KHORSHED MANECK Vs. OFFICIAL TRUSTEE

JUDGEMENT

(1.) THIS appeal raises a very short question of construction of a clause in the will of one Jahangir Dinshaw Katelee. Katelee died on December 21, 1937, having prior thereto made a will dated December 18, 1933. He subsequently made a codicil on July 26, 1935, a second codicil on November 1, 1935, and a third codicil on February 7, 1936. The testator left no issue, and in his will and codicil the objects of his bounty were his nieces and other relations. The only question we are concerned with in this originating summons is Clause 11 of the first codicil and Clause 18 of the will which gives certain interest to Tehemina, one of his nieces and after her to her issue. Tehemina herself died on October 9, 1945. She had one son who predeccased her and died on November 9, 1944. She left three daughters surviving, the plaintiff and respondents Nos. 2 and 3.Respondent No.4 is the husband of Tehemina and respondent No.1 is the Official Trustee.

(2.) CLAUSE 11 of the codicil provides that a certain amount is to be given to Tehemina for life and after her and subject to the trust in her favour in trust for her issue, if more than one, as tenants in common in equal shares per stirpes but so that no issue remoter than a child of the said Tehemina shall be deemed to be an object of the trust unless the parent of such issue shall have predeccased it. Then we come to cl, 18 of the will which is in the nature of a defeasance clause and that providesand I shall only deal with that part which is material for this originating summonsthat if any person who is entitled to any benefit under the will of the testator should marry a non-Parsi or a person not professing the Zoroastrian faith, then the interest going to that person shall be deemed to have lapsed and shall go over to the person or persons who shall be entitled thereto as if such person had died before the testator.

(3.) THE only section which is material, and it is material because the learned Judge below has relied on it, is Section 127 which says that a bequest upon a condition, the fulfillment of which would be contrary to law or to morality, is void. Section 127 deals with conditions which are conditions precedent, but by reason of Sub-clause (2) of Section 131 the provision with regard to conditions precedent is imported into conditions subsequent. THErefore, if a condition subsequent is contrary to law or to morality, then the bequest is void. Now, the condition subsequent is a person marrying a non-Zoroastrian. In other words, the testator did not want any one to be the object of his bounty who married a non-Zoroastrian. In order to prevent the defeasance clause coming into operation, the condition that has to be fulfilled is not marrying a non-Zoroastrian. It cannot be said that not marrying a non-Zoroastrian is contrary to law or public morality. THE learned Judge held that the condition in defeasance of the bequest was void and the original bequest was good. THE learned Judge overlooked the fact that under the Indian Succession Act what is made void is the bequest itself and not the condition which is contrary to law or morality. Further, with very great respect the learned Judge has approached the matter entirely from a wrong angle. He has imported into his judgment considerations which relate to Section 26 of the Indian Contract Act and he has come to the conclusion that this particular provision is in restraint of marriage and he reads Section 26 as not merely referring to total restraint of marriage but every agreement in restraint of marriage, however partial the restraint may be. But with great respect to the learned Judge, we are not dealing with questions of contract. We are dealing with questions of bequests under a will, and the only statute to which we can resort in order to decide questions which arise as to the construction of a bequest is the Indian Succession Act and not the Indian Contract Act. If a testator chooses to give his money to persons who marry Zoroastrians and does not want to confer his bounty upon those who marry outside his community, surely it cannot be said that the testator is doing something which is against morality or against law. We therefore do not propose to launch upon the very interesting debate which is to be found in the judgment of the learned Judge as to what is the correct interpretation of Section 26 of the Contract Act. As the matter stands, it is patently clear that what applies is Section 131 of the Indian Succession Act and that the condition which is superadded to the Request to these two daughters is not a condition which is in any sense contrary to law or to morality. As they have not complied with the condition and as the provision with regard to gift over has come into operation, therefore, the persons who are entitled to Tehemina's share are the plaintiff and respondent No.4.