In Re: Madras Deveton Trust Fund

Subramania Ayyar, J.—This is an application with reference to the Madras Doveton Charities, a well--known educational institution in this

city. The management of the charities is vested in a body of persons called the committee of management; but the funds of the institution are vested

in another body called the trustees. By a provision in the trust deed the committee of management is empowered to require the trustees to invest

such portion of the trust moneys and securities as for the time being shall exceed Rupees 2,00,000 or any part or parts of such excess ""in the

purchase or building of any additional land, buildings and premises."" Under this provision the buildings now in use for the purposes of the said

institution were erected out of moneys which were for the time being in excess of the prescribed two lakhs and under the terms of the trust deed

they are in the possession, custody and control of the trustees.

It is stated that the buildings in question require ""exhaustive and substantial repair"" and unless such repair is now executed the buildings ""will

rapidly deteriorate in value and in time fall into such a state of dilapidation as to impair the efficiency of the institution for educational purposes.

The committee of management as well as the trustees are of opinion that the sum of Rs. 8,700, which is now in the hands of the latter over and

above the Rs. 2, 00,000 required by the trust deed to be kept intact as principal or such portion thereof as may be found necessary, should be

used in executing the said repair inasmuch as the current income of the institution is insufficient to meet the cost of carrying out such work. Hence

the present application, the question asked therein is whether the said sum of Rs. 8,700 may be properly used for the purposes just mentioned.

Now, notwithstanding the difference in their phraseology, Section 34 of the Indian Trusts Act, under which this petition is presented, is

substantially the same as 22 and 23 Vict., cap. 35, Section 30. Moreover the words ""other than questions of detail, difficulty or importance, not

proper in the opinion of the Court for summary disposal"" to be found in the first paragraph of Section 34, seem to have been inserted therein with

reference to the decisions upon Section 30 of the English Statute referred to by Mr. Stokes in note 3 at page 854 of volume I of the Anglo-Indian

Codes. Re Barrington''s Settlement 1 J. & H. 142 which is one of the cases cited in the said note, is somewhat similar to the present. There the

trustees of a settlement having power to purchase lands on being requested by tenants for life desired the opinion of the Court as to the propriety

of applying �1,200 on such request in repairs and permanent improvements. Vice-Chancellor Sir W. Page Wood held that that was not a case

in which he could properly give an opinion under 22 and 23 Vict., cap. 35, Section 30. The Vice-Chancellor said:--""My reason for not giving an

express opinion is, that the case goes into details, with which the Court cannot effectually deal, without having a superintending power and being

informed by affidavits; whereas, under this statute, the facts must be taken to be as they are stated in the petition of the trustees, who take the risk

of mis-statement; and the Court has no means of exercising any controlling power over the subject--matter."" For similar reasons it appears to me

that the present is not a case in which I can authoritatively advise and direct the trustees to lay out the money referred to in the petition on repairs,

which, it is alleged, the buildings stand in need of.

However, I have no objection to state my view upon the principle involved, and to indicate what appears to me to be the proper course for the

trustees to adopt.

In Caldecott v. Brown 2 Hare 144 Wigram Vice-Chancellor referring to questions like the present said: ""I do not mean to lay it down as an

imperative rule, that no case could arise in which the Court would sanction the expenditure of monies by a tenant for life for the benefit of the

inheritance by making such expenditure a charge upon the inheritance. The case may be suggested, of a devise of lands in strict settlement, and a

direction to lay out personal estate to the same uses: it might be more beneficial to the remainder-men that a part of the trust fund should be applied

to prevent buildings on the settled estate from going to destruction, than that the whole should be laid out in the purchase of other lands. Other like

cases might, perhaps, be supposed."" And in Re Barrington''s Settlement 1 J. & H. 142 already cited, Sir W. Page Wood observes: ""My view is in

accordance with the suggestion of Vice-Chancellor Wigram in Caldecott v. Brown 2 Hare 144 that there can be no difficulty about laying out a

portion of the fund, under the sanction of the Court, in permanent and substantial improvements. The repairs may require separate consideration;

but if they are upon farm buildings, they would seem to fall under the same principle."" Later authorities, however, are not quite uniform. The cases

of In re Nether Stowey Vicarage L.R. 17 Eq. 156 and Brunskill v. Caird L.R. 16 Eq. 493 lay down that under special powers authorising

investments in land or buildings repairs of existing buildings will not be allowed; whilst Re Pearson 21 W. R. 401 (cited in Seton on Judgments and

Orders, 5th edition, page 1004)] and In re Lord Hotham''s Trusts L.R. 12 Eq. 76 are decisions to the contrary.

In some of the instances referred to above the point was complicated by the circumstance that the parties entitled to the property, such as

tenants for life and remainder-men, had conflicting interests so far as the matter of repair was concerned. In such cases it is of course necessary to

see that the expense of executing the work is so met as not to make it inequitable to any of the parties interested. And vigilance on the part of the

Court is perhaps necessary to prevent applications for which there are not adequate grounds being made to the Court see the observations of

Chitty, J., in In re De Teissier''s Settled Estates 1893 1 Ch. 153 But that class of cases is distinguishable from the present which, in my opinion, is

analogous to the case of In re Jackson 21 Ch. D. 786 where Kay, J., directed an inquiry as to what repairs were necessary to certain houses to

the beneficial interest in which an infant was absolutely entitled subject to certain trusts. And I do not see any reason why a similar course should

not be taken herein the interests of the charity, the absolute beneficial owner, and why the sum of Rs. 8,700 or a portion thereof should not be laid

out in carrying out such repairs as may be found to be really and clearly necessary to prevent the buildings in question from becoming so

dilapidated as to be unfit for the purposes of the institution, compare Ex parte Vicar of St. Botolph, Aldgate (1894, 3 Ch., 544), which illustrates

the practical way in which a case, not dissimilar to this, was very recently dealt with.

I am, therefore, inclined to hold that the proposed expenditure could, on the Court being satisfied of its necessity, be sanctioned, if the matter

comes before it in the form of a suit in its original jurisdiction. That in the exercise of such jurisdiction the Court has power to deal with a case like

this seems hardly to admit of doubt. Conway v. Fenton 40 Ch. D. 512 is a direct authority in favour of this view. There, land and money were

vested in the trustees of the settlement for the benefit of the husband and wife for themselves, and after their deaths for their children. The buildings

on a farm land were so much out of repair as to make the farm untenantable. Kekewich, J., held that the Court had power under its original

jurisdiction to sanction the expenditure of a part of the money in repairing the said buildings. This decision is strongly supported by the observations

made by the Judges in the case of In re Hotchkys 32 Ch. D. 408 particularly by those at page 420, where Lindley, L. J., states: ""I quite agree with

what Lord Justice Cotton has said, that if it is shown that it is judicious to make repairs, and the trustees come to the Court for authority to make

them, that authority will be given.

Having regard to the nature of the present application and the circumstances in which it is made, I have thought it right to express my opinion as

to the principle involved and the procedure to be followed in the case and, as Sir W. Page Wood did in Re Barrington''s Settlement J. & H. 142

already cited, I must leave the trustees to file a plaint, if they should be so advised, to obtain the sanction of the Court.

There will be no answer to this petition.

The costs incurred in making this application will be paid out of the trust funds.