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The Advocate General of Bombay Vs. Fardoonji Ardeshir Cursetji Fardoonji - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 882 of 1908
Judge
Reported in(1911)13BOMLR332
AppellantThe Advocate General of Bombay
RespondentFardoonji Ardeshir Cursetji Fardoonji
Excerpt:
.....and to ask the court to apply them cy pres to some other and more useful charity:--;that the bequests in question were valid public charitable bequests, and were capable of being carried out.; in cases of charitable bequests, the court has no right to get aside the wishes of the testator and substitute another charity in the place of one directed to be established by him, simply because the one might not be so useful as some other that the court might substitute. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel..........delay. no finding is necessary on the fifth issue.9. the next question to consider is, whether the trustee-defendants are bound to account for their management and whether this suit should be referred to the commissioner for the purpose of taking accounts of their management of the trust estate. the advocate general has led some evidence of a very loose and unsatisfactory character for the purpose of supporting his contention that the trustees should be ordered to account for their management. both the trustees are men occupying respectable position in life, one of them being an old and a trusted attorney of this court. mr. inveracity asked me specifically to take a note that his client, the advocate general, did not charge the trustees with mis-appropriation of trust funds. all he said.....
Judgment:

Davar, J.

1. In this case I find that I have set out the facts and the previous history of it in sufficient detail in the judgment which I delivered on the 27th of September 1910 on an interlocutory application to set aside the preliminary consent decree of the 16th of July 1910 by a notice of motion. It is, therefore, unnecessary to recapitulate the same here.

2. Three days after my judgment, a memorandum of review was presented to me and I excused delay and granted a rule which was argued before me on the 10th of October. On the Advocate General not objecting by his counsel to the order of the Court excusing delay and admitting the review, I made the rule absolute, set aside the consent decretal order of the 16th of July, and ordered the suit to be heard de novo on its merits. In my previous judgment I have given the reasons why I was prepared to set aside the consent decree on an application in proper form being made to me.

3. The two main questions argued before me are, whether the bequest of Rs. 7500 for the distribution of tramdees to the members of the testator's caste and Saraswat Brahmins in Bombay and the bequest to present tras and sugar-candy amongst the testator's caste and Saraswat Brahmins in 1440 villages in Cutch are valid charitable bequests, and whether it is practicable to carry out the same. I feel no difficulty in holding that these bequests are valid charitable bequests.

4. In Attorney General v Pearce (1740) 2 Atk. 87, the Lord Chancellor, referring to certain bequests, says, 'In the extensiveness of the benefit accruing from them, they may very properly be called public charities.' This ancient case is referred to and followed by Mr. Justice Scott in Thakersey Dewraj v. Hurbhum Nursey ILR (1883) 8 Bom, 432.

5. The distribution of tramdees is to be amongst the whole of the Cutchi Lohanas and Saraswat Brahmins of Bombay and the distribution of tras and sugar-candy is to be amongst the whole of the Cutchi Lohanas and Saraswat Brahmins of Cutch. The evidence before me proves that the number entitled to the benefit of the tramdee bequest, taking one tramdee for each family, would be anything between Rs. 2500 to Rs. 3500, and the number of families entitled to claim a tras and sugar-candy under the latter bequest would be somewhere about 12,000. Under the circumstances I have no hesitation in holding that the two bequests under consideration are public charitable bequests, and there is nothing urged before me to induce me to hold that they are not perfectly valid ones. The learned counsel who appeared for the Advocate General contended that it was not practicable to carry out these bequests and asked the Court to divert them and apply them cy pres to some other and more useful charity.

6. Since I discussed the question of the application of cy pres doctrine in In re Warden Charities ILR (1907) 32 Bom. 214, the Appeal Court in England has discussed the same subject very elaborately in In re Weir Hospital [1910] 2 Ch. 124, and I find that the principles on which the Courts should act have been re-affirmed and stated again with great clearness.

7. In cases of charitable bequests, the Court has no right to set aside the wishes of the testator and substitute another charity in the place of one directed to be established by him, simply because the one might not be so useful as some other that the Court might substitute. This question is settled so definitely, and the principles are laid down with such clearness that I think it is unnecessary to enter into a further legal discussion of the subject. Far from these two charities being impracticable of being carried out, the trustees had made all preparation to comply with the testator's directions under orders from the then Advocate General, Mr. Basil Scott, given so far back as November 1907, and 3,000 tramdees and 10,000 tras are already manufactured and ready for distribution. There is absolutely no difficulty whatever in putting the testator's wishes into execution and carrying out his directions, and no scheme whatever is necessary for the carrying out of these two bequests anyhow.

8. I find the first four issues in the affirmative, and I direct the first two defendants to carry out the two bequests without any further delay. No finding is necessary on the fifth issue.

9. The next question to consider is, whether the trustee-defendants are bound to account for their management and whether this suit should be referred to the Commissioner for the purpose of taking accounts of their management of the trust estate. The Advocate General has led some evidence of a very loose and unsatisfactory character for the purpose of supporting his contention that the trustees should be ordered to account for their management. Both the trustees are men occupying respectable position in life, one of them being an old and a trusted attorney of this Court. Mr. Inveracity asked me specifically to take a note that his client, the Advocate General, did not charge the trustees with mis-appropriation of trust funds. All he said was that there were certain items of expenditure incurred by the trustees which required explanation and that some of the items of expenditure appeared to be unauthorized. Mr. Bahadurji for the trustee-defendants has expressed his willingness to render all accounts of his clients' management of the trust properties. Mr. Jinnah for defendants 3 and 4 pressed me not to put the trust fund to the expenses of having a prolonged and unnecessary investigation before the Commissioner. The learned Counsel for the Advocate General, however, has insisted on his right to have the accounts taken, and he has assured me that the Advocate General will see that in the taking of accounts no unnecessary or harassing proceedings will be adopted on his behalf. I have every reason to believe that this assurance will be carried out and that the proceedings will not be prolonged if the Advocate General is satisfied on an examination of the accounts that there has been no real misuse of the trust funds. As this case has to go to the Commissioner also on other points, it is, I think, desirable that the Advocate General's wishes should be complied with and the trustee-defendants directed to account for their management of the trust properties. The added defendants may or may not appear before the Commissioner on the taking of accounts. They must decide that for themselves. If I find that they adopt a troublesome or vexatious attitude before the Commissioner, I shall certainly take that into consideration when dealing with the question of costs of this suit. The Commissioner in taking accounts will have to ascertain what is the residue of the property available for the other charities mentioned in the will. I find issue 8 in the affirmative.

10. The question as to whether the Sadavarat is carried on by the defendant-trustees in conformity with the directions contained in the will or not and what is the amount necessary for carrying out that Sadavaral will also be referred to the Commissioner; and I will defer my finding on issue No. 6 as to whether a scheme for this and other charities mentioned in the will should be framed by the Court or not till after the report of the Commissioner is received by the Court.

11. The consideration of the question involved in issue No. 7, as to whether the residue of the testators estate is validly devoted to charities, will also stand over till the report is made and the Court is in a position to know what is the residue available for the purposes of the other charities.

12. The last question for consideration is the appointment of new trustees. No doubt the trustee-defendants were bound to appoint new trustees in the place of Mulji Vussonji who died in 1897 and Sakerbai who died in 1903. Their delay in doing so up to now is reprehensible, but I do not think that that alone is sufficient to deprive them of the right which is conferred on them to nominate their co-trustees. They propose to appoint Sunderji Mulji and Devkaran Parpia. As I know nothing about them, I think it is necessary that the Commissioner should investigate and ascertain whether they are fit and proper persons to be appointed trustees, and, if there is nothing objectionable, I will appoint them.

13. The plaint asks for the sale of the Bazaar Gate Street property. Nothing has been proved before me to induce me to interfere with the trustee-defendants' discretion and direct the sale of this property, and I make no order in respect of that property.

14. Decree of the Court will be, decree declaring that the be quests for the distribution of tramdees, tras, and sugar-candy are valid public charitable bequests, that they are capable of being carried out, and directing the trustee-defendants to carry them out forthwith.

15. The suit will be referred to the Commissioner to take an ordinary account of the first two defendants' management of the trust properties from the date of their appointment, and to ascertain and report what is the residue available for the purposes of the other charities in the will mentioned. The Commissioner will also ascertain and report whether the Sedavarat at Walkeshwar, established by the will of the testator, has been carried out by the trustee-defendants in conformity with the directions of the testator given in his will. He will also ascertain and report what is the sum sufficient to carry on the Sadavarat in the manner directed by the will. The Commissioner will further enquire whether Sunderji Mulji and Devkaran Parpia are fit and proper persons for being appointed trustees under the will of Parpia Pradhan. If he finds that they are not, he is to ascertain and report the names of two other fit and proper persons to act as trustees, such persons to be members of the Cutchi Lohana caste or of the Saraswat Brahmin community.

16. Further hearing to stand adjourned till the receipt of the Commissioner's report, and further directions are reserved.

17. Costs of all parties up to date including all costs reserved, if any, to be paid out of the trust funds, those of the plaintiff, the Advocate General, and of the first two defendants who are trustees, to be taxed as between attorney and client.


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