Arumugam Pillai V. Velupillai Periyatamby Et Al.,

1945 Present: Wijeyewardene and Jayetileke JJ.

ARUMUGAM PILLAI, Appellant, and VELUPILLAI PERIYATAMBY
et al., Respondents.

23-D. C. (Inty.) Jaffna, 1,895.

Charitable trust-Deed of gift for natural affection-Conditions for performance of poojah-Prohibition against alienation by an act inter vivos- Conditions not sufficient to constitute charitable trust.

Where a deed of gift contained the following conditions: -

(1) That the said V. S. shall look after the said properties and take the rents and profits of the said properties and perform the Arthasamapoojah, which is being generally performed and which we now are performing and also the Theertam festival in the temple standing in the land.

(2) That after the lifetime of the said V. S. the person who was appointed by him in his place and, in default of such appointment
the eldest child of his descendant will have the right to perform  the duties of the said temple.

(3) That the said V. S. will have no right to sell and transfer the said properties or alienate the same by documents such as mortgage and otty or encumber or alienate the same in any other way in his lifetime and that whenever he in his lifetime appoints a person or persons, whom he likes, he shall have to appoint such person or persons subject to the bindings recited in this paragraph.

Held, that the conditions annexed to the deed were not sufficient to constitute a charitable trust.

APPEAL from a judgment of the District Judge of Jaffna. By deed p1 plaintiff and his wife transferred to their son, Sabaratnam, a land called Mailavalai subject to the conditions set out in the headnote. By deed P 2 executed by the plaintiff, his wife and Sabaratnam, they revoked and cancelled the conditions laid down in P 1 and declared that the deed should be considered a donation free from all conditions in favour of Sabaratnam. The latter sold his interests in the land to the defendants. The learned District Judge held that the conditions in P 1 did not create a trust.

L. A. Rajapakse, K.C. (with him P. Navaratnarajah), for plaintiff, appellant.-The main question is whether the deed P 1 created a charitable trust. The land in dispute was transferred to one Sabaratnam who was enjoined to utilize the rents and profits for the purpose of performing certain religious ceremonies in a specified temple. There is a beneficiary indicated, namely the temple. In Lindeboon v. Cannille 1 it was held that a gift for the saying of masses is charitable as being for the advancement of religion. The earlier cases, West v. Shuttleworth 2, and Heath v. (Chapman 3 were overruled by the House of Lords in Bourne v. Keene 4 In view of these authorities it is submitted that P 1 created a charitable trust.

1 (1934) 1 Ch. 162.                        3 (1854) 2 Drew. 417.
2 (1835) 2 Myl. & K. 684.               4 (1919) A. C. 815.

N. Nadarajah, K.C. (with him C. Chellapah), for first defendant,. Respondent.-There was no intention on the part of the donors to create a trust. The intention was only to give a benefit to a son for whom the donors declare their " love and affection ". See 8. K. Iyer: Indian Trusts Act, p. 37. A charitable trust must be for one of the purposes indicated in section 99 of the Trusts Ordinance. There is no clear indication in P 1 of the purpose of the trust. There is uncertainty as to what extent of the income is to be used for the supposed trust. For these reasons it is submitted that the District Judge was right in holding that P 1 did not create a trust.

H. W. Thambiah (with him V. Joseph) for second defendant, respondent.

L. A. Rajapakse, K.C, in reply.-According to the cy-pres doctrine even if the purpose fails the trust does not fail. See section 99 of the Trusts Ordinance and Keeton's Trusts, p. 147.

April 23, 1945. WIJEYEWARDENE J.-

By deed P 1 of 1925 the plaintiff and his wife transferred to their son Sabaratnam, a plot of

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