Muthukrishna Naicken vs Ramachandra Naicken and Others

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 connection

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 Hindu religion by endowing certain forms of worship in connection with those temples.

The third question relating to the scheme and the application of the doctrine of Cy pres 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

thaligai in the temples mentioned in the will or not. My learned brother has described in his judgment what a thaligai 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 the property however much it might increase in course of time should be spent in thaligais 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 thaligai 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 Cy pres, whether the ancient texts on 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, the 1st defendant herein, as his ''vars.'' The will is dated the 22nd June, 1914.

The testator died on the 8th August of the same year. The present suit was brought u/s 92 of the CPC in December 1914 alleging that the property

left by Alavandar was dedicated to charity, that the 1st defendant 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. The 1st defendant contended that the dedication was

incomplete and ineffective and that consequen t-ly 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 the 1st defendant was guilty of acts of malversation. In the result he held that it was not

necessary to remove the 1st defendant 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. The 1st defendant 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 the 1st defendant in the Court. As in our opinion

the compromise was aimed at giving a portion of the trust property to the 1st defendant, 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 became

Sanyasi. The evidence shows that all the properties were his self-acquisition. It is unnecessary to consider whether he was really a Sanyasi 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 Veeraswami Naicken''s son Muthukrishna Naicken who has no share or claim as my ""vars,"" and have given him all

affairs after my life."" Mr. Rangachariar first contended that under the will his client, the 1st defendant, became the owner of the properties, subject

to the carrying out of the directions relating to 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 chanty should be performed in those places. The next suggestion was that there was no direction as to the utilisation of the properties

mentioned in the will, because there is no participle governing the words "" undermentioned properties. "" The word '' with '' has been added by the

translator. We asked the Bench-clerk to translate it, and he 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 ""undermentioned properties."" Alavandar was an illiterate man, and

in construing the will of persons of that class we must put ourselves in their position.

The next contention was based on the use of the word ""vars"" in the will. The contention of the appellant''s vakil was that the 1st defendant was

entitled 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 his brother''s son "" has no share or right""; this indicates that this 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 life-time. 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 power'' does not mean that rights of disposition over the property are given but only full

rights of managing the property as trustee. I feel no doubt that the property was dedicated to charity and that the 1st defendant was appointed as

the first trustee. Mr. Rangachariar referred to two cases to explain the meaning of the term ""vars"", Chuni Lal v. Bai Muli ILR (1899) Bom 420 and

Surajmani v. Rabi Nath Ojha (1907) ILR 30 All. 84.P.C. 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 Narasimha v. Parthasarthy ILR

(1914) Mad. 199 : 26 M.L.J. 411. 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,"" but not to add under any

circumstances to the testamentary disposition. The following sentence is peculiarly 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."" Applying this test I agree with the opinion of the Subordinate Judge that the bequest was to

the charity and not to 1st defendant 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

residue. Before dealing with the cases quoted in this connection 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 circumstance that he himself was performing the charities in the three shrines already referred to.

At the end of the will he says ""after my life-time thaligai shall be given in Swami Kovil at the Tirunakshatram every month."" The contention for the

appellant was that the 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 deduction of 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 the 1st defendant in order to

be utilised by him in any way he liked later on. There is no 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

Mahabahpuram 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 birth-star of the deceased

testator. Knowing as I do something of the ceremonies in Vishnu temples, 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 at any rate some peculiar 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; the particular form of charity is indicated, and the particular occasion in which the charity is to be performed is also mentioned. I see

nothing vague in such a disposition.

Now I shall examine the cases quoted by the learned vakil for the appellant. In Runchordas v. Parvathibai (1899) ILR 23 Bom. 725. P.C 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. The Bishop of Durham (1805) 10 Vesay Jun. 522 : 32 E.R. 947 stated : ""Unless the subject and the objects can be ascertained, upon

principles, familiar in other cases, it must be decided that the Court can neither reform mal-administration or direct a due-administration."" The

defect does not exist in the present case. Here the subject and objects are both ascertained and specified. In the other case Parthasarathy Pillai v.

Thiruvengada Pillai ILR (1907) Mad. 340 : 17 M.L.J.379 Subrah-mania 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 v. Parratibai (1899) ILR

23 Bom. 725. P.C to hold that the bequest in the particular case was void for uncertainty. In this Madras case beyond saying that the executors

shall utilise the properties for dharmam no place and no mode of charity was indicated. On the other hand the decision in Suraj Kunwari v. Har

Narain Ram ILR (1917) All. 311 shows that dispositions like the present are enforceable.

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 Doraiswami Pillai v.

Sandanathammal (1915) M.W.N. 478. 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 (1915) (Sc.)

310, 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 (1915). (Sc.) 313, a bequest of residue to trustees to distribute the same among such charitable institutions,

persons, or objects as they might think desirable was held enforceable And in Bannerman''s Trustees v. Bannerman (1916) S.C. 398 a power in

favour either of religious or charitable institutions, one or more, conducted according to Protestant principles 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 Corforated Society v. Price I.J. and Lat. 498, Bunting v. Marriott (1854) 19 Beav. 163 : 52 E.R. 311, Piscoe v.

Jackson (1887) 35 Ch. D. 460 and Attorney-General v. Lawes (1849) 8 Hare 32 : 68 E.R. 261, 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 fund 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 (1850) 13 Beav.87 : 51 E.R. 34 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 intention of the testator on the principle of Cy pres. The

desicion in Salebhai Abdul Khader v. Bai Sa iabu ILR (1911) Bom. 111 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.

There is also another consideration which induces me to hold that the bequest is valid. Exhibit 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 the suggestion of Mr. T.R. Ramacbandra Aiyar that Exhibit A(1) should be regarded as a codicil is somewhat far-fetched. The citation

from Jarman on Wills Vol. I page 35 that even answers to interrogatories may be regarded 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 Exhibit A(1) is ad"" missible in evidence u/s 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 Exhibit A. I think the language of Clause 7 of

Section 32 covers this case. I also think that this statement is part of the res gestae and as such receivable in evidence u/s 6 of the Evidence Act.

As regards Exhibit B it was a written statement filed by Alavandar in a suit brought against him to declare that part of the properties 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 it comes u/s 32(3) of the Evidence Act. Reading Exhibits A(1) and B with Exhibit A I am of opinion that the testator

had a clear testamentary intention in favour of charity.

The next point for consideration is whether the trusts declared by the testator are public trusts or only private trusts 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. The object was to feed the devotees. I fail to see how this can be regarded as a private trust. The decision in

Sathappayyar v. Periaswami ILR (1890) Mad. 1 which related to a gift by the then Zamindar of Sivaganga to his own religious preceptor with a

view to the property being utilised 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 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 ILR (1895) Bom 495 any bearing on the present question. In Sri

Rangachariar v. Pranathaharthihara Chariar (1915) 18. M.L.T. 122, 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 shall 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. None the less the evidence in this case

shows that the personal habits of the 1st defendant are of such a nature as would justify co-adjutors being appointed along with him. Moreover I

cannot shut my eyes to the fact that the 1st defendant claimed in this suit that no part of the properly should go to the trust. At the same time I am in

agreement with Mr. Rangachariar that the 1st defendant should not be wholly removed. The best course is to appoint two more trustees of whom

one at least should be a non-brahmin to cooperate with him in the management of these properties. It is desirable also that the 1st defendant 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.

This brings me to the last question as to 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 a 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 be 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. Eiamachandra 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 Government supervision. The mutt properties in Mysore often

pass into the hands of the Government with a view to the more efficient management. There is no reason for presuming that a different state of

affairs prevailed in ancient India. Regulation VII of 1817 states in the pre-amble 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. "" It is not unreasonable to assume that such a duty was inherited from

the ancient sovereigns of the land, although the notion that the sovereign 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 the 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 intended 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 Tirupathi Devastanom Act) authorising the utilisation of a portion of the

temple income for the purpose of advancing secular education. Courts have sanctioned expenditure for imparting instructions in Sanskrit and Tamil

(Vide the Scheme for the Rames-varam Devastanom). 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 the 28th January 1801

addressed to the then British Resident shows in what spirit and with what intents religious charities were gifted and administered. After referring to

the fact that persons from all over India travel by foot to Ramesvaram 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."" 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 come to the chatram are

placed under the care of the schoolmaster. 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 are also 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 their marriage are defrayed."" 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 Sastras 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

pksnuky{k.kks�FkksZ /keZ% ""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 Srnritis 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 considers that education is a form of charity which would enable the

donor to attain salvation, he interpreted truly the Shastraic injunctions in this behalf. Vai-dyanatha Dikshitar, who has in his monumental work

prescribed the duties of householders, 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 the Taittiriya Upanishad on the excellence of Dharma:

nkufefr lokZf.k Hkwrkfu iz''kalfUrA

nkus loZa izfrf""Bra rLek�kua ijeaonfUr AA bfr-

* * * *

Then he quotes a very few apt Slokas from Manu.

rzh.;kgqjfrnkukfu xko% i`Foh ljLorhA

vfrnkuarq nkukuka fo|knkua rrks�f/kda AA

fo|kukap ijkfo|k cz�fo|kk lehfjrkA

vrLr�krqjLR;so ykHk% LoxkZi oxZ;ks% AA

;ksx|kRKkueKkuka dq;kZ}k /keZn''kZuaA

ld`Rluka i`fFkoha n|kr~ rsurqY;a p rHnosr~ AA bfr-

In the matter of Dana the Vedas say thus : ""All beings praise Dana. Everything rests on Dana. Therefore it is said that Dana (gift) is the noblest

and the Supreme.

Manu says :-There are three classes of the highest gift : the gift of cows, land and Saraswati (learning). But among these vidyadanam (gift of

learning) is more praiseworthy than the others. In learning, Paravidya (knowledge relating to the Para Brahman-Supreme Spirit) 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.

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 Paravidya, education relating to aknowledge of Para Brahman shows that in his

opinion every endeavour to remove ignorance 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 propitiatary offering to God would bemis-spent if a portion of it is utilised for secular education.

The final scheme approved by the District Board of Tanjore for the utilisation of the surplus funds shows that they carried out the letter and spirit of

the instructions given by Raiah 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.

The difficulties we are experiencing are traceable to the constitution of committees under Act XX 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 effective 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 speculation and mismanagement. The multiplication of Utsavams is more due 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 to these lamashas, 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 fire-works is not chargeable on the trust. See Adiraja Arsu v. Sheikh Budan Sahib (1917) 34 M.L.J. 358.

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 fire-works 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 give scope for abuses of a serious kind on

the part of those entrusted with the management of such institutions.

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 earmarks 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 income, 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 diffusion of knowledge. A sufficient portion of the

income may be spent on spectacular demonstrations which attract and please the ordinary worshippers. 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 connection with the fundamentals of religious worship. In very many instances, expenditure on

tamashas produce the opposite effect. The worship of the deity is lost sight of, in the desire to witness the amusements; and not unfrequently, 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 earmarked or, if earmarked, 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.

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 connection with religious institutions. Grants are

frequently made to reward persons who chant the Vedas or the prabhandum 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 regarded 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 ate

charitable purposes. See Whicker v. Hume (1858) 7 H.L.C. 124. I think this principle is applicable with greater force to Indian conditions. In

Thompson v. Thompson (1844) 1 Col. 381 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 (1798) 4 Vesey 11 and Attorney-General

v. Wansay (1808) 15 Vesey 231 In Estlin, In re Prichard v. Thomas (1903) 72 L J Ch. 687 appropriation of such funds for founding homes for

lady teachers was upheld. In Hall v. Derby Sanitary Authority (1886) 16 Q. B. Dn. 163 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, page 58, the 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 pages 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.

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 Sitharama Chetty v. Sir S. Subrahamania

Aiyar ILR (1915) Mad. 700 : 30 M.L.J. 29. 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 ILR (1917) Mad. 124 : 33 M.L.J. 357 which I decided sitting with the learned

Chief Justice, I held that just as a Court of Chancery would not allow a trust to die for want of a trustee, so also 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 3 Hare 32 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 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, 600 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. Rama-chandra Aiyar drew our attention shows that in his life-time, Alavandar spent monies 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 (1823) Turn.& Rule 260, courts have often to supply defects of this nature in a trust bequest. Again 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 summarised in

4 Halsbury, paragraph 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 when 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 sought to be expedient to regulate the administration

of the charity.

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) The 1st defendant should be paid Rs. 40 a month for superintending the charities.

(c) 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 Thaligats, Utsavams, Rs. 500 in Tiruvedanthai and Mahabalipuram to be spent on the

Tirunakshatram day, and Rs. 500 to be utilised for purchasing prasadam in Tirupathi during Bramotsavam to feed non-Brahmin worshippers.

(e) The balance should be spent for giving religious education in Tamil prabhandum to non-Brahmin students.

With these suggestions the appeal is dismissed. Costs of both parties in both Courts will come out of the trust fund.