{"id":186239,"date":"1965-01-22T00:00:00","date_gmt":"1965-01-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shah-chhotalal-lallubhai-and-vs-charity-commissioner-bombay-on-22-january-1965"},"modified":"2019-01-20T03:27:11","modified_gmt":"2019-01-19T21:57:11","slug":"shah-chhotalal-lallubhai-and-vs-charity-commissioner-bombay-on-22-january-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shah-chhotalal-lallubhai-and-vs-charity-commissioner-bombay-on-22-january-1965","title":{"rendered":"Shah Chhotalal Lallubhai And … vs Charity Commissioner, Bombay, … on 22 January, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shah Chhotalal Lallubhai And … vs Charity Commissioner, Bombay, … on 22 January, 1965<\/div>\n
Equivalent citations: 1965 AIR 1611, \t\t 1965 SCR (2) 811<\/div>\n
Author: R Bachawat<\/div>\n
Bench: Bachawat, R.S.<\/div>\n
           PETITIONER:\nSHAH CHHOTALAL LALLUBHAI AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nCHARITY COMMISSIONER, BOMBAY, AND OTHERS\n\nDATE OF JUDGMENT:\n22\/01\/1965\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nRAO, K. SUBBA (CJ)\nDAYAL, RAGHUBAR\nRAMASWAMI, V.\n\nCITATION:\n 1965 AIR 1611\t\t  1965 SCR  (2) 811\n\n\nACT:\nBombay\tPublic\tTrusts\tAct (29 of 1950),  ss.\t55  and\t 56-\nDiversion of accumulation of trust funds-When permitted.\n\n\n\nHEADNOTE:\nA testator, who professed the Jain religion, gave directions\nin his will that certain amounts should be spent annually on\nreligious and charitable objects specified by him, and\tthat\nan  annual feast should be given to members of his caste  in\ncertain\t specified  villages.  He died in 1916 and  by\t1955\nthere  was a large accumulation of unexpended income  mainly\nbecause\t of  discontinuing the feast, and  so,\tthe  Charity\nsioner filed an application before the District Judge, under\nss.  55(1)(b) and 56 of the Bombay Public Trusts  Act,\t1950\nfor  directions\t for  the  utilization\tof  that  sum.\t The\nDistrict Judge directed a division of the amount between  an\neducational institution and a hospital.\t The appellants, who\nwere  of  the same caste as the testator  and  who  objected\nbefore\tthe  District  Judge to the  diversion\tof  the\t sum\nappealed to the High Court, but the appeal was dismissed.\nIn  their  appeal  to  the  Supreme  Court,  the  appellants\nchallenged  the\t propriety and legality\t of  the  directions\ngiven by the District Judge and confirmed by the High Court.\nHELD : The directions should be set aside, as the respondent\nhad  not made out a case for such diversion of trust  funds,\nand  the  directions were objectionable on the\tground\tthat\nthey  did not take into account the original objects of\t the\ntrust. [821 H; 822 A]\nOn  an application either under s. 55(1)(a) or\ts.  55(1)(b)\nread  with s. 56(2) the Court is bound to give direction  in\nrespect\t of all public trusts.\tSection 56(1) provides\tthat\nin giving the directions. the Court shall, so far as may  be\nexpedient,  practicable, desirable, necessary or  proper  in\nthe  public interest, give effect to the original  intention\nof the author of the trust or the object for which the trust\nwas  created.\tUnder the latter part of s.  56(1),  if\t the\nCourt finds that the carrying out of the original  intention\nor  object  wholly or partially, is  neither  expedient\t nor\npracticable  nor desirable nor necessary nor proper  in\t the\npublic interest, the court may direct the property or income\nof  the trust or any portion thereof to be applied by  press\nto  any\t other charitable or religious object.\tOne  of\t the\nobjects for which the trust was created in the instant case,\nwas the annual feast to the members of the testator's caste.\nLooking\t at the interest of the community, it was  certainly\nexpedient,  practicable,  desirable and proper to  give\t the\nfeast.\t Even  if  it  was not a religious  act,  it  was  a\nmeritorious  one prescribed by the scriptures of the  Jains.\nIn  the\t wider\tpublic\tinterest  also\tit  was\t  expedient,\npracticable, desirable and proper to respect the  sentiments\nand interests of that section of the Jain public and to give\neffect to the charity. [818 B-C, D-E, F, G-H]\n812\nFurther,  the  overriding intention of the  founder  of\t the\ntrust was that the amount set apart by him should be devoted\nto the objects mentioned in the will, so that those  objects\nmay  be continued and carried out for ever.   In  accordance\nwith  the  intention of the founder the\t surplus  should  be\napplied,  as  nearly as possible to the\t original  uses\t and\npurposes  of  the  trust.  The\tsavings\t should\t be  applied\nsuitably  for carrying out the same objects in future or  to\nincrease the amounts spendable for the surviving objects  of\nthe trust, instead of diverting them for other purposes [820\nC, F, H]\n[Suitable  directions  were given by the Court\tin  lieu  of\nthose set aside, for utilising the accumulations].\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL,\tAPPELLATE  JURISDICTION : Civil Appeal\tNo.  634  of
\n1964.\n<\/p>\n
Appeal\tby special leave from the judgment and decree  dated
\nJanuary 25, 1957, of the Bombay High Court in Appeal No. 620
\nof 1956.\n<\/p>\n
Gumanmal Lodha, J. S. Rastogi and J. B. Dadachanji, for\t the
\nappellants.\n<\/p>\n
P.   K. Chatterjee, B. R. G. K. Achar for R. H. Dhebar,\t for
\nrespondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nBachawat.   J. One Jhaverchand Dahyabhai Shah died in  1916,
\nleaving a will, dated August 6, 1915.  He was a resident  of
\nVejalpore  in  the suburbs of Broach and  a  Ladva  Shrimali
\nBania  by  caste.   He\tprofessed  the\tJain  religion,\t and
\nbelieved in the tenets of the Swetembar Murti Pujak sect  of
\nJains.\tBy cl. (7) of the will, he directed his executors to
\nspend out of the earnings of his shop every year during\t the
\nlife-time  of his niece, Bai Jakore, the  amounts  mentioned
\nbelow on the following religious objects
\n\t      (1)   Rs.\t 100 for feeding cattle with  grass,
\n\t      fodder,\toil  cakes  etc.,  in\tthe   Broach
\n\t      Pinjrapole.\n<\/p>\n
\t      (2)   Rs.\t 100 for Jiva-daya Khata  (fund\t for
\n\t      kindness to animals).\n<\/p>\n
\t      (3)   Rs.\t 25  for offering  flowers  for\t the
\n\t      worship of Lord Rikabdev in the Jain temple at
\n\t      Vejalpore, Broach.\n<\/p>\n
\t      (4)   Rs.\t 200 for providing food\t to  Shravak
\n\t      pilgrims at the Shatroonjaya Hill at Palitana.
\n\t      (5)   Rs. 50 for providing food to pilgrims at
\n\t      Mount Girnar.\n<\/p>\n
\t      (6)   Rs. 50 for providing food to pilgrims at
\n\t      Mount Abu.\n<\/p>\n
\t      813<\/span><\/p>\n
\t      (7)   Rs.\t 250 for providing cereals,  clothes
\n\t      etc., to Shravaks and Shravikas.\n<\/p>\n
\t      (8)   Rs.\t 100  for providing  cloth  to\tJain
\n\t      Sadhus and Sadhavies.\n<\/p>\n
\t      (9)   Rs. 200 for education and food of  Hindu
\n\t      orphans.\n<\/p>\n
\t      (10)  Rs.\t 200 for Jain Gyan Khata  (fund\t for
\n\t      imparting knowledge).\n<\/p>\n
\t      (11)  Rs.\t  100  for  feeding   Shravaks\t and
\n\t      Shravikas who have observed fast.\n<\/p>\n
\t      (12)  Rs. 300 for giving food, cloth etc.,  to
\n\t      the  blind, lame and crippled members  of\t the
\n\t      Hindu Community.\n<\/p>\n
In  addition,  he  also directed his  executors\t to  give  a
\nSwamivatsal feast or meal consisting of methi-dal and  ladus
\nmade  of sugar to the members of his caste at  15  specified
\nvillages  and towns in the Broach and Surat Districts  every
\nyear on the occasion of the sacred festival of Pajusan.\t  By
\ncl.  (15) of the will, he directed that after the  death  of
\nhis  niece,  Bai Jakore, a sum of Rs. 75,000 should  be\t set
\napart by the executors, and out of the moneys so set  apart,
\nsuitable  amounts  should be sent to the  respective  Khatas
\n(funds) in his name, so that the religious acts mentioned in
\ncl. (7) be continued for ever.\n<\/p>\n
On  the\t death\tof Bai Jakore on May 20,  1928,\t the  estate
\nvested\tin the residuary legatee, Bai Chanchal, daughter  of
\nBai  Jakore.   Mulchandbhai, husband of\t Bai  Chanchal,\t set
\napart Rs. 75,000 on trust for the purposes mentioned in\t cl.
\n(7)  of the win, and began to manage the trust estate.\t Out
\nof  the\t trust moneys, he invested Rs. 8,000 in 5  per\tcent
\ntax-free Government Loan, 1944-45, yielding an annual income
\nof Rs. 400, and pursuant to the directions given in cl. (15)
\nof  the\t will, handed over loans of the face  value  of\t Rs.
\n4,000,\tRs. 1,000, Rs. 1,000, and Rs. 2,000 respectively  to
\nfour religious and charitable institutions in full discharge
\nof  the obligation of the trust for expending  annually\t the
\nsums of Rs. 200, Rs. 50, Rs. 50 and Rs. 100 on items 2, 4, 5
\nand 6 of the religious purposes mentioned in cl. (7) of\t the
\nwill.\tOn December 8, 1947, Bai Chanchal executed  a  trust
\ndeed in respect of the investments representing the  balance
\namount\tof  Rs.\t 67,000 and an accumulation  of\t surplus  or
\nunexpended income amounting to Rs. 25,796-6-8.\tThe trust is
\nregistered as a public trust under the
\n814<\/span>
\nBombay\tPublic Trusts Act, 1950, hereinafter referred to  as
\nthe  Act.   The\t trust deed  provided  that  the  unexpended
\naccumulation  of  Rs.  25,796-6-8  should  be  applied\t for
\nestablishing, maintaining and supporting a Nivas for housing
\nthe poor and middle-class provided that after setting  apart
\nthe  aforesaid sum of Ladva Shrimali Jains at low and  cheap
\nrents.\t The  trust deed also provided\tthat  after  setting
\napart the aforesaid sum of Rs. 25,796-6-8 the balance  funds
\nwould  be  held\t in trust for applying\tits  income  to\t the
\ncharities  mentioned in cl. (7) of the aforesaid will  other
\nthan items 2, 4, 5 and 6. Now, the trustees had no authority
\nto divert any part of the trust fund for the purposes of the
\nNivas scheme.  The establishment of a Nivas for housing\t the
\npoor and middle-class Ladva Shrimali Jains is not one of the
\noriginal  objects  of the trust.  As a matter of  fact,\t the
\nNivas  scheme  was  not carried into  effect.\tThe  Charity
\nCommissioner,  Bombay challenged the validity of  the  Nivas
\nscheme.\t  The Courts below rightly proceeded on the  footing
\nthat  the  Nivas  scheme  is  invalid.\t Subsequent  to\t the
\nexecution  of the trust deed, there were  further  accumula-
\ntions  of  unexpended income.  The Swamivatsal\tfeasts\twere
\ngiven,\tand the fixed annual payments to all  the  charities
\nwere duly met up to Samvat year 1999 corresponding to  1942-
\n1943  A.D.  During the subsequent years,  the  fixed  annual
\npayments to the charities were duly made, but on account  of
\nrationing restrictions, the feasts could not be given up  to
\nSamvat year 2010 corresponding to 1953-1954 A.D. During\t the
\nSamvat year 2011 corresponding to 1954-1955 A.D., the  feast
\nwas  not  given\t in  spite  of\tthe  removal  of   rationing
\nrestrictions.\tThe trustees allege that the current  income
\nof the trust fund after disbursing the fixed annual payments
\nis  not\t sufficient  to meet the usual\texpenses  of  annual
\nfeasts.\t On June 3, 1955, the Charity Commissioner filed  an
\napplication  before  the  District Judge,  Broach  under  S.
\n55(1)(b)  and S. 56 of the Act for suitable  directions\t for
\nthe  utilisation  of  the accumulations\t of  the  unexpended
\nincome\tof  the\t trust for some\t educational  purpose.\t The
\ntrustees were impleaded as respondents to this\tapplication.
\nPursuant  to  a\t general notice issued\tby  the\t Court,\t the
\nappellants  and\t four other members of\tthe  Ladva  Shrimali
\nShravak\t Bania\tCommunity  in  Broach  and  Surat  Districts
\nappeared,  and\tintervened  in the  application.   On  their
\nbehalf,\t it was contended that the trust was  for  religious
\npurposes  and  its  funds could not be\tdiverted  for  other
\npurposes  under ss. 55 (1) (b) and 56 of the Act,  and\tthat
\nthe  accumulations  should be utilised year after  year\t for
\nmeeting\t the deficit amount required for the  annual  swami-
\nvatsal feasts.\n<\/p>\n
The District Judge held that the provisions of s. 56 of the
\n815<\/span>
\nAct did not apply to the funds of a public religious  trust,
\nand if the accumulations were held for a religious  purpose,
\nthe Court could not give any directions for its\t utilisation
\nunder  that  section,  that the\t Swamivatsal  feast  confers
\nreligious benefits and objects Nos. 2, 3, 4, 5, 6, 8 and  11
\n1  are\talso  religious in character,  while  the  remaining
\nobjects\t are charitable, and therefore the entire feast\t was
\nnot  of a religious character, but assuming that  the  trust
\nwas  wholly  religious, the accumulation was  not  held\t for
\nreligious purposes, and was subject to the directions of the
\nCourt as to its utilisation under s. 56 read with s. 55\t (1)\n<\/p>\n
(b)  of the Act.  He also held that the trustees  could\t not
\nsave  any  moneys in future by simply refusing to  give\t the
\nSwamivatsal feasts but it was not in the public interest  to
\nprovide\t  for  the  expenses  of  the  feast  out   of\t the
\naccumulation,  and  the\t accumulation should  be  spent\t for
\neducational and medical purposes.  The District Judge passed
\nfinal  orders  on  October  25, 1956.\tOn  that  date,\t the
\naccumulation of unexpended income amounted to Rs. 45,019-14-
\n0,  besides another sum of Rs. 107-2-0.\t The District  Judge
\ndirected the trustees to hand over a sum of Rs.\t 22,505-15-0
\nto  an institution known as the Sad Vidya Mandal for  giving
\nfour freeships every year to deserving students, who  should
\npreferably  be\tJains of Broach District  and  failing\tsuch
\ndeserving  cases, to other Hindu students.  Subject  to\t the
\ncondition of giving freeships, the Sad Vidya Mandal would be
\nat liberty to spend the amount for purposes of the  building
\nof  the\t College  or  its  hostel  or  in  providing   other
\neducational  facilities to the students.  He  also  directed
\nthe  trustees to pay another sum of Rs. 22,509-15-0  to\t the
\ntrustees  of the Sevashram Hospital at Broach  on  condition
\nthat  the amount be invested in any approved trust  security
\nand  its income be utilised in providing  maintenance,\tfood
\nand  medicine to poor and deserving patients.\tHe  directed
\nthe  payment  of the remaining sum of  Rs.  107-2-0  towards
\ncosts.\n<\/p>\n
The  appellants and two other members of the Ladva  Shrimali
\nShravak\t Bania Community preferred an appeal to\t the  Bombay
\nHigh Court.  The High Court held that the Court could on  an
\napplication  under  s.\t55  of\tthe  Act  deviate  from\t the
\ndirections of the settler, even if the purpose of the  trust
\nhas   not  failed,  where  the\tCourt  finds  that   it\t  is
\ninexpedient,  impracticable,  undesirable,  unnecessary\t  or
\nimproper in the public interest to abide by his\t directions,
\nbut  the Court could exercise this power only in respect  of
\nfunds of a public trust which was not a trust for  religious
\npurposes.   The\t High Court held that none of  the  purposes
\nmentioned in cl. (7) of the will except the one mentioned in
\nitem  3 of the clause could be regarded as  religious,\tthat
\nthe object of providing funds for annual Swamivatsal  feasts
\nwas charitable and
\n816<\/span>
\nnot religious, and that the Court was, therefore,  competent
\nto  entertain the application under s. 55.  The\t High  Court
\nfurther\t held that providing a feast to. the members of\t the
\ncaste  even  on the occasion of a religious festival  or  on
\ndays  which  may  be  regarded as  holy\t is  not  expedient,
\ndesirable,  necessary or proper in the public interest,\t and
\nthe  directions\t of the District Judge with  regard  to\t the
\ndistribution of the fund should not be interfered with.\t The
\nHigh Court accordingly dismissed the appeal.  The appellants
\nnow  appeal to this Court by special leave.  They  challenge
\nthe  propriety and the legality of the directions  given  by
\nthe District Judge below, and repeat the submissions made on
\ntheir  behalf in the Courts below.  The respondents  contend
\nthat  the aforesaid directions were rightly given under\t ss.
\n55(1)(b) and 56 of the Act.\n<\/p>\n
The Bombay Public Trusts Act, 1950 was passed on August\t 14,
\n1950, with a view to regulate and make better provision\t for
\nthe administration of public religious and charitable trusts
\nin the State of Bombay.\t Soon after the Act came into force,
\nits  constitutional  validity  was  assailed.\tIn   Ratilal
\nPanachand Gandhi v. The State of Bombay and Others<\/a>(1),\tthis
\nCourt  held  that a religious sect or denomination  has\t the
\nright  guaranteed  by  the Constitution to  manage  its\t own
\naffairs in matters of religion, and this includes the  right
\nto  spend the trust property or its income for religion\t and
\nfor religious purposes and objects indicated by the  founder
\nof  the trust or established by usage obtaining in a  parti-
\ncular  institution.  To divert the trust property  or  funds
\nfor  purposes  which the Charity Commissioner or  the  Court
\nconsiders expedient or proper, although the original objects
\nof  the founder can still be carried out, is an\t unwarranted
\nencroachment  on  the freedom of religious  institutions  in
\nregard\tto  the management of their  religious\taffairs\t and
\ntherefore   s.\t55(1)(c),  which  contains   the   offending
\nprovision  and the corresponding provision relating  to\t the
\npowers of the Court occurring in the latter part of s. 56(1)
\nmust  be  held to be void.  Subsequently, Bombay Act  59  of
\n1954  amended s. 55 (1) (c) by excluding from its purview  a
\ntrust  for a religious purpose.\t Sections 55 and 56  of\t the
\nBombay Trusts Act, 1950, as they stand now, are as follows :\n<\/p>\n
\t      “55. (1) If upon an application made to him or
\n\t      otherwise\t the  Charity  Commissioner  is\t  of
\n\t      opinion that-\n<\/p><\/blockquote>\n
\t      (a)   the original object for which the public
\n\t      trust was created has failed,
\n\t      (1) [1954] S. C. R. 1055,1070-1072.\n<\/p><\/blockquote>\n
\t      817<\/span><\/p>\n
\t      (b)   the income or any surplus balance of any
\n\t      public  trust has not been utilized or is\t not
\n\t      likely to be utilized,\n<\/p><\/blockquote>\n
\t      (c)   in the case of a public trust other than
\n\t      a trust for a religious purpose, it is not  in
\n\t      public   interest\t  expedient,\tpracticable,
\n\t      desirable,  necessary or proper to  carry\t out
\n\t      wholly or partially the original intention  of
\n\t      the  author of the public trust or the  object
\n\t      for  which  the public trust was\tcreated\t and
\n\t      that the property or the income of the  public
\n\t      trust or any portion thereof should be applied
\n\t      to any other charitable or religious object,\n<\/p><\/blockquote>\n
\t      (d)   in\t any  of  the  cases  mentioned\t  in
\n\t      sections\t10  to\t13  or\tin  regard  to
\n\t      the appropriation of the dharmada sums held in
\n\t      trust  under section 54 the directions of\t the
\n\t      Court are necessary,
\n\t      the  Charity  Commissioner shall\trequire\t the
\n\t      trustee  to apply within the  prescribed\ttime
\n\t      for  directions to the Court within the  local
\n\t      limits of whose jurisdiction the whole or part
\n\t      of the subject-matter of the trust is situate.
\n\t      (2)   If\t the  trustees\tfail  to  make\t the
\n\t      application as required under sub-section\t (1)
\n\t      or  if the Charity Commissioner himself  is  a
\n\t      trustee  or  if  there is no  trustee  of\t the
\n\t      public  trust, the Charity Commissioner  shall
\n\t      make an application to the Court.\n<\/p><\/blockquote>\n
\t      56.   (1) On such application being made,\t the
\n\t      court after hearing the parties and making  an
\n\t      inquiry shall decide the matter and shall give
\n\t      directions.   In\tgiving the  directions,\t the
\n\t      court,  shall,  so far as\t may  be  expedient,
\n\t      practicable, desirable, necessary or proper in
\n\t      public  interest, give effect to the  original
\n\t      intention of the author of the public trust or
\n\t      the  object  for which the  public  trust\t was
\n\t      created.\tIf the court is of opinion that\t the
\n\t      carrying\tout of such intention or  object  is
\n\t      not  desirable, necessary or proper in  public
\n\t      interest the court may direct the property  or
\n\t      income  of  the public trust  or\tany  portion
\n\t      thereof  to  be applied by pres to  any  other
\n\t      charitable or religious object.  In doing\t so,
\n\t      it shall be lawful for the court to alter\t any
\n\t      scheme already settled or to vary the terms of
\n\t      any decree or order already passed in  respect
\n\t      of   the\tpublic\ttrust  or   the\t  conditions
\n\t      contained\t in  the instrument  of\t the  public
\n\t      trust.\n<\/p><\/blockquote>\n
\t      (2)   Any\t decision  or order  passed  by\t the
\n\t      Court under sub-section (1) shall be deemed to
\n\t      be a decree
\n\t      818<\/span>
\n\t      of   such\t court\tand  an\t appeal\t shall\t lie
\n\t      therefrom to the High Court.”\n<\/p><\/blockquote>\n
Section\t 2(13) of the Act provides that unless there is\t any
\nthing  repugnant  in the subject or  context,  public  trust
\nmeans  an express or constructive trust for either a  public
\nreligious  or charitable purpose or both.  Section 5  5\t (1)\n<\/p>\n
(c)  expressly\texcludes from its operation a  trust  for  a
\nreligious  purpose.  But ss. 55(1) (a) and 55(1)(b)  do\t not
\nexclude\t religious  trusts from their  operation,  and\tthey
\napply  to  all public trusts for  religious  and  charitable
\npurposes.   On an application either under S. 55 (1) (a)  or
\ns. 55 (1) (b) read with S. 56(2), the Court is bound to give
\ndirections  in respect of all public trusts.  Section  56(1)
\nprovides that in giving the directions, the Court shall,  so
\nfar  as may be expedient, practicable, desirable,  necessary
\nor  proper  in\tthe  public interest,  give  effect  to\t the
\noriginal intention of the author of the trust or the  object
\nfor  which the trust was created.  The conjunction  “or”  in
\nthis  sentence introduces several alternatives.\t  The  Court
\nmust give effect to the original intention or object if\t and
\nso  far\t as  it may be either expedient\t or  practicable  or
\ndesirable or proper or necessary to do so.  If, for example,
\nthe Court finds that it is proper in the public interest  to
\ngive  effect  to the original object, the  Court  must\tgive
\neffect\tto  it, though it is not necessary to do so  in\t the
\npublic interest.  Under the latter part of s. 56(1), if\t the
\nCourt finds that the carrying out of the original  intention
\nor  object  wholly  or partially is  neither  expedient\t nor
\npracticable nor desirable nor necessary nor proper in public
\ninterest, the Court may direct the property or income of the
\ntrust  or any portion thereof to be applied ‘by pres to\t any
\nother charitable or religious object.  The latter part of S.
\n56(1)  thus permits the diversion of trust funds  for  other
\nobjects,  though  the original objects of  the\tfounder\t can
\nstill  be  carried out.\t But we think that  the\t respondents
\nhave  made out no case for such a diversion of trust  funds.
\nOne of the objects for which the trust was created was\tthat
\na  Swamivatsal\tfeast to the members of the  Ladva  Shrimali
\nBania  caste should be given every year on the\toccasion  of
\nthe  holy festival of Pajusan.\tThe Jains of Ladva  Shrimali
\nShravak Bania Community are the chief beneficiaries of\tthis
\ntrust.\t  Looking  at  their  interest,\t it   is   certainly
\nexpedient,  practicable,  desirable and proper to  give\t the
\nfeast.\t The giving and taking of the Swamivatsal  feast  on
\nthe  occasion  of  the holy festival of Pajusan,  if  not  a
\nreligious act. is a meritorious act prescribed by the scrip-
\ntures  of  Swetambar Murti Pujak Jains.\t  The  wider  public
\ninterest  does not require that this special charity  for  a
\nsection\t  of  the  lain\t public\t should\t be  subverted\t and
\noverthrown.  In the wider public
\n\t\t\t    819<\/span>
\ninterest  also, it is expedient, practicable, desirable\t and
\nproper\tto,  respect the sentiments and\t interests  of\tthis
\nsection\t of  the  Jain public and to  give  effect  to\tthis
\ncharity,  and we find no reason for giving directions  under
\nthe latter part of s. 56(1).  We, therefore, propose to give
\ndirections under the first part of s. 56(1).
\nIn  this view of the matter, it is not necessary to  decide,
\nwhether the trust is a trust for religious purposes, and  if
\nso,  whether, having regard to Ratilal Panachand’s  case(‘,)
\nits income or surplus balance spendable for the purposes  of
\nthe  trust  can be diverted for other purposes,\t though\t the
\noriginal object of the trust can still be carried out.\t ‘Me
\nquestion whether or not the objects mentioned in cl. (7)  of
\nthe  will  are\treligious  objects  is\tnot  raised  in\t the
\npleadings.   No issues were framed and no evidence was\tled’
\non this point by either party.\tWhat are religious  purposes
\nmust  be  decided  according to\t the  tenets  and  religious
\nbeliefs\t of  the Murti Pujak Swetambara sect  of  Jains,  to
\nwhich the testator belonged.  It is difficult to decide\t the
\npoint  in  the\tabsence of relevant  pleadings,\t issues\t and
\nevidence.   The\t District Judge held  that  the\t Swamivatsal
\nfeast  and  many other objects are religious  objects.\t The
\nHigh Court too lightly brushed aside this finding.   Chapter
\nIX   of\t the  Report  of  the  Hindu  Religious\t  Endowments
\nCommission  (1960-62) contains an interesting discussion  of
\nJain  endowments.  Paragraphs 7 to 1 1 of Chap.\t IX  of\t the
\nReport refer to seven types of religious funds\tspecifically
\nrecognised  by\tthe  Jain scriptures  concerning  (1)  Jeena
\nBimba,\t(2)  Jeena Chaitya, (3) Gyan Fund,  (4)\t Sadhu,\t (5)
\nSadhvi,\t (6) Shravak and (7) Shravika.\tThe Jains  recognise
\nnumerous  other\t endowments  or funds for  the’\t general  or
\nspecific purposes, the corpus or interest of which is to  be
\nutilised  as  per  the\tdonor’s\t intentions.   The  question
\nwhether\t the  several  objects of the  trust  including\t the
\ngiving\tof  a  Swamivatsal  feast  are\treligious  in  their
\ncharacter must be left open for future decision.
\nWe  must now consider what directions should be given  under
\ns. 56 on the present application.  No case for applying\t the
\nlatter\tpart of s. 56(1) and for refusing to give effect  to
\nthe  original  objects of the trust has been made  out.\t  We
\nshould, therefore, give effect to the original intention  of
\nthe founder as far as that intention can be carried out.  If
\nthe  method indicated by the founder cannot be carried\tout,
\nthe Court will substitute another method by pres, that is to
\nsay,  as nearly as possible to the method specified  by\t the
\nfounder.   The\tapplication  of the  by\t pres  principle  is
\nexplained  in Story’s Equity Jurisprudence, 3rd\t Edn.,\tArt.
\n1176, p.  494 thus :<\/p>\n
\n(1) [1954] S. C. R. 1055,\n82 0\n\t      \"The  doctrine  of  by  pres  as\tapplied\t  to\n\t      charities\t was  formerly\tpushed\tto  a\tmost\n\t      extravagant   length.    But   this   sensible\n<\/pre>\n
\t      distinction  now prevails that the Court\twill
\n\t      not  decree  the execution of the trust  of  a
\n\t      charity  in  a  manner  different\t from\tthat
\n\t      intended, except so far as it is seen that the
\n\t      intention\t cannot be literally  executed.\t  In
\n\t      that  case  another  mode\t will  be   adopted,
\n\t      consistent  with the general intention, so  as
\n\t      to  execute it, although not in mode,  yet  in
\n\t      substance.   If  the  mode  should  become  by
\n\t      subsequent   circumstances   impossible,\t the
\n\t      general  object is not to be defeated,  if  it
\n\t      can in any other way be attained.”\n<\/p>\n
In the instant case, the overriding intention of the founder
\nof the trust is that the sum of Rs. 75,000 set apart by\t him
\nshould be devoted to the objects mentioned in cl. (7) of the
\nwill, so that those objects may be continued and carried out
\nfor  ever.   His  intention was that fixed  sums  should  be
\nexpended annually for the 12 items of charity mentioned\t and
\nreasonable  sums  should  be  expended\tannually  in  giving
\nSwamivatsal  feasts  to\t members  of  his  caste.   The\t sum
\nspendable  annually  for  the feast  was  necessarily  of  a
\nfluctuating  character.\t In accordance with  the  directions
\ngiven in cl. (15) of the will, the obligations of the  trust
\nfor  the charities mentioned in items 2, 4, 5 and 6  of\t cl.
\n(7)  of the will have been fully discharged by donating\t Rs.
\n8,000  out of the corpus of the trust.\tThe expenses of\t the
\nannual\tSwamivatsal  feasts were met, and  the\tpayments  to
\nother  charities  were duly made out of the  income  of\t the
\nbalance funds every year up to Samvat 1999 corresponding  to
\n1942-43 A.D., and the accumulations of the unexpended income
\nup  to that year represent a true surplus.   In\t :accordance
\nwith the intention of the founder of the trust, the  surplus
\nshould be applied as nearly as possible to the original uses
\nand purposes of the trust.  In all the circumstances of\t the
\ncase, the surplus should be applied to increase the  amounts
\nspendable  for the surviving objects of the  trust.   During
\nthe subsequent years up to Samvat year 2010 corresponding to
\n1953-1954 A.D., the annual feasts could not be given due  to
\nrationing  restrictions,  but  the  expenses  of  the  other
\ncharities  were\t duly  met.   The  savings  of\tthe   income
\nspendable  during  these  years for  the  feasts  should  be
\napplied suitably for carrying out the same object in future.
\nThe  balance  savings,\tif any, should\tbe  devoted  towards
\nincreasing  the amounts spendable for the other\t objects  of
\nthe   trust.\tThe   savings  during\tSamvat\t year\t2011
\ncorresponding to 1954-55 A.D. were due to the fact that\t the
\nannual\tfeast  was  not given in spite\tof  the\t absence  of
\nrationing restrictions.\t The
\n\t\t\t    821<\/span>
\nsavings\t for this year should be devoted towards the  giving
\nof  the Swamivatsal feasts.  The trustees cannot be  allowed
\nto defeat the objects of the trust by refusing to carry them
\nout.   It is said that the giving of a Swamivatsal feast  on
\nthe scale given in the past would now cost about Rs.  3,000.
\nBut  if the income at the disposal of the trustees will\t not
\npermit\tthe  spending of such a large amount,  there  is  no
\nreason why the trustees would not spend a smaller amount and
\ngive  the feast to a smaller number of guests.\tIn  view  of
\nthe enormous rise in prices since the creation of the trust,
\nan increase of the amounts spendable for the charities would
\nbe in accordance with the general intention of the  founder.
\nThis  is  an additional reason for applying  the  unexpended
\nincome\tfor  the original objects of the  trust\t instead  of
\ndiverting  them\t for other purposes.  It is  desirable\tthat
\ninstead\t of  spending the corpus of the\t accumulations,\t the
\ncorpus\tshould be invested and its income should be  applied
\ntowards\t the  original objects’ In the light  of  all  these
\nconsiderations, we propose to give the directions set out in
\nour order.\n<\/p>\n
The  scheme framed by the Courts below is  objectionable  in
\nseveral\t ways.\t In  framing the scheme,  the  Courts  below
\nerroneously  disregarded  one  of the main  objects  of\t the
\ntrust,\tviz., the giving of the annual Swamivatsal feast  on
\nthe ground that it is not expedient, desirable, necessary or
\nproper in the public interest to carry out this object.\t The
\nscheme\tdisregards the basic principle that the trust  funds
\nshould\tbe  applied for effectuating the  intention  of\t the
\nfounder of the trust as far as possible.  The direction\t for
\npayment\t of one half of the accumulations to the  Sad  Vidya
\nMandal\ton  the ground that its object is analogous  to\t the
\nobject\tof the Jain Gyan Fund mentioned in item 8 of cl.  10
\nof  the\t will  is  objectionable  on  the  ground  that\t the
\nfreeships  are not restricted to the Jains and also  on\t the
\nground\tthat  subject to giving the freeships the  donee  is
\nentitled to spend the corpus for other purposes.   Moreover,
\nthe  purposes of the Sad Vidya Mandal and its freeships\t are
\nnot  analogous to the purposes of the Jain Gyan Fund,  which
\nis a religious fund for imparting knowledge of Jain religion
\nand Jain Shastras.  The direction for payment of one half of
\nthe   accumulated  amount  to  the  Sevashram  Hospital\t  is
\nobjectionable  on the ground that medical treatment  of\t the
\npoor  and deserving is not one of the  objects\tspecifically
\nmentioned  in cl. 7 of the will.  Both these directions\t are
\nalso objectionable on the ground that they do not take\tinto
\naccount\t the original objects of the trust.  For  all  these
\nreasons,  the directions given by the Courts below  must  be
\nset aside.\n<\/p>\n
822<\/span><\/p>\n
In the result, the appeal is allowed, and the judgments\t and
\ndecrees\t passed by the Courts below are set aside.  In\tlieu
\nof  the\t directions given by the Courts below, we  give\t the
\nfollowing directions :\n<\/p>\n
Out of the accumulations of the unexpended income up to\t the
\n25th October, 1956 amounting to Rs. 45,091-14-0 the trustees
\nwill set apart a reasonable sum not exceeding Rs. 5,000 as a
\nworking\t fund to meet current expenses.\t The  trustees\twill
\ninvest\tthe balance amount in such manner as they think\t fit
\nin  accordance with S. 35 of the Bombay Public\tTrusts\tAct,
\n1950.\tThe trustees will spend and utilise every year\tone-
\nhalf  of  the annual income from these investments  for\t the
\ncharities mentioned in items 1, 3, 7, 8, 9, 10. 11 and 12 of
\ncl. 7 of the win of Jhaverchand Dahyabhai Shah, dated August
\n6,  1915  in  such  proportion and in  such  manner  as\t the
\ntrustees think fit and proper.\tThe trustees will spend\t and
\nutilise every year the balance one-half of the annual income
\nof  those  investments\tfor  the  annual  Swamivatsal  feast
\n(caste-dinner)\tmentioned  in cl. 7 of the  aforesaid  will.
\nThe disbursements to be made under these directions will  be
\nin  addition to the payments to be made by the trustees\t out
\nof  the income of the investments of the original corpus  of
\nthe  trust funds.  Out of the net income of the\t investments
\nof  the original corpus, the trustees will continue to\tmake
\nthe  annual payments to the charities mentioned in items  1,
\n3, 7, 8, 9, 10, 11 and 12 of cl. 7 of the aforesaid will and
\nwill  spend  the  balance  income  for\tgiving\tthe   annual
\nSwamivatsal feasts.  The trustees shall give the Swamivatsal
\nfeast every year as far as possible.  If for some reason the
\nfeast cannot be given in any year, the amount spendable\t for
\nthis  object  in that year should be spent  for\t giving\t the
\nfeast in the following years.\n<\/p>\n
In the circumstances of the case, we direct that the parties
\nwill  pay and bear their own costs throughout in this  Court
\nas  also in the Courts below, except that the trustees\twill
\npay  the sum of Rs. 64-8-0 to the Charity  Commissioner\t and
\nthe  sum  of Rs. 42-10-0 to opponents Nos. 6 to\t 13  to\t the
\napplication, as originally directed by the District Judge.
\nAppeal allowed.\n<\/p>\n
823<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shah Chhotalal Lallubhai And … vs Charity Commissioner, Bombay, … on 22 January, 1965 Equivalent citations: 1965 AIR 1611, 1965 SCR (2) 811 Author: R Bachawat Bench: Bachawat, R.S. PETITIONER: SHAH CHHOTALAL LALLUBHAI AND OTHERS Vs. RESPONDENT: CHARITY COMMISSIONER, BOMBAY, AND OTHERS DATE OF JUDGMENT: 22\/01\/1965 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-186239","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShah Chhotalal Lallubhai And ... vs Charity Commissioner, Bombay, ... on 22 January, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shah-chhotalal-lallubhai-and-vs-charity-commissioner-bombay-on-22-january-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shah Chhotalal Lallubhai And ... vs Charity Commissioner, Bombay, ... on 22 January, 1965 - 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