081-NLR-NLR-V-46-ARUMUGAM-PILLAI-Appellant-and-VELUPILLAI-PERIYATAMBY-et-al.-Respondents.pdf
Arumugam Pillai and Velupillai Periyatamby.
311
IMSPresent: Wljeyewardene and Jayetfleke JJ.ARUMUGAM PILLAI, AppeUant, and VELUPILLAI PEBIYATAMBY
et al., Respondents.
13—D. C. (Inty.) Jaffna, 1,895.
Charitable trust—Deed of gift for natural affectum—Conditions for performanceof poojah—Prohibition against alienation by an act inter vivos—Conditions not sufficient to constitute charitable trust.
Where a deed of gift contained the following conditions: —
That the said V. S. shall look after the said properties and takethe rents and profits of the said properties and perform the Artha-samapoojah, which is being generally performed and which we now areperforming and also the Theertam festival in the temple standing inthe land.
That after the lifetime of the said V. S. the person who wasappointed by him in his place and, in default- of such appointmentthe eldest child of his descendant will have the right to perform theduties of the said temple.
That the said V. S. will have no right to sell and transfer the saidproperties or alienate the same by documents such as mortgage andotty or encumber or alienate the same in any other way in his lifetimeand that whenever he in his lifetime appoints a person or persons,whom he likes, he shall have to appoint such person or persons subjectto the bindings recited in this paragraph.
Held, that the conditions annexed to the deed were not sufficientto constitute a charitable trust.
A
PPEAL from a judgment of the District Judge of Jaffna. By deedP 1 plaintiff and his wife transferred to their son, Sabaratnam, a
land called Mailavalai subject to the conditions set out in the headnote.By deed P 2 executed by the plaintiff, his wife and Sabaratnam, theyrevoked and cancelled the conditions laid down in P 1 and declared thatthe deed should be considered a donation free from all conditions infavour of Sabaratnam. The latter sold his interests in the land to thedefendants. The learned District Judge held that the conditions in P 1did not create a trust.
A. Rajapakse, K.C. (with him P. Navaratnerajah), for plaintiff,appellant.—The main question is whether the deed P 1 created a chari-table trust. The land in dispute was transferred to one Sabaratnam whowas enjoined to utilize the rents and profits for the purpose of performingcertain religious ceremonies in a specified temple. There is a beneficiaryindicated, namely the temple. In Lindeboon v. Cannille 1 it was heldthat a gift for the saying of masses is charitable as being for the advance-ment of religion. The earlier cases, West v. S'huttleworth 2, and Heath v.Chapman s were overruled by the House of Lords in Bourne v. Keene 4.In view of these authorities it is submitted that P 1 created a charitabletrust.
(1934) 1 Ch. 162.* (1854) 2 Drew. 417.
* (1835) 2 Myl. d> K. 684.(1919) A. C. 815.
342WIJBYEWAJtDENE J.—Arumugam Pillai and Velupillai Periyatambg.
N. Nadarajah, K.C. (with him C. Chellapah), for first defendant,respondent.—There was no intention on the part of the- donors to create-» trust. The intention was only to give a benefit to a son for whom thedonors declare their “ love and affection ”. See 8. K.. Iyer: IndianTrusts Act, p. 37. A charitable trust must be for one of the purposesindicated in section 99 of the Trusts Ordinance. There is no clear indi-cation in P 1 of the purpose of the trust. There is uncertainty as to whatextent of the income is to be used for the supposed trust. For these-reasons it is submitted that the District Judge was right iir holding thatP 1 did not create a trust.
H. W. Thambiah (with him V. Joseph) for second defendant,respondent.
A. Rajapakee, K.C., in reply.—According to the cy-pres doctrineeven if the purpose fails the trust does not fail. See section 99 of theTrusts Ordinance and Keeton’s Trusts, p. 147.
April 23, 1945. Wijeyewardene J.—
By deed P 1 of 1925 the plaintiff and his wife transferred to their son,Sabaratnam, a plot of land called Mailavalai subject to certain conditions.The land was valued at Ks. 3,000. The deed P 2 of 1928 executed by theplaintiff, his wife and Sabaratnam “ revoked, cancelled and made nulland void ” the conditions laid down in P 1 and declared that the landshould be considered “ a donation free from all conditions ” in favour ofSabaratnam. By 1 D 1 executed on the same date as P 2 the plaintiffand his wife transferred another land to Sabaratnam subject to the-same conditions as those set out in P 1. Sabaratnam, who consideredhimself as the absolute owner of Mailavalai by the joint effect of P 1 andP 2, sold for Rs. 3,375 all his interests in the said land to the two defend-ants by deeds 1 D 2 and 2 D 1 of March 16, 1940. The plaintiff, thereupon,filed the present action alleging that the defendants were in wrongfulpossession of the land. He contended that P 1 created a charitable trust,that P 2 could not extinguish that trust and that, therefore, the defendantsdid not get any title to the land under 1 D 1 and 2 D 2. The DistrictJudge dismissed his action and the plaintiff has appealed to this Courtfrom that judgment.
The deed P 1 was clearly a deed of gift. It was given on account ofthe “ natural affection ” that the plaintiff and his wife had for Sabaratnamwho accepted the land “ by way of donation ”. An important questionthat has to be decided is whether the deed P 1 annexed such an obligationto the ownership of the property as was sufficient to constitute a charitable-trust. The donors, no doubt, desired that Sabaratnam should “ performthe Arthasamapoojah, ….. which we now perform and also the-Theertham festival ”. As no oral evidence has been placed before theCourt, it is not possible to say what the nature of those ceremonies is orwhether or no the performance of those ceremonies involves the expendi-ture of any money. The deed P 1 itself does not state that any partof the income from Mailavalai is to be utilized for those ceremonies.Moreover the deed sayB in express terms that Sabaratnam should take-“ the rents and profits ”. It is true that the deed prohibits the alienatiott
The King v. Jinaeekere.
243
of the property by art act inter vivos, but, at the same time, it does Hotindicate the institutions whioh are to be benefited in the event of suohan alienation. On the other hand, it leaves unfettered Sabaratnam/seight to make a testamentary disposition.
A study of P 1 leads me to the conclusion that, when they executedP 1, the plaintiff and his wife intended merely to ensure the enjoymentof the property by Sabaratnam during his lifetime and save liim from(he consequences of an improvident alienation, and that they desired inAddition that their son should lead as religious a life as they said they hadled. I am unable to say that the District Judge has come to an erroneousdecision when he held that the conditions in P 1 did not oreate a trust.
I dismiss the appeal with costs.
JTayktilekk J.—I agree.
Appeal dismissed.