# SHAH CHHOTALAL LALLUBHAI AND OIBERS v. CHARITY COMMISSIONER, BOMBAY, AND OTHERS

- **Citation:** [1965] 2 S.C.R. 811
- **Court:** Supreme Court of India
- **Decided:** 1965
- **Case number:** Civil Appeal No. 634 of 1964
- **Bench:** K. Subba Rao, Acting C.J, Raghubar Dayal, R. S. Bachawat, V. RAMAsWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shah-chhotalal-lallubhai-and-oibers-v-charity-commissioner-bombay-and-others-3342
- **Pages:** 12

## Headnote

Bombay Public Trusts A.ct (29 of 19SO), ss. SS and 56--DiversJon
of accumulatil>n of trust funds-When permitted.
A testator, who professed the Jain religion, gave directions in his
will that certain amounts should be spent annually on religious and ch<dtlhlo objects specified by him, and that an annual feast sh<>uld be given
to members of his caste in certain specified villages.
He died in 1916
and by 19S5 there was a large accumulation of unexpended
income
mainly because of discontinuing the feas~ and so, the Charity Commissioner filed an application before the District Judge, under ss. SS(l)(b)
D
and 56 of the Bombay Public Trusts Act, 1950 for directions for the
utilization of that sum.
The District Judge directed a division of the
amount between an educational institution and a hospital. The appellants, who were of the same caste as the testator and who objected before
the District Judge to the diversion of the sum appealed to the High Court,
but the appeal was dismissed.
In their appeal to the Supreme Court, the appellants challenged the
E
propriety and legality of the directions given by the District Judge and
confirmed by the High Court.
HELD : The directions should be set aside, as the respondent had
llOt made out a case for such diversion of trust funds, and the directions
w«a objectionable on the ground that they did not take into account
the original objects of the trust. [821 H; 822 A]
F
On an application eithar under s. 5S(l){a) or s. 55(1){b) read
with s. 56(2) the Court is bound to give direction in respect of all
public trusts.
Section 56(1) provides that in giving the directions, the
Court ahall, so far as may be expedient, practicable, desirable, necessary
or proper in the public interest, give effect to tho original intention of
the author of the trust or tho object for which the trust was created.
Under tho latter part of s. 56(1), if the Court finds that tho carrying out
of the original intention or object wholly or partially, is neither expedient
G
nor practicable nor desirable nor necessary nor proper In the public interest, the court may direct the property or income of the trust or any
portion thereof to be applied cy pres to any other charitable or rdigiooa
object. One of the objects for which the trust was created in the instant
case, was the annual feast to the members of the testator's
caste.
Looking at the interest of the community, it was certainly expedient,
practicable, desirable and proper to give the feast.
Even if it was not a
religious act, it was a meritorious one prescribed by the scriptures of the
H
Jains. In the wider public interest also it was expedient, practicable,
deoirable and proper to respect the sentiments and interests of that section of the Jain public and to give effect to the charity. [818 B-C, D-B, F,
0-H]
812
SUPllEMB COURT llEPOllTS
(1965] 2 S.C:R.
Further, the overriding intention of the founder of the trust wu
A
that the amount set apart by him should be devoted to the objects mentioned in the will, so that those objects may be continued and carried
out for ever. In accordance with the intention of the founder the surplus
should be applied, as nearly as possible to the original uses and purposes
of the trust.. The savings shoQld be applied suitably for carrying out
the same objects in future or to increase the amounts spendable for the
surviving objects of the truSt, instead of diverting them for other purposes.
B
[820 C, F, H]
[Suitable directions were given by the Court in lieu of thooe set
aside, for utilising the accumulations].

## Text

A
SHAH CHHOTALAL LALLUBHAI AND OIBERS
B
c
v.
CHARITY COMMISSIONER, BOMBAY, AND OTHERS
I anuary 22, 1965
[K. SUBBA RAO, ACTING C.J., RAGHUBAR DAYAL, R. S.
BACHAWAT AND V. RAMAsWAMI, JJ.]
Bombay Public Trusts A.ct (29 of 19SO), ss. SS and 56--DiversJon
of accumulatil>n of trust funds-When permitted.
A testator, who professed the Jain religion, gave directions in his
will that certain amounts should be spent annually on religious and ch<dtlhlo objects specified by him, and that an annual feast sh<>uld be given
to members of his caste in certain specified villages.
He died in 1916
and by 19S5 there was a large accumulation of unexpended
income
mainly because of discontinuing the feas~ and so, the Charity Commissioner filed an application before the District Judge, under ss. SS(l)(b)
D
and 56 of the Bombay Public Trusts Act, 1950 for directions for the
utilization of that sum.
The District Judge directed a division of the
amount between an educational institution and a hospital. The appellants, who were of the same caste as the testator and who objected before
the District Judge to the diversion of the sum appealed to the High Court,
but the appeal was dismissed.
In their appeal to the Supreme Court, the appellants challenged the
E
propriety and legality of the directions given by the District Judge and
confirmed by the High Court.
HELD : The directions should be set aside, as the respondent had
llOt made out a case for such diversion of trust funds, and the directions
w«a objectionable on the ground that they did not take into account
the original objects of the trust. [821 H; 822 A]
F
On an application eithar under s. 5S(l){a) or s. 55(1){b) read
with s. 56(2) the Court is bound to give direction in respect of all
public trusts.
Section 56(1) provides that in giving the directions, the
Court ahall, so far as may be expedient, practicable, desirable, necessary
or proper in the public interest, give effect to tho original intention of
the author of the trust or tho object for which the trust was created.
Under tho latter part of s. 56(1), if the Court finds that tho carrying out
of the original intention or object wholly or partially, is neither expedient
G
nor practicable nor desirable nor necessary nor proper In the public interest, the court may direct the property or income of the trust or any
portion thereof to be applied cy pres to any other charitable or rdigiooa
object. One of the objects for which the trust was created in the instant
case, was the annual feast to the members of the testator's
caste.
Looking at the interest of the community, it was certainly expedient,
practicable, desirable and proper to give the feast.
Even if it was not a
religious act, it was a meritorious one prescribed by the scriptures of the
H
Jains. In the wider public interest also it was expedient, practicable,
deoirable and proper to respect the sentiments and interests of that section of the Jain public and to give effect to the charity. [818 B-C, D-B, F,
0-H]
812
SUPllEMB COURT llEPOllTS
(1965] 2 S.C:R.
Further, the overriding intention of the founder of the trust wu
A
that the amount set apart by him should be devoted to the objects mentioned in the will, so that those objects may be continued and carried
out for ever. In accordance with the intention of the founder the surplus
should be applied, as nearly as possible to the original uses and purposes
of the trust.. The savings shoQld be applied suitably for carrying out
the same objects in future or to increase the amounts spendable for the
surviving objects of the truSt, instead of diverting them for other purposes.
B
[820 C, F, H]
[Suitable directions were given by the Court in lieu of thooe set
aside, for utilising the accumulations].
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 634 of
1964.
Appeal by special leave from the judgment and decree dated
C
January 25, 1957, of the Bombay High Court in Appeal No. 620
of 1956.
Gumanmal Lodha, J. S. Rastogi and J.B. Dadachanji, for the
appellants.
P. K. Chatterjee, B. R. G. K. Achar for R. H. Dhebar, for
D
respondent No. 1.
The Judgment of the Court was delivered by
Bachawat. J, One Jbaverchand Dahyabhai Shah died in
1916, leaving a will, dated August 6, 1915. He was a resident
E
of V ejalpore in the suburbs of Broach and a Ladva Shrimali Bania
by caste.
He professed the Jain religion, and believed in the
tenets of the Swetembar Murti Pujak sect of Jains. By cl. (7)
of the will, he directed his executors to spend out of the earnings
of his shop every year during the life-time of his niece, Bai Jakore,
the amounts mentioned below on the following religious objects :
F
( 1) Rs. 100 for feeding cattle with grass, fodder, oil
cakes etc., in the Broach Pinjrapole.
( 2) Rs. 100 for J iva-daya Khat a (fund for kindness
to animals).
( 3) Rs. 25 for offering flowers for the worship of Lord
G
Rikabdev in the Jain temple at Vejalpore, Broach.
( 4) Rs. 200 for providing food to Shravak pilgrims at
the Shatroonjaya Hill at Palitana.
( 5) Rs. 50 for providing food to pilgrims at Mount
Gimar.
H
( 6) Rs. 50 for providing food to pilgrims at Mount
Abu.
A
B
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CHHOTALAL v. CHARITY COMMR. (Bachawat, I.)
81~
(7) Rs. 250 for providing cereals, clothes etc., to
Shravaks and Shravikas.
( 8) Rs. 100 for providing cloth to Jain Sadhus and
Sadhavies.
( 9) Rs. 200 for education and food of Hindu orphans.
(10) Rs. 200 for Jain Gyan Khata (fund for imparting
knowledge).
( 11 ) Rs. 100 for feeding Shravaks and Shravlkas who
have observed fast.
( 12) Rs. 300 for giving food, cloth etc., to the blind,
lame and crippled members of the Hindu Community.
In addition, he also directed his executors to give a Swamivat:raJ
0
feast or meal consisting of methi-dal and ladus made of sugar to
the members of his caste at 15 specified villages and towns in the
Broach and Surat Districts every year on the occasion of the
sacred festival of Pajusan. By cl. (15) of the will, he directed
that after the death of his niece, Bai Jakore, a sum of Rs. 75,000
should be set apart by the executors, and out of the moneys so set
E apart, suitable amounts should be sent to the respective Khata:r
(funds) in his name, so that the religious acts mentioned in cl. (7)
be continued for ever.
On the death of Bai Jakore on May 20, 1928, the estate vested
in the residuary legatee, Bai Chanchal, daughter of Bai Jakore.
F
Mulchandbhai, husband of Bai Chanchal, set apart Rs. 75,000 on
trust for the purposes mentioned in cl. ( 7) of the will, and began
to manage the trust estate. Out of the trust moneys, he invested
Rs. 8,000 in ~ per cent tax-free Government Loan, 1944-45,
yielding an annual income of Rs. 400, and pursuant to the directions given in cl. (15) of the will, handed over loans of the face
G value of Rs. 4,000, Rs. 1,000, Rs. 1,000, and Rs. 2,000 respectively to four religious and charitable institutions in full discharge
of the obligation of the trust for expending annually the sums of
Rs. 200, Rs. 50, Rs. 50 and Rs. 100 on items 2, 4, 5 and 6 of the
religious purposes mentioned in cl. (7) of the will. On December
8, 194 7, Bai Chanchal executed a trust deed in respect of the
H investments representing the balance amount of Rs. 67,000 and
an accumulation of surplus or unexpended income amounting to
Rs. 25,796-6-8. The trust is registered as a public trust under the
81'
SUPJU!MB COURT JU!PORTS
[1965) 2 S.C.R.
Bombay Public Trusts Act, 1950, hereinafter referred to as the
A
Act. The trust deed provided that the unexpended accumulation
of Rs. 25, 796-6-8 should be applied for establishing, maintaining
and supporting a Nivas for housing the poor and middle-class
provided . that after
setting apart the aforesaid sum of
Ladva Shrimali Jains at low and cheap rents. The trust deed also
provided
that
after setting apart
the
aforesaid sum of
B
Rs. 25,796-6-8 the balance funds would be held in trust for applying its income to the charities mentioned in cl. (7) of the aforesaid
will other than items 2, 4, 5 and 6. Now, the trustees had no
authority to divert any part of the trust fund for the purposes of the
Nivas scheme. The establishment of a Nivas for housing the poor
C
and middle-class Ladva Shrimali J ains is not one of the original
objects of the trust. As a matter of fact, the Nivas scheme was not
carried into effect. The Charity Commissioner, Bombay challenged
the validity of the Nivas scheme. The Courts below rightly proceeded on the footing that the Nivas scheme is invalid. Subsequent
to the execution of the trust deed, there were further accumulaD
tions of unexpended income. The Swamivatsal feasts were given,
and the fixed annual payments to all the charities were duly met
up to Samvat year 1999 corresponding to 1942-1943 A.D. During
the subsequent years, the fixed annual payments to the charities
were duly made, but on account of rationing restrictions, the feasts
could not be given up to Samvat year 2010 corresponding to E
1953-1954 A.D. During the Samvat year 2011 corresponding to
1954-1955 A.D., the feast was not given in spite of the removal
of rationing restrictions. The trustees allege that the current
income of the trust fund after disbursing the fixed annual payments
is not sufficient to meet the usual expenses of annual feasts. On
June 3, 1955, the Charity Commissioner filed
an application F
before the District Judge, Broach under s. 55 ( 1 )(b) and s. 56
of the Act for suitable directions for the utilisation of the accumulations of the unexpended income of the trust for some educational
purpose.
The trustees were impleaded as respondents to this
application. Pursuant to a general notice issued by the Court,
the appellants and four other members of the Ladva Shrimali
G
Shravak Bania Community in Broach and Surat Districts appeared,
and intervened in the application. On their behalf, it was contended that the trust was for religious purposes and its funds could
not be diverted for other purposes under ss. 55 ( l )(b) and 56 of
the Act, and that the accumulations should be utilised year after
year for meeting the deficit amount required for the annual SwamiH
vatsal feasts.
The District Judge held that the provisions of s. 56 of the
'I
'
CHHOTALAL v. CHARITY COMMR. (Bachawat, !.)
815
A Act did not apply to the funds of a public religious trust, and if
the accumulations were held for a religious purpose, the Court
could not give any directions for its utilisation under that section,
that the Swamivatsal feast confers religious benefits and objects
Nos. 2, 3, 4, 5, 6, 8 and 11 are also religious in character, while
the remaining objects are charitable, and therefore the entire feast
B was not of a religious character, but assuming that the trust was
wholly religious, the accumulation was not held for
religious
purposes, and was subject to the directions of the Court as to its
utilisation under s. 56 read with s. 55 (1) (b) of the Act. He also
held that the trustees could not save any moneys in future by
simply refusing to give the Swamivatsal feasts but it was not in the
C public interest to provide for the expenses of the feast out of the
accumulation, and the accumulation should be spent for educational and medical purposes. The District Judge passed final orders
on October 25, 1956. On that date, the accumulation of unexpended income amounted to Rs. 45,019-14-0, besides another sum of
D Rs. 107-2-0. The District Judge directed the trustees to hand over
a sum of Rs. 22,505-15-0 to an institution known as the Sad Vidya
Manda! for giving four freeships every year to deserving student~.
who should preferably be Jains of Broach District and failing such
deserving cases, to other Hindu students. Subject to the condition
of giving freeships, the Sad Vidya Manda! would be at liberty to
E
spend the amount for purposes of the building of the College or its
hostel or in providing other educational facilities to the students.
He also directed the trustees to pay another sum of Rs. 22,509-15-0
to the trustees of the Sevashram Hospital at Broach on condition
that the amount be invested in any approved trust security and its
income be utilised in providing maintenance, food and medicine
F
to poor and deserving patients. He directed the payment of the
remaining sum of Rs. 107-2-0 towards costs.
The appellants and two other members of the Ladva Shrimali
Shravak Bania Community preferred an appeal to the Bombay
High Court. The High Court held that the Court could on an
application under s. 5 5 of the Act deviate from the directions of
G the settler, even if th':' purpose of the trust has not failed, where
the Court finds that it is inexpedient, impracticable, undesirable,
unnecessary or improper in the public interest to abide by his
directions, but the Court could exerci~e this power only in respect
of funds of a public trust which was not a trust for religious
purposes. The High Court held that none of the purposes
H mentioned in cl. (7) of the will except the one mentioned in item 3
of the clause could be regarded as religious, that the object of
providing funds for annual Swamivatsal feasts was charitable and
816
SUPRBMB COURT REPORTS
[1965) 2 S.C.R.
not religious, and that the Court was, therefore, competent to A
entertain the application under s. 5 5.
The High Court further
held that providing a feast to the members of the caste even on
the occasion of a religious festival or on days which may be
regarded as ,holy is not expedient, desirable, necessary or proper
in the -public: interest, and the directions of the District Judge with
regard to the distribution of the fund should not be interfered B
with.
The High Court accordingly dismissed the appeal.
The
appellants now appeal to this Court by special leave. They
challenge the propriety and the legality of the directions given
by the District Judge below, and repeat the submissions made on
their behalf in the Courts below. The respondents contend that
the aforesaid directions were rightly given under ss. 55 (1) (b)
C
and 56 of the Act.
The Bombay Public Trusts Act, 1950 was passed on August
14, 1950, with a view to regulate and make better provision for
the administration of public religious and charitable trusts in the D
State of Bombay. Soon after the Act came into force, its constitutional validity was assailed. In Ratilal Panachand Gandhi v.
The State of Bombay and Others('), this Court held that a religious sect or denomination has the right guaranteed by the Constitution to manage its own affairs in matters of religion, and this
includes the right to spend the trust property or its income for
E
religion and for religious purposes and objects indicated by the
founder of the trust or established by usage obtaining in a particular institution. To divert the trust property or funds for purposes
which the Charity Commissioner or the Court considers expedient
or proper,. although the original objects of the founder can still
be carried out, is an unwananted encroachment on the freedom of
F
religious institutions in regard to the management of their religious
affairs and therefore s. 55 (1 )( c), which contains the offending
provision and the corresponding provision relating to the powers
of the Court occurring in the latter part of s. 56(1) must be held
to be void. Subsequently, Bombay Act 59 of 1954 amended
s. 55(1)(c) by excluding from its purview a trust for a religious
G
purpose. Sections 55 and 56 of the Bombay Trusts Act, 1950, as
they stand now, are as follows :
"55. (I) If upon an application made to him or
otherwise the Charity Commissioner is of opinion that-
( a) the original object for which the public trust
H
was created has failed,
(1) [19541 s. c. R. toss, 1010-1012.
' ;-
A
B
c
D
E
F
G
H
CHHOTALAL v. CHARITY COMMR. (Bachawat, /.)
817"
(b) the income or any surplus balance of any public
trust has not been utilized or is not likely to be utilized,
( c) in the case of a public trust other than a trust
for a religious purpose, it is not in public interest expedient, practicable, desirable, nece~sary or proper
to
carry out wholly or partially the original inJention of the
author of the public trust or the object for which the
public trust was created and tkat the property or the
income of the public trust or any portion thereof should
be applied to any other charitable or religious object,
( d) in any of the cases mentioned in sections 10 to
13 or in regard to the appropriation of the dharmada
sums held in trust under section 54 the directions of the
Court are necessary,
the Charity Commissioner shall require the trustee to
apply within the prescribed time for directions to the
Court within the local limits of whose jurisdiction the
whole or part of the subject-matter of the trust is situate.
(2) If the trustees fail to make the application as
required under sub-section ( l) or if the Charity Commissioner himself is a trustee or if there is no trustee of
the public trust, the Charity Commissioner shall make
an application to the Court.
56. ( l) On such application being made, the court
after hearing the parties and making an inquiry shall
decide the matter and shall give directions.
In giving
the directions, the court, shall, so far as may be expedient, practicable, desirable, necessary or proper in
public interest, give effect to the original intention of
the author of the public trust or the object for which
the public trust was created. If the court is of opinion
that the carrying out of such intention or object is not
desirable, necessary or proper in public interest the
court may direct the property or income of the public
trust or any portion thereof to be applied cy pres to any
other charitable or religious object.
In doing so, it
shall be lawful for the court to alter .any scheme already
settled or to vary the terms of any decree or order
already passed in respect of the public trust or the conditions contained in the instrument of the public trust.
( 2) Any decision or order passed by the Court
under sub-section (1) shall be deemed to be a decree
.. •. ~' '
. ' '~
.·~· ..
'· \, ;
..
·~ .t
818
SUPllBMB COURT llBPORTS
( 1965[ 2 S.C.R.
of such court and an appeal shall lie therefrom to the
A
High Court."
Section 2(13) of the Act provides that unless there is any
thing repugnant in the subject or context, public trust means an
express or constructive trust for either a public religious or
charitable purpose or both. Section 55(1){c) expressly excludes
B
from its operation a trust for a religious purpose. But ss. 55 ( 1)
(a) and 55 { 1 )(b) do not exclude religious trusts from their
operation, and they apply to all public trusts for religious and
charitable purposes. On an application either under s. 55 ( 1) (a)
·ors. 55(1)(b) read with s. 56(2), the Court is bound to give
directions in respect of all public trusts. Section 56 ( 1) provides c
that in giving the directions, the Court shall, so far as may be
expedient, practicable, desirable, necessary or proper in the public
interest, give effect to the original intention of the author of the
trust or the object for which the trust was created. The conjunction "or" in this sentence introduces several alternatives.
The
Court must give effect to the original intention or object if and so D
far as it may be either expedient or practicable or desirable or
proper or necessary to do so. If, for example, the Court finds
that it is proper in the public interest to give effect to the original
object, the Court must give effect to it, though it is not necessary
to do so in the public interest. Under the latter part of s. 56( 1),
if the Court finds that the carrying out of the original intention E
or object wholly or partially is neither expedient nor practicable
nor desirable nor necessary nor proper in public interest, the
Court may direct the property or income of the trust or any portion thereof to be applied cy pres to any other charitable or
religious object.
The latter part of s. 56(1) thus permits the
diversion of trust funds for other objects, though the original F
objects of the founder can still be carried out. But we think that
the respondents have made out no case for such a diversion of
trust funds. One of the objects for which the trust was created
was that a Swamivatsal feast to the members of the Ladva Shrimali
Bania caste should be given every year on the occasion of the
holy festival of Pajusan. The Jains of Ladva Shrimali Shravak G
Bania Community are the chief beneficiaries of this trust. Looking at their interest, it is certainly expedient, practicable, desirable
and proper to give the feast. The . giving and taking of the
Swamivatsal feast on the occasion of the holy festival of Pajusan,
if not a religious act, is a meritorious act prescribed by the scriptures of Swetambar Murti Pujak Jains. The wider public interest 8
does not require that this special charity for a section of the Jain
public should be subverted and overthrown. In the wider public
CHHOTALAL v. CHARITY COMMR. (Bachawat, I.)
819
A interest also, it is expedient, practicable, desirable and proper to
respect the sentiments and interests of this section of the Jain
public and to give effect to this charity, and we find no reason
for giving directions under the latter part of s. 56(1). We, therefore, propose to give directions under the first part of s. 5 6 ( 1 ) .
In this view of the matter, it is not necessary to decide, whether
B
the trust is a trust for religious purposes, and if so, whether,
having regard to Ratila/Panachand's case(') its income or surplus
balance spendable for the purposes of the trust can be diverted
for other purposes, though the original object of the trust can
still be carried out.
The question whether or not the objects
C
mentioned in cl. (7) of the will are religious objects is not raised
in the plrodings. No issues were framed and no evidence was led
on this point by either party. What are religious purposes must
be decided according to the tenets and religious beliefs of the
Murri Pujak Swetambara sect of Jains, to which the testator
belonged.
It is difficult to decide the point in the absence of
0
relevant pleadings, issues and evidence. The District Judge held
that the Swamivatsal feast and many other objects are religious
objects.
The High Court too lightly brushed aside this finding.
Chapter IX of the Report of the Hindu Religious Endowments
Commission (1960-62) contains an interesting discussion of Jain
endowments. Paragraphs 7 to 11 of Chap. IX of the Report refer
E
to seven types of religious funds specifically recognised by the
Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,
(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7)
Shravika.
The Jains recognise numerous other endowments or
funds for the general or specific purposes, the corpus or interest
of which is to be utilised as per the donor's intentions. The question
F
whether the several objects of the trust including the giving of a
Swamivatsal feast are religious in their character must be left open
for future decision.
We must now consider what directions should be given under·
s. 56 on the present application. No case for applying the latter
part of s. 56(1) and for refusing to give effect to the original
G objects of the trust has been made out.
We should, therefore;
give effect to the original intention of the founder as far as that
intention can be carried out. If the method indicated by the
founder cannot be carried out, the C,Ourt will substitute another
method cy pres, that is to say, as nearly as possible to the method
specified by the founder. The application of the cy pres principle
H is explained in Story's Equity Jurisprudence, 3rd Edn., Art. 1176,
p. 494 thus:
(1) [19S4) s. c. R. 1055.
820
SUPREME COURT REPORTS
[1965) 2 S.C.R.
"The doctrine of cy pres as applied to charities was
formerly pushed to a most extravagant length. But this
sensible distinction now prevails that the Court will not
decree the execution of the trust of a charity in a
manner different from that intended, except so far as it
is seen that the intention canriot be literally executed. In
that case another mode will be adopted, consistent with
the general intention, so as to execute it, although not in
mode, yet in substance. If the mode should become by
subsequent circumstances impossible, the general object
is not to be defeated, if it can in any other way be
attained."
In the instant case, the overriding intention of the founder
of the trust is that the sum of Rs. 75,000 set apart by him should
be devoted to the objects mentioned in cl. ( 7) of the will, so that
those objects may be continued and carried out for ever.
His
intention was that fixed sums should be expended annually for
A
B
c
the 12 items of charity mentioned and reasonable sums should be D
expended annually in giving Swamivatsal feasts to members of
his caste. The sum spendable annually for the feast was necessarily of a fluctuating character. In accordance with the directions given in cl. (15) of the will, the obligations of the trust for
me charities mentioned in items 2, 4, 5 and 6 of cl. (7) of the
will have been fully discharged by donating Rs. 8,000 out of the E
corpus of the trust. The expenses of t4e annual Swamivatsal feasts
were met, and the payments to other charities were duly made out
of the income of the balance funds every year up to Samvat 1999
corresponding to 1942-43 A.D., and the accumulations of the
unexpended income up to that year represent a true surplus. In
accordance with the intention of the founder of the trust, the F
surplus should be applied as nearly as possible to the original
uses and purposes of the trust. In all the circumstances of the
case, the surplus should be applied to increase the amounts
spendable for the surviving objects of the trust. During the subsequent years up to Samvat year 2010 corresponding to 19531954 A.D., the annual feasts could not be given due to rationing
G
restrictions, but the expenses of the other charities were duly
met. The savings of the income spendable during these years for
the feasts should be applied suitably for carrying out the same
object in future. The balance savings, if any, should be devoted
towards increasing the amounts spendable f<ir the other objects
of the trust. The savings during Samvat year 2011 corresponding H
to 1954-55 A.D. were due to the fact that the annual feast was
not given in spite of the absence of rationing restrictions. The
CHHOTALAL v. CHARITY COMMR. (Bachawat, /.)
821
A savings for this year should be devoteq towards the giving of the
Swamivatsal feasts. The trustees cannot be allowed to defeat the
objects of the trust by refusing to carry them out. It is said that
the giving of a SwamivatsdJ feast on the scale given in the past
would now cost about Rs. 3,000. But if the income at the disposal of the trustees will not permit the spending of such a large
B
amount, there is no reason why the trustees would not spend a
smaller amount and give the feast to a smaller number of guests.
In view of the enormous rise in prices since the creation of the
trust, an increase of the amounts spendable for the charities would
be in accordance with the general intention of the founder. This
is an additional reason for applying the unexpended fucome for
C
the original objects of the trust instead of diverting them for other
purposes.
It is desirable that instead of spending the corpus
of the accumulations, the corpus should be invested and its income
should be applied towards the original objects. In the light of all
these considerations, we propose to give the di.rectioo,s set out
in our order.
D
The scheme framed by the Courts below is objectionable in
several ways. In framing the scheme, the Courts below erroneously
disregarded one of the main objects of the trust, viz., the giving
of the annual Swamivatsal feast on the ground that it is not expeE
dient, desirable, necessary or proper in the public interest to
carry out this object The scheme disregards the basic principle
that the trust funds should be applied for effectuating the intention
of the founder of the trust as far as possible. The direction for
payment of one half of the accumulations to the Sad Vidya
Manda! on the ground that its object is analogous to the object
F of the 1 ain Gyan Fund mentioned in item 8 of cl. 10 of the will
is objectionable on the ground that the freeships are not restricted
to the 1 ains and also on the ground that subject to giving the
freeships the donee is entitled to spend the corpus for other
purposes. Moreover, the purposes of the Sad Vidya Manda! and
its freeships are not analogous to the purposes of the 1 ain Gyan
G
Fund, which is a religious fund for imparting knowledge of 1 ain
religion and 1 ain Shastras. The direction for payment of one half
of the accumulated amount to the Sevashram Hospital is objectionable on the ground that medical treatment of
the poor and
deserving is not one of the objects specifically mentioned in cl. 7
of the will.
Both these directions are :ilso objectionable on the
H
ground that they do not take into account the original objects
of the trust. For all these reasons, the directions given by the
Courts below must be set aside.
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' <
822
SUPREME COURT REPORTS
(1965] 2 S.C.R.
In the result, the appeal is allowed, and the judgments and A
decrees passed by the Courts below are set aside. In lieu of the
directions given by the Courts below, we
give the following
directions :
Out of the accumulations of the unexpended income up to
the 25th October, 1956 amounting to Rs. 45,091-14-0 the B
trustees will set apart a reasonable sum not exceeding Rs. 5,000
as a working fund to meet current expenses.
The trustees will
invest the balance amount in such manner as they think fit in
accordance with s. 35 of the Bombay Public Trusts Act, 1950.
The trustees will spend and utilise every year one-half of the
annual income from these investments for the charities mentioned C
in items l, 3, 7, 8, 9, 10, 11 and 12 of cl. 7 of the will of
Jhaverchand Dahyabhai Shah, dated August 6, 1915 in such
proportion and in such manner as the trustees think fit and proper.
T)le trustees will spend and utilise every year the balance one-half
of the annual income of those investments for the annual
Swamivatsal feast (caste-dinner) mentioned in cl. 7 of the aforeD
said will. The disbursem~nts to be made under these directions
will be in addition to the payments to be made by the trustees out
of the income of the investments of the original corpus of the
trust funds.
Out of the net income of the investments of the
original corpus, the trustees will continue to make the annual
payments to the charities mentioned in items t, 3, 7, 8, 9, 10, 11
E
and 12 of cl. 7 of the aforesaid will and will spend the balailCe
income for giving the annual Swam,ivatsal feasts.
The trustees
shall give the Swamivatsal feast every year as far as possible. If
for some reason the feast cannot be given in any year, the amount
spendable for this object in that year should be spent for giving
the feast 'in the following years.
F
In the circumstances of the case, we direct that the parties
will pay and bear their own costs throughout in this Court as also
in the Courts below, except that the trustees will pay the sum of
Rs. 64-8-0 to the Charity Commissioner and the sum of
Rs. 42-10-0 to opponents Nos. 6 to 13 to the application, as G
originally directed by the District Judge.
Appeal 11llowed.