C. A. FERNANDO et al , Appellants, and T. N. I. SIVASUBRAMANIAM AIYER, Responden

061-NLR-NLR-V-61-C.-A.-FERNANDO-et-al-Appellants-and-T.-N.-I.-SIVASUBRAMANIAM-AIYER-Responden.pdf


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BASXAYAKE, C. J.—Fernando v. Sivasubramaniam Aiyer
1959Present: 3asnayake, C. 3and Pulle, 3.
A. FERNANDO et ad., Appellants, and T. N. I. SXYASUBRAMANIAM
AIYER, Respondent
S. G. 444 A-B—D. G. Jaffna, 173JL
Charitable trust—Applicability of English law—Hindu religious trust—Interpretationof expressions such as “ madam ”, “ abishekam ", “ neivetlviam ”, “ Duwadesi ’>—Trusts Ordinance (Cap. 72), as. 2, 99 {1) (c), 99 (4).
If a trust is claimed to be charitable and it falls within one or other of thecategories specified in section 99 (1) of the Trusts Ordinance, no principle ofEnglish law relating to charities is admissible to show that it is not a charitabletrust.
Per Pttlle, J.-—(i) In determining whether an instrument has created aBCindu religious trust for the maintenance of religious rites and practiceswithin the purview of section 99 (1) (c) of the Trusts Ordinance, provisionsrelating to the feeding of Brahmins on “ Duwadesi ” days and to the assign-ment of a “ madam ” for that purpose, and expressions such as “ abishekam ”and “ neivethiam ”, must be interpreted in the context of the religious beliefs ofthe person who executed the deed. For such purpose, admissions made by thetrustees in previous actions concerning the trust are relevant, (ii) If a place isconstituted as a “ madam ”, it is for those who accept the trust to do what isnecessary to make it a place of worship and pilgrims’ rest. A continuousbreach of trust in respect cannot defeat the trust.
/aPPEAL from a judgment of the District Court, Jaffna.
Thiagalingam, Q.O., with G. Ranganathan and E. R. 8. R. Gooma-raswamy, for the added defendants- appellants in 444 B and for theadded defendants – respondents in 444A.
W. Jayewardene,Q.Cwith G. Barr Kumarakulasinghe and N. R. M.Daluwatte, for the 1st defendant-appellant in 444A and for the 1stdefendant-respondent in 444B.
A. Sambandan, with S. Sharvananda and S. Sivarasa, for the plaintiff-respondent in both appeals.
Cur. adv. vult.
May 12, 1959. Bas3SAYak2:, C-J.—
have had the advantage of reading the judgment prepared by mybrother Pulle, and I agree that the decree appealed from should he setaside and that the plaintiff’s action should be dismissed with costs.
As my brother has stated the facts at length it is not necessary for meto recapitulate them all. The question that arises for decision is whetherby deed No. 4867 of 27th July 1888 (PI) ELanapathy Aiyer Sanmuga
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BASNATAKB, C. J.—Fernando v. Sivaavbramanimn Aiyer,
Aiyer created a charitable trust. Elanapathy Aiyer Sanmuga Iyer by thatdeed dedicated to religious charity the lands referred to therein. Thisis how he expressed his wish.
“ I,' Kanapathy Aiyer Sanmuga Aiyer, residing at VannarponnaiWest, Jaffna, being desirous of my soul’s attainment of salvation dohereby execute deed for the performance of charity. As it is mydesire that feeding of Brahmins should be conducted on each ‘ Dwadesi *day occurring every month, I assign the following place for thatpurpose.”
After describing the land he goes on to say :—
“ I have, in order to be of use for the performance of the duty men-tioned above, and for religious worship given all that is containedwithin these boundaries, including building, well, cultivated andspontaneous plantations the sacred name ‘ Dwadesi * Madam and haveexecuted this instrument for the performance of charity.The value of this is Rs. 500.
“ The properties I give over to this Madam are :—
He then describes the properties, and states :—
“ I have given over to the abovenamed ‘ Dwadesi ’ Madam allthese lands so that with the income therefrom the feeding of Brahminsmay be conducted on each ‘ Dwadesi ’ day occurring every monthat the said ‘ Dwadesi ’ Madam and also to perform Abishekam andNeivethiam ceremonies on each Vinayaga Sathurthi day and on eachSathaya Lunar Constellation day every month to Sri VisuvalingaMaha Ganapathi Deity who, as a blessing, has taken abode in theTemple situated in the land called * Panrikoddu Walavu ’ at Vannar-ponnai Bast.
et The above ‘ Dwadesi ’ Madam, the properties given over to it,and the several acts to be performed as aforementioned shall be ma-naged by me and Veeravagu Aiyer Purushothama Aiyer of Vannar-ponnai as Trustees and after my death and that of Veeravagu AiyerPurushothama Aiver hereditarily as Trustees, and in the event of therebeing no male descendants, the said Purushothama Aiyer’s femaledescendants only shall manage as Trustees.
“ As I have mortgaged one of the aforesaid lands called ‘ PanrikodduWalavu ’ in extent 2J 1ms. v. c. with all the appurtenances thereonto Madhava Aiyer Muttaiyar of Vannarponnai for Es. 120 and intereston the 30th of June of the current year before the Notary attestingthese Presents, I shall myself redeem the same.
“ In accordance with these terms the said Trustee Veeravagu AiyerPurushothama Aiyer too as a consenting party set his signature in thepresence of Nagendra Aiyer Subramarda Aiyer of Vannarponnai andMuttaiyar Sanmuga Aiyer of the same place at the of&ce of the Notaryon the 27th day of Jaly 1888.”
BAS27AYAKE, C. J.—Fernando v. Sivaaubramaniam Aiyer
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No particular formula is required by law for the creation of a trust.The requirement of law is that the author should make his meaning clearand evince his intention to create a trust and the Court will give effectto that intention. In the instant case BLan&pathy Aiyer S&nmuga Aiyerthe author of the trust declared by Pi has clearly indicated that thepurpose of granting the lands in question to himself and another was forthe advancement of his religion and maintenance of religious rites andpractices of the Hindu faith. The beneficial interest is not vested inany ascertained individual or individuals but in an uncertain and fluc-tuating body, the Brahmins. Under the law in force in 188S (OrdinanceNo. 7 of 1871) he was entitled to create a trust in the way he did.
The Trust declared by PI falls within the ambit of " Charitable Trust ”as understood in our law (Section 99, Trusts Ordinance) and it is notnecessary to have recourse to the law of England where Charity has aspecial legal meaning. Is the preamble to the statute 43 Eliz. c. 4 (sincerepealed) was a list of charitable uses which was taken by the Court ofChancery as a guide to determine what were and what were not charitablepurposes. That statute was repealed by the Mortmain and CharitableUses Act, 1888, which in section 13 (2; repeats the list in the preamble tothe statute of Elizabeth. It is as follows :—
“ Whereas landes tenementes rentes annuities pfittes hereditamentes,goodes chattels money and stockes of money, have bene heretoforegiven limitted appointed and assigned, as well by the Queenes mosteexcellent Majestie and her moste noble progenitors, as by sondrieother well disposed psons, some for reliefe of aged impotent and poorepeople, some for maintenance of sicke and maymed souldiers andmarriners, schooles of learninge, free schooles and schollers in uni-vsities, some for repaire of bridges portes havens causewaies churchesseabankes and highewaies, some for educacon and pfermente oforphans, some for or towardes reliefe stoeke or maintenance for howsesof correccon, some for manages of poore maides, some for supportaconayde and helpe of younge tradesmen, handiacraftesmen, and psonsdecayed, and others for reliefe or redemption of prisoners or captives,and for aide or ease of any poore inhabitantes concninge paymenteof fifteenes, settinge out of souldiers and other taxes ; which e landestenements rents annuities pfitts hereditaments goodes chattells moneyand stockes of money nevtheles have not byn imployed accordinge to thecharitable intente of the givers and founders thereof, by reason offfaudes breaches of truste and negligence in those that should© paydelyver and imploy the same
A gift to any of these purposes is charitable in England, but the listis not exhaustive and various other objects have from time to time beendeclared to come within the ambit of the Act, The popular meaning ofthe word " charitable ” is widely different from the legal meaning inEngland and in our law too its legal meaning is limited by section 99 of theTrusts Ordinance. My brother has in his judgment referred to LordMacnaghten’s classification of “ Charity ” in its legal sense under fourprincipal heads (The Commissioners for Special Purposes of the Income
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PCJLLE, J.—Fernando v. Sioavubramaniam Aiyer
Tax v. Pernsel1). In that case Lord Macnaghten alter stating that thepopular meaning of the words “ charity ” and “ charitable ” does notcoincide with their legal meaning observes :—
“ How far then, it may be asked, does the popular meaning of theword “ charity ” correspond with its legal meaning ?“ Charity ” in
its legal sense comprises four principal divisions : trusts for the relief ofpoverty; trusts for the advancement of education; trusts for theadvancement of religion ; and trusts for other purposes beneficial to thecommunity, not falling under any of the preceding heads. The trustslast referred to are not the less charitable in the eye of the law, becauseincidentally they benefit the rich as well as the poor, as indeed, everycharity that deserves the name must do either directly or indirectly.It seems to me that a person of education, at any rate, if he werespeaking as the Act is speaking with reference to endowed charities,would include in the category educational and religious charities, aswell as charities for the relief of the poor. Roughly speaking, I thinkhe would exclude the fourth division. Even there it is difficult to drawthe line.”
Although the categories of " charitable trusts ” in section 99 of ourOrdinance and the above classification are in many respects «rmila.T it isunsafe, as pointed out by my brother, to he guided solely by the numerousEnglish cases which determine what are charitable purposes, especiallyas those cases are not easy to reconcile.
The learned District Judge is wrong when he states that our lawregarding charitable trusts is the same as the English law. Our law asto charitable trusts is enacted in the Trusts Ordinance and even where thetexts are apparently the same, we should he careful in accepting asauthority for a proposition of law under one system judgments renderedunder a different system of jurisprudence. Even though the propositionsof law stated by the Courts in England might in some respects appear tocorrespond with the language used in our statutes we should interpretand apply orr statute according to the conceptions of our law.
There is in this case the added circumstance that since 1888 till thepresent action there has been no question that a charitable trust wasdeclared by deed PI and that the lands in dispute were trust property.P8, P8, P12, PI 3, Pi 5A and P17 are evidence of the uniform courseof conduct of the parties.
The plaintiff is not entitled to claim the land “ Seemanthidal andThiruvalarthidal ” as his private property.
PtTLLE, J.—
There are two appeals in this case, numbered 444A and 444B. Thefirst is by the defendant and the second by the three added defendants.The appellants seek to set aside a deciee dated 31st May, 1956, in favour
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of the plaintiff by which he was declared “ the owner, proprietor andpossessed of the land and premises ” comprising a divided extent of 23lachams, p.c., out of a land called Seemathidal and Thimvalarthid alsituated within the Municipal limits of Jaffna. The plaintiff valuedthis land at Rs. 48,000.
It is common ground that the land belonged originally to one Hana-pathy Aiyer Sanmuga Aiyer which he dealt with, along with otherproperties, by a notarially attested instrument PI dated 27th July, 1888.The main controversy in the case centred on whether deed PI created,within the meaning of section 99 (1) (c) of the Trusts Ordinance (Gap. 72),a charitable trust “ for the advancement of religion or the maintenanceof religious rites and practices ”. By deed Pll of 10th October, 1947,the plaintiff leased the land in suit to the defendant, namely, the appel-lant in 444.A, for a term of five years. In Pll the plaintiff states thathe held and possessed the land as the “hereditary trustee” under and byvirtue of PI of 1888 which he calls the “ deed of Trust Appointment”.The added defendants are three office-bearers of what is called the Boardof Trustees of Panrikoddu Sri Visuvalinga Maha Ganapathy Kovil,Vannarponnai, Jaffna, who purported by deed No. 3237 of 25th July, 1955,(marked 2D4), to lease to the defendant an extent of lachams, p.c., outof the land in suit for a term of five years with an option to renew. Theclaim of the added defendants to lease the premises was based on a deedNo. 6385 of 25th June, 1951, (2D5) by which two persons claiming to bede jure trustees of* the premises in question, and other lands, settled ascheme for the management of the trust. It is clear from the admissionsand findings in the ease that if the land was comprised in a charitable trust,bhe right of the plaintiff to administer it would be unquestionable. Theplaintiff, qua, trustee, was entitled to have the defendant ejected on thetermination in 1952 of the lease Pll granted to him by the plaintiff.The events immediately leading to the institution of the present case andthe allegations in the plaint show plainly that the plaintiff is not interes-ted in the land in the capacity of a trustee. He carries on business inBombay under the name of “ Subran Monie ” and is apparently not in aposition to discharge the duties of a trustee in Jaffna. His claim in thiscase as set out in the plaint is that deed PI of 1888 “ did not create anytrust and the plaintiff is the absolute owner of the said land free fromany trust or obligation whatsoever. The said deed No. 4867 of27. 7. 1888 is invalid, inoperative and of no force or avail in law”.It is on this basis that he has sought for and obtained a declaration inhis favour under the decree appealed from.
The only question that falls to be determined on this appeal is whetherSanmuga Aiyer by deed P 1 created a charitable trust. The materialportions of the deed, as translated, are as follows :
“ I, Hanapathy Aiyer Sanmuga Aiyer, residing at YannarponnaiWest, Jaffna, being desirous of my soul’s attainment of salvation dohereby execute deed for the performance of charity. As it is my desirethat feeding of Brahmins should be conducted on each ‘ puwadesi *
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PULLE, J.—Fernando v. Sivasubramaniam Aiyer
day occurring every month, I assign the following place for that purpose. ”Here follows the description of a land called “ Panrikoddu Walavu ”in extent 2 ^ laehams, v.c., with reference to its boundaries.
The second paragraph of P 1 reads :
** I have in order to be of use for the performance of the dutymentioned above and for religious worship given all that is containedwithin these boundaries including building, well, cultivated andspontaneous plantations the sacred name ‘ Duwadesi madam ’ andhave executed this instrument for the performance of charity. ”
In the next paragraph the owner purport® to “ give over to thismadam ” three properties of which the first named is the land whichis the subject matter of the action. The purpose for which the propertieswere given is expressed thus :
I have given over to the above mentioned ‘ Duwadesi * madamall these lands so that with the income therefrom the feeding of Brahminsmay he conducted on each ‘ Duwadesi ’ day occurring every monthat the said ‘ Duwadesi ’ madam and also to perform Abishekam andISFeivethiam ceremonies on each Vinayaga Sathurthi constellation dayevery month to Sri Visuvalinga Maha Ganepathi Deity who, as a blessing,has taken abode in the temple situated in the land called ‘ PanrikodduWalavu ’ at Vannarponnai East. ”
In the concluding paragraph Sanmuga Aiyer appointed bimsalf andone Puruahotam Aiyer as joint trustees and provided for the devolutionof the trusteeship after their deaths.
Before one could express with confidence whether or not the deedcreated a charitable trust, there are terms which have first to he under-stood. The significance of the Abishekam and Neivethiam ceremonieshas to be explained. It is unfortunate that neither side thought itnecessary to call a disinterested witness versed in the tenets and religiouspractices of Hindus in Jafiha to throw light on the religious significanceof feeding Brahmins on f< Duwadesi ” day at a place called a " Madam ”constituted for that purpose and of performing Abishekam and Neive-thiam ceremonies at a temple dedicated to “ Sri "Visuvalinga MahaGanapathi Deity who, as a blessing, has taken abode in the Templesituated in the land called * Panrikoddu Walavu ’ at VannarponnaiEast All the lawyers appearing in the case, save the Proctor for theplaintiff, are Hindus and so is the learned District Judge. Consideringthe statements in the two petitions of appeal and passages in thejudgment under appeal there is a sharp difference of opinion as to thetrue nature and character of Abishekam and Neivethiam ceremoniesand the feeding of Brahmins at the madam. In one passage the trialJudge states,
“ Mr. Kanaganayagam seeks to come under section 99 (1) (c). Hesubmits that the provisions for the feeding of Brahmins (Brahaxnano
bo j ana) once a month in this houseand the performance of
abisheka (bathing of the deity) and neivethiaxns (offering of eatables
PUX.LE, J.—Fernando v. Sivasubramaniam Aiyer .
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to the deity) constitute ‘ maintenance of religious rites and practices Even if they are * religious rites and practices there is nothing to showthat they are of benefit to the community. ”
In another passage the learned Judge states,
" Sanmuga Aiyer did not purport to give the lands to the SriVisuvalinga Maha Ganapathy temple. Had he done so it would he avalid charitable trust. But what he ordained was that, for the attainmentof salvation of his soul, abishekams (bathing of the deity) andneivethiams (spreading of edibles before the deity) should be done fromthe income of the lands. That would not be religious rites. If heordained that poojahs and/or festivals should be conducted at thetemple one can consider them to be religious rites and practices. ”
The question suggests itself at once. If abishekams and neivethiamsare not religious rites and practices, then what are they ? If the celebra-tion of poojahs is a religious rite, what is it that takes abishekams andneivethiams out of the category of religious rites ? With all respect tothe learned Judge I fail to see the difference between the one and theother qua religious rites. It strikes even a person who is not deeplyversed in the tenets of the Hindu religion that the bathing of an imagein which a particular deity is believed to dwell and who is worshippedin a public temple is an act of reverence towards that deity which couldproperly be called a religious rite or practice coming within the purviewof section 99 (1) (c) of the Trusts Ordinance. The ceremony of neivethiamsconsisting of the spreading of edibles before the image suggests themaking of an offering to the deity in return for which the devotee hopesto receive spiritual or temporal favours.
As stated earlier it was the intention of Sanmuga Aiyer that Brahminsshould he fed on each “ Duwadesi ” day of each month at the place called“ Panrikoddu Walavu ” and that the place to which he gave the “ sacred ”name of " Duwadesi Madam ” should also be used for religious worship.On this part of the case the learned Judge states :
“ If Pi had ordained that poor Brahmins in a particular area shouldbe fed in the building on the land of 2 11 /16ths lachams on Duwadesi dayevery month then it would pass the test of benefit to a section of thecommunity ” and would fall under section 99 (1) (a) of the TrustsOrdinance—for the relief of poverty. He continues,
“ The motive for the gift was the attainment of the salvation of hissoul. This is of a private nature and cannot be said to be for benefitto the community. Therefore, it cannot be a charitable trust.
“ PI does not create a madam. It merely purports to give the nameDuwadesi madam to the land and the house on it. A madam is a placeof religious resort at which pilgrims rest and perform certain ceremonies.There should be a shrine in it, if any worship is to take place there. Theevidence shows that there is no shrine in the building known as DuwadesiMadam. There is no evidence that pilgrims go there to rest. ”
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If unconnected with the performance of a public religious rite a personordains the feeding of Brahmins, irrespective of their poverty, as a meansof attaining salvation, there is much to be said for the view that sucha disposition would not he a charitable trust. In the present case,however, the provisions relating to the feeding of Brahmins and the“ assignment ” of a place for that purpose indicate that Sanmuga Aiyerhad in view the performance of ceremonies of a public character. Whyshould Brahmins, who admittedly are the priests of the Hindu religion,he fed in a particular place and on a particular day of the month, unlessit he for the advancement of that religion ? I presume that a Brahminis fed not because he is poor but because he is a priest. Now it is commonground that a madam ” rightly called is a place of religious resort—vide, section 99 (4). It is clear from PI that Sanmuga Aiyer intendedPanrikoddu Walavu to he not only a feeding place for Brahmins but alsoas a place of worship. It seems tome in the context that in designatingthe property as “ Duwadesi madam ” he did more than give a hare name,he did in fact constitute a madam. It is not likely that Sanmuga Aiyerintended that his successors in title should exercise full rights of owner-ship over the property, subject to the obligation to vacate it once a monthfor the feeding of the priests. In deciding whether by reason of PIPanrikoddu Walavu was comprised in a charitable trust it is not a pointagainst the appellants that there is no shrine on the property or that thereis no evidence that it has been in fact a pilgrims* rest. If a place isconstituted as a madam, it is for those who accept the trust to do what isnecessary to make it a place of worship and to let it he known to pilgrims:that they have a place of rest. The continuous breach of trust cannotdefeat the trust.
In support of the case set up by the appellants that deed Pi createda charitable trust stress was laid on a number of transactions to which theplaintiff was a party in which he had admitted that he was the trusteeof a charitable trust. In P7 of 1921 the plaintiff in granting a lease ofPanrikoddu Walavu described himself as the present trustee of Duwadesimadam to the management- and possession of which he was entitled “ asper the charity donation deed dated the 27th July, 1888 ”.
Mention has already been made of the lease to the defendant Pi 1 of 1947in which the land in the present action was described by the plaintiff'as “ held and possessed by me as the hereditary trustee ” under PI. Bylease P12, also of 1947, the plaintiff leased to one Murugar Rajakuddya 4-lacham block out of Seemathidal and Thiruvalarthidal. It is describedas land belonging to Duwadesi madam by virtue of PI and that theplaintiff possessed it as the '* hereditary trustee and manager ” of themadam. The plaintiff describes himself in like manner in deed P13 of1949 which was executed as the result of a case, D. C. Jaffna No. 4355,filed by the plaintiff in 1948 in his capacity as trustee of Duwadesi madamagainst one Nagalingam A mirthalingam. It was alleged in this case thatin 1938 a previous trustee one Somammah, a sister of the plaintiff’smother, had leased Seemathidal and Thiruvalarthidal to A mirth almgam.
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for 10 years by a deed of 193S and that after the death of Sornamm ah in1945 the lessee had failed to pay rent to the plaintiff. His prayer, interWaS
“ (a) for a declaration that he is the the lawful trustee of the aforesaidtrust land;
(6) for a vesting order vesting the said land in the plaintiff. ”
A settlement reached by the parties was recorded as follows :
" Parties file following terms of settlement. The plaintiff is declaredthe lawful trustee of the trust described in para. 1 of the plaint and vestingorder is to be entered in his favour vesting the said trust and itstemporalities. The defendant to continue in occupation of the land inthe schedule to the plaint for a period of two years from 1.3.1949 to
3.1951 on a fresh lease bond to be entered between the parties. ”
C. Jaffna No. 4425 was another case filed by the plaintiff. Heclaimed to eject the occupants of the madam in his capacity of trustee.The dispute was eventually settled. The plaintiff was declared the trusteeof the madam and a vesting order made in his favour.
The last of the cases is I). C. Jaffna No. TR 78 in which the plaintiffsought on 21st December, 1949, the permission of court to sell the landwhich is the subject matter of the present action. In para. 3 of theaffidavit (2D1) supporting the application the plaintiff stated:
“ By his deed bearing No. 4867 dated July 27th, 1888, and attestedby M. Kandasamy of Jaffna, Notary Public, the said Sanmuga Aiyerdedicated the house in which he lived at Vannarponnai to a madamreferred to as ‘ Duwadesi Madam ’ in the said deed for carrying outcertain religious rites and dedicated three other pieces of lands, describedin the schedule hereto, from the income of which the objects of the trustwere to be carried out. ”
There was opposition to this application especially by one ArumugamChettiar who claimed to be the trustee and manager of Sri VisuvalingaMaha Ganapathv temple referred to in PI. While reading through theevidence taken in case No. Tit 78 it is difficult to resist the impressionthat had the plaintiff pressed his case to a finality he would have failedin his application. He applied on 27th September, 1951, to withdrawthe application because he had been advised by his lawyers in regard toPi that “ according to the true nature of the said deed no charitable trusthad been created and the full dominium over the property had beenvested in the applicant unencumbered by any trust or legal obligation ”,The District Judge refused to allow the withdrawal but in appeal this courtgranted his request without prejudice to the parties to litigate the matterafresh.
It is, therefore, clear that from 1921 till 1951 the plaintiff hadconsistently taken up the position that deed PI created a charitable trustand that by reason of its provisions the land which is the subject matterof this action was comprised in that trust. It cannot, however, be
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disputed that if on a true interpretation of the deed the creation of acharitable trust cannot be read into it, the admissions of the plaintiff donot preclude him from now asserting against the defendants that he is thelegal owner of the property without a trust of any kind being attachedto it. An issue of estoppel was raised by the defendants but it was decidedagainst them and the correctness of that decision wa3 not challengedbefore us. Now what is the weight to be attached to the admissions madeby the plaintiff before the institution of the present action that he heldthe property as the trustee of a charitable trust ? Obviously PI is nota deed which, so to speak, interprets itself. It contains words like“ Duwadesi ”, “ Madam ”, “ abishekam ”, “ neivethiam ” which are notof common English usage, and, therefore, their true import has to beascertained in the context of the religious beliefs of the person whoexecuted the deed. These are matters of a factual character and in myopinion the admissions are tantamount to statements by the plaintiffthat the “ madam ” referred to in PI is a place of religious resort, that“ abishekam ” and “ neivethiam ” described as “ ceremonies ” in Pi are“ religious rites and practices ”, and that the “ madam ” and theseceremonies were provided by Sanmuga Aiyer for the benefit of a sectionof the public. To my mind it is inconceivable to assign any content tohis admission that he was the hereditary trustee of a charitable trustunder PI without reading into it an admission of those factual matterson which extrinsic evidence could have been led to shew that SanmugaAiyer had used language in PI which had the result of creating a charitabletrust within the meaning of Chapter X of the Trusts Ordinance. If thecontention is that the admission of the plaintiff did not have the effectindicated by me, then it was for him to adduce evidence to satisfy thecourt that he had been led erroneously to making it and that upona correct understanding of the language in Pi an intention to createa charitable trust could not be read into it.
The importance attached by the plaintiff to the judgments in He CoatsTrusts, Coats v. Qilmour and Others in the Court of Appeal, (1948) 1 All
R. 521 and in the House of Lords, (1949) 1 All E. R. 848 perhapsreveals the reason why the plaintiff, after having for several years puthimself forward as the trustee of a charitable trust, alleged its non-existence and claimed to have inherited the lands comprised in it as thesole surviving heir of Sanmuga Aiyer. The learned trial Judge hasreferred to this case to support the proposition that a gift to be a validcharitable trust must be not only for the advancement of religion but alsofor the public and not merely private benefit, like the attainment ofsalvation of one's soul. Before dealing with the applicability of Coats'case I desire to comment on the statement of the Judge,
tc I agree with learned counsel on both sides that our law regarding
charitable trusts is the same as the English law. ”
It seems to me that this is too wide a proposition. If a trust is claimedto be charitable and it falls within one or other of the categories specifiedin section 99 (1) of the Trusts Ordinance no principle of English lawrelating to charities is admissible to shew that it is not. The application
In re Polish Ocean Lines of Gdyina
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of English law is limited by the provisions of section 2. The four divisionsof charily ” in its legal sense as laid down by Lord Macnaghten in thewell-known case of Commissioners for Special Purposes of Income Tax n.Pemsel1 include " trusts for the advancement of religion Whiletrusts “ for the advancement of religion ” are provided in section 99 (1) (c)express provision is also made for trusts for “ the maintenance of religiousrites and practices ” which are not mentioned in the divisions set out inPemseVs case. In deciding whether an instrument has created a charitabletrust it seems to me to be unsafe to be drawn into the complexities of •English legislation beginning with the preamble to the Act of Elizabeth Ipassed in the year 1601.
In the present case there was no need to have recourse to the Englishlaw to hold that a trust alleged to be charitable must be one for thepublic benefit because section 99 says so expressly. Whether a trustwill be for the ** benefit of the public or any section of the public ” willbe largely a matter of evidence. It is hardly helpful to judge that issuein the present case by a decision of the House of Lords, on the evidenceplaced before it, that a gift to a community of Carmelite nuns who leda purely contemplative life within the four walls of a convent and shutout from the outside world did not come within the spirit and intendmentof the preamble to an Act passed in 1601 to make it a charity.
In my opinion the deed PI created a valid charitable trust. At theargument in appeal the fate of the plaintiff’s action rested solely onwhether he is the unfettered owner of the property in question. I holdthat he is not with the consequence that the decree appealed from shouldbe set aside and the plaintiff’s action dismissed with costs here-and below.
Decree set aside.