiver on terms: he would act without remuneration, furnish security to the trial Court in the sum of Rs. 3,000, and undertake to frame a scheme for trust management in due course.

Holding and Implications

The appeal succeeds in so far as the directions in Clauses 16 and 18 of the will are concerned; Clause 17 (the samadhi/tomb provision) is unlawful and fails.

Implications and direct consequences:

The Court upheld Clauses 16 and 18 as constituting valid public charitable bequests (matam for public feeding and seasonal supply of buttermilk to the poor).
Clause 17 (erection and maintenance of a samadhi/tomb and related maintenance) is invalid as a charitable endowment; that portion of the testamentary disposition fails and is treated as intestacy to that extent, passing to the heir.
The case is remanded to the trial Court to determine what proportion of the estate should be attributed to Clauses 16 and 18 and what proportion to Clause 17. After that determination, the plaintiff will be entitled to possession of the portion attributed to Clauses 16 and 18; the defendant will obtain, as heir, the portion attributed to Clause 17.
Because the defendant repudiated the will and set up a false cancellation, he was ordered removed from possession pending final determination. A receiver is to hold the estate pending final hearing; the plaintiff is appointed receiver on terms that he act without remuneration and furnish security of Rs. 3,000 to the satisfaction of the trial Court.
Costs: parties will pay and receive proportionate costs throughout the proceedings, but the plaintiff will recover his costs out of the estate.

The Court declined to apply the cy-près doctrine because a general charitable intention was not clearly expressed, and it also declined to adopt the exceptional English rule exemplified by In re Rogerson Bird v. Lee and allied cases for re-allocating a failed gift for the maintenance of a tomb to charitable beneficiaries.

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A. Draiviasundaram Pillai v. N. Subramania Pillai

(Delivered by The Chief Justice.)

The Court is here concerned with the interpretation of the will of one Kanakasabapathi Pillai who died on the 13th August 1940. The testator had married twice, but no children were born to him and both his wives predeceased him. He appointed as his executors the plaintiff and the defendant. The plaintiff is a brother of the testator's second wife. The defendant is a son of the testator's brother and is the heir at law.

In 1934 the testator contemplated retiring from the world and of becoming, to use the expression found in his will, a Yathra Sanyasi. It is apparent from the will that despite his religious inclinations he was a man of considerable vanity and he was anxious to erect a monument to himself, which would “serve to place him before the eyes of the public even more prominently than any dharmam performed when he was alive.” We are here quoting from the judgment under appeal. The main question involved in it is whether the will, which was executed on the 29th April 1934, constitutes a dedication of the residue of the estate for public charitable purposes.

On the death of the testator his nephew, the defendant, took possession of his estate. The will had been registered, but the defendant decided to repudiate it. He alleged that the testator had publicly stated that he was cancelling the will and consequently had torn it up. As the result of the defendant's attitude the plaintiff was compelled to file this suit. He asked the Court to hold that the defendant had forfeited his office as joint executor by reason of his conduct and that a decree for possession should be granted to him. The defendant persisted in his averment of the revocation of the will. In addition he pleaded that its main provisions were contrary to law and that, as the heir of Kanakasabapathi Pillai, he was entitled to the whole of the residue of the estate. The suit was tried by the Subordinate Judge of Tuticorin, who held that the plea of revocation of the will was false, but he agreed with the defendant that the testator's main directions were invalid, inasmuch as the dominant motive in his mind was the erection of a samadhi in which he was to be buried and that money could not be devoted to such a purpose. On appeal the District Judge of Tinnevelly upheld the decree of the Subordinate Judge.

It is common ground that the testator did not become a sanyasi and that he continued living as before until he was murdered on the 13th August 1940. He was cremated in the usual manner and the arrangements for the cremation were admittedly carried out by the defendant. Even if he had become a sanyasi the cremation prevented him from being buried as such and this has been stressed in the Courts below. Moreover, a person who is not a sanyasi cannot be buried in a samadhi.

The most important clauses of the will are 16 and 17. They read as follows:

“16. In the thatched house situate in item 8 of Sch. III, I am conducting poor feeding for the mendicants who come there. From and out of the properties aforesaid the executors shall in the place where the thatched house is standing build for not less than Rs. 4,000 a matam facing east for the purpose of conducting the poor feeding and one temple for installing Vinayakar and Nataraja; and in accordance with the funds then available the building shall be constructed as required by Sastras with chunam and baked bricks, shall prepare the images of Vinayakar and Nataraja, shall install them, shall perform the Mandala pooja and conduct the Atta festival, monthly festival and daily pooja; and besides this shall carry on these permanently for ever. A person shall be appointed for preparing food in the poor feeding matam and the poor feeding shall be conducted for the mendicants who come there without refusing food to any one.

17. I have intended to construct a building in my lifetime itself in the south west corner of the site which is set out as item 8 aforesaid and which is adjacent to the nanja land for keeping me in samadhi. If it is not completed the executors shall from and out of the properties aforesaid spend to the extent of Rs. 300, shall keep me in samadhi in the said place, shall build the matam, shall inscribe on stone the words “Kanakasabapathi Samadhi Matam” and shall fix the stone in the front portion of the matam and the said stone with the inscription shall be included in the construction of the building; and besides this, a Sivalingam shall be installed in the said samadhi and the mandala pooja, the daily pooja and also the yearly Guru pooja shall be conducted permanently. For this purpose a person shall be appointed and the same shall be carried on. The poor feeding of the mendicants with food served on leaves spread shall be performed during the mandala pooja and the yearly Guru pooja.”

It is accepted by both sides that the concluding portion of Cl. 17 does not mean that the mendicants should be fed in the samadhi matam but in the matam referred to in Cl. 16.

In Cl. 18 of his will the testator gave directions that the poor should be supplied with buttermilk, from the 1st April to the 1st June each year.

The appellant says that the Courts below were wrong in holding that the main object of the testator was to erect a samadhi in which he was to be buried and that the separate matam was intended merely to be an adjunct of the tomb. We consider that there is much force in this contention. In the first place, it is obvious that the matam contemplated in Cl. 16 of the will was to be a much bigger building than the matam which was to be erected over the tomb. The samadhi was to be built in a corner of the plot and only Rs. 300 was to be spent on it. The matam which was to be used for the feeding of the poor was to cost not less than Rs. 4,000 and within its precincts idols were to be installed, one of Vinayakar and the other of Nataraja. In these temples within the matam there was to be daily pooja as well as pooja on festival days. We consider that the directions contained in Cl. 16 of the will are valid. They have the effect of constituting a public charity. The directions in Cl. 18 with regard to the supply of buttermilk to poor persons also constitute a bequest for a public charity. Therefore, the will must stand so far as these directions are concerned.

We now turn to the question whether the provision in the will that the testator should be buried in a samadhi and a matam erected over it where pooja to Siva was to be performed daily can be regarded as a dedication of property to a public charity. The direction that money should be spent on the building of a tomb and its maintenance would certainly not constitute a charitable endowment. See Kunhamutti v. Ahmed Musaliar(1) and the judgment given in the footnote which commences on page 211. The matam over the tomb could only be regarded as an adjunct of the tomb and therefore such a building could not be deemed to be a building erected for a public charitable purpose, even though daily worship was to take place there. Therefore we regard the directions contained in Cl. 17 as being unlawful. It is said that nevertheless the Court should here apply the doctrine of cy-pres.

The Court cannot apply the doctrine of cy-pres unless it can be gathered from the will that the testator had a general charitable intention. If such an intention is clearly expressed it will be given effect to in another way should the way intended by the testator be open to objection or be impracticable. The fact that a person makes a charitable bequest in order that his name shall be kept prominently before the public will not render his action invalid. Regard can only be had to the nature of the bequest. Therefore where there is a general charitable intention the fact that vanity lies behind it will not matter. We are unable to read this will as expressing a general charitable intention. The testator's charitable intention is limited, being confined to the provisions of Cls. 16 and 18 of the will. The directions in Cl. 17 are not of a charitable nature. There the testator is really making provision for the erection of a monument to his memory. A general charitable intention being absent we are unable to apply the cy-pres doctrine to Cl. 17.

As an alternative to the application of the doctrine of cy-pres Mr. A.V Viswanatha Sastri has asked us to apply the principle referred to in In re. Rogerson Bird v. Lee (2). There a testator left a sum of £. 1000 to his trustees with a direction that it should be invested in the names of the vicar and the churchwardens of a certain church upon trust to maintain and repair his tomb in the churchyard and to distribute the balance that there might be out of the income among certain alms-houses. It was held that as the gift to maintain the tomb was invalid the whole of the income went to the vicar and the churchwardens on behalf of the alms-houses. This decision followed Fisk v. Attorney General (3), Dawson v. Small(4) and in In re Birkett (5). It is pointed out in Tudor on Charities, fifth edition, page 61, that cases relating to a gift of the income of a fund for the upkeep of a tomb followed by a gift of the particular residue to charity have received exceptional treatment in England. We are not prepared to apply an exceptional rule of English law in a case like this. Moreover, we think it follows from the decision in Kunhamutti v. Ahmed Musaliar that so far as Cl. 17 of the will is concerned, the gift fails and the testator must be regarded as having died intestate to that extent.

The result is that the appeal succeeds in so far as the directions in Cls. 16 and 18 of the will are concerned and the case will have to be remanded to the trial Court for a further hearing in the light of this judgment. The residue of the estate will be devoted to the objects set out in those clauses after deducting what falls to the heir at law by reason of the failure of the directions in Cl. 17. The Subordinate Judge will inquire and ascertain what proportion of the estate shall be attributed to Cls. 16 and 18 and what proportion to Cl. 17. When the proportions have been ascertained the plaintiff will be entitled to possession of the proportion of the estate attributed to Cls. 16 and 18. The defendant will have as the heir the proportion attributed to Cl. 17.

Inasmuch as the defendant repudiated the will and set up a false case of cancellation, he should not be allowed to remain in possession of the estate pending the further hearing. A receiver was appointed to hold the estate pending the hearing of this appeal and we consider that there should be a receiver to hold the estate until the case has been finally decided. The plaintiff is willing to act as receiver without remuneration and undertakes to furnish security. We think it is fit and proper that we should appoint him receiver on these terms and we make an order accordingly. He will furnish security to the satisfaction of the trial Court in the sum of Rs. 3,000. We may add that we consider that in due course there should be a scheme framed for the management of the trust, and the plaintiff has intimated his intention of taking steps in this direction.

The parties will pay and receive proportionate costs throughout, but the plaintiff will get his costs out of the estate.

N.R.R

A. Draiviasundaram Pillai v. N. Subramania Pillai

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Plaintiff) / Supportive Arguments

Respondent (Defendant) / Key Contentions

Other Counsel Submissions Noted

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

A. Draiviasundaram Pillai v. N. Subramania Pillai

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