MALI PRABHUDAS PARSHOTTAMBHAI Vs. JOINT CHARITY COMMISSIONER

JUDGEMENT

(1.) HEARD learned advocate Mr LR Pathan with Mr MA Sapa for the petitioners. Learned advocate for the petitioners invited attention of the Court to a Will made by Bai Malanbai Jamna Gova in the year 1938. Learned advocate for the petitioners read the Will at extenso. On perusal of the Will, it is clear that the executrix of the Will appointed Prabhudas Parshottam and his father Parshottam Kanji as the heirs of the executrix and thereby entrusted the immovable property situated in Malivada Maholla, Junagadh consisting of two shops and the first floor above the said shops. The executrix of the Will has made it clear that this property is received by the executrix of the Will from her deceased father Mali Gova Nathu. The executrix made appointment of the present petitioner No.1 and his father as her heirs conditional. The condition prescribed was that they will have to make certain donations for religious purpose out of the rental income of those two shops. From the careful scrutiny of the Will, by no stretch of imagination, it can be said that the property in question is given to a trust. It is otherwise. The property was given to the present petitioner No.1 and his father as heirs of the executrix of the Will. In turn they were asked to perform religious activities as set out in the Will.

(2.) IF the Will is read as a whole, it will be clear that the executrix had no doubt in her mind at the time of executing the Will that petitioner No.1 and his father are appointed as the heirs of the executrix of the Will. This is clear from the fact that besides the immovable property, 'residue' movable property was also given to petitioner No.1. "What is most relevant and important is that the executrix made it very clear that, 'in the event, rental income of the shop and the house is found to be insufficient than the amount which is mentioned to be spent for religious activities, can be varied by the trustees appointed under the Will and petitioner No.1 along with his father, by deciding as to which of the religious activity is to be adjusted.' It is provided that decision be taken by majority. This being so, there was no reason for the Charity Commissioner to reject the application filed by the present petitioners."