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Judgment
Srinivasan, J.—This application is taken out by the Official Trustee for permission to donate Rs. 2 lakhs for the relief of the affected people
of Maharashtra to Prime Minister''s Relief Fund, from and out of the surplus funds of the Estate of Caku Audikesavelum Naidu. Caku
Audikesavelu Naidu executed a will dated 22.4.1935 and a Codicil dated 24.5.1939. They were probated in this Court on 13.4.1943 in O.P.
No. 82 of 1943. By the will, the Testator appointed the Official Trustee of Madras to be Executor as the Testator had no confidence in the
capacity or character of his near relatives and because neither of his wives was capable of managing his properties after his death.
While making provisions for his wife and other relatives after his life-time, the Testator provided in clauses 26 to 29 of the will a reservation of a
fund called ""Reserve Fund"" from out of which he directed payments for certain charitable purposes. For the present application, Clauses 28 is
relevant. It reads thus:
My Executor and Trustee may also as and when occasion arises, and if funds permit (from the said fund) subscribe any amount not exceeding Rs.
500-0-0 to any fund for the relief of people affected by flood, famine, earthquake within the presidency and city or Madras.
By clause 19 in the Codicil, the name of the fund is changed as ""Special Reserve Fund"" from that of ""Reserve Fund"". In that clause, he provided
that in case of preference to his descendants for the purposes of clauses 26 and 30 of the will, preference should be given to the descendants of his
two characters, we are not concerned of those clauses.
On the 30th of September, 1993, there was a severe earthquake measured at 6 on the Richter scale with its epicenter South of Umerga in the
States of Maharashtra and Karnataka at about 3 A.M. resulting in devastation of nearly 73 villages. The estimated loss of lives as at present is
around 11,000 according to the newspaper reports. It is said to be the official estimate. About twelve thousand persons are injured. It is seen from
the reports that no house in Killari Town (Latur Taluk) remains intact after earthquake. Every house is razed to the ground and what remains is
only a heap to debris. Several villages in the State of Maharashtra and a few villages in Stale of Karnataka near Gulbarga have been affected. The
Union of India is making every effort to give relief to the affected people. Donations and contributions are made by people all over the World. In
recent times, such an unprecedented havoc was not experienced. The Prime Minister has called every citizen to help.
That has prompted the Official Trustee to file this application for permission to utilise a portion of the surplus funds available, i.e., under the
Special Reserve Fund"". As per the report of the Official Trustee the objects of the Trust are regularly fulfilled as directed by the. Testator and
there is a large surplus after such expenditure. As at present, there is a surplus of six lakhs in addition to the existing corpus. It is stated that a fixed
Deposit of Rs. 21 lakhs and odd and a house yielding an annual income of about Rs. 600/-, are the properties of the Trust.
Under the clause referred to above, the testator had undoubtedly expressed his intention to give relief to the people affected by fury of nature
such as flood, famine or earthquake, but he had chosen to limit the aid to Rs. 500/- and confine it to the Presidency and City of Madras. The will
was written in 1933 and even before 1943, the testator passed away. At the time when the will came into effect, on the death of the testator, the
Presidency of Madras comprised of a larger area than at present and parts of the present Karnataka State were within the Presidency of Madras.
It is stated that Gulbarga was also a part of the Presidency of Madras at that time. It must also be borne in mind that the sum of Rs. 500/- in the
year 1935 or 1943 was of great value which can be equated to multifolds of that sum in the present day. It is a known factor that the money value
has gone down and a rupee of 1930s or 1940s is worth several hundreds of the present day rupee.
Whatever it may be, it cannot be denied that the testator had in general charitable intention and was anxious to help the people who had to
undergo sufferings on account of flood, famine and earthquake and it is not, as if, flood, famine or earthquake will occur annually or periodically in
any particular place. The occurrence is very rare and it takes place only once in a few decades. In so far as this country is concerned, according to
the Seismographic Experts, State of Maharashtra is not as much quake prone as Northernmost part of the country near Himalayas. In fact, the
present earthquake caused a real shock to the Seismographic experts in the field. In the case of such an unprecedented event, it will not be wrong
for the court to give effect to the general charitable intention expressed by the Testator in his will and provide for appropriate relief to the people
concerned, irrespective of the limits imposed by the Testator, particularly when it is in the interests of the Nation. No doubt the doctrine of cypres
in the Law of Trusts is well known. The rule of cypres is in harmony with the teachings of the Hindu Sastras and has been applied to charitable gifts
by Hindus. The doctrine applies only to charitable trusts. The reason is that a public charity is perpetual and the rule against perpetuity does not
apply to it, and it can never die, though its nature may be changed. The Supreme Court had occasion to consider the scope of the doctrine in State
of U.P. Vs. Bansi Dhar and Others, . The following passage in that judgment may be quoted with advantage:-
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 authority. Nori Venkata Rama Dikshitulu and Others Vs. Ravi Venkatappayya and
Others, and Potti Swami and Brothers and Others Vs. Rao Saheb D. Govindarajulu and Others, for instance, are two authorities in the same
volume supporting the rival positions. We have come across other cases, Indian and English, where even gifts inter vivos have enforced cypres by
courts although the general run of trusts where failure has been saved relates to testamentary dispositions. There is perhaps a reason why courts
should. in the case of wills, step into, supply a near intent and apply the funds cypres where otherwise the charity will fail on sticking to the literal-
object, the author being dead and unable to speak. for gifts inter vivos, the donor is ordinarily available to suggest the mutation in the event of
impossibility or impracticability of the original object. Even so, we are inclined to the view that, both testamentary and non testamentary gifts for
public charitable purposes must be saved by a wider intervention of Court, for, public interest is served that way. Neither principle nor precedent
bars this broader invocation of the courts beneficent jurisdiction. But there are two other limitations on the cypres doctrine which come into play
here. Where the donor has determined with specificity a special object or mode for the courts of his beneficiation the court cannot innovate and
undo, but where a general charitable goal is projected and particular objects and modes are indicated, the court, acting to fulfil the broader
benevolence of the donor and to avert the frustration of the good to the community, re- constructs, as nearly as may be, the charitable intent and
makes viable what otherwise may did. The judges have said this restraint on their power to resurrect, or rather to vary and validate. The twin
conditions to be satisfied are:
(1) The settler must, in general, have shown a general
charitable Intention.
It will only apply where the original trust has failed ab Initio. The absence of a general charitable intention wilt not be fatal to. those trusts which
have taken effect but have failed later Once money has been effectively and absolutely dedicated to charity, whether in pursuance of a general or a
particular charitable intent, the testator''s next of in or residuary Legatees are forever excluded. This will mean that the material date for the purpose
of deciding whether the cypres doctrine is applicable is the date when the trust came into effect (e.g. in a 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 ""impossible"" to carry out the settlor''s
intention, or alternatively that a surplus remained after fulfilment of the purpose."" The Modern Law of Trusts Parker and Mellows, 2nd Edn. pp.
204, 208.
Applying the general principles of the doctrine as set out above, and having regard to the availability of funds with the Trust which will only remain
unutilised even if all the objects set out in the will are fulfilled to the extent indicated therein, I am of opinion that this is a fit case in which the Official
Trustee should be permitted to donate a sum of Rs. Two Lakhs to the Prime Minister''s Relief Fund for the purpose of helping the affected people
in the States of Maharashtra and Karnataka who are affected by the recent earthquake. The application is, therefore, accordingly ordered. The
Official Trustee is permitted to take the cost of this application from out of the funds of the Estate.