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Harilal Chhaganlal Desai Vs. Bai Manjoola - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1517 of 1934 (O.S.)
Judge
Reported inAIR1936Bom13; (1935)37BOMLR901
AppellantHarilal Chhaganlal Desai
RespondentBai Manjoola
DispositionApplication allowed
Excerpt:
.....of the will to objects that are necessarily 'charitable,'in the technical sense of that term ? the word 'philanthropic' by itself is undoubtedly too wide, and to render the gift good one must hold that every object of the gift should, in addition to the qualification of being 'philanthropic,'have the further qualification of being either 'religious' or 'charitable' or both. i do not see why i should treat the word 'tatha 'in clause 10 as meaning 'as well as 'rather than 'and 'and even if i were prepared to read clause 8 of the will as if the word there used were 'and 'and not 'or',i should take a similar view of the words in question to that taken by mr. vakeel also referred me, but which i do not think it necessary to mention, i am also of opinion that the bequest being a bequest for..........of the will to objects that are necessarily ' charitable,' in the technical sense of that term the word ' philanthropic' by itself is undoubtedly too wide, and to render the gift good one must hold that every object of the gift should, in addition to the qualification of being ' philanthropic,' have the further qualification of being either ' religious' or ' charitable' or both. now it is plainly inadmissible to read the words as requiring one only of these two further characteristics, that is as denoting objects which, in addition to being philanthropic, are also either religious or charitable. and the only possible constructions are therefore two, the first being one on which all the objects are to be both religious and charitable and philanthropic ; and the second being one on which.....
Judgment:

Blackwell, J.

1. This is an originating summons raising questions of construction under the will dated August 21, 1931, of one Jamnadas Chhaganlal, a Hindu, who died at Kapadvanj on or about March 19, 1932. The plaintiffs are the surviving executors. The deceased left a widow Bai Chanchal, who was also appointed an executrix, but who died at Kapadvanj on or about February 11, 1933. Bai Chanchal left two daughters Bai Manjula and Bai Kamla, defendants Nos. 1 and 2, who were both born during the lifetime of the testator. Defendant No. 1, Bai Manjula, has two sons,--defendant No. 3, who was born during the lifetime of the testator and who is now about seven years of age, and defendant No. 4, who was born after the death of the testator and is now about one and a half years of age.

2. Question 9 arises in connection with clause 8 of the will which is in the following terms :-

8. After payments are made to Behens Manjula and Kamlavati as (stated) above, as to the one-fourth or one-half share which may remain, my executors shall deposit the same at interest and utilize the interest for religious, educational or philanthropic: purposes after me (for the benefit of my soul).

The question asks whether the provision in that clause as regards one-fourth or one-half shares in the rents and corpus of the Khetwadi houses for religious, educational or philanthropic purposes is valid and binding in law. The Advocate General, who appears for defendant No. 5, namely, the Advocate General of Bombay, submits that this provision is valid and binding. Although the word ' or ' is used in clause 8 of the will, he asks me also to look at clause 10 which contains similar provisions to be applied if the houses are sold, the material words there used being ' for religious, educational and philanthropic purposes.' He submits that although the word used in clause 8 is ' or ', I ought to treat it as if it were ' and ', that being the word used in clause 10. As regards the word ' and ' in clause 10, he points out that the Gujarati word is ' tatha ', and that that is defined in Mehta and Mehta's Dictionary at page 716 as ' and, also, as well as ' when that word is used as a conjunction, and he invites me to treat the word which has been translated ' and ' in clause 10 as meaning ' as well as ', and to substitute in clause 8 for the word ' or ', which the testator used, the words ' as well as '. Mr. Vakeel, on the other hand, deprecates my altering the word ' or ' either to ' and ' or to ' as well as '. He points out that clause 8 is the first clause, and he submits that it is the dominating clause and that I ought to construe it as it stands.

3. In this connection, the learned Advocate General has referred me to Eades, In re : Eades v. Eades. [1920] 2 Ch. 353 There the words to be construed were ' such religious, charitable and philanthropic objects as three named persons should jointly appoint.' Mr. Justice Sargant in the course of his judgment in that case said (p. 356):-

But is this gift confined by the language of the will to objects that are necessarily ' charitable,' in the technical sense of that term The word ' philanthropic' by itself is undoubtedly too wide, and to render the gift good one must hold that every object of the gift should, in addition to the qualification of being ' philanthropic,' have the further qualification of being either ' religious' or ' charitable' or both. Now it is plainly inadmissible to read the words as requiring one only of these two further characteristics, that is as denoting objects which, in addition to being philanthropic, are also either religious or charitable. And the only possible constructions are therefore two, the first being one on which all the objects are to be both religious and charitable and philanthropic ; and the second being one on which religious objects, and charitable objects and philanthropic objects are within the area of selection-but it is not necessary that any single object should have more than one of these three characteristics.

He held that the three epithets there used were epithets creating conjunctive or cumulative classes of objects, and not epithets creating conjunctive or cumulative qualifications for each object. I do not see why I should treat the word ' tatha ' in clause 10 as meaning ' as well as ' rather than ' and ' ; and even if I were prepared to read clause 8 of the will as if the word there used were ' and ' and not ' or', I should take a similar view of the words in question to that taken by Mr. Justice Sargant in the case to which I have just referred, namely, that they create conjunctive or cumulative classes of objects, and not conjunctive or cumulative qualifications for each object. I do not, however, think that I can read the word ' or ' in clause 8 of the will as if it had some other meaning ; and if I am not prepared to do so, I must hold that the bequest is invalid.

4. Mr, Vakeel drew my attention to Runchordas v. Parvatibai I.L.R. (1899) 23 Bom. 725 : 1 Bom. L.R. 607 where the Privy Council agreeing with the decision of the Court of first instance and the Appeal Court in Bombay held that a bequest by a Hindu testator of move-able and immoveable property to trustees for dharam (that is, for religious purposes) was void upon the ground that the objects which could be considered to be meant, by that word were too vague and uncertain for the administration of them to be under any control. Having regard to that decision, and other decisions of the Courts in India to which Mr. Vakeel also referred me, but which I do not think it necessary to mention, I am also of opinion that the bequest being a bequest for religious, among other, purposes, is bad. Consequently, I answer question 9 by saying that the provision in clause 8 of the will referred to in the question is invalid.

5. As regards costs, a point arose as to whether the costs of the Advocate General could properly be ordered to be paid as between attorney and client in a case like the present, where he appears to support a bequest under a will in favour of charity. He informs me that it has been the practice to allow costs as between attorney and client to the Advocate General in such cases in the past, and he has referred me to a decision of Mr. Justice Mirza in Chinu-bhai v. Bai Maneckbai : (1932)34BOMLR609 where such an order was made. He has also drawn my attention to a note in the English Annual Practice to Order LXV, Rule 1, in the 1935 Edition, at page 1417, where it is stated that :

In proceedings for ascertaining the construction of a testator's will in reference to charitable legacies the Attorney General is entitled to his costs as between solicitor and client out of the fund (the charitable legacies) (Cardwell, In re : Attorney General v. Day. [1912] 1 Ch. 779).

I am therefore of opinion that the practice hitherto existing is correct, and I direct that the costs of the Advocate General should come out of the estate as between attorney and client. I make a similar direction in regard to the costs of the plaintiffs and of defendants Nos. 1 to 4. As regards the costs of the plaintiffs, they have appeared by two counsel, but Mr. Munshi very properly, if I may say so, informs me that he does not ask that the costs of two counsel should be allowed. I, therefore, direct that the costs of one counsel only for the plaintiffs should be allowed.


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