Case: State Of Uttar, Pradesh Vs. Bansi Dhar And Others

2. An old, 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 Rs. 30,000/- was made, on the basis of a matching contribution by Government, for the good cause of a womens hospital in sacred memory of the donors 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 the District charge and once his back was turned on the District, things got stuck. For the next Collector, Shri Bhagwan Sahai, noticing official stagnation in this matter wrote to the Civil Surgeon in March 1946 - four months after Sir Maurice Hallet had planted with pomp the first stone at the hospital site - that "that proposal has been hanging since long which is certainly not fair to the donor". Shri Sahai tepidly concluded his notethe balance of non-recurring expenditure I presume we shall have to apply to Government. If so who will do it? C. S. or I. I am prepared to do so if I have a clear cut scheme with all loose ends tied up.Nothing happened however, and to add insult to injury the District Supply Officer sent a chill into the chest of the expectant donor by proposing to freeze the bricks collected by him for the hospital building and to divert them for the construction of a school, thus showing the lazy unconcern of the officials for the hospital project. Exhibits 18 and 19 betray this neglect of Govind Narains undertaking on behalf of Government.4. The old man, Dubey, continued to correspond with the District authorities on the hospital project till he was spirited away by death in July 1947 and his human agency for construction thus became unavailable. No doubt, no post-mortem repentance was manifested in the official quarters even after Independence came to the country and nothing was done for years, suggesting that slow-motion administration, a die-hard heritage has survived British rule in India.5. The subsequent part of the story discloses dereliction of duty, as it were, for instead of constructing the proposed six-bed hospital expeditiously with the additional sum to be brought into the hotch-potch by Government, what transpired was that the plans were changed, the agency visualised in the original understanding given up, governments matching sum never granted, and even the foundation stone laid by the Governor of the Province removed. Apparently the officials engaged themselves in paper work of no import like the routine reply to the reminder by the sons of the donor, Ex. A-6, which chanted "that the proposal of constructing a 6-bedded Womens Hospital at Kanauj is under the active consideration of Government." If six years after the receipt of the donation of Rs. 30,000/- for the urgent execution of a hospital construction, the matter was "under the active consideration of Government" its sense of time had suffered somnolence of its officialese had indolent semantics. Even a formal suit notice under Section 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 tranquillity. These lethargic official exercises in the present case remind one of the words of Lord Curzon about the administrative apparatus, which bear repetition and find some contemporary echo. The Viceroy wrote to his Secretary ofam 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 stupefiedAugust 1947 accelerated the process the Dubeys might have avoided the court.6. 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 the construction of the hospital building, drew up a new plan and built a 22-bed hospital in the same place. All this was after the legal action was instituted and perhaps on account of it. It must be mentioned in fairness to the plaintiffs that they offered to withdraw the suit for the return of the money if the original undertaking was substantially complied with and half the costs of the suit - which was not much - upto then incurred were also paid by Government. However, this public body chose to continue what we regard, in the light of fuller facts, its cantankerous defence despite defeat in two courts. Government litigation involves expenditure of public money and cannot become an occasion for abusing the legal process regardless of the morality of the pleas and indifferent to any offer of settlement of the claim on fair terms. Here we may quote what one of us had observed in an earlier appeal, Dilbagh Rai Jarry v. Union of India, Civil Appeal No. 1898 of 1967; judgment delivered on 5-11-1973 = (reported in AIR 1974 SC 130  ) about litigation to which Government is athe context of expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and sensibility in its litigation policy .... the Law Commission of India in a recent report - Law Commission of India 54th report - Civil Procedure Code, on amendments to the Civil Procedure Code has suggested the deletion of Section 80, finding that wholesome provision hardly ever utilised by Government, and has gone further to provide a special procedure for government litigation to highlight the need for an activist policy of just settlement of claims where the State is a party ....... certain observations I had made in a Kerala High Court decision (P. P. Abubacker v. Union of India, AIR 1972 Ker 103; 107 para 5) ...... I may usefully excerpt here:"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the States interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide 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 showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf.To complete the human side of the story, we reach its anti-climax 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 donors sons who prayed to the Collector at least for the return of the former lapidary memento. Be that as it may, we are assured happily that a hospital has been constructed although it was a total departure from the project which induced the alleged conditional gift.8. The sons of the donor brought the present suit on the ground that the conditions subject to which the sum of Rs. 30,000/- had been given had been violated, that the charity as contemplated had never materialised and a totally different scheme had been belatedly executed. The defendant, the State of Uttar Pradesh, contested the facts but failed in that effort, Shri Govind Narain having wisely declined to be a witness to the Governments version and the documents having testified to the truth of the plaintiffs case. Some legal contentions were raised but rejected and have been repeated before us by Shri Dixit, learned Counsel for the appellant State.9. The facts as found by the trial Judge were accepted by the State before the High Court and affirmed by the learned Judges. Before proceeding to discuss the issues of law we may set out the findings of fact concurrently recorded. The High Courtlearned Counsel for the appellant has rightly conceded that for the purpose of this appeal all the findings of fact arrived at by the learned Civil Judge might be accepted as correct. We have gone through the entire evidence and we feel no hesitation in accepting the findings of fact arrived at by the learned Civil Judge. It is fully established from the evidence on the record that the sum of Rs. 30,000/- had been advanced by Pandit Suraj Prasad Dube on the understanding that the hospital would be constructed.(1) on the approved site;(2) according to the approved plan; and(3) at an early date through his agency.The entire amount of Rs. 60,000/- was to be paid to Sri Dube for the construction of the hospital.Since the appellant had accepted the findings of fact recorded by the Civil Judge we may notice those findings before proceeding further. The trial Judgeis overwhelming and unrebutted oral and documentary evidence which leaves me clear that Pandit Suraj Prasad Dubey, the deceased father of the plaintiffs gave Rs. 30,000/- as his subscription on the terms and conditions alleged in theletters and the evidence of P. W. 1 Sri Hari Har 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 Rs. 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 Nargain and although several adjournments were taken by the defendant to produce Sri Govind Narain but he was not examined. It seems he was not found in position to say any thing to the contrary or in rebuttal to plaintiffs evidence. There is thus not a word in rebuttal of plaintiffs case on the matter of terms settled between the parties."...... ...... ...... ...... ...... ...... ...... ......."In this connection I think it will not be unimportant to point out that District Government Counsel was examined under Order 10, Rule (1), Civil Procedure Code he admitted that plaintiffs settled term with defendant Government through Sri Govind Narain the then District Magistrate. He also admitted that the then Collector had agreed that the building be constructed according to the approved plan through the agency of plaintiffs father. He further admitted that defendant agreed to invest at least Rs. 30,000/- for the construction of that hospital. The only fact which he appears to deny is that there was no understanding that the hospital would be completed and established in the near future. All other conditions set out in the plaint were practically admitted by him.""I therefore hold that plaintiffs father donated Rs. 30,000/- for a specific object viz., for the construction of Gomti Devi Female Hospital with child welfare and maternity ward at Kannauj Makrand Nagar Road near Phoolmati Devi temple under his own agency on the terms contained in para two of the plaint. Issues answered correctly in favour of the plaintiffs.""As I have held above plaintiffs father gave a handsome subscription of Rs. 30,000/- on the terms and conditions contained in para 2 of the plaint. There is overwhelming unrebutted evidence which point to the irresistible conclusion that the defendant left the scheme in the cold and venture came to an end in the lifetime of Pt. Suraj Prasad Dubey."

Reasoning:
We have come across other cases, Indian and English, where even gifts inter vivos have been 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 in to 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 course of his benefaction 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 fulfill the broader benevolence of the donor and to avert the frustration of the good to the community, reconstructs, as nearly as may be, the charitable intent and makes viable what otherwise may die. The Judges have set this restraint on their power to resurrect, or rather to vary and validate. The twin conditions to be satisfiedThe 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 will 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 testators next-of-kin or residuary legatees are forever excluded. .... This will mean that the material date for the purpose of deciding whether the cypres 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 settlers intention or alternatively that a surplus remained after fulfillment of the purpose. ...." The Modern Law of Trusts - Parker and Mellows - 2nd Edn. pp. 204, 208.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 impracticability. 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,the findings of the courts below negative any such general intention to benefit the community and the old man while donating a large sum had taken care to particularise that the female hospital should be a six-bedded one on a chosen spot to be constructed by himself with matching contribution from government and other voluntary donations. We are inclined to think that this is a borderline case and, if at all, we should lean in favour of the charity taking effect by imputing, without some legal straining, an intention to help the people of the area with a maternity hospital.The factual findings, as already set out, leave no doubt in our mind that the transaction was not a gift simpliciter 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 the 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 trust in favour of the donor. The State could not keep the money and the suit was liable to the decreed.The Kanauj community, as the happy sequel to this unhappy litigation has turned out, has now got a bigger hospital and a memorial college.