FAKIRJI EDULJI BHARUCHA Vs. BOMANJI MUNCHERSHAW JHAVERI

JUDGEMENT

(1.) THIS was an originating summons taken out by the plaintiff, who is one of the two exxecutors of a Mr. Framroz Burjorji Spencer, who died on July 30, 1940. Defendant No.1 is the other of the proving executors who is still alive; defendant No.2 is the Advocate General, representing charity, and defendants Nos. 3 and 4 are prominent members of a body called " Es'ean Community of Vind'yu," the name by which, apparently, they know India.

(2.) THE deceased gentleman, Mr. Spencer, by his will dated August 7, 1939, revoked all previous wills, appointed certain persons, including the plaintiff and defendant No.1, executors and trustees, and then devised and bequeathed the whole of his estate to his trustees on trust for conversion into money and payment of his debts and funeral and testamentary expenses. He then provided as follows: My Trustees shall invest the residue of my estate in their names in or upon any of the investments authorised by law in the case of trust moneys and transfer and hand over the same at their absolute discretion to the Teacher or Recorder for the time being or any other responsible office bearer or office bearers of Es'ean Community of Vind'yu (India) in his or their official capacity as such office-bearer or bearers wherever he or they may be located as my trustees shall decide to be utilised for the purposes of the Esean Community of Vind'yu (India) and for promoting and advancing its aims and objects subject to the rules and regulations, if any, for the time being of the said community, and I declare that the receipt of the \ person who professes to be the Teacher or Recorder or any other responsible office bearer of the said Es'ean Community of Vind'yu (India) shall be a sufficient discharge to my Trustees for such transfer, handing over and payment. THE opinion of the majority of my Trustees, shall prevail. It appears that the deceased was a member of this body, calling itself the Es'ean Community of Vind'yu (India), which consists of members in India, and particularly in Bombay, of a religious body or sect, of whom I must confess I have never heard at all till this case was brought before me. It is necessary to say a word or two about their aims and objects, but before doing so, the question arises whether from this gift one can see, by the form of words he has used, that the testator has created any trust for the preservation of capital and the expenditure of income only. If there is not such a trust, then the gift is an out and out gift and is therefore good, whatever the objects of the Es'ean Community are, so long as they are not illegal objects. If, on the other hand, he has created a trust for the preservation, in perpetuity, of the capital of his gift, then the gift cannot be supported unless the Es'ean Community of Vind'yu (India) is a charitable organisation.

(3.) ANOTHER thing which had caused doubt in my mind, and, I have no doubt, in the plaintiffs-but I think it has now satisfactorily been cleared up,-is the curious use by the testator of the expression " to transfer and hand over the same at their absolute discretion to the Teacher or Recorder, etc. " I thought at first that what the testator meant was that after converting his estate into money and then investing the money in gilt-edged securities, the trustees should hold the gilt-edged securities in their hands, giving them piecemeal as and when they, in their absolute discretion, thought fit, to responsible officers of the Community; the trustees, therefore, being, as it were, caretakers of the Community's investments. I do not think that this was what he meant. Mr. Maneksha has quite convinced me that what he really meant was that they had an absolute discretion as to the individual or individuals amongst the society's officers to whom they were to hand over the securities. No doubt the will is somewhat ambiguous, but as the one construction produces a perfectly sensible result, and the other, a somewhat fantastic one, I have no doubt that what the testator meant was the sensible, and not the insensible, meaning. I think, therefore, there is an absolute gift of the investments into which the testator directed his estate to be converted to the office bearer or bearers selected by the trustees, in their discretion on trust to expend the money in advancing the aims and objects of the community. Such a trust, as I say, is not a perpetuity, but it is quite possible for the trustees, consistently with that trust, to spend the whole of the capital as well as the whole of the income.