The central legal point established in the judgment is the distinction between valid bequests for public charitable purposes and provisions deemed unlawful in a testator's will, emphasizing the absence of a general charitable intention and the inapplicability of the doctrine of cy-pres.

Alfred Henry Lionel Leach, C.J.

1. The Court is here concerned with the interpretation of the will of one Kanakasabapathi Pillai who died on the 13th August, 1940. The testator had married twice, but no children were born to him and both his wives predeceased him. He appointed as his executors the plaintiff and the defendant. The plaintiff is a brother of the testators second wife. The defendant is a son of the testators brother and is the heir at law.

2. In 1934 the testator contemplated retiring from the world and of becoming, to use the expression found in his will, a Tathra Sanyasi. It is apparent from the will that despite his religious inclinations he was a man of considerable vanity and he was anxious to erect a monument to himself, which would " serve to place him before the eyes of the public even more prominently than any dharmam performed when he was alive." We are here quoting from the judgment under appeal. The main question involved in it is whether the will, which was executed on the 29th April, 1934, constitutes a dedication of the residue of the estate for public charitable purposes.

3. On the death of the testator his nephew, the defendant, took possession of the estate. The will had been registered, but the defendant decided to repudiate it. He alleged that the testator had publicly stated that he was cancelling the will and consequently had torn it up. As the result of the defendants attitude the plaintiff was compelled to file this suit. He asked the Court to hold that the defendant had forfeited his office as joint executor by reason of his conduct and that a decree for possession should be granted to him. The defendant persisted in his averment of the revocation of the will. In addition he pleaded that its main provisions were contrary to law and that, as the heir of Kanakasabapathi Pillai, he was entitled to the whole of the residue of the estate. The suit was tried by the Subordinate Judge of Tuticorin, who held that the plea of revocation of the will was false, but he agreed with the defendant that the testators main directions were invalid, inasmuch as the dominant motive in his mind was the erection of a samadhi in which he was to be buried and that money could not be devoted to such a purpose. On appeal the District Judge of Tinnevelly upheld the decree of the Subordinate Judge.

4. It is common ground that the testator did not become a sanyasi and that he continued living as before until he was murdered on the 13th August, 1940. He was cremated in the usual manner and the arrangements for the cremation were admittedly carried out by the defendant. Even if he had become a sanyasi the cremation prevented him from being buried as such and this has been stressed in the Courts below. Moreover, a person who is not a sanyasi cannot be buried in a samadhi.

5. The most important clauses of the will are 16 and 17. They read as follows:

16. In the thatched house situate in item 8 of schedule III, I am conducting poor feeding for the mendicants who come there. From and out of the properties aforesaid the executors shall in the place where the thatched house is standing build for not less than Rs. 4,000 a matam facing east for the purpose of conducting the poor feeding and one temple for installing Vinayakar and Nataraja; and in accordance with the funds then available the building shall be constructed as required by Sastras with chunam and baked bricks, shall prepare the images of Vinayakar and Nataraja, shall install them, shall perform the mandala pooja and conduct the Atta festival, monthly festival and daily pooja; and besides this shall carry on these permanently for ever. A person shall be appointed for preparing food in the poor feeding matam and the poor feeding shall be conducted for the mendicants who come there without refusing food to any one.

17. I have intended to construct a building in my lifetime itself in the southwest corner of the site which is set out as item 8 aforesaid and which is adj