KHORSHED MANECK Vs. OFFICIAL TRUSTEE

JUDGEMENT

(1.) This appeal raises a very short question of construction of a clause in the will of one Jahangir Dinshaw Katelee. Katelee died on December 21, 1937, having prior thereto made a will dated December 18, 1933. He subsequently made a codicil on July 26, 1935, a second codicil on November 1, 1935, and a third codicil on February 7, 1936. The testator left no issue, and in his will and codicil the objects of his bounty were his nieces and other relations. The only question we are concerned with in this originating summons is Clause 11 of the first codicil and Clause 18 of the will which gives certain interest to Tehemina, one of his nieces and after her to her issue. Tehemina herself died on October 9, 1945. She had one son who predeccased her and died on November 9, 1944. She left three daughters surviving, the plaintiff and respondents Nos. 2 and 3. Respondent No. 4 is the husband of Tehemina and respondent No. 1 is the Official Trustee.

(2.) Clause 11 of the codicil provides that a certain amount is to be given to Tehemina for life and after her and subject to the trust in her favour in trust for her issue, if more than one, as tenants in common in equal shares per stirpes but so that no issue remoter than a child of the said Tehemina shall be deemed to be an object of the trust unless the parent of such issue shall have predeccased it. Then we come to cl, 18 of the will which is in the nature of a defeasance clause and that provides and I shall only deal with that part which is material for this originating summons that if any person who is entitled to any benefit under the will of the testator should marry a non-Parsi or a person not professing the Zoroastrian faith, then the interest going to that person shall be deemed to have lapsed and shall go over to the person or persons who shall be entitled thereto as if such person had died before the testator.

(3.) Two of the daughters respondents Nos. 2 and 3 in fact married non-Zoroastrians, one in October, 1939, and the other in August, 1942. Therefore, when Teheran died on October 9, 1945, the question arose as to who were the persons who were entitled as legatees to that part of the testator's estate which was given to Tehemina for life, it being contended that under Clause 18 and under the defeasance clause, both these daughters cased to have any interest and that interest went over to those persons who would have been entitled to it as if these two daughters did not exist. In other words, only the two children of Teheran, one Godrej who had predeccased her and the plaintiff the third daughter who was not affected by the defeasance clause became entitled to the share given to Tehemina and the plaintiff and defendant No. 4, who represent the share of Godrej, claim the life interest given to Tehemina in equal shares. That is the only question that is raised in this originating summons.