# Nori Venkata Ra111a Dikshitulu v. Ravi Ve11ka1appayya, A.1.R. 1960 A.P

- **Citation:** [1974] 2 S.C.R. 679
- **Court:** Supreme Court of India
- **Decided:** 1973-12-11
- **Bench:** 0. G. Palekar, V. R .. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nori-venkata-ra111a-dikshitulu-v-ravi-ve11ka1appayya-a-1-r-1960-a-p-6163
- **Pages:** 15

## Headnote

679
Public Trust-Doctrine of cypres, if applicable to non-testamentary gl/tsConditions for Its applicability-General object, when inferred-Applicability of
s. 83, Trusts Act (2 of 1882) to public trusts.
In 1945, a donation of Rs. 30,000 was made for building a 6-bed hospital
for women on an approved chosen spot, according to the approved plan, to
be constructed by the 'donor with a matching co~tribution from the government
and with any other voluntary donation. The donor died in 1947 and ell that
was done by that time was to lay a foundation stone. In 1952, the sons of
the donor filed a suit for return of the .Rs. 30,000 on, the ground that the
conditions subject to which it' had been given had been violated and that the
contemplated charity never materialised.
The trial court and the High Court in appeal decreed the suit.
Dismissing the appeal to this Court,
HELD : ( 1) · A hospital for women is a charitable .object and since the
beneficiaries are a section of the public, it constitutes a public trust.
'E
(2) The doctrine of cypres is applicable to both testamentary and non-testa-
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mentary gifts for public charitable purposes.
[68601
Nori Venkata Ra111a Dikshitulu v. Ravi Ve11ka1appayya, A.1.R. 1960 A.P.
3S and Patti S1van1i v. Rao Saheb D. Govi11darajulu, A.1.R. 1960 A.P. 605,
referred to.
(3) The coaditions for the application of the doctrine are"'."""'(a) The scttlor
has shown a general charitable intention· that is, the charitable object is of a
g;ener8.I and not of a specific nature, and the original trust has failed ab initio;
(b) there must be impossibility, not in the stric..t physical sense but in the liberal.
diluted sense, of impracticability of carrying out· the settlor's intention; and
(c) there must be a completed gift.
[6898·E)
In re Hllsoni [1913] 1 Ch. 314, In re Ulversion and District New Hospital
Building Trust, [19S6] l Ch. 622, Commissioner, Lucknow D/l'lslon v. Deputy
Commissioner of Pertaogorlr, A.I.R. 1937 P.C. 240 and Jn re Rymer, [189))
l Ch .. 19, 31, referred to.
•
(4) The present is a borderline case is to whether there was a general
intention te benefit the community, but Courts should lean in. tavour of the
charity taking effect by imputing,
witho~t straining the language,~ an intention
to help the J)COt:>le of the area with a maternity hospital. The rule of law mu"St
rile to this rule of life by a facU!tating the fulfilment of benevolent objecis
but vigilantly guardina aaainst perversion, diversion. subversion, inaction and
unjuot enrichment, where public donatiom have been raised.· [691D] ·
(5) But the tran11ct!on in the instant case wu not a a!ft s!mpiiciter but
WM subject to a matching grant from the Government the build!na being
required to be constructed by the donor with such augmented money etc.
AHumlnR substantial compliance
as sufficient in law. one of the conditions
bas been carried out by the State.
[693F]
680
SUPREME COURT REPORTS
(1974) 2 S.C.R.
HariJ!t Chandra
v.
Hindu Sharma Sewak lvlandal, A.l.R. 1936 All. 19
Jn re U11;1·ersil'y of London fl-fedical Sciences lnsriture Fund, [1909] 2 Ch. 1;8-9,
In re White's Trust, [1886]
Ch. Div 449, Tudor 011 Charities and Halsbury's
laws at t::nr..:land 3rd t.dn .. referred to.
(6) The conditions having failed, the charity proved abortive, and the
legal consequence is a resulting trust in favour of the door.
Though s. 83 of
the Trush Act, 1882 does not apply proprio rigvre, it embodies a universal rule
er equity and good conscience and may be- held to be applicable to public
charitable trusts also.
f688A-B; 693F-Gl
lGovl·:-nm.nt litigation involves expenditure of public money and should not
bi: permitted to become an occasion for abu~ing 1he legal process regardless. of
i.he m:Jrc.!itv of the nlease and indifferent to any otter of settlement of th~ clain1
on f<iir tcrms.l
CIVJL APPELLATE JURISDICTION; Civil Appeal No. 1844 of 1967.
,\ppeal by Special Leave from the Judgment and Order dated the
10th August 1965 of the Allahabad High Cour

## Text

_Characters 0–39,752 of 44,290. This is a partial read: ask again with offset=39752 for what follows._

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STATE OF UTTAR PRADESH
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BANS! DHAR AND OTHERS
December 11, 1973.
[0. G. PALEKAR AND V. R .. KRISHNA IYER, JJ.]
679
Public Trust-Doctrine of cypres, if applicable to non-testamentary gl/tsConditions for Its applicability-General object, when inferred-Applicability of
s. 83, Trusts Act (2 of 1882) to public trusts.
In 1945, a donation of Rs. 30,000 was made for building a 6-bed hospital
for women on an approved chosen spot, according to the approved plan, to
be constructed by the 'donor with a matching co~tribution from the government
and with any other voluntary donation. The donor died in 1947 and ell that
was done by that time was to lay a foundation stone. In 1952, the sons of
the donor filed a suit for return of the .Rs. 30,000 on, the ground that the
conditions subject to which it' had been given had been violated and that the
contemplated charity never materialised.
The trial court and the High Court in appeal decreed the suit.
Dismissing the appeal to this Court,
HELD : ( 1) · A hospital for women is a charitable .object and since the
beneficiaries are a section of the public, it constitutes a public trust.
'E
(2) The doctrine of cypres is applicable to both testamentary and non-testa-
'
G
H
mentary gifts for public charitable purposes.
[68601
Nori Venkata Ra111a Dikshitulu v. Ravi Ve11ka1appayya, A.1.R. 1960 A.P.
3S and Patti S1van1i v. Rao Saheb D. Govi11darajulu, A.1.R. 1960 A.P. 605,
referred to.
(3) The coaditions for the application of the doctrine are"'."""'(a) The scttlor
has shown a general charitable intention· that is, the charitable object is of a
g;ener8.I and not of a specific nature, and the original trust has failed ab initio;
(b) there must be impossibility, not in the stric..t physical sense but in the liberal.
diluted sense, of impracticability of carrying out· the settlor's intention; and
(c) there must be a completed gift.
[6898·E)
In re Hllsoni [1913] 1 Ch. 314, In re Ulversion and District New Hospital
Building Trust, [19S6] l Ch. 622, Commissioner, Lucknow D/l'lslon v. Deputy
Commissioner of Pertaogorlr, A.I.R. 1937 P.C. 240 and Jn re Rymer, [189))
l Ch .. 19, 31, referred to.
•
(4) The present is a borderline case is to whether there was a general
intention te benefit the community, but Courts should lean in. tavour of the
charity taking effect by imputing,
witho~t straining the language,~ an intention
to help the J)COt:>le of the area with a maternity hospital. The rule of law mu"St
rile to this rule of life by a facU!tating the fulfilment of benevolent objecis
but vigilantly guardina aaainst perversion, diversion. subversion, inaction and
unjuot enrichment, where public donatiom have been raised.· [691D] ·
(5) But the tran11ct!on in the instant case wu not a a!ft s!mpiiciter but
WM subject to a matching grant from the Government the build!na being
required to be constructed by the donor with such augmented money etc.
AHumlnR substantial compliance
as sufficient in law. one of the conditions
bas been carried out by the State.
[693F]
680
SUPREME COURT REPORTS
(1974) 2 S.C.R.
HariJ!t Chandra
v.
Hindu Sharma Sewak lvlandal, A.l.R. 1936 All. 19
Jn re U11;1·ersil'y of London fl-fedical Sciences lnsriture Fund, [1909] 2 Ch. 1;8-9,
In re White's Trust, [1886]
Ch. Div 449, Tudor 011 Charities and Halsbury's
laws at t::nr..:land 3rd t.dn .. referred to.
(6) The conditions having failed, the charity proved abortive, and the
legal consequence is a resulting trust in favour of the door.
Though s. 83 of
the Trush Act, 1882 does not apply proprio rigvre, it embodies a universal rule
er equity and good conscience and may be- held to be applicable to public
charitable trusts also.
f688A-B; 693F-Gl
lGovl·:-nm.nt litigation involves expenditure of public money and should not
bi: permitted to become an occasion for abu~ing 1he legal process regardless. of
i.he m:Jrc.!itv of the nlease and indifferent to any otter of settlement of th~ clain1
on f<iir tcrms.l
CIVJL APPELLATE JURISDICTION; Civil Appeal No. 1844 of 1967.
,\ppeal by Special Leave from the Judgment and Order dated the
10th August 1965 of the Allahabad High Court at Allahabad in First
Appeal No. 435 of 1954.
G. N. Dikshit and 0. P. Rana, for the appellant.
R. K. Garg and S. C. Agarwala, for respondent No. 2.
Tho Judgment of the Court was delivered byKRiSHNA !YER, J .-A litigation launched by the sons of a
frustrated philaulhropist, who is no more, has f;'3ched the last deck
of the justice edifice as a civil appeal, by special leave, a little over
22 years after its institution.
\\'hile illustrating the injustice of delay~
c<l justice this case more provocatively exposes the damage done by
the administration's dilatory indifference to a clear com1nitment of
an enthusiastic Collec'.or to construct quickly a 'female' hospital out
of a donation from a compassionate gCntlcn1an in Kannauj on certain
conditions \vhich \Vere breached b\· G0•:crnment. accordinl! to the
findine_~_ ot tl1c courts b~J•)\\'.
1'lici~· "l1·.<.dh' <li:>~urbin~ f,:::t-~Pt~ .. v·:i!l
b~~ b.:'tter
npprec1,1~t',,__1
r~:;;;ii'.._ii--"··~ -::if th;.: 1-.:g;! result,
~-her: t1J('. f;1cts
nrc set out, \Vhic-'-: \\·,;.·
!hl~
i-~r:;-.:: 1:-::J to d<:
1\n olct, att1uenl inar;_ c;:ui ... t.! Out'i( \-·. In '-i. rnun1fh:cn: mood. re"-
po;1Jcj to the rcqucs!
•.~f Si1ri Gnv1ncf
\i:ir::iin. then
(-.ollector
of
Farrukhabad District. "'-:: b,:'J..; in 1945.
,I\ promise
to
donate
R~. 30,000/-
\va5 rnJdc. 0;1 thL'- basis of
~l n1atching contribution by
Govc.:rnment. for the r:ocd cause of a \\-'Oinen's hosoital
in sacred
n1em'Jrv of ·the Uonor\ dec;.;ased "-'ife. Gointi Devi: Apprehending
thL: tardy \vays of g'-1vcrr11ncnt, this anxious soul insisted on his being
put. in charge of the construction so that the hospital ~ay come into
efr•encc through his diligent hands and in his lifetime, aided of course
by government grant and
auxiliary voltintary contributions.
The
activi;t c:ollector accepted these conditions, received· the philanthropic
cheques. moved swiftly to get the foundation-stone laid ceremonially
by the British Indian Governor of the Province, all in 1945.
This
$C~timcntal stone had the name Gon1ti Devi inscribed thereon.
and
the donor, believing the brave words of the Collector about quick
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Q.P. STATE v. BANS! DHAR (Krishna Iyer,!.)
6 81
acquisition of land, government contdbution and making over of th&
agency for construction to himself, st_arted
colle~ting the necessary
bricks for the buildmg. But Shn Govmd Naram m the usual course
left the District charge and once his back was turned on the District,
things got stuck. For the next Collector, Shri Bhagwan Sahai, noticing official stagnation in this matter wrote to the Civil Surgeon
m
March 1946-four months after Sir Maurice Hallet had planted with
pomp the first stone at the hospital site-that "the proposal has been
hanging since long which is certainly not fair to the donor".
Shri
Sahai tepidly concluded his note thus :
"For the balance of non-recurring expenditure I presume we shall have to apply to Government.
If so who
wiil do it? C.S. or I. I am prepared to do so if I have a
clear cut scheme with all lease ends tied up."
Nothing happened however, and to add insult to injury the District Supply Officer sent a chill into the chest of the· expectant donor
by proposing to freeze the bricks collected by him for the ho§pital
building and to divert them for the construction of a school,
thus
showing the lazy unconcern of the officials for the hospital project.
Exhibits 18 and 19 betray this neglect of Govind Narain's undertaking
on behalf of Government.
The old man, Dubey, continued to correspond with the District
a'uthorities on the hospital project till he was spirited away by death
in July 1947 and his human agency fp~ construction thus became unavailable.
No doubt, no post-mortem repentance \Vas manifested in:
. the official quarters even after Independence came to the country and
nothing· \vas done for years, suggesting that slowwrnotion administra'"'
tion, • die-hard heritage has survived British rule in India.
The subsequent part of the story discloses dereliction of duty, as
it were, for instead of constructing the proposed six-bed hospital
expeditiously with the additional sum to be brought into the hotchpotch by Governmen\, what transpired was that the plans were chan-·
ged, the agency visualised in the
original· understanding given up,
government's matchinz sum never granted and even the foundation
stone laid by the Governor of the Province removed. Apparently the·
officials engaged. themselves in paper work
of no import like the·
routine reply to the reminder. by the sons of the donor, Ex. A-6,
which chanted "thanhe proposal of constructing a 6-bedded -Women's
Hospital at Kannauj is under the active consideration of Government.'"
If six vears after the receipt of the donation of Rs. 30,00C\/- for the
urgent execution of· a hospital construction, _the matter was "under
the active consideration of Government" -its sense of time had suffered·
somnolence or its ~fficialese had indolent semantics.
Even a formal'
suit notice under s .. 80 of the Civil Procedure Code for return of the
sum given to the Collector/on account of the failure of the charity did'
not shake the Government .out of .its neglectful tranquillity.
These
lethergic official exc;rcises in the present case remind one of;the word•
il82
SUPREME COURT REPORTS
(1974) 2 S,C,ll.
~f. Lord Curzon_ about the administrative apparatus, which bear repeA
titian and find some contemporary echo.
The Viceroy wrote to his
Secretary of State :
"I am prodding up the animal with most viaorous an~
unexpected digs, and it gambols plaintively under the novel
spur.
Nothing has been done hitherto under six months.
When I suggest silio weeks, the attitude is one of pained surB
prise; if six days, one of pathetic protest; _if six hours, one
of stupefied resignation."
Had August 194 7 accelerated the process the Dubeys might have
.avoided the court.
The present suit, if it has served nothing, has at least awakened c
the State Government to some extent to its obligation. For, Government at long last constituted a new committee for the construction of.the
hospital building, drew up a new plan and built a 22-bed hospital in
the same place. All this was after the legal action was instituted and
perhaps on account of it. It must be mentioned in fairness to the
plaintiffs that they offered to withdraw the suit for the return of the
money if the original ·undertaking was substantially complied with
D
and half the costs of the suit-which was not much-upto then incurred were also paid by Government.
However, this public body
chose to continue what we regard, in the light of fuller facts, its cantankerous defence despite defeat in two courts.
Government litigation involves expenditure of public money and cannot become an
occasion for abusing the legal process regardless of the morality of
the plans aud indifferent to any offer of settlement of the claim on
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fair terms. Here we may quote what one of us had observed in an
earlier appeal(') about- litigation to which Government is a party :
"In the
context of expending
dimensions of
State
activity and responsibility, is it unfair to expect finer sense
and sensibility in its litigation policy. . . . . . the Law. Commission of India in a recent report(•) on amendments to
F
the Civil Procedure Code has suggested the deletion of
s. 80, finding that wholesome provision hardly ever utilised
by Government, and has gone further to provide a special
procedure for government litigation to highlight the need
for an activist policy of just settlement of claims where the
State is a party. . . . certain observations I had made in a
Kerala High Court decision(') ...... I may usefully excerpt
G
here :
"The State, under our Constitution, undertakes economir.
activities in a vast and widening pu~lic sector and inevitably
(I) Dllblllh Ral Jai·ry v. Union of l11dla. Civil App:ol No. 1898
of 1967; judam,nt delivered on November 5, 1973.
H
(2) L•w Com'lll!sion of India, 54th report- Civil Procedure Code.
(3) P.P. Abubacktr v, U11/on ofl11dla; A.!.R. 1972 Ker.
103; 107;
Para
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U.P. STATE v. BANS! DHAR (Krishna Iyer, J.)
68 3
gets involved in disputes with private individuals. But it
must be remembered that the State is no ordinary·party trying to win a case against one of its own citizens by hook or
by crook; for, the State's interest is to meet honest claims,
vindicate a substantial defence and never to score a technical
point or overreach a weaker party to avoid a just Iiubility
or secure an unfair advantage, simply because legal devices
provide such an opportunity.
The State is a virtuous litigant and looks with unconcern on immoral forensic successes
so that if on the merits the case is weak, government shows
a willingness to settle the dispute regardless of prostige and
other lesser motivations which move private parties to fight
in court. The lay-out on litigation costs and executive time
by the state and its agencies is so staggering these days because of the large amount of litigation in which it is involved
that a positive and wholesome policy of cutting back on the
volume of law suits by the twin methods of not being tempted
into forensic show-downs where a reasonable adjustment is
feasible and ever offering to extinguish a pending proceeding
on just terms, giving the legal mantors of government some
initiative and authority in this behalf."
To complete the human side of the story, we reach its anti-climax:
when, the forgotten foundation-stone-laying notwithstanding, a fresh
ceremony of stone placing for the new hospital was gone through with·
the then Health Minister, Shri C. B. Gupta, as the digiJ1itary to repeat
what the former Governor had once done. This presumably hurt the
donor's sons who prayed to the Collector at least for the return of the
former lapidary momento. Be that as it may, we are assured happily
that a hospital has been constructed although it was a total departure
from the project which induced the alleged conditional gift.
The sons of the donor brought the present suit on the ground ;:iat
the conditions subject to which the sum of Rs. 30,000/- had been given
had been violated that the charity as contemplated had never materialised and a totally different scheme had been belatedly executed. The
defendant, the State of Uttar Pradesh, contested the facts but failed
in that effort, Shri Govind Narain having wisely declined to be a wit·
ness to the Government's version and the documents having testified
to the truth of the plaintiff's case. Some legal contentions were raised·
but rejected and have been repeated before us by Shri Dixit, learlled
counsel for the appellant State.
The facts as found by the trial Judge wer.e accepted by the State
before the High Court and affirmed by the learned Judges. Before
proceeding fo discuss the issu~s of law we may set out the findings of
fact concurrently recorded. The High Court held :
"The learned counsel for the appellant has rightly conced·
ed that for the purpose of tills appeal all the fl,ndlnas of fact
arrived at by the learned Qvil Judge might be accepted as
.correct. We hlVe gone through the entire evidence and we
SUPREME COURT REPORTS
[1974] 2 s.c.R.
feel no hesitation in accepting the findings of fact arrived
A
at by the learned Civil Judge.
It is fully established from the
evidence on the record that the sum of Rs. 30,000/ - had been
advanced by Pandit Surj Prasad Dubey on the understanding
that the hospital would be constructed.
(I) on the approved site;
(2) according to the approved plan; and
(3) at an early date through his agency.
the entire amount of Rs. 60,000/- was to be paid to Sri Dubey
for the construction of the hospital."
Since the appellant had accepted the findings of fact recorde<I by
ihe Civil Judge we may notice those findings before proceeding fur"
.ther. The trial Judge held :
"There is overwhelming and unrebutted oral and documentary evidence which leaves" me clear that Pandit Suraj
Prasad Dubey, the deceased father of the plaintiffs gave
Rs. 30,000/- as his subscription on the terms and conditions
alleged in the plaint."
"These letters and the evidence of P.W. I Sri Hari Har
~ath Vakil conclusively prove· that the following terms were
settled between the Collector and Dubeyji.
I. That the hospital would be
constructed on Kannauj
Makrand Nagar Road near Phoolmati Temple.
2. That the hospital will be named after the name of person
suggested by Dubeyji and which name was to be communicated by him, to .the D.M. subsequently.
Dubeyji suggested the name of the hospital as "Gomti Devi" by
his letter dated 30th October, 1945 which name was
accepted by D.M.
3. That the hospital would be constructed by Dubeyji accord ..
ing to the plan approved by Government with .nice arrangement for maternity and child welfare.
4. That a sum of Rs. 30,000 would be paid by Dubeyji for
that purpose.
·
5. That the aforesaid sum along with the plan necessory help
for procuring raw materials would soon be
ll.iven lo
Dubeyji after the foundation laying ceremony was O\'cr
so that Dubeyji might be . able to get the hospital constructed at the earliest through his own agency."
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·"It is thus clear that all the terms set out in the plaint
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were settled and have been definitely proved by the evidence
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discussed above. The entire· matter. was settled with Sri
· Govind Narain and although several adjournments were taken
by the defendant to produce Sri Govind Narain but he was
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U,P. STATE v. BANS! DHAR (Krishna Iyer, J.)
685
not examined. It seems he was not found in a position to
say any thing to the contrary or in rebuttal to plaintiffs' evidence. There is thus not a word. in r.ebuttal of plaintiffs'
case on the matter of terms settled between the parties,"
"In this connection I think it will not be unimportant· to
point out that District Government Counsel was examined ·
under 0. .IO rule
(r) C.P.C. he admitted that plaintiffs
settled term with defendant Government through Sri Govind
Narain the then District Magistrate. He also admitted that
the. then Collector had agreed that the building be constructed according to the approved plan through the agency of
plaintiffs' father.
He1further admitted that defendant agreed
to invest at least Rs. 30,000/- for the construction of that
hospital.
The only fact which he appears to deny is
that
there was no understanding that the. hospital would be completed and established in the near future.
All other conditions set out in the plaint
were practically
admitted by
h. "
JD1,
"I therefore hold that plaintiffs' father donated Rs. 30,000
for .a specific object viz. for the construction of Gomti Devi
Female Hospital with child welfare and maternity ward at
Kannauj Makrand Nagar Road near Phoolmati Devi temple
under his own agency on the terms contained in para two of
-the olaint. · Issues answered correctly in favour of the plain- .
tiffs!•
"As I hav,e held above plaintiffs' father gave a handsome
subscription of Rs. 30,000 on the terms and conditions contained in para 2 of the plaint.
There is overwhelming unrebutted evidence which point to the irresistible conclusion
that the defendant left the scheme in the cold and venture
came to an enc! in the life time of Pt Suraj Prasad Dube_Y-"
These concurrent findings of fact have been rightly rendered in
eur view, counsel Shri Dixit having taken us through the relevant
papers.
Of course, he did not canvass the correctness of these findings before us so that we have to proceed on the footing that given
these facts, has the appellant made out a case to dislodge the liability to disgorge the sum of Rs. 30,000 decreed by the courts below.'
We need hardly say that the elecmosymary venture agreed upon
between the late Dubey and the then Collector in I 945 remaihed. a
humanitarian essay, not a charity accomplished, but the legal question
still remains whether the plaintiffs stepping into the shoes of
the
donor have .. the right to demand re-payment of the amount already
made over.
It is proper to condense and formulate the legal frame
of the longish submissions made by Mr. Dixit He argued that the
donation was 'without strings', if we may use a cliche, that Dubey had
made an outright gift with general charitable intent and the pious
wishes superadded to the donation did not make it a conditional gift.
In his view, the non-fulfilment of these wishes did not amount to the
686
SUPREME COURT REPORTS
[1974] 2 s.c.R.
f~ilure of a condition precedent making the gift inoperative. His
further contention was that the gift having been accompanied by a
general charitable purpose of benefiting the local people with hospital facilities the cypres doctrine applied to the case even if the object
of the charity could not be literally carried out.
Therefore, he argued that the Court may issue directions appropriate to the broad pur·
pose so as to salvage the substance of the charity.
Finally, he urged
that the plaintiffs had, subsequent to the suit, agreed to give up the
claim if! the light of a new hospital having been built and they could
not now resile therefrom or recall the sum their father had irrevocably
given away for a public cause. Mr. Garg, learned counsel for the
respondent, has sought to meet the challenge of law by law, facts by
facts and unfilial imputation of withdrawing from the paternal bounty
by proof of a better public charity by starting a school in Gomti
Devi's name with a much larger input.
We will examine the validity
of these various contentions.
The essential issue turns on the nature and efficacy of the
~ft
itself but before we discuss it the deck may as well be cleared by disposing of the plea of agreement to withdraw the claim, estoppel on
account of the defendant having acted thereon, and the consequent
untenability of the action.
Both the courts have overruled it and
we are in agreement with them.
After the institution of the suit Shri V. Kumar, the then District
Collector, discussed the closure of the litigation with Murli Dhar,
one of the plaintiffs.
The latter offered not to press for the refund on
certain terms. He desired that the hospital be constructed through
the agency of the plaintiffs now that Shri Dubey was .dead, according
to the old approved plan on the approved site.
Ex.A-4 evidences
this offer.
The Collector did not, and perhaps could not without the
consent of Government, accept the said offer but merely replied that
the matter would be referred to Government.
Nothing more was done,
apart from internal correspondence. The Jong wait was in
vain.
Thereafter, the plaintiffs had to pay the full court-fee although to start
with they had filed the suit with a nominal court fee. Ex. 25 indicates
that the Government would not agree to the agency of the plaintiffs for
the construction of the hospital. It is further seen that in Ex. 27 the
plaintiff~ again made an offer to withdraw the case provided they
were also paid half the costs of the suit till then incurred.
Papers
moved but the agreement did not click.
The trial Court, going through
the documentary evidence on this aspect, concluded :
"It is, therefore, clear that there was no finally accepted con·
tract between parties.
There .have been offers and counter
offers without any final acceptance by either of them ..... .
It is, therefore, erroneous to say that defendant started
construction on the assurance of plaintiffs that they would
withdraw the suit as soon as the work started. Consequently
it cannot be said that defendant incurred any expenditure on
account of plaintiffs' assurance. Thus no question of estoppel arises."
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U.P. STATE v. BANS! DHAR (Krish11a Iyer, J.)
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In the High Court the contention was repeated and the learned
Judges disposed of the contention with the observation :
"The plaintiffs agreed to withdraw the suit provided certain conditions laid down by them were fulfilled.
However,
nothing seems to have materialised because those conditions
were not fulfilled.
In the circumstances the plea of estoppel
raised by the defendants had no substance in it and was rightly given up at the time the appeal was argued before us."
In the light of the abandonment of the pica, no weight can be
attached to its repetition in .this Court, apart from the lack of intrinsic substance in the submissions.
Let us have a close look at the terms and conditions of the dona·
tion and spell out their legal effect.
The law of gifts is, in a sense, a
collection of equitable principles but crystallised for India under the
British from Anglo-Saxon jmisprudencc.
Since Independence. collections from the public have escalated and iii India to-day popular
contributions to public charitable purposes are a new dimension. of
community involvement in developmental activities.
And so the rule
of law must rise to this rule of life by facilitating the fulfilment
of
benevolent
objects
'1ut
vigilantly
guarding
against
perversion,
diversion, subversion, inaction and unjust enrichment, where pu5lic
donations have been raised. The law of chaiitabic trusts must undergo an evolutionary ad.apta~on to Indian social environs, illumined
of course
by the well-settled rules in this branch of jmisprudence
developed over the centuries by great English judges. Maitland's
remark is valid even now for us : "Of all exploits of Equity the
largest and :;Jost important is the invention
and
development of
trust.,.
The principles relevant for our case may now be considered.
Was the contribution of Rs. 30,000/" for a charitable purpose? Lord
Stcrndale, M. R., said in the Court of Appeal In In rt Tutley(I) :
"f. ... am unable to find any principle which will guide
one easily, and safely, through the tangle of the cases as lo
what is and what is not a charitable gift.
If it is possible
T hope sincerely that at some time or other a principle will
be laid down.
The whole subject is in an artificial atmosphere altogether."
While in India we shall not be hidebound by English decisions ·
on this point, luckily both sides agree here-and that accords with
the sense of the law-that a hospital for women is
a
char\table
object, being for medical relief.
Moreover,
the beneficiaries are
a section of the public, women-that still silent, suffering half of
Indian humanity.
Therefore .• this decent connotes a public trust.
The next question is whether the . Indian Trusts Act, 1882, applies
---------
1. (1923) I Ch. 258, 266.
4-L748SCl/74 .
688
SUPREME COURT REPORTS
[1974] 2 S.C.R.
to the present case. The Courts below have argued themselves into
A
an application of s. 83 of the Trusts Act. Sri Dixit rightly objects
to this course because that Act relates only to private trusts, public
charitable trusts, having been expressly excluded from
its
ambit.
But while these provisions proprio vigore do not apply, certainly
!here is a common are.a of legal principles which covers all trusts, private and public, and merely because they ftnd a place in the Trusts
Act, they cannot became 'untouchable' where public trusts arc involB
ved. Care must certainly be exercised not to import by analogy what
is nol germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the universal rules of equity
and good conscience upheld by the English Judges, though also sanctified by the statute relating to private trusts,
The Court below have
drawn inspiration from s. 83 of the Trusts Act and we are not inclined to find fault with them on that score because the provision merely
C
reflects a rule of good conscierice and of general application. The details of the argument on the basis of this principle will be discussed
~ )ittlc later.
A~epting that J;lubey intended a charitable gift the first question
that falls for decision, as preliminary to the application of the cypl'es
doctrine, in as to the narure of the charitable object-whether general
or_ specific.
If the former, the doctrine is attracted but if the latter
it is repelled. We will revert to this aspect later.
Sri Garg objected to the application of the cypres principle to
cases of gifts as, in his view, only wills attract this jurisdiction. There
D
is much in the precedents tending this way but the opposite is not
E
bereft of authoritv. Nori Venkata Rama Dikshitu/11 v. Ravi Venkatappayya(1) and Potti Swami v. Rao Saheb D. Govindarajulu('),
for instance, are two authorities in . the same volume supporting the
rival positions.
We have come across
other cases,
Indian and
English, \Vhcrc even gifts inter vivos have been enforced cypres by
courts although the· general run of trusts where failure has been saved
relates to
testam~ntary dispositions. There is perhaps a reason.
11
Why courts.should, in
the case of wills, step in to supply a near
intent and apply the funds cypres where otherwise the
charity will
fail on sticking to the literal object, the author being dead and unable to speak. For gifts inter vil'l)s, tl1e donor is ordinarily available
to suggest the mutation in the event of impossibility or impracticability
of the original object. Even so, we arc inclined to the view that,
hath testamentary and non-testamentary gifts for public charitable
G
purposes mu&t be saved by a wider intervention of court, for public
interest i~; scrvc<l that way. Neither principle nor precedent bars tllis
broader
invocation
of the
court's beneficant jurisdiction.· But
there arc. tl\'O other limitations on the cyprcs doctrine which come
into play here. Where the donor has determined with specificity a
special objcd or mode for the course of his benefaction the Court
cannot innovate an<l undo, but \vhcrc a general charitable g6al is
ll
projected .and particular objects and modes are indicated the Court,
(t) A.T.rl .. t960 A.P. )0,
(1) A.LR. 1960 A.P. 605.
..
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U.P. STATE v. BANSIDHAR (Krishna Iyer,!.)
G89
acting to fulfil the broader benevolence of the donor and to avert
the frustration of the good to the community, reconstructs, as nearly
as may be, the charitable intent and makes viable · what othcrwis.e
may die.
The judges have set this restraint on their power to resurrect, or rather to vary and validate.
The twin donditions to be
satisfied are :
"(l). The 'senior must, in general, have shown a general
.cltali..table i11te11tio11 . ... It will only apply where the original trust has failed ab. inilio. The absenee of a general
charitabl~ intention will not be fatal to those trusts which
have taken affect but have failed .... Once money has been
effectively and absolutely dedicated to charity, whether in
pursuance of a general or a particular charitable intent, the
testator's next of-kin or residuary legatees are for ever excluded .... This will mean that tile material date for the pur,
pose of deciding whether the cypres doctrine is applicable is
the date when the trust came into effect (e.g. in a will, on
the death of the testator)."
(2) The second. condition for the application of
the
cypres doctrine used to be that it was or had become "impossible" to carry out the settlor's intention; or alternativelv
that a surplus remained after fulfilment of the purpose .... "(1).
In short. '!her!' must he a larger intention. to give Jhr- property,
in the first instance; secondly, there. must be impossibility not in the
strict physical sense but in the liberal. diluted sense, of impractibility.
Even here it must be. mentioned, 'however, that the cypres application
of !he gift funds assumes a completed gift. It is essential that a gift
has been made effectively before its actual implementation by application of the funds, literally or as nearly as may be, arises.
·Parker, J., as .be then was, in In l'e Wi/son( 2) stressed tlic presence of a paramount general intention
as distinguished from
a
particular limited purpose. ·"Where, on the true construction of the
will, no sucli paramount g~neral charitable intention can be inferred,
and where the gift, being in form a particular gift,.,-a gift for a particular purpose-and it being impossible to carry out that particular purpose, the whole gift is held to fail."
·
We need riot deal with cases of anonymous donors, for in those
cases the Court would be inclined to read a general intention in favour
of charity. Jn In re Ulvers1011 and District New Hospital Building
Trust(') the Cpurt held that in the case of a ·certain fund colkdcd
with the sole ob.iect of building and maintaining a new hospital and
not for the ~encral charitable purpose of improving facilities for
medical and surgical treatment in the districts to be served ·by the
(I) The Mo:tcrn Li:lW of T1·usts-Parker and Mcllow-2n edn. pp 2()4,208.
(2) (1913) I Ch. Jt4.
(3) (1956) 1 Ch. 622 ..
690
SUPREME COURT REPORTS
[1974) 2 S.C.R,
hospital, no general charitable intent could be imputed to the donors
and that the particular charitable purpose for which the fund
was
intended having.failed ab i11iti1>, the money in the hands of the trustees
received fiom indentifiable s.ources was held on resulting trusts.
The Privy Council in an Indian case, Commissioner, Lucknow
Division v. Deputy Commissioner of Partapgar(') had to deal with
the subscriptions paid to a committee (for the purpose of fulfilling a
specific and (well-defined charitable purpose which could not be carried
out on account of impracticability.
Lord Maugham observed that
"there is no general charitable intent shown in this case and that the
subscriptions were paid to the. committee for the purpose of fulfilling a
specific and well-defined charitable purpose and rllat only." (Emphasis
supplied). He further observed :
"The money having been paid over to the committee,
a complete trust was created to apply the funds in carrying
out the obj~t mentioned. lE the object has hecom.e impracticable, the subscribers .... have a clear right to the return
of their subscriptions pm rata . ... The present members. of
the com1nittce . ... are trustees in either event; in the event
of impracticability being shown, they are trustees for
the
subscribers; if, on the other hand, in1practicability
is
not
shown, they still have to carry out 'the trust."
Lord Herschell, L.C., in the case of /11 re Rymer(') laid down
tho Jaw early in the day und it holds good even to-day.
On a construction of the document before the Court the bequest was read as
meant to benefit a particular institution and not a general clasci in a
general way, an,d, that institution having ceased to ·exist in the testator's lifetime, the legacy could not be applied cypres, but lapsed and
fell into the residue.
The proposition as laid down in that decision
\vith precision is _just this :
"There is a distinction well settled by
the
authorities.
There is one class of cases. in which there is a gift to charity
generally, indicative of a general charitable purpose, and
pointing out the mode of carrying it into effect; i~ that mode
fails, the Court says the general purpose of chanty shall be
carried out.
There is another class, in which the testator
shows an intention, not of general charity, but to give to soll!e
particular institution; and then if it fails, becau.se there ts
no such institution, the gift docs not go to ehanty generally;
that distinction is clearly recognised: and it cannot be said
that wherever a gift for any charitable purpose fails, it is
nevertheless to go to charity."
(Passage cxerptcd in the
judgment from Clark v. Taylor(").
Mr. Garg's contention is that ther~ i.s no gc_neral charitable inten:
tion in the present case while Mr. D1x1t plausibly urges
that Shn
(I) A.l.R. 1937 P.C. 240.
(3) l Drew. 642;644.
12) (1895)
l!Ch. 19, 31,
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U.P. STATE '" BANS! DHAR (Krishna Iyer, J.)
G9 l
Dubey wanted his townsmen· to enjoy the facility of a "female hQspital". However, the findings of the courts below negatives any such
general intention to benefit the community and the old
man while
donating a large sum had taken care to particularise that the female
hospital should be a six-bedded one on a chosen spot to be constructed
by himself with matching contribution from goverpment and
citJ-,er
voluntary donations.
We are inclined to think that this is a borderline
case and, if at all, we should lean in favour of the charity taking effect
by imputing, witholU some legal straining, an intention to help the people of the area with a maternity hospital.
This does not sec the end of- the matter because we have to begin
by asking whether. there is a gift in existence. Then alone the object
being ge_nernl or specific and the .application of the cypres doctrine,
etc .. will arise. This takes us to the primary contention of Mr. Garg
that Shri Dubey made a conditional gift an\! the conditions not having
been fulfilled it just did not take effect.
We see considerable force
in this contention and will proceed to examine it.
There may be cases where a donor makes a gift for a specilic
charitable purpose, the performance of which is rendered impossible.
Jn such cases courts have to consider the gift as a conditional one
(vide the ruling in Barish Cha11dra v. Hindu Sharma Sewak Manda/(').
In tllnt case as the gift had failed the land reverted to the successorin-titlc to the donor.
The University of London was mindeci'in J 902 to found an institute of medical sciences and appealed for funds in that behalf.
One
donor responded by making a handsome gift by his will. ( Unfortunately,
the supervening circumstances prevented the proposed scheme for an
institute of medical sciences comi~g to pass.
The question ar~se a.s
to what should happen to the gift.
Farewell, L.J., observed tn tlus
context in 111 re Univer$itv of
Londo11
Mt•dical
Sciences
l11stit11te
Fund(').
-
·
"I .do not think that anybody who was not a lawyer could
for one momenFdoubt that the University were bound to
return at once to the living subscribers the moneys which had
been sent to tl1em for a scheme which they had abandoned;
but we are asked to say that althou_$ that may be so-and
I am not sure whether the Attorney-General admits it or not
-we ought to construe a will, which contains words in all
probability similar to those which the testator wrote in every
letter irt which he enclosed a subsription, as showing an in·
tcntion to give this money for.general charitab!c purpose:;,
and not to the particular institute conditionally upon that
institute being called into existence. I am wholly. unable to
follow Mr. Sergant's suggestion founded on a contract between the parties.When money has once !wen paid over to the
(t) A.l.R. 1936 Ail 197.
(2) (1909) 2 Ch. 1;8-9,
692
SUPREME COURT REPORTS
[1974] 2 s.C.R.
trustees in the lifetime of the donor a complete trust is creat·
ed, and the money !DUSt be held on the trUsts declared by
the donor; the right of the donor to a return of the money
arises when the trust is on the face of it co11ti11gent on the
proposed institute being called into being. ( I can see to diff·
ence between that case and the case of the testator. It is
well settled law il1at a legacy may be gil'm to a charity upo11
a co11ditio11, which collditio11 may be express or implied,
precedem or subsequent.'"
(emphasis supplied).
In this connection reference may also be made to /11 re White's
1"rmt( 1) where we may glean the same law laid down:
llie law has been correctly .stated l'Jy Delany (The Law relating to
Charities in Jreland) at. p. 128 thus ;
"i! a gift is made to a charity on a contingent event and
the happening of the even is a condition precedent to the Jdft
then, if the condition is too remote or for any oilier
reason illegal, the gift to the charity is void. This has been
expressed by Mclbornc L.C. in Cha111berlay11e v.