JUDGMENT S.D. Khare, J. - This is a defendant's appeal directed against the decree passed by the learned Civil Judge, Farrukhabad, dated 29th March, 1954. The plaintiffs' suit for Rs. 31,000/- with simple interest at 6 per cent per annum from 26th September, 1950, (the date of the notice) up to the date of suit was decreed with proportionate costs. 2. It appears that in the year 1945 there was no female hospital in Kannauj, district Farrukhabad, and Sri Govind Narain, the then District Magistrate, Farrukhabad, took Rs. 30,000/- by way of subscription from Pandit Suraj Prasad Dube (father of the plaintiffs) in the year 1945, under certain terms and on certain under-standings. However, effective measures for giving effect to the scheme during the lifetime of Pandit Suraj Prasad Dube were not taken by the Government. Suraj Prasad Dube died in the month of October, 1947. In the year 1950 the sons of Pandit Suraj Prasad Dube served a notice on the State Government under Section 80, Civil Procedure Code asking for refund of their father's subscription on the allegations that the venture had come to an end by reason of its having become impossible to proceed with. The suit was instituted on 23rd July, 1952, and the plaintiffs claimed not only the subscription which their father had advanced but a sum of Rs. 1,000/- more which their father had spent in levelling the site and collecting bricks for the construction of the building. The plaintiffs also claimed interest on the sum of Rs. 31,000/- from the date of the subscription till the date of the suit. 3. The State Government contested the suit on various grounds. It did not admit all the conditions under which the subscription had been given by the plaintiffs' father. It also did not admit that the plaintiffs' father had spent any money in levelling the ground and collecting the bricks. The main contest was that the object of the Trust had not failed nor was the scheme given up and that it was possible to carry out the main conditions agreed upon be tween the parties. It was, therefore, pleaded that the suit was premature and misconceived. Another plea raised was that one more person had also given a subscription for the construction of the same hospital, and, therefore, the Trust could not be revoked unless he too joined as a plaintiff. 4. It was, therefore, pleaded that the suit was premature and misconceived. Another plea raised was that one more person had also given a subscription for the construction of the same hospital, and, therefore, the Trust could not be revoked unless he too joined as a plaintiff. 4. The learned Civil Judge framed appropriate issues and after having considered the entire evidence led on behalf of the parties arrived at the conclusion that the State Government had, through the District Magistrate, Farrukhabad, received Rs. 30,000/- from Pandit Suraj Prasad Dube in the year 1945, for the construction of a female hospital on the following agreed terms : (1) The hospital will be constructed and established with child welfare and maternity wards on Kannauj-Makrandnagar Road and would be named as Sm. Gomti Devi Female Hospital. (2) A sum of Rs. 30,000/- would be given by the plaintiff's father and an equal amount, namely, Rs. 30,000/- would be contributed by the Government and further cost, if needed, will be met by public contribution to be raised through the agency of defendant's officials. (3) The said project will be completed during the lifetime of the plaintiffs' father. (4) The construction would be carried out through the agency and under the supervision of Pandit Suraj Prasad Dube according to the plan approved by the Government. 5. Evidence was led in the agreement between Pandit Suraj Prasad Dube on the one hand and the District Magistrate, Farrukhabad, on the other a sum of Rs. 30,000/- was actually advanced by Pandit Suraj Prasad and was deposited in the U. P. Government's account; that a suitable site was selected on Kannauj-Makrandnagar Road, and Pandit Suraj Prasad Dube got it levelled at a cost of Rs. 450/-; and that Pandit Suraj Prasad Dube obtained a permit from the District Supply Officer to bake bricks which were to be used in the construction of the hospital and spent Rs. 550/- in getting the bricks prepared and baked and transported to the site on which the hospital was to be built. The Governor of the Province (State) visited Kannauj on 22nd November, 1945, an performed the foundation stone lay in a ceremony of the hospital. A stone bearing the name of the plain tiffs' mother Sm. Gomti Devi was installed on that occasion. The Governor of the Province (State) visited Kannauj on 22nd November, 1945, an performed the foundation stone lay in a ceremony of the hospital. A stone bearing the name of the plain tiffs' mother Sm. Gomti Devi was installed on that occasion. Pandi Suraj Prasad Dube during his life time requested Sri Govind Narain and his successor-in-office to proceed with the scheme. However, nothing, materialised. On the other hand the bricks which had been collect by the plaintiffs' father on the sit proposed for the construction of the hospital were, under the orders the District Supply Officer, freeze and given to a school for the construction of its building. At that time the Civil Surgeon of the district also agreed that there was scheme just then for the construction of any female hospital at Kannauj. After the plaintiffs' notice ha been received the Government o U. P. again gave consideration to the construction of a female hospital Kannauj and on 26th April, 1953, tin foundation-stone laying ceremony a female hospital was held again under the auspices of Sri Chandi Bhanu Gupta, Minister of Heal and Civil Supplies, U. P. Th scheme of a new hospital was, how ever, entirely different from the a proved plan (Ex. 32) of Gomti De Hospital. 6. The learned Civil Judge inspect ed the locality on 4th March, 195 He could not find any trace of the old foundation. He did not find a foundation-stone which was laid the then Governor Sir Maurice Hel of U. P. He, however, found one marble stone having the following inscription : " bl efgyk fpfdRlky; dh uhp eU=h; Jh pUnzHkku th xqIrk] ea=h LokLF; o forj.k foHkkx mRrj izns'kh; ljdkj ds dj deyksa }kjk rkjh[k 26 vizSy 1953 bZ0 rn~uqlkj oS'kk[k'kqDy 13 lEor~ 2010 fo0 dks j[kh xbZA" 7. The learned Civil Judge further noted that the new hospital that was being constructed was not according to the approved plan Ex. 32, but in accordance with an altogether different and new plan. The Learned Civil Judge further observed in his inspection note "It seems the Government is not making this hospital according to original scheme." 8. The evidence was almost one sided. Several witnesses were examined on behalf of the plaintiffs. The only witness examined on behalf of the defendants was Sarju Prasad Gupta (D. W. 1), who had contributed Rs. 6, buted Rs. The evidence was almost one sided. Several witnesses were examined on behalf of the plaintiffs. The only witness examined on behalf of the defendants was Sarju Prasad Gupta (D. W. 1), who had contributed Rs. 6, buted Rs. 6,000/- for the construction of the hospital and he had no intention of taking his money back. In his cross-examination the witness admitted that the new hospital was being constructed on the site of the Gomti Devi Hospital according to an altogether new plan. He further stated that if a hospital according to the old plan Ex. 32 was to be constructed it would be necessary to demolish the present building. 9. The letters sent and received by the plaintiffs' father were also filed and they fully supported the plaintiffs' case. The learned Civil Judge, therefore, held that the evidence led by the plaintiffs was reliable and the money had been advanced to the State Government on the terms and conditions as stated in the plaint. He also held that the object of the Trust had failed because the intention of Pandit Suraj Prasad Dube was that the hospital should be constructed early during his lifetime through his agency and be named after his deceased wife Sin. Gomti Devi and that the hospital that was being constructed on the site was altogether different bearing a different name. The Civil Judge further held that some of the conditions, e.g., that the hospital would be constructed early during the life-time of Pandit Suraj Prasad Dube, could not be materialised. He, therefore, decreed the plaintiffs' suit but did not allow them any interest till the date of the notice. 10. It appears that during the pendency of the suit certain letters were exchanged between the plaintiffs and the officials of the State Government. 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. 11. The main question that has to be considered in this appeal is whether the object of the Trust has failed and some of its essential conditions had become impossible of fulfilment. 11. The main question that has to be considered in this appeal is whether the object of the Trust has failed and some of its essential conditions had become impossible of fulfilment. We have given our anxious consideration to the arguments advanced before us by the learned counsel for the appellant. We are, however, of the opinion that the findings arrived at by the learned Civil Judge on this point are sound and must be upheld. 12. The learned counsel for the appellant has rightly conceded that for the purposes 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. 13. The entire amount of Rs. 60,000/- was to be paid to Sri Dube for the construction of the hospital. In this connection the letter Ex. 38 dated 6th November, 1945, written by Sri Suraj Prasad Dube to the Collector and District Magistrate, Fatehgarh, is relevant. It reads as follows : "With all due rnauj-Makrandnagar Road. It gave me pleasure to learn that the Government is also pleased to spend Rs. 30,000/- (Rupees thirty thousand) a sum equal to the contribution of my humble self and I am sure that if any sum is advanced towards the construction of the hospital by any gentleman of this place, it would be in addition to what my humble self and the Government have agreed to contribute, i.e. over and above Rs. 60,000/- (Rupees sixty thousand) and would be spent towards the said hospital with First Class building and equipment. According to the desire of your honour I am sending herewith the balance of Rs. 10,000/- (Ten thousand) by a cheque with the above understanding and hope that your honour will kindly accept it towards contribution and issue proper orders for preparation of plan so that the work begins as soon as possible". 14. A plan (Ex. 32) was subsequently drawn up and approved. 10,000/- (Ten thousand) by a cheque with the above understanding and hope that your honour will kindly accept it towards contribution and issue proper orders for preparation of plan so that the work begins as soon as possible". 14. A plan (Ex. 32) was subsequently drawn up and approved. The foundation-laying ceremony was also performed by the Governor on 22nd November, 1945. Soon thereafter the plaintiffs' father got the site levelled. He also baked bricks and collected them on the site so that the construction could start without delay. The plaintiffs wrote several letters to the District Magistrate and Collector of Fatehgarh to persuade him to get the work started. However, his efforts did not meet with any success. 15. The plaintiffs' father, in the circumstances, cannot be said to have advanced money for the construction of any female hospital to be constructed as and when the Government pleased. The donation had been given for the construction of a particular hospital to be named after a particular lady, and the same was to be constructed on a particular site according to an approved plan as early as possible through the agency of Suraj Prasad Dube, the donor. 7 here can be no doubt that the wish of the donor was that the work of the construction of the hospital should be started very early and completed during his lifetime. In the circumstances it cannot be said that one of the agreed terms, to wit, that the construction of the hospital was to be made according to the approved plan during the lifetime of Pandit Suraj Prasad Dube was not material and could be departed from at the sweet will of the Trustee. In our opinion these were essential terms of the agreement and the object of the Trust has failed because a female hospital in the name of Sm. Gomti Devi can no longer, be constructed on that site through the agency of Pandit Suraj Prasad Dube, who died in the year 1947. 16. The plaintiffs, therefore, in the circumstances, became entitled to get back the money subscribed by their father and held by the defendant. Gomti Devi can no longer, be constructed on that site through the agency of Pandit Suraj Prasad Dube, who died in the year 1947. 16. The plaintiffs, therefore, in the circumstances, became entitled to get back the money subscribed by their father and held by the defendant. Section 83 of the Indian Trusts Act provides as follows: "Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust property, the trustee, in the absence of a direction to the contrary, must hold the trust property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative." 17. It is true that the provisions of the Indian Trust Act are not in terms applicable to private or public religious and charitable trusts, but never. the less the general principles underlying the above section are attracted in analogous circumstances. 18. The object of the trust having failed, the defendant-appellant is now holding the money in trust on behalf of the heirs of the donor. 19. Another argument advanced by the learned counsel for the appellant was that (1) it is still open to the State Government to construct Gomti Devi Female Hospital on some land nearby according to the terms of the agreement; and (2) the doctrine of cypres will apply and the defendant should be permitted to apply the loan advanced by the Plaintiffs' father in the year 1945 to the construction of another female hospital at Kannauj. 20. In our opinion there is no force in any of these contentions. So many years have elapsed, and there is nothing in the evidence to show that the defendant ever intended to carry out the construction of a hospital according to the plan (Ex. 32) agreed upon between Suraj Prasad Dube and the Collector of Fatehgarh. Besides, the main condition of the donation was that the hospital would be constructed early through the agency of the plaintiffs' father, that is to say, within the lifetime of the plaintiffs' father. That condition could no longer be fulfilled. In the circumstances, there can be no doubt that the object of the earlier Trust has failed. 21. Besides, the main condition of the donation was that the hospital would be constructed early through the agency of the plaintiffs' father, that is to say, within the lifetime of the plaintiffs' father. That condition could no longer be fulfilled. In the circumstances, there can be no doubt that the object of the earlier Trust has failed. 21. It was held in the case of Harish Chandra v. Hindu Dharma Sewak Mandal, AIR 1936 Allahabad 197 that where a gift is made for a specific charitable purpose, it cannot be said that the donor had a general intention. It was further held that "where a land is given to a charitable body for a specific purpose and for a specific purpose only. then such gift becomes a nullity if the performance of that purpose is rendered impossible. In short, such a gift is a conditional one." We respectfully agree with the observations cited above. 22. The doctrine of Cy Ares is generally applied to Trusts created by wills and not those created by deeds or words of mouth intra viva voce, as was held in the following cases: (1) Audesh Singh v. Commissioner, Lucknow, A.I.R. 1934 Oudh 329; (2) Santona Roy v. Advocate General of Bengali, A.I.R. 1960 A.P. 605, (3) Potti Swami & Bros. v. Govindarajulu, AIR 1921 Calcutta 389. 23. The said doctrine can have no application to the facts of the present case, because there was, no general intention for charity. 24. In the circumstances there was no force in the pleas raised before the learned Civil Judge that the suit was either misconceived or premature. 25. No plea had been taken by the defendant in the court below that the suit was, bad for non-joinder inasmuch as the other subscribers had not been made parties to the suit and the charity was not represented. The said argument has, however, been advanced before us at the time of the hearing of the appeal because in one of the cases, namely, Commissioner, Lucknow v. Deputy Commissioner of Pratabgarhs, A.I.R. 1937 P.C. 240 the case had to be remanded because other subscribers and the charity were not represented. The ruling relied upon by the appellant does not give full facts of the case. It is, therefore, not possible for us to ascertain why it had become necessary in that case to remand the suit. The ruling relied upon by the appellant does not give full facts of the case. It is, therefore, not possible for us to ascertain why it had become necessary in that case to remand the suit. In the case before us no such necessity arises because (1) it is clear from the findings that the object of the Trust failed; (2) the only other subscriber was examined as D. W. 1 and he clearly stated that he had no intention to take back the money from Government even under changed circumstances. He is, therefore, prepared to invest the money in the new charity; (3) no such plea was raised before the court below or even in the grounds of appeal. Order 1 Rule 8, Civil Procedure Code provides that- "No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." 26. We see; no reason why the case should be remanded to the court below. 27. There is no force in this appeal, and it is hereby dismissed with costs.