JAMSHED K TARACHAND Vs. SOONABAI

JUDGEMENT

(1.) Dinbai, widow of Jehangir Cursetji Likimna, otherwise known as Tarachund. a member of the Pavsi community of Bombay, on the 21 of December 1871 executed an Indenture of Trust whereby she appointed her two sons Kharsetji and Merwanji and her son-in-law Sorabji Hormusji Bottlewalla Trustees and conveyed to them certain immoveable and movable property belonging to herself upon Trusts which are therein set out. All the three original Trustees are dead. The first defendant is the widow, and executrix of the will, of Merwanji one of the original Trustees. The plaintiff is the son and administrator with the Will annexed of the property and credits of his late father Kharsetji who was another original Trustee. Defendants Nos. 10 and 11 are the surviving executors of the will of Sorabji Hormusji Bottlewalla the third Trustee under the Settlement made by Dinbai.

(2.) The portion of the Trusts created by Dinbai with which the Court is concerned in this case is in the following terms:- In trust to receive the interest and income thereof and to pay to the said Bai Dinbai during her lifetime and after her death upon trust to purchase or sot apart out of the said Trust Funds Promissory Notes of the Government of India for the sum of Rs. Fifteen Thousand bearing interest at the rate of four per centum per annum and to pay the annual income thereof to each of them the said Kharsetji Jehangir Tarachund, Sorabji Hormusji Bottlewalla and Merwaji Jehangir Tarachund and after the death of any of them to his or their Executors or Administrators alternately in regular rotation every third year in the order named above to enable him or them to defray the expenses of annual Muktad ceremonies of the dead members of the family in both sects of Shenshai and Cudmees.

(3.) Dinbai died on the 6 of March 1889. Previous to her death she executed a will bearing date the 15 of July 1886, By the said will she directed that certain silver utensils which were in her possession and which are used in the performance of the Muktad ceremonies should be kept in trust by her executors and each of the Trustees of the Settlement of 1871 were to be allowed to use the same for the purposes of the Muktad ceremonies. The Executors of the will were the same as the Trustees under the Trust Settlement of 1871. Kharsetji predeceased Dinbai. Sorabji died on the 31 of August 1902. The third Trustee Merwanji died on the 15th of March 1905. After Dinbai's death the Trusts in respect of the Muktad ceremonies were carried out up till the death of Merwanji in 1905. The first defendant is in possession of the Government Paper of the nominal value of Rs. 15,000 mentioned in the Trust deed of 1871 and the silver utensils mentioned in the will of Dinbai. The Muktad ceremonies were admittedly not performed in the year 1906. The plaintiff filed the suit and obtained an originating summons for the purpose of having certain questions arising under the Trust Deed settled by the Court. The first of these questions is:- Whether the Trusts declared in respect of the Government Promissory notes for Rs. 15.000 mentioned in the plaint are valid.