FAZLHUSSEIN SHARAFALLY Vs. MAHOMEDALLY ABDULALLY SASSOOR

JUDGEMENT

(1.) THIS is an appeal from a decision of Mr. Justice Blackwell, and it raises interesting questions of law relating to charitable trusts.

(2.) THE parties are all Mahomedans of the Shia sect, and on October 29, 1895, Abdulhussein Isubhai a member of that sect executed a deed of trust by which he conveyed certain immovable property to himself and another as trustees. upon trust that the income should be paid to himself for life, and after his death the income was to be divided into five parts. Stated shortly the trusts were to pay the income of one part equal to ten per cent to the settlor's widow for her life, to pay the income of another part equal to thirty per cent. to one of the settlor's daughters for her life and then to her named children for their lives, to deal with another part equal to thirty per cent upon similar trusts for the other daughter and her named children, and subject to these trusts the whole property was given to objects which are admittedly charitable according to Mahomedan law. THEre was a power to appoint new trustees, which vested after the death of the settlor in his two daughters, and the survivor and after her death in the surviving or continuing trustees, or administrators or executors of the last surviving trustee. THE widow and daughters are dead and the only child of a daughter now living is defendant No.1.

(3.) I have mentioned that in 1927, about a year and a half after the appointment of the defendants, the land, the subject of the settlement, was transferred in the municipal records into the names of the defendants as trustees. In 1939 a suit was brought by one of the heirs of the settlor alleging that the settlement of 1895 was wholly void, In that suit the trustees, under some pressure from the Court, eventually put in a written statement in which they contested the plaintiffs' claim, and alleged that the settlement was perfectly valid. The suit was dismissed on the ground that the plaintiffs' claim was barred by limitation, the Court taking the view that if the settlement was void, the plaintiffs could have set up their claim immediately after its execution, and having waited for more than forty years, their claim was barred.