EDULJI FRAMROJ DINSHAW Vs. GAWASJI JEHANGIR

JUDGEMENT

(1.) ONE Framroz Edulji Dinshaw died on January 3, 1936, leaving him surviving a son Edulji and two daughters Bachoobai and Manekbai. Prior to his death, Dinshaw had made and executed a will on July 23, 1934. After the death of Dinshaw, Manekbai, who was a spinster, died on May 30, 1939. Manekbai died intestate, and Edulji and Bachoobai were her nearest relations on whom the property left by her devolved according to the rules of inheritance governing ParSections

(2.) UNDER Clause 11 of his will Dinshaw, who will hereafter be referred to as the testator, gave various directions to his trustees with regard to the corpus and income of his property, and directed that the property be held on trust. For the purpose of this Originating Summons we are primarily concerned with the directions contained in Sub -clauses (g), (h) and (i) of Clause 11. Sub -clause (g) is in the following terms: After the death of such child my trustees shall hold such share and the future income thereof in trust for all or such one or more exclusively of others or other of the children or remoter issue of such child at such age or time or respective ages or times, if more than one in such shares, and with such trusts for their respective benefit and such provisions for their respective advancement either after the death of such child or during his or her life with his or her consent, and maintenance and education at the discretion of my trustees or any other person or persons as such child shall by any deed or deeds revocable or irrevocable or by will or codicil without trans -grassing the rule against perpetuities appoint. The expression 'such share' in Sub -clause (g) refers to the division of the estate in three equal shares directed to be made under Sub -clause (d) of para. 11 of the will. That sub -clause provided: My trustees shall stand possessed of the capital and income of the trust fund in trust to divide the same into three equal shares and to appropriate one of such shares to each of my children now living, namely, Bachubai, Edulji and Maneckbai. Clause (h) of para. 11 of the will provided: And in default of and subject to any appointment under the power hereinbefore contained in trust for the child or children of such child of mine who shall be living at my death or born afterwards and who being male attain the age of 18 years or being female attain that age or marry, and if more than one in equal shares. Clause (i) of para. 11 of the will provided: No child of such child who shall take any part of the share of such child under any appointment shall in default of appointment to the contrary be entitled to any share of the unappropriated part thereof without bringing the share or shares appointed to him or her into hotchpot and accounting for the same accordingly.

(3.) THE principal question which falls to be decided by this Court is the first question: i.e. whether the power of appointment contained in Sub -clause (g) of Clause 11 of the will incorporates a General Power of Appointment or a Special Power of Appointment..