# N. S. RAJABAIBAR MUDALIAR v. M. S. VADIVELU MUDALIAR & ORS

- **Citation:** [1970] 2 S.C.R. 299
- **Court:** Supreme Court of India
- **Decided:** 1969-09-09
- **Bench:** V. llHARGAVA, K. S. Hegde, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-s-rajabaibar-mudaliar-v-m-s-vadivelu-mudaliar-ors-4793
- **Pages:** 4

## Headnote

Tru.'llt-Dominant purpose whether maintenance of faniily or charityConstruction of deed-Cy·pres doctrine-Applicability <lf.
The great.grandfather of the appellant executed a trust-deed in respect
of certain properties.
The trustees were enjoined to apply the. income
of the trust towards charities ·as also for the benefit of the settlor and
his family and descendants.
The appellant filed a suit to enforce his
rights under the trust and the trial court granted him maintenance to the
extent of Rs. 501- per mensem out of the trust properties instead of the
sum of Rs. JO/. allowed under the trust deed.
In appeal, however, the
High Court dismissed the appellant's suit and reversed the order of the
trial court granting him the said
increased
maintenance. In this Court
the contentions of the. appellant which fell for consideration were : (i)
whether the dominant purpose of the trust was the maintenance of the
settlor's family, the grant to the charities being! only secondary; (ii)
whether the cy-pres doctrine applied to the case, justifying the payment
of maintenance money as decreed by the trial court to the appellant.
HELD : (i) The provisions in the deed of trust and the direction
to the trustees, first to accumulate the income after meeting the expenses
of assessment, quit rent and maramath and the monthly 'and
annual
expenses and secondly to purchase prope.rties therewith were to provide
income only for the aforesaid charity.
The
words
"for the
aforesaid
charity" were of important significance.
The entire accumulation was
for charity.
The. provisions regarding maintenance and education were
subordinate to the provisions for meeting the expenses of the Utsavam to
he celebrated in the specified Devasthanams. [303 E-FJ
Further the provisions regarding
maintenance and education
we.re
to be at the sole discretion of the trustees who could stop the same.
This power of the trustees was a complete negation of the
appellant's
contention that the intention of the settlor was that education and maintenance expenses were the
dominant purpose of the
settlement.
The
settlor could never have allowed his dominant intention to be repelled
hy a discretion conferred on the trustees to stop such expenses. [303 G-H]
The tenor of the document thus pointed to the inescapahle conclusion
that the predominant and over-whelming inte.ntion of the settlor was to
hcncfit the charities and provide for the same, [304 A]
(ii) The cy.pres doctrine applies where, a charitable trust is initially
impossible or impracticable and the court applies the property cy-pres,
viz., to some other charities as nearly as possible. resembling the original
trust.
In the present case, the maintenance and education expenses were
neither charitahle trust nor similar objects of charity and the, High Court
therefore rightly interfered with the trial court's order granting increased
maintenance at Rs. 50 I· per mensem to the appellant. [304 C-D]
·
CIVIL APPELLATE Ju1smcT10N: Civil Appeal No. 1796 of
1966.
StlPREl\1r COURT REPORTS
f 1970] 2 S.C.R.
Appeal from the judgment and order dated January 6. 196-1
of the Madras High Court in O.S.A. No. 39 of 1961.
T. S. Sa11ga111<'.111·arc111 and K. Jayamm, for the dppellant.
A. K. Se11, M. S. Nara"i11'illl11 and S. Ba/akrishn.m, for responA
dents Nos. I, 5. 6 and 7.
R

## Text

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299
N. S. RAJABAIBAR MUDALIAR
v.
M. S. VADIVELU MUDALIAR & ORS.
September 9, 1969
[V. llHARGAVA, K. S. HEGDE AND A. N. RAY, JJ.]
Tru.'llt-Dominant purpose whether maintenance of faniily or charityConstruction of deed-Cy·pres doctrine-Applicability <lf.
The great.grandfather of the appellant executed a trust-deed in respect
of certain properties.
The trustees were enjoined to apply the. income
of the trust towards charities ·as also for the benefit of the settlor and
his family and descendants.
The appellant filed a suit to enforce his
rights under the trust and the trial court granted him maintenance to the
extent of Rs. 501- per mensem out of the trust properties instead of the
sum of Rs. JO/. allowed under the trust deed.
In appeal, however, the
High Court dismissed the appellant's suit and reversed the order of the
trial court granting him the said
increased
maintenance. In this Court
the contentions of the. appellant which fell for consideration were : (i)
whether the dominant purpose of the trust was the maintenance of the
settlor's family, the grant to the charities being! only secondary; (ii)
whether the cy-pres doctrine applied to the case, justifying the payment
of maintenance money as decreed by the trial court to the appellant.
HELD : (i) The provisions in the deed of trust and the direction
to the trustees, first to accumulate the income after meeting the expenses
of assessment, quit rent and maramath and the monthly 'and
annual
expenses and secondly to purchase prope.rties therewith were to provide
income only for the aforesaid charity.
The
words
"for the
aforesaid
charity" were of important significance.
The entire accumulation was
for charity.
The. provisions regarding maintenance and education were
subordinate to the provisions for meeting the expenses of the Utsavam to
he celebrated in the specified Devasthanams. [303 E-FJ
Further the provisions regarding
maintenance and education
we.re
to be at the sole discretion of the trustees who could stop the same.
This power of the trustees was a complete negation of the
appellant's
contention that the intention of the settlor was that education and maintenance expenses were the
dominant purpose of the
settlement.
The
settlor could never have allowed his dominant intention to be repelled
hy a discretion conferred on the trustees to stop such expenses. [303 G-H]
The tenor of the document thus pointed to the inescapahle conclusion
that the predominant and over-whelming inte.ntion of the settlor was to
hcncfit the charities and provide for the same, [304 A]
(ii) The cy.pres doctrine applies where, a charitable trust is initially
impossible or impracticable and the court applies the property cy-pres,
viz., to some other charities as nearly as possible. resembling the original
trust.
In the present case, the maintenance and education expenses were
neither charitahle trust nor similar objects of charity and the, High Court
therefore rightly interfered with the trial court's order granting increased
maintenance at Rs. 50 I· per mensem to the appellant. [304 C-D]
·
CIVIL APPELLATE Ju1smcT10N: Civil Appeal No. 1796 of
1966.
StlPREl\1r COURT REPORTS
f 1970] 2 S.C.R.
Appeal from the judgment and order dated January 6. 196-1
of the Madras High Court in O.S.A. No. 39 of 1961.
T. S. Sa11ga111<'.111·arc111 and K. Jayamm, for the dppellant.
A. K. Se11, M. S. Nara"i11'illl11 and S. Ba/akrishn.m, for responA
dents Nos. I, 5. 6 and 7.
R
The Judgment of the Court was delivered by
Ray, J. This appeal is from the Judgment of the High Court
at Madras dated 6 February, 1964 dismissing the
appellant's
suit.
The
important question
which falls for
consideration is
whether the deed of trust dated I
Jummry, 1908
created an
absolute dedicution to charity
subject only to a charge fo1· the
payment of nrnintenance to the members of charge of the fou;,Jer·~
family or whether the dominant intention of the founder was the
maintenance of the
family and the ~rant to the
charities was
secondary.
The trust deed was executed on I
January 1908 by S. D.
Mudaliar in favour of himself. A.P.M. Mudaliar. M.T.S. Mudaliar and C.V.S. Mudaliar. S. D. Mudaliar and his pre-deceased
son D. S. Muda/iar's adopted son S. Mudaliar effected a deed of
partition dated 25 November. 1907 in respect of the immovable
and movable properties. By the said
deed of partition S. D.
Mudaliar the sett/or of the deed of trust obtained the property
forming the subject matter of the said trust deed.
The founder
dedicated the said property by the de.ed of trust to the trustees.
The trustees were the s.ettlor and the three other Mudaliars, it.
A. P. M. Mudaliar. M. T. S. Mudaliar and C. V. S. Muda!iar.
Broadly stated. the
trust
deed
contained the
following
provisions.
First. the trustees after excluding the tax and Maramath expenses. shall during the lifetime of the sett/or pay him
entire income for the
purpose of
discharging the debt of Rs.
3000/- mentioned in the deed of partition and for the maintenance
of the settlor during his lifetime.
Secondly. after the death of
the sett/or the balance of the debt that might be found due on the
date after excluding the payments made by the
sett/or is to he
paid to the creditors.
Tt.ird/1'. after the sett/or's lifetime a sum
of Rs. I 0/- per pensem would be paid out of the income to the
settlor's daughter-in-law, nmnely. the appellant's
grand.mother.
vi:.., father's mother "for her lifeti1ne, for her charity expenses".
Fourthly, after the lifetime of the appellant's grand-mother the
trustees arc to pay a sum of Rs.10/- per mensem permanently
to the appellant's adoptive father who was the adopted son of the
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RAJARATHAR \'. VAmVELU (Ray, J.)
301
appellant's grand-mother and of lhe settlor's pre-deceased son
and after the lifetime of the appellant's adoptive father "to his
male descendants hereditarily".
Fifthly, the settlor
gave
full
power to the trustees after meeting the expenses of th~ Utsavam
to be celebrated in Nungambakkam Devesthanams. and the trust
expenses and the tax and maramath expenses to expand such sum
as they might deem proper to maintain and educate the male
de~cendants of the settlor·s
pre-deceased
adopted son.
The
settlor further provided that if the trustees were not willing they
woud stop such maintenance and education expenses.
Sixthly.
the trustees after the lifetime of the settlor would spend from and
out of the aforesaid trust income in such manner as they might
deem proper and have the '/asantha Utsavam celebrated for a
period of not 1.~ss than three days during the Vasantha Utsavam
which would be
celebrated every year in the
Temples of Sri
Agastheeswarar a_nd Venkatesa Perumal installed by the scltlor's
ancestors and ensrined in Nungambakkam.
Finally,
aft.~r the
lifetime of the settlor the trustees were directed to accumulate the
amout remaining out of the income from the property after excluding the assessment. quit rent and maramath and the monthly
and annual expenses and
purchase properties
therewith and
provide the same as income for the aforesaid charity.
In the background of these provisions, counsel for the appellant contende.d that the dominant intention was a provision by
way of a settlement for the members of the family and that the
charities were subsidiary purposes to the said deed of trust.
The
provisions or oirection to the trustees first to
accumulate the
income after meeting the expenses of assessment, quit rent and
maramath and the monthly and annual expenses and secondly
lo purchase properties therewith were to provide income only
for the aforesaid charity.
The words "for the aforesaid charity"
are of important siimificance.
The entire accumulation was for
the charity.
The provisions regarding maintenance and
education were subordinate to the provision for meeting the expenses
of the Utsavam.
The matter does not rest there.
The provisions
regarding maintenance and education were to be at the 'ole discretion of the trust.~es who
could slop the same if the
trustees
were not willing. This power of trustees to stop maintenance and
education expenses is a ccmplete negation of the appellant's c<mtention that the intention of the senior was that .education
and
maintenance expenses wcr.~ the domin"ant purpose of the settlement.
The reason is obvious.
The dominant object is never
allowed by the settlor to be repelled by a discretion conferred on
the trustees to stop such expenses.
This power to stop is consistent with the intention of the settlor to treat the education and
maintenance exp.~nses as secondary objects only after the pTimary
purpose of the trust, namely, charities are fulfilled.
Tl)e tenor
SUPREME COURT REPORTS
[1970] 2 S.C.R.
of the document points to the inescapable conclusion that the
pre-dominant and overwhelming intention of the settlor was to
.benefit the charities and provide for the same not only by making
the expenses for the charities as the first and foremost direction
but also by providing for accumulation of income and purchase
of properties out of the said accumulated income only for the
purpose of charities.
A contention was raised by the appellant that the High Court
should not have reversed the finding of the trial Court for the
payment of maintenance of the appellant at Rs.50/- per mensem.
The High Court came to the conclusion that there was no legal
principle to sustain this increase in maintenance. In this Court
the contention which was raised in the High Court was repeated,
viz., that this was a case where the cy-pres doctrine would apply.
Tlie ,C)·-pres doctrine applies where a cl.aritable trust is initially
impossible or impraciicable and the Court applies the property
cy-pres, viz .. to some other charities as nearly as possible, resem-
.bling the original trust.
In the present case, .the maintenance
and education expenses are neither charitable trusts nor similar
object~ of charity.
For these
reasons, the appeal fails and is
dismissed with
costs. The appellant will pay ihe court fees.
G.C.
Appeal dismissed.
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