BAI MOTIVAHOO Vs. BAI MAMOOBAI

JUDGEMENT

(1.) THE question in this appeal arises in a suit brought by the respondent Mamoobai against the appellant and Dossa Moorarji and Khimji Lukhmidas, the other respondent, for the administration of the estate of Jaitha Ludhani, a Hindu merchant of Bombay, and for the construction of his will. He died in November, 1869; the will is dated October 18, 1869, and by it the defendants are appointed his executors and executrix. Having in the previous clauses directed Rs.35,000 to be expended on his funeral ceremonies, and given various legacies, the testator in the seventh and eighth Clauses says: 7. Agreeably to what is written above the whole of the money which I have resolved to be paid or expended on account of the 'legacies' and for the expenses of my funeral ceremonies for twelve months and on account of the Sadavarat (a religious institution) and for other Dharam (religious or charitable) purposes according to the above particulars is to be paid out of my funds in ready cash but whatever my (landed) 'estate' that is immovable property there is, is not to be touched by my vakils (executor or representative) or vakilatan (executrix or representative) for these purposes, but after my death shall have taken place a 'trust deed' is to be made as soon as practicable of my garden dwelling-house, rope-walk warehouses (or godowns) houses stables lands and whatever other immovable property that is (landed) 'estate' there is belonging to me in the island of Bombay and the whole is to be invested in a 'trust.' As to the 'trustees' thereof my two vakils and vakilatan and in conjunction with them my friend Set Thakar Khatow Makonji four persons jointly are duly to become ' trustees,' and these 'trustees,' four in number, are to collect the income of the whole property and, after deducting therefrom the expenses connected therewith, money is to be paid out of the net income, whatever it may amount to, for the personal expenses of my wife Motivow and my daughter Mamoo, and for the children of my daughter Mamoo after her death, agreeably to the fourteenth and fifteenth Clauses of this 'will,' and after paying the same whatever income may remain is to be used for the purposes of my wife Motivow and my daughter Mamoo and her children in such manner as my 'trustees' think proper. 8. In the seventh Clause mentioned above it is resolved to invest the whole of my immovable property in 'trust' and to collect the income thereof but the ' trustees' are not to demand any rent for the place out of my property which may be used as a residence for my family and should any of the 'trustees' depart this life the surviving 'trustees' are to appoint another 'trustee,' and after the death of my daughter Mamoo should there be any children born of the womb of my daughter the 'trust' is to stand valid during the lifetime of such children. Afterwards the heirs of the said children are duly to apportion and receive this property. But should there be no children born of the womb of my daughter Mamoo, then after the death of Mamoo and of my wife Motivow, this 'trust' is to become void, and this property is to be delivered to such persons as my daughter Mamoo may direct it to be delivered by making her will.

(2.) THE eighteenth Clause relates to the movable property. After providing for the birth of a son or daughter of Mamoo it says: According to these particulars (and) agreeably to what is written above, my property is to be apportioned and distributed ; and should no child be born of the womb of my daughter Mamoo (which may God forbid), in that event, on the death of my wife Motivow and of my daughter Bai Mamoo taking place, my movable property is to be expended on such good dharam (religious or charitable works) in my name as may continue as long as the moon lasts ; and should it appear that any one would prevent this property from being given away for dharam (religious or charitable purposes) by reason of the rules of the Sarkar, the same is to be given to such person as my daughter Mamoo may direct it to be given by making her will.

(3.) AFTER a reference to the Commissioner of the Court to take accounts and make inquiries, and his making his certificate and report, the suit was heard on the original side of the High Court by Farran J., who, on December 19, 1891, made a decree declaring among other matters "that the gift contained in paragraph 8 of the said will to such person as the plaintiff Mamoobai may direct by her will is valid, but this Court cannot and doth not determine upon whom the property referred to in the said eighth Clause will devolve in case the plaintiff Mamoobai shall die without making or leaving a will." In his judgment the learned judge says that to all intents and purposes there was an absolute gift to Mamoobai; that the persons to whom the property was given took it from her and not from the testator, that Mamoo became the owner. He refers to Theobald on Wills, p. 352, and says that Robinson v. Dusgate 2 Vern. 180. and Hixon v. Oliver 13 Ves. 108. were cases very like the present. Their Lordships are unable to agree with the learned judge in holding that there was an absolute gift. The case in Vernon has been questioned by a great authority. (Sugden on Powers, 8th ed. p. 109, referring in a note to Buckland v. Barton (1793) 2 H. Bl. 136. and In re Mortlock's Trust.(1857) 3 K and J. 456. And in Hixon v. Oliver 13 Ves. 108. the gift was to the testator's wife, "to be disposed of as she thinks proper to be paid after her death." It was not a power, but a disposition vesting the whole interest in the legatee but deferring the payment, and is distinguishable from the present case. Further, it is to be observed that the declaration in the decree is not consistent with the judgment, which seems to require a declaration that Mamoo was absolutely entitled. Motivahoo appealed against the decree, and the appeal was heard before Sir Charles Sargent C.J. and Bayley J., who, on March 15, 1895, ordered the decree to be amended by inserting the words "in existence at the date of the death of the said testator" in two Clauses of the decree after the words "in paragraph 8 of the said will to such person," and confirmed the decree so amended. Their Lordships have not before them the reasons of the learned judges for making this amendment. It is obviously made for the purpose of limiting the exercise of the power; but it is open to the objection that it inserts in the power words which are not in the will. Their Lordships propose to make a verbal variation in this part of the decree.