TMI Blog1973 (12) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ld, affluent man called Dubey, in a munificent mood, responded to the request of Shri Govind Narain, then Collector of Farrukhabad District, way back in 1945. A promise to donate ₹ 30,000/- was made, on the basis of a matching contribution by Government, for the good cause of a women s hospital in sacred memory of the donor s deceased wife, Gomti Devi. Apprehending the tardy ways of government, this anxious soul insisted on his being put in charge of the construction so that the hospital may come into existence, through his diligent hands and in his lifetime, aided of course by government grant and auxiliary voluntary contributions. The activist Collector accepted these conditions, received the philanthropic cheques, moved swiftly to get the foundation-stone laid ceremonially by the British Indian Governor of the Province, all in 1945. This sentimental stone had the name Gomti Devi inscribed thereon, and the donor, believing the brave words of the Collector about quick acquisition of land, government contribution and making over of the agency for construction to himself, started collecting the necessary bricks for the building. But Shri Govind Narain in the usual course left, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction, the matter was under the active consideration of Government its sense of time had suffered somnolence or its officialese had indolent semantics. Even a formal suit notice under s. 80 of the Civil Procedure Code for return of the sum given to the Collector on account of the failure of the charity did not shake the Government out of its neglectful tranquility. These lethargic official exercises in the present case remind one of the word,.;, Of Lord Curzon about the administrative apparatus, which bear repetition and find Some contemporary echo. The Viceroy wrote to his Secretary of State. I am prodding up the animal with most vigorous and unexpected digs, and it gambols plaintively under the novel spur. Nothing has been done hitherto under six months. When I suggest six weeks, the attitude is one of pained surprise; if six days, one of pathetic protest; if six hours, one of stupefied resignation. Had August 1947 accelerated the process the Dubeys might have avoided the court. The present suit, if it has served nothing, has at least awakened ,the State Government to some extent to its obligation. For, Government at long last constituted a new committee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes. so that if on the merits the case is weak, government shows. a willingness to settle, the dispute regardless of prestige and other lesser motivations which move private parties to fight, in court. The lay-out on litigation costs and executive time by the state and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume- of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is, feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mantors of government some. initiative and authority in this behalf. To complete the human side of the story, we reach its anticlimax-. when, the forgotten foundation-stone laying notwithstanding, a fresh, ceremony of stone placing for the new hospital was gone through with the then Health Minister, Shri C. B. (Gupta, as the dignitary to repeat what the former Governor had once done. This presumably hurt the donor s sons who prayed, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nath Vakil conclusively prove that the following terms were :settled between the Collector and Dubeyji. 1. That the hospital would be constructed on Kannauj Makrand Nagar Road near Phoolmati Temple. 2. That the hospital will be named after the name of person suggested by Dubeyji and which name was to be communicated by him, to the D.M. subsequently. Dubeyji suggested the name of the hospital as Gomti Devi by his letter dated 30th October, 1945 which name was accepted by D.M. 3. That the hospital would be constructed by Dubeyji according to the plan approved by Government with nice arrangement for maternity and child welfare. 4. That a sum of ₹ 30,000 would be paid by Dubeyji for that purpose. 5. That the aforesaid sum along with the plan necessary help for procuring raw materials would soon be given to Dubeyji after the foundation laying ceremony was over so that Dubeyji might be able to get the hospital constructed at the earliest through his own agency. It is thus clear that all the terms set out in the plaint ,were settled and have been definitely proved by the evidence discussed above. The entire matter was settled with Sri Govind Narain and althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the legal question still remains whether the plaintiffs stepping into the shoes of the donor have the right to demand repayment of the amount already made over. It is proper to condense and formulate the legal frame of the longish submissions made by Mr. Dixit. He argued that the donation was without strings , if we may use a cliche, that Dubey had made an outright gift with general charitable intent and the pious wishes superadded to the do-nation did not make it a conditional gift. In his view, the non-fulfillment of these wishes did not amount to the failure of a, condition precedent making the gift inoperative. His further contention was that the gift having been accompanied by a general charitable purpose of benefiting the local people with hospital facilities the cypres doctrine applied to the case even it the object of the charity could not be literally carried out. Therefore, he argued that the Court may issue directions appropriate to the broad purpose so as to salvage the substance of the charity. Finally, he urged that the plaintiffs ad, subsequent to the suit, agreed to give up the claim in the light of a new hospital having been built and they could not now resile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that defendant incurred any expenditure on account of plaintiffs assurance. Thus no question of estoppel arises. In the High Court the contention was repeated and the learned Judges disposed of the contention with the observation; The plaintiffs agreed to withdraw the suit provided certain conditions laid down by them were fulfilled. However, nothing seems to have materialised because those conditions were not fulfilled. : In the circumstances the, plea of estoppel raised by the defendants had no substance in it and was rightly given up at the time the appeal was argued before us, In the light of the abandonment of the plea, no weight can be attached to its repetition in this Court, apart from, the lack of intrinsic substance in the submissions. Let us have a close look at the terms and conditions of the donation and spell out their legal effect. The law of gifts is, in a sense, a collection of equitable principles but crystallised for India under the British from Anglo-Saxon jurisprudence. Since Independence collections from the public have escalated and in India today popular contributions to public charitable purposes are a new dimension of community i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the universal rules of equity and good conscience upheld by the English Judges, though also sanctified by the statute relating to private trusts. The Court below have drawn inspiration from s. 83 of the Trusts Act and we are not inclined to find fault with them on that score because the provision merely reflects a rule of good conscience and of general application. The details of the argument on the basis of this principle will be discussed a little later. Accepting that Dubey intended a charitable gift the first question that falls for- decision, as preliminary to the application of the cypres doctrine, in as to the nature of the charitable object-whether general or specific. if the former, the doctrine is attracted but if the latter it is repelled. We will revert to this aspect later. 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 v. Ravi Venkatappayya(A.T.R. 1960 A.P. 35.) and Potti SWami v. Rao Saheb D. Govindarajulu (A.I.R. 1960 A.P. 605.) , for instance, ire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fulfillment of the purpose...... In short. there must be a larger intention to give the. property, in the first instance; secondly, there must be impossibility not in the strict physical sense but in the liberal. diluted sense, of impractibility. Even here it must be mentioned, however, that the cypres application of the gift funds assumes a completed gift. It is essential that a gift has been made, effectively before, its actual implementation by application of the funds, literally or as nearly as may be, arises. Parker, J., as be then was, in In re Wilson (1913) 1 Ch. 314;) stressed the presence of a paramount general intention as distinguished from a particular limited purpose. Where, on the true construction of the will, no such paramount general charitable intention can be inferred, and where the gift, being in form a particular gift,-a gift for a particular purpose-and it being impossible to carry out that particular purpose, the whole gift is held to fail. We need not deal with cases of ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inction well settled by the authorities. There is one class of cases. in which there. is a gift to charity generally, indicative of a general charitable purpose, and pointing out the mode of carrying it into effect; if that mode fails, the Court says the general purpose of charity shall be carried out. There is another class, in which the testator shows an intention, not of general charity, but to give to some particular institution;. and then if it fails, because there is no such institution, the gift does not go to charity generally; that distinction is clearly recognised; and it cannot be said that wherever a gift for any charitable, purpose fails, it is nevertheless to go to charity. (Passage excerpted in the judgment from Clark v. Taylor((1895) I.Ch. 19, 31,) . Mr. Garg s contention is that there is no general charitable intention in the, present case while Mr. Dixit plausibly urges that Shri Dubey wanted his townsmen to enjoy the facility of a female hospital . However, the findings of the courts below negatives any such general intention to benefit the community and the, old mail while donating a large sum had taken care to particularise that the female hospital should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing called into existence. I am wholly unable to follow Mr. Sergant s suggestion founded on a contract between the parties. When money has once been paid ever to the trustees in, the lifetime of the donor a complete trust is created, and the money must be held on the trusts declared by the donor; the right of the donor to a return of ..the money arises when the trust is on the face of it contingent on the proposed institute being called into being.( I can see to difference between that case and the case of the testator. It is well settled law that a legacy may be given to a charity upon a condition, which condition may be express or implied, precedent or subsequent. (emphasis supplied). In this connection reference may also be made to In re White s Trust([1886] Ch. Div. 449.) where we may glean the same law laid down. The law has been correctly stated by Delany (The Law relating to Charities in Ireland) at p. 128 thus if a gift is made, to a charity on a contingent event and the happening of the even is a condition precedent to the gift then, if the condition is too remote or for any other reason illegal, the gift to the charity is void. This has been expressed by Melbourn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to a condition is accepted the condition must be fulfilled whether the subject-matter of the gift is adequate for the purpose or not... . . In the, law of real property the vesting of an estate can be made to depend on a condition precedent and the transfer fails if the contion is not fulfilled (c.f.ss. 25 26, T.P. Act). We. may sum up the situation now. If the donation by Dubey was conditional the Government was a mere custodian of the cash till the condition was complied with and if the performance thereof was defeated by Government, the gift did not take effect. The factual findings, as already set out, leave no doubt in our mind that the transaction was not a gift simplicitor but was subject to the matching grant from Government, building having to be made with such augmented amount by Shri Dubey, etc. Assuming substantial compliance as sufficient in law, the defendant has no case that any of the conditions has been carried out, not even the equal contribution,from Ox State exchequer without which the construction of the hospital would have been a half-done project. Thus the conditions failing, the charity proved abortive, and the legal consequence is a resulting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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