(Prayer: Appeal (disposed of on 7-11-1945) against the decree of the District Court, East Tanjore, Negapatam in O.S. No. 2 of 1943.)

Rajamannar, J.

This appeal arises out of a suit filed by two persons interested in a certain charity to be conducted on the occasion of the Masi Makham festival of Sri Souriraja Perumal at Tirukkannapuram as provided in a deed of settlement executed by one Marimuthu Pillai on 4th February 1911, for the removal of the first defendant who purported to be the trustee at the time of the institution of the suit, for the framing of a scheme in respect of the charity and to declare certain alienations made by the first defendant in favour of the fourth and the seventh defendants invalid and not binding on the trust and to appoint a fit and proper person as trustee in place of the first defendant. The suit was filed after obtaining the sanction of the Advocate General under S. 92 of the Civil Procedure Code. The learned District Judge of East Tanjore has substantially decreed the suit as prayed for and the sixth and seventh defendants appeal, the sixth defendant being a purchaser from the fourth defendant of the property alienated to him.

Marimuthu Pillai executed on 4th February 1911 a settlement deed on the construction of which depends the determination of the main question arising in this appeal. The document runs as follows:

I have made the following arrangement, in respect of the property specified hereunder which was acquired by me out of my own earnings, and which has been in my enjoyment with miras for the salvation of my soul. Out of the funds of the aforesaid property, thanneerpandal dharmam, i.e., water shed charity shall be conducted for seven days on the occasion of the Masi Makham festival of Sri Souriraja Perumal at Tirukannapuram. During that Makham festival day 100 persons shall be fed and the charity conducte d. Out of the income derived from the aforesaid land, excluding the Government kist etc., expenses in connection with the charity the remaining income shall be utilised for the maintenance of my sons who have come from the east, viz., (1) Subramaniam, (2) Natesan and (3) my wife Tillai Ammal. The aforesaid charity and the aforesaid property shall be managed by my eldest son-in-law N. Govindaswami Pillai. After the said Govindaswami Pillai the aforesaid charity and the said family shall be managed by his nominee. The aforesaid Govindaswami Pillai shall perform obsequies etc., to me as well as to my wife.

The contention of the appellants is that under this document the charity is only entitled to a charge for an amount necessary to carry out the objects mentioned in the deed and that the property itself was not dedicated for the benefit of the charity. The appellants also contend that in any event the legal heirs of the settlor are entitled to the property under the document subject no doubt to an obligation to have the charity conducted as provided therein. The status of Govindaswami Pillai was not made clear by the learned Advocate for the appellants, but as we understand him, Govindaswami Pillai was only a manager with no legal title to the property and he did not occupy even the position of a trustee. The contention of the contesting respondents (plaintiffs) is that taking all the terms of the deed into consideration together with the surrounding circumstances, the entire property was dedicated to the charity subject only to an obligation on the part of the manager to utilise the surplus income if any for the maintenance of three named individuals who were also related to the settlor.

In such cases the only rule which appears to be established from the decided cases is that there cannot be any fixed and absolute rule to construe the effect of any particular document. In Harnarain v. Surja Kunwari (43 All. 291=14 L.W. 633 (P.C.) Lord Shaw in delivering the judgment of the Judicial Committee said:

The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will.

Having regard to these observations, it is necessary to deal with the provisions of the deed before referring to some of the decided cases cited on behalf of the appellants before us.

The dominant intention of the settlor which appears from the preamble to the deed was clearly to dedicate property to a religious charity for the attainment of salvation. There is no intention either expressed on the face of the document or which could be necessarily implied, to confer any benefit on his heirs in general. It is significant that even in the clause which provides for the maintenance of the three relatives the words and their heirs or and their descendants or the words from generation to generation are absent.

Reading the document as a whole, it is impossible for us to discover any gift of the surplus income or the property either to the sons or to the members of his family generally; nor do we find any expressed intention to make a residuary gift in favour of them. The three individuals are mentioned as personae designatae rather than as members of his family. The next important circumstances appearing from the face of the document is that though he mentions two persons as his sons who have come from the east, he totally disregards them. They have no right even to manage the charity and the property. Even the obsequies to be performed for himself and for his wife are directed to be performed not by the sons, as would in the ordinary course be expected from a Hindu, but they are directed to be performed by the son-in-law Govindaswami Pillai. After the death of Govindaswami Pillai the person to manage the charity and the family is to be a person nominated by Govindaswami Pillai and not any of his heirs or descendants. These circumstances clearly distinguish this case from the rulings relied on by the Advocate for the appellants in Ashutosh Dutt v. Doorga Churn Chatterjee (5 Cal. 438 (P.C), Sonatun Bysack v. Sreemutty Juggutsoondaree Dossee (8 M.I.A. 66) and Thiruvengadamudayanaiya v. Narasimhaswamiaiya (1941) 1 M.L.J. 488=53 L.W. 366). In all these cases there was a gift or a bequest in favour of the heirs or the members of the family or in favour of a residuary legatee. Such a provision is significantly absent from the deed which we have to construe in this case and we attach great importance to the omission of words indicating a gift to any member of the family or to the heirs of the settlor generally.

In most of the decided cases, importance has been attached to the fact that the charity provided by a particular document was not capable of expansion and in such cases when the income of the property in question far exceeded the requirements of the charity as fixed in and by the deed itself, it has been held that the charity will not be entitled to the surplus. Whether in such a case the donees under the document would take the surplus or the surplus would fall into the residue does not directly arise in this case. But we are clearly of opinion that the charity specified in the document in this case is not a charity which is incapable of expansion. Though 100 persons are directed to be fed, the amount to be expended is not fixed nor the nature of the feeding. Likewise no amount is fixed for the expenses to be incurred for the water shed charity. In these circumstances it is not possible to say that any part of the income has been unalterably fixed by the settlor for the expenses of the charity with t he result that there is bound to be a surplus disposed of or undisposed of by the document. Moreover, from the evidence on record, it does not appear that at the time of the settlement deed or even subsequently there was the likelihood of a large surplus. In 1921 one of the sons Subramaniam executed a deed Ex. P-2 releasing all his rights under the deed to Govindaswami Pillai, the son-in-law, in consideration of a sum of Rs. 100. It is recited in that deed that the funds out of the property were not sufficient to meet the expenses. Similar recitals are to be found in another release deed executed by the other son Natesan on 18th April 1927, Ex. P-2(a). In this instance also, the release was for a sum of Rs. 100. Even at the present time it is probable that very much would not be left after providing for the kist for the legitimate expenses of the charity. The evidence is, about a 100 kalams would be paid as melvaram which at the normal rate of Rs. 1-4-0 would come to Rs. 125 for the year. Deducting the sum of Rs. 80 payable as kist the net income would be about Rs. 4

5. The estimate of P.W. 1 and P.W. 2 that for the conduct of the charity, a sum of at least Rs. 60 would be required does not appear to be extravagant.

Taking all the circumstances into consideration, we are clearly of opinion that the charity itself is the true beneficiary and Govindaswami Pillai should be considered to be a trustee of the charity and the only obligation of the trustee, for the time being, was to utilise the surplus income, if any, for the maintenance of the three specified relatives of the settlor mentioned in the deed. On the death of the three specified relatives or their effacement otherwise, there would be no obligation on the trustee to utilise any part of the income of the property for any object other than the charitable object mentioned in the document.

Govindaswami Pillai after obtaining the two release deeds above mentioned from the two sons of the settlor executed a will, Ex. P. 3, on the 28th December 193

2. Therein he treats the property as absolutely his own, subject to an obligation to conduct the charity, and makes provision for payment of maintenance to members of his family and appoints his son Murugayya Pillai, the first defendant to be the trustee of the charity after him. Govindaswami Pillai died sometime in 1933 and the first defendant became the trustee in accordance with the will. He sold on 20th October 1934 two acres 61 cents out of the property covered by the settlement deed for a sum of Rs. 500 to his sister the fourth defendant. She in turn conveyed the property purchased by her to the sixth defendant by a sale deed dated 25th June 193

9. The first defendant sold the rest of the properties to the seventh defendant by a sale deed dated 25th January 194

1. It follows from what we have held that the first defendant as trustee was not entitled to alienate the properties which belonged to the trust, as the alienations were not sought to be supported on the ground of necessity. The learned District Judge was right in declaring these two alienations not binding on the charity.

The learned Advocate for the appellants next contended that no Court in British India would have jurisdiction to entertain this suit, because the charity in question had to be performed at a place which was situated in French India. The deed of settlement itself does not mention the place where the charity has to be conducted. The temple of Sri Souriraja Perumal is at Tirukannapuram which is admittedly in British India. But it appears from evidence that on Masi Makham festival day, the deity is taken to the beach in Tirumalairajanpatnam which is in French territory. The recent decision of the Judicial Committee in Bilasrai Joharmul v. Shivnarayan Sarupchand (1944) 1 M.L.J. 466=57 L.W. 401 (P.C.), is relied on in support of this contention. The facts of that case were peculiar and are totally different from the facts of the present case. In the case before the Judicial Committee, the public charity which had to be conducted was a hospital at a town in Jaipur state. The plaint in that case prayed for the removal of the defendants from their office as trustees and for the appointment of new trustees and the sole ground of complaint was that the defendants had without authority changed the name of the hospital. It was held that it would be inconvenient, if not intolerable, that the High Court of Bombay should interpose their authority upon the questions arising in the course of administering a trust which was solely situate in a foreign territory. Their Lordships point out that the plaintiffs should be left to pursue their remedy from the Courts of the country in which the hospital is carried on and whose poor are the beneficiaries of the charity. But they also point out that the question with which they had to deal in that case was not a case relating to any step to safeguard trust funds which lay within the jurisdiction of the British Indian Court or to protect and preserve such funds. At page 469 their Lordships say:

The case is not one of founding a charity abroad, or settling a scheme for a charity to be conducted abroad, nor of preserving the property of a foreign charity, nor of assisting a foreign charity, or a foreign Court to collect or administer funds within the jurisdiction.

It has been held in Englandsee In re Duncan In re Taylors Trusts L.R. (2 Ch. Ap. 356)that the authority of the Charity Commissioners extends to charities endowed in England or Wales, although the revenues are applied abroad. In that case the properties (certain freehold and lease-hold estates) were situate in England the object of the trust being the promotion of Christian education in the Island of Jamaica. Turner, L.J., says at page 360

The foundation and institution of the charity ought, I think, generally speaking, to be considered as taking effect in England or Wales, within the meaning of the Act, if the application of the charity be there and the endowment abroad, or the endowment be there and the application abroad, both the property and the application of it being, in effect, parts of the endowment and institution.

In the present case, the property is in British India and the temple itself is situate in British India. No relief in respect of this property can be obtained except from a British Indian Court and we do not see any reason to hold that the District Court of East Tanjore within whose jurisdiction the temple and the properties are situate had no jurisdiction to entertain the present suit.

The appellants have failed on both the points raised before us and the appeal is dismissed with costs of the plaintiffs (respondents 1 and 2).