STATE OF UTTAR PRADESH versus BANSI DHAR AND OTHERS

STATE OF UTTAR PRADESH

BANS! DHAR AND OTHERS

December 11, 1973.

[0. G. PALEKAR AND V. R .. KRISHNA IYER, JJ.]

Public Trust-Doctrine of cypres, if applicable to non-testamentary gl/ts-Conditions for Its applicability-General object, when inferred-Applicability of s. 83, Trusts Act (2 of 1882) to public trusts.

In 1945, donation of Rs. 30,000 was made for building 6-bed hospital for women on an approved chosen spot, according to the approved plan, to be constructed by the 'donor with 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 foundation stone. In 1952, the sons of the donor filed 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) · hospital for women is charitable .object and since the beneficiaries are section of the public, it constitutes public trust. (2) The doctrine of cypres is applicable to both testamentary and non-testa-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 general charitable intention· that is, the charitable object is of g;ener8.I and not of 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 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 borderline case is to whether there was 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 maternity hospital. The rule of law mu"St rile to this rule of life by 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!ft s!mpiiciter but WM subject to 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]

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 resulting trust in favour of the door. Though s. 83 of the Trush Act, 1882 does not apply proprio rigvre, it embodies 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 by-

KRiSHNA !YER, J .-A litigation launched by the sons of frustrated philaulhropist, who is no more, has f;'3ched the last deck of the justice edifice as civil appeal, by special leave, 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 clear com1nitment of an enthusiastic Collec'.or to construct quickly 'female' hospital out of donation from 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: t[1]J('. 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 \\-'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

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, notic-ing 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 pre-sume 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 clear cut scheme with all lease ends tied up."

Nothing happened however, and to add insult to injury the Dist-rict Supply Officer sent 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 school, thus 0 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 un-E available. 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 hotch-potch 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 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· 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 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•

~f. Lord Curzon_ about the administrative apparatus, which bear repe-titian and find some contemporary echo. The Viceroy wrote to his Secretary of State :

The Viceroy wrote to his

"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 sur-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

the State Government to some extent to its obligation. For, Govern-ment at long last constituted new committee for the construction of.the hospital building, drew up new plan and built 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 and half the costs of the suit-which was not much-upto then in-curred were also paid by Government. However, this public body chose to continue what we regard, in the light of fuller facts, its can-tankerous defence despite defeat in two courts. Government liti-gation 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 fair terms. Here we may quote what one of us had observed in an earlier appeal(') about- litigation to which Government is 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. Com-mission of India in recent report(•) on amendments to 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 special procedure for government litigation to highlight the need for an activist policy of just settlement of claims where the State is party. . . . certain observations I had made in Kerala High Court decision(') ...... I may usefully excerpt here :

"The State, under our Constitution, undertakes economir. activities in 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.

(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

gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary·party try-ing to win case against one of its own citizens by hook or by crook; for, the State's interest is to meet honest claims, vindicate substantial defence and never to score technical point or overreach weaker party to avoid just Iiubility or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is virtuous liti-gant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows 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 be-cause of the large amount of litigation in which it is involved that 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 reasonable adjustment is feasible and ever offering to extinguish 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, 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 hospital has been constructed although it was 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 mater-ialised and 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 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

not examined. It seems he was not found in position to say any thing to the contrary or in rebuttal to plaintiffs' evi-dence. There is thus not 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 construct-ed 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 com-pleted and established in the near future. All other condi-tions set out in the plaint were practically admitted by hJD1, [. " ]

"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 handsome subscription of Rs. 30,000 on the terms and conditions con-tained in para 2 of the plaint. There is overwhelming un-rebutted 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 find-ings before us so that we have to proceed on the footing that given these facts, has the appellant made out case to dislodge the liabi-lity 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. humanitarian essay, not 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 cliche, that Dubey had made an outright gift with general charitable intent and the pious wishes superadded to the donation did not make it conditional gift. In his view, the non-fulfilment of these wishes did not amount to thef~ilure of condition precedent making the gift inoperative. His further contention was that the gift having been accompanied by general charitable purpose of benefiting the local people with hospi-tal facilities the cypres doctrine applied to the case even if the object of the charity could not be literally carried out. Therefore, he argu-ed 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 new hospital having been built and they could not now resile therefrom or recall the sum their father had irrevocably given away for 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 better public charity by starting school in Gomti Devi's name with 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 dis-posing 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 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 estop-pel arises."

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 cer-tain 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 8 raised by the defendants had no substance in it and was right-ly 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 intrin-sic substance in the submissions.

Let us have close look at the terms and conditions of the dona· tion and spell out their legal effect. The law of gifts is, in sense, collection of equitable principles but crystallised for India under the British from Anglo-Saxon jmisprudencc. Since Independence. collec-tions from the public have escalated and iii India to-day popular contributions to public charitable purposes are 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 under-go 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 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 charitable gift. If it is possible T hope sincerely that at some time or other principle will be laid down. The whole subject is in an artificial atmos-G phere 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 hospital for women is char\table object, being for medical relief. Moreover, the beneficiaries are section of the public, women-that still silent, suffering half of Indian humanity. Therefore .• this decent connotes public trust. The next question is whether the . Indian Trusts Act, 1882, applies

---------

1. (1923) I Ch. 258, 266.

4-L748SCl/74 .

to the present case. The Courts below have argued themselves into 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 common are.a of legal principles which covers all trusts, pri-vate and public, and merely because they ftnd place in the Trusts Act, they cannot became 'untouchable' where public trusts arc invol-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 inhibi-tions in administering the law by invoking the universal rules of equity and good conscience upheld by the English Judges, though also sancti-fied by the statute relating to private trusts, The Court below have drawn inspiration from s. 83 of the Trusts Act and we are not in-clined to find fault with them on that score because the provision merely reflects rule of good conscierice and of general application. The de-tails of the argument on the basis of this principle will be discussed ~ )ittlc later.

A~epting that J;lubey intended 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 is much in the precedents tending this way but the opposite is not bereft of authoritv. Nori Venkata Rama Dikshitu/11 v. Ravi Ven-katappayya(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 reason. Why courts.should, in the case of wills, step in to supply near intent and apply the funds cypres where otherwise the charity will fail on sticking to the literal object, the author being dead and un-able 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 purposes mu&t be saved by 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 special objcd or mode for the course of his benefaction the Court cannot innovate an<l undo, but \vhcrc general charitable g6al is projected .and particular objects and modes are indicated the Court,

(1) A.LR. 1960 A.P. 605.

(t) A.T.rl .. t960 A.P. )0,

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 re-surrect, or rather to vary and validate. The twin donditions to be satisfied are :

"(l). The 'senior must, in general, have shown general .cltali..table i11te11tio11 . ... It will only apply where the ori-ginal trust has failed ab. inilio. The absenee of 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 general or particular charitable intent, the testator's next of-kin or residuary legatees are for ever ex-cluded .... 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 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 "im-possible" to carry out the settlor's intention; or alternativelv that surplus remained after fulfilment of the purpose .... "([1]).

In short. '!her!' must he 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 completed gift. It is essential that gift has been made effectively before its actual implementation by appli-cation 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 pre-F sence of paramount general intention as distinguished from 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 particular gift,.,-a gift for particu-lar purpose-and it being impossible to carry out that particular pur-pose, 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 general intention in favour of charity. Jn In re Ulvers1011 and District New Hospital Building Trust(') the Cpurt held that in the case of ·certain fund colkdcd with the sole ob.iect of building and maintaining 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 ff

(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 ..

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 committee (for the purpose of fulfilling 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 specific and well-defined charitable purpose and rllat only." (Emphasis supplied). He further observed : "The money having been paid over to the committee, complete trust was created to apply the funds in carrying out the obj~t mentioned. mentioned. lE the object has hecom.e imprac-ticable, the subscribers .... have clear right to the return .... have clear right to the return have clear right to the return of their subscriptions pm rata .. ... The present members. of 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

"The money having been paid over to the committee, complete trust was created to apply the funds in carrying out the obj~t mentioned. mentioned. lE the object has hecom.e imprac-ticable, the subscribers .... have clear right to the return .... have clear right to the return have clear right to the return of their subscriptions pm rata .. ... The present members. of 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 con-struction of the document before the Court the bequest was read as meant to benefit particular institution and not general clasci in general way, an,d, that institution having ceased to ·exist in the testa-tor'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 distinction well settled by the authorities. There is one class of cases. in which there is gift to charity generally, indicative of 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 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. 12) (1895) l!Ch. 19, 31, (3) l Drew. 642;644.

Dubey wanted his townsmen· to enjoy the facility of "female hQs-pital". However, the findings of the courts below negatives any such general intention to benefit the community and the old man while donating large sum had taken care to particularise that the female hospital should be six-bedded one on 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 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 peo-ple of the area with maternity hospital.

This does not sec the end of- the matter because we have to begin by asking whether. there is 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 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 donor makes gift for specilic charitable purpose, the performance of which is rendered impossible. Jn such cases courts have to consider the gift as 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 successor-in-titlc to the donor.

The University of London was mindeci'in J 902 to found an insti-E tute of medical sciences and appealed for funds in that behalf. One donor responded by making 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 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 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 will, which contains words in all probability similar to those which the testator wrote in every letter irt which he enclosed 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 contract bet-ween 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,

trustees in the lifetime of the donor complete trust is creat· ed, and the money !DUSt be held on the trUsts declared by the donor; the right of the donor to 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 legacy may be gil'm to charity upo11 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! gift is made to charity on contingent event and

the happening of the even is 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. Brockett(•) in the following words ; "If the gift in trust for the charity is itself conditidnal upon future and uncertain event, it is subject, in o!)r judgment, to the same rules and principles "' any oth<:r estate depending for its coming into existence upon condition precedent. If the condition is never ful· filled, the estate never arises, . ...

TutlcM' on Charities sun1s up the ]a\\' iit one sentence :

"Cmulitiv11 precedem : Where the charitable intention is subject to condition precedent which is not satisfied, the charitabk gift fails to take effect.'' (p. 132)

In Halsbury"s Laws of England (3rd cdn.) the rule has been thus c~prc:o;~cd :

"Whcr~. however. the particular mode of application J prescribed by the donor was the essence of his intention (which may be shown by condition or by particularity of language) and that mode. is incapable of being performed, there is nothing left upon which the Court can found its juris-diction, so that in such circumstances the Court has no power to direct riny other charitable application in place of that which has failed." (p. 3"18; para 654)

Sn much so. although charity once established docs 11ot die (though its nature may be changed) the gift must first take effect which takes us to the question of conditional gifts. The law is clear in this area and is found stated in Halsbury :

"611. Co11ditio11s precede/I/ : charitable gift may be made subject to conditions pr;:ccdcnt, as that the institution

(t) [1886j Ch. Div. 449.

(2) L.R. 8 Ch. 206;211.

which is too benefit shall per!orm some act or that if the trust is. declared unlawful it shall revert, or that the gift shall t~e effect only if the testator's estate b.: sufficient for the intended object, or amount to certain sum or that bequest to hospital shall not take effect if at the t;stator's death the hospital has ceased to be run on u voluntary system a11d come under state control, or if it comes under govern· ment control. The gift fails if the condition preccd,nt is im· possible, or is not satisfied, or need not be fulfilkd within the perpetuity pertod.

legacy to fund which has be-en raised for the purpose of effecting particular charitable object is construed ns gift 10 take effect upon the happening of condition precedent, namely. the effecting of that particular object." (pp. 295-96) ·~. ,' .

namely. . . . . . . . . . . . .

. . . . . . . . . . . . . "613. Acceptance of conditional gift. Where gilt sub-ject to condition i~ accepted the condition must be fulfilled whether the subject-matter of the gift is adequate for the purpose or not .... "· · .. -

In the law o( real property the ·vcstlng,of: u0 estate ~an be lllltdC to depend on a. condition precedent and tbeS ttansfer fails if the con· tion is not fulfilled (c.f.ss. 25 & 26, T.P •. Act), .,We may sum up the situation now. lf the donation bv Dubey was conditional the Govern· ment was mere custodian ·of the cash tilt the condition was com-plied with and if the performance thereof was defeated by Government, the gift did not tl\_ko elfect.

The factual findinp, as already set out, leave no doubt in our mind that th.e transaction was not ·gift simplicitor but was subject to the matching grant from Government, building having to be mack-with such augmented amount by Sbri Dubey, etc. Assuming substan-tial compliance as sufficient in law, the defendant bas no case that any of the conditions hu been carried out, not even the equal con-F tribution from the State exchequer without which the construction of the hospital would have been half-done project. Thus the conditions failing, the charity proved abonive, and the legal consequence is resulting trust in favour of the donor. The State could not keep the money and the suit was liable to be decreed. The Kannauj community, as tho· haPPy sequel to this unhapy litigation has turned out, has now got bigger hospital and .memorial college. .

Shri Dixit bas prayed for the dismissal of the suit for non-joinder of other donors and the charity. We mention it. out of deference to c<lunsel but negative it as undeserving of consideration. . The appeal fails and we dismiss it with costs, an added injury to the public ex-chequer which we regret we cannot ilelp. May we hazard the hope ~ out of deference to the memory of Gomti Devi in in posthumous ~~crcncc of. Dubey's project, the plaintiffs will donate the costs when realised to the charity chest of the Kannauj Female hospital.