ABDEALLY HYDERBHAI Vs. ADVOCATE GENERAL OF BOMBAY

JUDGEMENT

(1.) By a deed of trust dated 3-12-1942, the late Mr. Abdeally Hyderbhai, herein after called "the settlor", settled a sum of money on certain charitable trusts, which I need not now go into in detail. By Clause 14 of the deed he provided as follows: It is hereby agreed and declared that it shall be lawful for the said settlor, at any time or times hereafter by any deed or deeds revocable or irrevocable or by will or codicil expressly referring, to this power, wholly or partially to revoke the trusts, powers, and provisions herein declared and contained of and concerning the same and premises hereby settled and the income thereof and to declare such new or other charitable trusts of and concerning the same or any part or parts thereof as he may think fit.

(2.) This is an originating summons by the present trustees of the settlement to determine whether in view of this provision the settlement is void or is valid. The respondents are the Advocate General, representing charity, and, by amendment, the executors of the settlor's will, as it now transpires that he died testate in 1943.

(3.) It is conceded by all parties that if the clause in question amounts to a general power of revocation of the charitable provisions of a deed of wakf, the whole deed becomes void on the principle that what has been dedicated to God cannot be wholly taken away by man. If, on the other hand, it merely empowers the settlor to vary the charitable trusts created by the wakf, I do not know of any authority to show that there is anything wrong about it. On the contrary, it seems to have been assumed in 35 Bom. L.R. 181 that such a limited power of revocation and reappointment for charitable purposes would be valid. The material provision which was considered in that case was almost verbatim the same as the provision which I have to consider, with this important difference that between the words "new or other" and "trusts of and concerning the same" there is in this case inserted the word "charitable" which was conspicuous by its absence in the deed which their Lordships had to consider in Abdul Satar v. Advocate General of Bombay.1