N. S. RAJABATHAR MUDALIAR versus M. S. VADIVELU MUDALIAR & ORS.

Citation: [1970] 2 S.C.R. 299 · Decided: 09-09-1969 · Supreme Court of India · Bench: VISHISHTHA BHARGAVA · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
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H 
., 
299 
N. S. RAJABAIBAR MUDALIAR 
v. 
M. S. VADIVELU MUDALIAR & ORS. 
September 9, 1969 
[V. llHARGAVA, K. S. HEGDE AND A. N. RAY, JJ.] 
Tru.'llt-Dominant purpose whether maintenance of faniily or charity-
Construction of deed-Cy·pres doctrine-Applicability <lf. 
The great.grandfather of the appellant executed a trust-deed in respect 
of certain properties. 
The trustees were enjoined to apply the. income 
of the trust towards charities ·as also for the benefit of the settlor and 
his family and descendants. 
The appellant filed a suit to enforce his 
rights under the trust and the trial court granted him maintenance to the 
extent of Rs. 501- per mensem out of the trust properties instead of the 
sum of Rs. JO/. allowed under the trust deed. 
In appeal, however, the 
High Court dismissed the appellant's suit and reversed the order of the 
trial court granting him the said 
increased 
maintenance. In this Court 
the contentions of the. appellant which fell for consideration were : (i) 
whether the dominant purpose of the trust was the maintenance of the 
settlor's family, the grant to the charities being! only secondary; (ii) 
whether the cy-pres doctrine applied to the case, justifying the payment 
of maintenance money as decreed by the trial court to the appellant. 
HELD : (i) The provisions in the deed of trust and the direction 
to the trustees, first to accumulate the income after meeting the expenses 
of assessment, quit rent and maramath and the monthly 'and 
annual 
expenses and secondly to purchase prope.rties therewith were to provide 
income only for the aforesaid charity. 
The 
words 
"for the 
aforesaid 
charity" were of important significance. 
The entire accumulation was 
for charity. 
The. provisions regarding maintenance and education were 
subordinate to the provisions for meeting the expenses of the Utsavam to 
he celebrated in the specified Devasthanams. [303 E-FJ 
Further the provisions regarding 
maintenance and education 
we.re 
to be at the sole discretion of the trustees who could stop the same. 
This power of the trustees was a complete negation of the 
appellant's 
contention that the intention of the settlor was that education and main-
tenance expenses were the 
dominant purpose of the 
settlement. 
The 
settlor could never have allowed his dominant intention to be repelled 
hy a discretion conferred on the trustees to stop such expenses. [303 G-H] 
The tenor of the document thus pointed to the inescapahle conclusion 
that the predominant and over-whelming inte.ntion of the settlor was to 
hcncfit the charities and provide for the same, [304 A] 
(ii) The cy.pres doctrine applies where, a charitable trust is initially 
impossible or impracticable and the court applies the property cy-pres, 
viz., to some other charities as nearly as possible. resembling the original 
trust. 
In the present case, the maintenance and education expenses were 
neither charitahle trust nor similar objects of charity and the, High Court 
therefore rightly interfered with the trial court's order granting increased 
maintenance at Rs. 50 I· per mensem to the appellant. [304 C-D] 
· 
CIVIL APPELLATE Ju1smcT10N: Civil Appeal No. 1796 of 
1966. 
StlPREl\1r COURT REPORTS 
f 1970] 2 S.C.R. 
Appeal from the judgment and order dated January 6. 196-1 
of the Madras High Court in O.S.A. No. 39 of 1961. 
T. S. Sa11ga111<'.111·arc111 and K. Jayamm, for the dppellant. 
A. K. Se11, M. S. Nara"i11'illl11 and S. Ba/akrishn.m, for respon-
A 
dents Nos. I, 5. 6 and 7. 
R 
The Judgment of the Court was delivered by 
Ray, J. This appeal is from the Judgment of the High Court 
at Madras dated 6 February, 1964 dismissing the 
appellant's 
suit. 
The 
important question 
which falls for 
consideration is 
whether the deed of trust dated I 
Jummry, 1908 
created an 
absolute dedicution to charity 
subject only to a charge fo1· the 
payment of nrnintenance to the members of charge of the fou;,Jer·~ 
family or whether the dominant intention of the founder was the 
maintenance of the 
family and the ~rant to the 
charities was 
secondary. 
The trust deed was executed on I 
January 1908 by S. D. 
Mudaliar in favour of himself. A.P.M. Mudaliar. M.T.S. Muda-
liar and C.V.S. Mudaliar. S. D. Mudaliar and his pre-deceased 
son D. S. Muda/iar's adopted son S. Mudaliar effected a deed of 
partition dated 25 November. 1907 in respect of the immovable 
and movable properties. By the said 
deed of partition S. D. 
Mudaliar t

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