BAI MAHAKORE Vs. BAI MANGLA

JUDGEMENT

(1.) The facts which are admitted are shortly these. On the 1st of November 1891, the deceased Damodardas made a credit entry of Rs. 20,000 in his books in the name of his wife, Harkore, carrying interest at 4 1/2 per cent. The entry was made as of the 30th of November 1890. He also treated the amount of the entry as belonging to his wife in his annual balance sheet showing his assets and liabilities, in his Samadaskat book, and in his Vyajvahi which contained his interest account, and in which interest was calculated on the amount at varying rates. In November 1895, Harkore went on pilgrimage and from the entries in Damodardas s books it appears that before going she had with" drawn Rs. 150 odd from her account. Harkore died on the 2nd of March 1901. On the 7th of February 1903, Damodardas debited Rs. 15,000 to her account and credited the same amount to the three sons of his and her daughter, Mahakore. On the 23rd of February 1903 he made a will, in which he stated that the amount was his own and had never belonged to his wife.

(2.) These facts standing by themselves might be insufficient to show that Damodardas had intended to create a trust in respect of Rs. 20,000 in favour of his wife, and that he had constituted himself her trustee as to that amount. But the respondents rely on a document (Exhibit 447) purporting to be a declaration of the trust and written to his daughters by him six months after the death of his wife Harkore. The genuineness of the document has been questioned for the appellants but I see no reason whatever to doubt it. The signature on it purporting to be that of Damodardas is admitted as his. What is alleged is that before going on pilgrimage he had left a number of blank papers signed by him with one of his sons-in-law; but of this there is no satisfactory proof. Were that true, the appellants should have found no difficulty in producing a few such blank papers or adducing credible evidence in support of their allegation. It is true that the document in question was passed on the very next day after Damodardas had asked his pleader, Mr. Ambashankar, whether he could dispose of the money in his wife s name, and the pleader had told him that "he had no authority to do so, as he was not the heir of his wife." But I can see no improbability in the fact of Damodardas acknowledging the trust in favour of his wife to his daughters. His pleader the day before had pointed out to him that they were the heirs entitled to the amount standing in his wife s name, and it is not strange, rather it is very probable, that, acting on the pleader s opinion, he made the declaration. The time when it was made is important. Damodardas was about to go on a pilgrimage. Naturally he would be anxious to settle all his affairs, and make definite arrangements about his property and his wife s. It is usual with Hindus proceeding on pilgrimage to do that.

(3.) If the document, Exhibit 447, is proved, as I hold it is, there can be no question that Damodardas intended a trust in favour of his wife. The only question, then, is whether that trust was carried into effect legally by him. It is contended for the appellants it was not, because (it is urged) Damodardas did not comply with the requirements of Sections 5 of the Trusts Act, the second clause of which provides that "no trust in relation to trust property is valid unless declared as aforesaid" (i.e., in the first clause), "or unless the ownership of the property is transferred to the trustee." According to the contention, there must be either "a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered" or a transfer of the property to the trustee. In this case there was neither.