NUSSERWANJI ICCHAPORIA Vs. GULCHER MUNSHI

JUDGEMENT

(1.) The questions arising on this originating summons are to be answered in the following circumstances and facts of the case. The testatrix Bai Hirabai Nusserwanji Motisha died in Bombay on April 10, 1934, leaving a will in the Gujarati language dated April 9, 1934. After giving and setting out certain legacies the testatrix by Clause 9 of her will states as follows: If the legacies which I have (directed to be) given by this my will cannot be given for any reason whatever, as to the amounts of those legacies and all my remaining punji (and) property (which I may not have left as Bakshis (gift) to anyone under this will), all that (which I shall hereafter describe in this will as my remaining punji") my executors shall divide into four equal parts, and they shall give one such equal part to the persons mentioned below. (a) To (my) sister Alamai Dhunjishaw Bhandara, (b) To (my) brother Burjorji Nusserwanji Motisha, (e) To (my) brother Hormusji Nusserwanji Motisha, (d) To Piroz, son of (my) sister Meherbanoo Homji Munshi. My remaining punji referred to above includes the sum which stands to my credit in the Imperial Bank (of India).

(2.) After setting out the said clause in which she states that the executors shall give one such equal part to the persons mentioned in the said clause, she sets out Clause 10 of her will as follows: I direct my executors that they shall hand over the share of Piroz, son of my deceased sister Meherbanoo, as stated in the above clause, to his trustees (1) Mr. Nusserwanji Hor musji Sethna, and (2) Dr. Nusserwanji Icchaporia, and they shall make a formal "trust" thereof, so that it may go to the children of the said Piroz. By this clause the testatrix states that the share falling to Piroz, her nephew, shall be handed over by the executors to the trustees of Piroz who are the same trustees as of another deed of settlement by Piroz himself dated December 14, 1931, and such trustees shall make a formal trust thereof so that "it," that is, the share may go to the children of Piroz.

(3.) Pursuant to the directions contained in Clause 10 the executors executed a declaration of trust dated October 23, 1934.