ARDESHIR DADABHOY BARIA Vs. DADABHOY RUSTOMJEE BARIA

JUDGEMENT

(1.) THIS was an originating summons having the principal object of determining the validity or otherwise of certain trusts in favour of persons unborn at the date of the creation thereof.

(2.) THE facts are not in dispute and so far as material they are as follows: On October 30, 1922, Dadabhai Dajibhai Baria (hereinafter called "the settlor") had two sons Ardeshir and Rustomji (plaintiffs Nos. 1 and 2), a grandson by Ardeshir called Rohinton born on September 10, 1917, and no other male issue. By an indenture of that date (hereinafter called "the settlement") he conveyed certain property of which, it was recited, he was the full owner (and there is no evidence or allegation that he was anything less) to himself and plaintiffs Nos. 1 and 2 as trustees upon the following trusts: 1. To collect the income thereof. 2. To pay outgoings including insurance premia. 3.To pay for repairs. 4. To pay during the settlor's life one-third of the net residue of the trust income to the settlor, one-third to plaintiff No. 1 and one-third to plaintiff No. 2, provided that if either or both of the two latter should predecease the settlor, his or their share of income should be paid to the settlor. It is observable that so far the settler had made no final disposition of the corpus of which (had the settlement stopped at this point) there would have been a resulting trust to the settlor at the latter's death. Actually, however, the settlement proceeded to declare the following further trusts to take effect on and after the death of the settlor, viz. upon trust: 5. To divide the trust properties into two equal parts. 6. As to one such part, called "Ardeshir's Trust Fund ", (a) to pay the net income thereof to Ardeshir for life, (b) after the death of Ardeshir absolutely for all Ardeshir's sons in equal shares, provided that if Ardeshir should predecease the settlor, Ardeshir's trust fund should only be divisible amongst Ardeshir's sons at the settlor's death, this proviso being of course essential in order to make the 6th and 4th trusts consistent with one another. 7.As to the other such part called "Rustomji's Trust Fund" on precisely similar trusts to those of Ardeshir's trust fund, substituting Rustomji for Ardeshir.

(3.) THE main questions raised by the summons-namely whether the gifts to Ardeshir's and Rustomji's sons are valid-must depend not on what did happen since October 30, 1922, but on what might have happened. I am, however, shortly stating the subsequent history of the matter in, order to make it clear how and to what extent the present parties come to be interested.