FAKIRJI EDULJI BHARUCHA Vs. BOMANJI MUNCHERSHAW JHAVERI

JUDGEMENT

(1.) This was an originating summons taken out by the plaintiff, who is one of the two exxecutors of a Mr. Framroz Burjorji Spencer, who died on July 30, 1940. Defendant No. 1 is the other of the proving executors who is still alive; defendant No. 2 is the Advocate General, representing charity, and defendants Nos. 3 and 4 are prominent members of a body called " Es ean Community of Vind yu," the name by which, apparently, they know India.

(2.) The deceased gentleman, Mr. Spencer, by his will dated August 7, 1939, revoked all previous wills, appointed certain persons, including the plaintiff and defendant No. 1, executors and trustees, and then devised and bequeathed the whole of his estate to his trustees on trust for conversion into money and payment of his debts and funeral and testamentary expenses. He then provided as follows: My Trustees shall invest the residue of my estate in their names in or upon any of the investments authorised by law in the case of trust moneys and transfer and hand over the same at their absolute discretion to the Teacher or Recorder for the time being or any other responsible office bearer or office bearers of Es ean Community of Vind yu (India) in his or their official capacity as such office-bearer or bearers wherever he or they may be located as my trustees shall decide to be utilised for the purposes of the Esean Community of Vind yu (India) and for promoting and advancing its aims and objects subject to the rules and regulations, if any, for the time being of the said community, and I declare that the receipt of the \ person who professes to be the Teacher or Recorder or any other responsible office bearer of the said Es ean Community of Vind yu (India) shall be a sufficient discharge to my Trustees for such transfer, handing over and payment. The opinion of the majority of my Trustees, shall prevail. It appears that the deceased was a member of this body, calling itself the Es ean Community of Vind yu (India), which consists of members in India, and particularly in Bombay, of a religious body or sect, of whom I must confess I have never heard at all till this case was brought before me. It is necessary to say a word or two about their aims and objects, but before doing so, the question arises whether from this gift one can see, by the form of words he has used, that the testator has created any trust for the preservation of capital and the expenditure of income only. If there is not such a trust, then the gift is an out and out gift and is therefore good, whatever the objects of the Es ean Community are, so long as they are not illegal objects. If, on the other hand, he has created a trust for the preservation, in perpetuity, of the capital of his gift, then the gift cannot be supported unless the Es ean Community of Vind yu (India) is a charitable organisation.

(3.) A peculiar feature of the case, to my mind, is that the society is not given the money into which the trustees are to convert the estate, but, for some reason or other, the estate is to be converted into money, the money to be converted into gilt-edged securities, and the gilt- edged securities, and not the money, are to be given to the society. I can only draw an inference that what the testator hoped was that the trustees would treat the gift as one of capital and would use only the income derived from the gilt-edged securities. But to hope that something will occur is one thing and to impose a trust to that effect is quite a different thing, and I can see nothing in this trust which imposes on the recipients of the gift any legal obligation to preserve the gilt-edged securities in the form of gilt-edged securities. Provided that they spend the money on the aims and objects of the community, the recipients could, in my opinion, perfectly well spend not only the income, but the whole of the corpus at any moment. They might, for example, well desire to expend the corpus on establishing a church or other sacred building, by whatever name called, for the purpose of holding their meetings. Their ability to spend the money, even though they might spend it on the acquisition of some more or less permanent structure, shows, in my opinion, that the gift is not a perpetuity. No more was the case Clarke V/s. Clarke [1901] 2 Ch. 110 where money was given to a non- charitable body, doubtless in the hope that it would be spent on the building of barracks to house the Commissionaires, but equally and clearly with power to spend the money for any other of the corps objects. The Court there pointed out that even if the donor had confined his gift to the acquisition of barracks, that would not be a perpetuity. Reference has been made in this connection to a case, Mallam V/s. McFie (1812) L. J. Ch. 81, 220, where the Court used the) expression " continuing trust" in relation to capital, and it is true that there is, in a sense, here a continuing trust. There is a trust to use the money in promoting and advancing certain aims and objects. But what the Court obviously meant there by a " continuing trust" was a trust only to use the income by way of expenditure and to preserve the capital in perpetuity. In that case in which the testator bequeathed a small sum of money to a laudable but not charitable institution, namely, the Oxford Angling and Preservation Society, with a definite trust that the capital should be preserved and only the income expended, and though learned Counsel for the society ingeniously argued that the society was a charity, because by putting the fish into its own waters for its members to take out it would cause a certain number of fish to wander away to other waters, where the public were entitled to the fish, and therefore it was a benefit to the public in general. This argument did not (if I may use that expression) hold water, and the Court had little difficulty in saying that it was not a charity, and consequently that the gift, was bad.