MANUEL LOUIS KUNHA Vs. JUANA COELHO; MANUEL SOUZA

JUDGEMENT

(1.) This is an appeal from the judgment of the District Judge of South Canara dismissing the appellant's petition for grant of letters of administration of the estate of Revd. A.J. Coelho, a Roman Catholic priest, with the will annexed by which the petitioner was made residuary legatee. A caveat was put in by one of the next-of-kin alleging in effect that the testator had bequeathed the estate to the petitioner subject to certain instructions as to how the property should be disposed of and that the petitioner had fraudulently suppressed the private instructions left by the testator in order to claim the estate for himself. The second issue raised was, whether the bequest was really intended for religious and charitable purposes and the fourth, whether the will had become uncertain and incapable of execution by reason of the plaintiff having suppressed the private instructions, if any, given him by the testator. The fifth issue was, whether the will had become null and void on the above grounds and the sixth to what relief is the plaintiff entitled. On these issues the District Judge has found that the will did not really express the intentions of the testator as the plaintiff undertook to dispose of the property in other ways explained to him by the testator. This finding is contested in appeal, but is, in my opinion, borne out by the evidence. The plaintiff was the only witness on his own side and his evidence is unsatisfactory and in some important matters is at variance with the evidence previously given by him in a suit relating to the same matter. On the other hand I see no reason for refusing to accept the evidence given by the two witnesses for the defence, the Revd. M.P. Collaco, another priest, and S.B. Mascarenhas who is translator to the District Court and had been educated and started in life by the deceased. According to the last witness the decision of the testator to leave his money to some one with private instructions as to how it was to be disposed of was arrived at after the decision of the High Court against the legality of bequests for Masses. This was Colgan V/s. Administrator-General of Madras (1892) I.L.R. 15 M. 424, decided in March 1892. The will in the plaintiff's favour is dated the 8 October 1894 and the testator died on the 7 February 1901. The petition for letters of administration which has become the plaint in this suit was not filed until the n October, 1904 after a suit had been filed against the plaintiff to compel him to give effect to the alleged secret trusts of the will Although the defence evidence points to the plaintiff having been informed from the first of the intention of the testator in making this will in his favour, yet there is no direct evidence that he was so informed. But assuming that he was not so informed at the time when the will was executed, there is evidence that he was informed subsequently during the lifetime of the testator and that his conduct was such as to lead the testator to believe that he was prepared to carry out the instructions communicated to him by the testator. The Revd. M.P. Collaco who attested the will states that he was aware from the first of the testator's intention that, the property should be disposed of according to his instructions, and that in August 1895 when the testator was ill the plaintiff told the witness that the instructions had not been completed - this shows that he was then aware of the testator's intentions - and that the witness in the plaintiff's presence took certain instructions and made a memorandum of them in his note-book, Exhibit II, but did nothing further as Mascarenhas, the defence second witness, arrived and the matter was left in his hands. Mascarenhas says that he spoke to the plaintiff about these instructions, that subsequently at the testator's request he took down his instructions in Canarese and communicated them to the plaintiff who was put in possession of the written instructions.

(2.) In this state of the evidence the rule of English Law is clear. To borrow the language of Lord Westbury in McCormic V/s. Grogan (1869) 4 E. & I.A. p. 82 at 97: "If an individual on his death-bed, or at any other time, is persuaded by his heir-at-law, or his next-of-kin, to abstain from making a will, or if the same individual, having made a will, communicates the disposition to the person on the face of the will benefitted by that disposition, but at the same time says to that individual that he has a purpose to answer which he has not expressed in the will, but which he relies on the disponee to carry into effect and the disponee assents to it either expressly or by any mode of action which the disponee knows must give the testator the impression and belief that he fully assents to the request, then undoubtedly the heir-at- law in the one case and the disponee in the other will be converted into trustees simply on the ground that an individual shall not be benefited by his own personal fraud." As explained in the same judgment a Court of Equity in order to prevent the Statute of Wills from being made an instrument of fraud does not indeed set aside the statute bit fastens on the individual who gets a title under it and imposes on him a personal obligation because he is seeking to apply the statute as an instrument for accomplishing a fraud. The important question we have to decide is whether this rule of equity is applicable in India. There is no direct authority, and in the only case in which it was raised so far as I know, Kali Charan Ghosal V/s. Ramchendra Mandal (1903) I.L.R. 30 C. 783, it was unnecessary to decide it. It has been contended for the appellant that it is not applicable, and the decisions in Balkishen Das V/s. W.F. Legge (1899) I.L.R. 22 A. 149; (P.C.) and in Kurri Veerareddi V/s. Kurri Bapireddi (1906) I.L.R. 29 M. 336 (F.B.) have been relied on. In the former of these cases it was held by the Privy Council that oral evidence was inadmissible to show that the parties to a deed of sale really intended to create a mortgage, as the case must be governed by Section 92 of the Indian Evidence Act and not by the cases decided by the Courts of Equity in England which have no application to the law of India as laid down in Acts of the Indian Legislature. The law of trusts in India is regulated by the provisions of the Indian Trusts Act, 1882, and the case now before us must, no doubt, be determined with reference to the provisions of that enactment. On behalf of the respondents who are the next-of-kin it has been argued that the provisions of Section 81 apply. That section provides that when the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest, the legatee must hold the property for the benefit of the legal representative of the testator. If this section applied, the Indian legislature would have departed by the English rules of equity and created a resulting trust in the circumstances of the present case instead of enforcing the trusts accepted by the legatee in so far as they are for lawful purposes on the principles explained by Lord Westbury in the passage above cited and in numerous other cases. I am, however, of opinion that the present case does not come within the provisions of Section 81, and, on the other hand, I think that elsewhere in the Act we have statutory authority for applying the principles laid down in the English cases Section 5 which provides that no trust is valid unless declared in the manner therein provided is subject to the proviso that the rules therein contained do not apply where they would operate so as to effectuate a fraud. This is exactly the principle upon which the English cases have been decided and warrants the Courts in this country in imposing upon an heir or a beneficiary under a will who has induced the deceased not to make a will or not to revoke a will already made by assurances that he would carry out the instructions given him in trust for the carrying out of such instructions. Otherwise the provisions of Section 5 would operate so as to effectuate a fraud That this was intended to be the effect of the proviso is further shown by the fact that in Chapter IX the Act provides for the case in which instructions accepted by the legatee are unlawful and therefore cannot be enforced, but it would be inequitable to allow the legatee to enjoy the beneficial interest by creating in such case a resulting trust in favour of the testator's legal representative. See Section 85 which provides that where during the testator's life-time the legatee agrees with him to apply the property for an unlawful purpose the legatee must hold the property for the benefit of the testator's legal representative. The section also provides that where property is bequeathed and the revocation of the bequest is prevented by coercion, the legatee must hold the property for the benefit of the testator's legal representative.

(3.) It is, in my opinion, obvious that the case of the legatee pre, venting revocation by undertaking to carry out the lawful instructions of the testator was considered by the framers of the Act to have been dealt with elsewhere in the Act, that is to say, under the proviso to S5 which permits of such instructions being enforced as a trust, and as a further application of the same principles I should say that if the testator failed to give any instructions or such instructions could not be ascertained, the beneficiary would be compelled to hold for the benefit of his legal representatives. I may say further that if cases such as the present come within the proviso to Section 5 which embodies the English equitable rule, it follows that they cannot come within Section 81, and even if there were no such proviso, I do not think the language of Section 81 would cover them.