ABDULSAKUR HAJI Vs. ABUBAKKAR HAJI ABBA

JUDGEMENT

(1.) THIS is a suit by three of the legatees under the will of one Fatmabai, widow of Abdulla Haji Dawood, against the proving executor of the will and other legatees and heirs and legal representatives of such legatees as have died since the death of Fatmabai for the administration of the estate of the testatrix and for payment to the legatees and the representatives of the legatees such legacies as are provided for by the will. Fatmabai died on January 14, 1928, after having made her will on September 10, 1914. Two of the executors appointed by the will died in the life-time of the testatrix, Defendant No. 1, who is the third executor under the will, obtained probate of it on July 4, 1924. At the date of the will the testatrix owned an immovable property at Eipon Road. After the date of the will she acquired another immoveable property at Malad. By a Judge's order dated October 1, 1928, the plaint and proceedings were ordered to be amended by making the Advocate General as representing public charities a party defendant to the suit. Pursuant to that-order the Advocate General was made defendant No. 11 in the suit and the plaint and proceedings were amended on October 4, 1928.

(2.) THE Advocate General has filed no written statement and submits himself to whatever decree or order the Court may consider fit to pass. Defendant No. 1, as the proving executor of the will, also submits himself to the orders of the Court. Defendants Nos. 2 and 10 are sued in their respective representative capacity as the heirs and representatives of two deceased legatees-Jan Mahomed Abubakkar, a son of defendant No. 2 who is the same person as defendant No. 1 but in a different capacity, and Abdulla Abubakkar, another son of defendant No. 2 and the husband of defendant No. 10. THEy have filed no written statement, but have appeared by counsel and submit themselves to the orders of the Court. Defendants Nos. 3 and 4 also submit themselves to the orders of the Court. THE remaining defendants are not represented in this case. Out of the several issues raised in the case the Court was invited to try issues Nos. 1,2,4, and 7 first. THE issues relate to the residuary clause in the will which as translated is as follows :

(3.) MR. Shavaksha has urged that the use of the word "Dharma" in this clause of the will would bring it within the ruling of their Lordships of the Privy Council in Runchordas Vandrawandas v. Parvatibhai (1899) L.R. 28 I. A. 71, 81, s.c. 1 Bom. L.R. 607. At p. 81 of their judgment their Lordships refer to the meaning of "Dharma" as given in Wilson's Dictionary where it is defined to be law, virtue, legal, or moral duty. In their Lordships' opinion the fact that the word is capable of such various meanings would make a trust in respect of it vague and uncertain and comprise objects which may be charitable as well ' as those which may not be charitable but only philanthropic. Their Lordships at page 80 refer to the leading case of Morice v. Bishop of Durham (1804) 9 Ves. 399 ; 10 Ves. 322 where Lord Bldon L. C. has observed : As it is a maxim that the execution of a trust shall be under the control of the Court, it must be of such a nature that it can be under that control so that the administration .of it can be reviewed by the Court, or if the trustee dies the Court itself can execute the trust-a trust therefore which in case of maladministration could be reformed and a due administration directed, and then, unless the subject and objects can be ascertained upon principles familiar in other cases, it must be decided that the Court can neither reform maladministration nor direct a due administration.