SUBHAS CHANDRA BOSE Vs. GORDHANDAS I PATEL

JUDGEMENT

(1.) THIS is an appeal from a decision of Mr. Justice B. J. Wadia, and it raises a question as to the validity of the gift of residue contained in the will of the late Vithalbhai J. Patel, The will was made on October 2, 1933, and the testator died on the 22nd of the same month. Probate of his will was subsequently granted by this Court.

(2.) BY clause 9 of his will the testator appointed executors and then gave four legacies, and the only relevance of those legacies is that they are all directed to be "given" to the beneficiaries. Then in sub-cl. (5) the testator disposes of his residue in these terms- The balance of my assets after the disposal of the above mentioned four gifts is to be handed over to Mr. Subhash Chandra Bose (son of Janaki Bose) of 1 Woodburn Park, Calcutta to be spent by the said Mr. Subhash Chandra Bose or by his nominee or nominees according to his instructions for the political uplift of India and preferably for publicity work on behalf of India's cause, in other countries.

(3.) THE argument in this Court has been based on two grounds. First, it is said that on the true construction of Clause (5) the residue is given to Mr. Bose absolutely, the direction as to how it is to be spent being merely the expression of the motive for the gift, or possibly of the testator's hope or belief as to the way in which the money would be spent. It is fair to Mr. Bose to say that his counsel disclaims on his behalf any desire to utilise the money for his own purposes; he claims to be absolutely entitled to it in order that he may apply it under the will. THE argument is that if the gift had stopped after the name of Mr. Bose, that is to say, if there had been nothing but a direction that the residue was to be handed over to Mr. Bose, that would have been a good bequest to Mr. Bose beneficially, and that no doubt is so. But it is to be noticed that there are in the residuary clause no words of gift such as are contained in the case of the other legacies. THE residue is not in terms given to Mr. Bose, still less is it given to him for his own use or benefit. THE words are " to be handed over to Mr. Subhash Chandra Bose ", an expression apt to introduce a trust, and the whole direction being to hand the money over to Mr. Bose to be spent in a particular way, I cannot entertain the slightest doubt that the words constitute a trust, and that there is no beneficial gift to Mr. Bose.