FRAMROZE DADABHOY MADON Vs. TEHMINA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Chagla, dated July 11, 1946, upon an originating summons, raising questions as to the validity of the trusts of a settlement of June 28, 1938, made by Bai Tehmina, who is one of the respondents in this Court. By the settlement Bai Tehmina settled a sum of Rs. 47,000, representing the proceeds of sale of diverse investments, made on her behalf by her father, Dadabhoy Sorabji Madon, upon trusts in favour of herself, for life, and after her decease and subject to a power of appointment, exercisable by will or codicil only, amongst her issue born during her lifetime; in trust for all her children who being sons, "shall attain the age of 18 or being daughters shall attain that age or marry under that age in equal shares." In default of issue there is a general power of appointment with regard to part only of the trust funds to be exercised by will or codicil, and, "subject to the foregoing trusts and powers", the trustees are to hold the trust funds in trust for the said Dadabhoy Sorabji Madon, his heirs, executors and assigns.

(2.) These apparently simple arrangements, in favour of the issue of Bai Tehmina, have been held by the learned Judge to be void by reason of Section 13 of the Transfer of Property Act, 1882, as have also the subsequent trusts, with the result that a declaration has been made that there is a resulting trust of the settled funds in favour of the settlor.

(3.) In coming to that conclusion the learned Judge held that the case of Sopher v. Administrator General, Bengal , which is a decision of the Privy Council upon the trusts of a will, declared to be void under Section 113 of the Indian Succession Act, 1925, applied, and he followed a decision of Mr. Justice Blagden in the case of Ardeshir Baria V/s. Dadabhoy Baria (1944) 47 Bom. L.R. 287, who also applied Sopher's case to the trusts of a settlement.