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Fakirji Edulji Bharucha Vs. Bomanji Munchershaw Jhaveri - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 611 of 1945
Judge
Reported inAIR1946Bom495; (1946)48BOMLR323
AppellantFakirji Edulji Bharucha
RespondentBomanji Munchershaw Jhaveri
Excerpt:
.....be briefly described as the society for the propagation of atheism is good, i cannot see why the gift to this society is not a good charitable gift. ' 7. the book was copy-righted in 1882, and as far as i can gather, was compiled in america in the course of the last century by somebody who was, i should think, almost certainly a christian by upbringing, because there is strong internal evidence that he has modelled his work upon the christian bible; and who was, i should have said, equally obviously, a lunatic-probably a perfectly harmless one. though it is quite inconsistent with any other religion known of in its doctrines, the ethical teaching of this fanatistic creed seems to be perfectly consistent with good morals as conceived by all decent creeds and philosophies. in these..........of my estate in their names in or upon any of the investments authorised by law in the case of trust moneys and transfer and hand over the same at their absolute discretion to the teacher or recorder for the time being or any other responsible office bearer or office bearers of es'ean community of vind'yu (india) in his or their official capacity as such office-bearer or bearers wherever he or they may be located as my trustees shall decide to be utilised for the purposes of the esean community of vind'yu (india) and for promoting and advancing its aims and objects subject to the rules and regulations, if any, for the time being of the said community, and i declare that the receipt of the person who professes to be the teacher or recorder or any other responsible office bearer of the.....
Judgment:

Blagden, J.

1. This was an originating summons taken out by the plaintiff, who is one of the two exxecutors of a Mr. Framroz Burjorji Spencer, who died on July 30, 1940. Defendant No. 1 is the other of the proving executors who is still alive; defendant No. 2 is the Advocate General, representing charity, and defendants Nos. 3 and 4 are prominent members of a body called ' Es'ean Community of Vind'yu,' the name by which, apparently, they know India.

2. The deceased gentleman, Mr. Spencer, by his will dated August 7, 1939, revoked all previous wills, appointed certain persons, including the plaintiff and defendant No. 1, executors and trustees, and then devised and bequeathed the whole of his estate to his trustees on trust for conversion into money and payment of his debts and funeral and testamentary expenses. He then provided as follows:

My Trustees shall invest the residue of my estate in their names in or upon any of the investments authorised by law in the case of trust moneys and transfer and hand over the same at their absolute discretion to the Teacher or Recorder for the time being or any other responsible office bearer or office bearers of Es'ean Community of Vind'yu (India) in his or their official capacity as such office-bearer or bearers wherever he or they may be located as my trustees shall decide to be utilised for the purposes of the Esean Community of Vind'yu (India) and for promoting and advancing its aims and objects subject to the rules and regulations, if any, for the time being of the said community, and I declare that the receipt of the person who professes to be the Teacher or Recorder or any other responsible office bearer of the said Es'ean Community of Vind'yu (India) shall be a sufficient discharge to my Trustees for such transfer, handing over and payment. The opinion of the majority of my Trustees, shall prevail.

It appears that the deceased was a member of this body, calling itself the Es'ean Community of Vind'yu (India), which consists of members in India, and particularly in Bombay, of a religious body or sect, of whom I must confess I have never heard at all till this case was brought before me. It is necessary to say a word or two about their aims and objects, but before doing so, the question arises whether from this gift one can see, by the form of words he has used, that the testator has created any trust for the preservation of capital and the expenditure of income only. If there is not such a trust, then the gift is an out and out gift and is therefore good, whatever the objects of the Es'ean Community are, so long as they are not illegal objects. If, on the other hand, he has created a trust for the preservation, in perpetuity, of the capital of his gift, then the gift cannot be supported unless the Es'ean Community of Vind'yu (India) is a charitable organisation.

3. A peculiar feature of the case, to my mind, is that the society is not given the money into which the trustees are to convert the estate, but, for some reason or other, the estate is to be converted into money, the money to be converted into gilt-edged securities, and the gilt-edged securities, and not the money, are to be given to the society. I can only draw an inference that what the testator hoped was that the trustees would treat the gift as one of capital and would use only the income derived from the gilt-edged securities. But to hope that something will occur is one thing and to impose a trust to that effect is quite a different thing, and I can see nothing in this trust which imposes on the recipients of the gift any legal obligation to preserve the gilt-edged securities in the form of gilt-edged securities. Provided that they spend the money on the aims and objects of the community, the recipients could, in my opinion, perfectly well spend not only the income, but the whole of the corpus at any moment. They might, for example, well desire to expend the corpus on establishing a church or other sacred building, by whatever name called, for the purpose of holding their meetings. Their ability to spend the money, even though they might spend it on the acquisition of some more or less permanent structure, shows, in my opinion, that the gift is not a perpetuity. No more was the case Clarke v. Clarke [1901] 2 Ch. 110 where money was given to a non-charitable body, doubtless in the hope that it would be spent on the building of barracks to house the Commissionaires, but equally and clearly with power to spend the money for any other of the corps' objects. The Court there pointed out that even if the donor had confined his gift to the acquisition of barracks, that would not be a perpetuity. Reference has been made in this connection to a case, Mallam v. McFie Q, where the Court used the) expression ' continuing trust' in relation to capital, and it is true that there is, in a sense, here a continuing trust. There is a trust to use the money in promoting and advancing certain aims and objects. But what the Court obviously meant there by a ' continuing trust' was a trust only to use the income by way of expenditure and to preserve the capital in perpetuity. In that case in which the testator bequeathed a small sum of money to a laudable but not charitable institution, namely, the Oxford Angling and Preservation Society, with a definite trust that the capital should be preserved and only the income expended, and though learned Counsel for the society ingeniously argued that the society was a charity, because by putting the fish into its own waters for its members to take out it would cause a certain number of fish to wander away to other waters, where the public were entitled to the fish, and therefore it was a benefit to the public in general. This argument did not (if I may use that expression) hold water, and the Court had little difficulty in saying that it was not a charity, and consequently that the gift, was bad.

4. To my mind, the present case resembles Cocks v. Manners (1871) 12 Eq. 574 and even more closely In re Wilkinson's Trusts (1886) L.R.19 . I have also been referred, among other cases, to Stewart v. Green (1870) L R. 470. It is not altogether easy to reconcile Stewart v. Green with Cox v. Manners, and I think that Stewart v. Green is an unsatisfactory decision. Only one point apparently was taken in the appeal, and only one point decided. The argument turned entirely on the question ' charity or no charity,' and it was assumed, I think, quite erroneously, that the gift was a perpetuity after the death of the immediate donee Miss Burke. The case is commented upon very scathingly, but not too harshly, in In re Wilkinson's Trust. One of the learned Judges, in a masterly and forceful judgment, characteristic of the island in which it was delivered, says (p. 543):

However, it is unnecessary for me to say more than that Cocks v. Manners decides that such an institution as this is a charity. Cocks v. Manners is an authority that this institution is a charity, and every barrister in Ireland knows that if Cocks v. Manners had been decided by the English Vice-Chancellor before Stewart v. Green, Stewart v. Green would have been decided the other way.

Another case, rather similar to the present, I think, is Smith, In re [1914] 1 Ch. 937 where, in reality, there was no question of charity or no charity because there was held to be no trust for preserving the corpus for an indefinite period. As far as perpetuity is concerned, the present case is even stronger than Bowman v. Secular Society, Ltd. [1917] A. C. 406 in this respect; there it was argued that because the money was given to an incorporated body for expenditure in support of its objects, it must have been the testator's intention to create a trust for the preservation of the corpus .Of that argument, Lord Parker said (p. 440):

This argument is, in my opinion, quite fallacious. The fact that a donor has certain objects in view in making a gift does not, whether he gives them expression or otherwise, make the donee a trustee for those objects. If I give property to a limited company to be applied at its discretion for any of the purposes authorized by its memorandum and articles, the company takes the gift absolutely as would a natural person to whom I gave a gift to be applied by him at his discretion for any lawful purpose. The case of Attorney-General v. Haberdashers Co. is an express authority on this point. A gift of a fund on trust to pay the income thereof in perpetuity to a society, whether corporate or otherwise, might possibly, if the objects of the society were charitable, be established as a charitable gift, exempt from objection on the ground that it created a perpetuity. But it is one thing to establish a gift (which would otherwise fail) on the ground that it is charitable, and quite another thing to avoid a gift which would otherwise be good on the ground that it creates an unenforceable trust. If a gift to a corporation expressed to be made for its corporate purposes is nevertheless as absolute gift to the corporation, it would be quite illogical to hold that any implication as to the donor's object in making a gift to the corporation could create a trust.

So, here, an implication from the fact that he directed his trustees to hand over, not cash, but gilt-edged securities, cannot be held to create a trust. I cannot do better than adopt Lord Parker's observations that to impose a trust is one thing and to express a wish is totally a different thing.

5. Another thing which had caused doubt in my mind, and, I have no doubt, in the plaintiffs-but I think it has now satisfactorily been cleared up,-is the curious use by the testator of the expression ' to transfer and hand over the same at their absolute discretion to the Teacher or Recorder, etc.' I thought at first that what the testator meant was that after converting his estate into money and then investing the money in gilt-edged securities, the trustees should hold the gilt-edged securities in their hands, giving them piecemeal as and when they, in their absolute discretion, thought fit, to responsible officers of the Community; the trustees, therefore, being, as it were, caretakers of the Community's investments. I do not think that this was what he meant. Mr. Maneksha has quite convinced me that what he really meant was that they had an absolute discretion as to the individual or individuals amongst the society's officers to whom they were to hand over the securities. No doubt the will is somewhat ambiguous, but as the one construction produces a perfectly sensible result, and the other, a somewhat fantastic one, I have no doubt that what the testator meant was the sensible, and not the insensible, meaning. I think, therefore, there is an absolute gift of the investments into which the testator directed his estate to be converted to the office bearer or bearers selected by the trustees, in their discretion on trust to expend the money in advancing the aims and objects of the community. Such a trust, as I say, is not a perpetuity, but it is quite possible for the trustees, consistently with that trust, to spend the whole of the capital as well as the whole of the income.

6. In case I am wrong in the view I have taken about this, I had better express an opinion, on such material as I have, on the nature of the Community, because, if it were necessary to decide the question, I should be prepared to hold that it is a charity, so that even if I am wrong in thinking that there is no perpetuity here, the bequest is innocuous. I have been asked to form an opinion about the society, chiefly on the strength of a Pamphlet setting out its aims and objects, printed in 1939, and a very large volume, which is, I gather, its sacred book, called ' Oahspe.' The pamphlet, I must confess, I find mainly incomprehensible, but the mere fact that the thing is incomprehensible to one person does not necessarily mean that the doctrine it expounds is erroneous, still less that it is an illegal doctrine. But it does appear from this pamphlet that what are described as ' the corporean activities of the community ' are three-fold in number:

Primarily, it labours to disseminate knowledge on the Science of Being to students who express a desire to affiliate for the purpose.

Secondly, where a real need exists, it labours for the same end through the medium of correspondence, lectures and publications.

Thirdly, whenever and wherever sufficiently advanced students are so located and conditioned as to admit of centres being established, it aids, as far as able, in creating conditions directed to make possible a greater measure of response to Organic Light in terms of function.

I do not profess to understand the whole of that statement, but it is at least clear, assuming that it correctly describes the activities of the community-and it has not been suggested that it does not-that the community, to some extent, is a teaching body, aiming to disseminate what it considers to be knowledge. As I understand the law about this matter, a purely religious body is not, as such, a charity. For example, a nunnery, which does not indulge in either teaching or nursing, or, in some way, helping external humanity along its thorny path, is not a charitable institution. If the members are merely engaged in working out their own salvation, they are not within the conception of charity. If, however, they do good works of a charitable nature, such as nursing the sick or teaching the ignorant, they are charities even if their motive in doing those good works may be to further their own salvation. If I rightly infer that the Es'ean community is a teaching organisation, then, unless it is teaching something unlawful, it is, in my opinion, a good charity. The mere fact that one cannot understand its teaching, or does not agree with its teaching, though understanding it, does not make it any the less 'charity.' If one found that what the organisation in question was teaching was some such subject like burglary-suppose for instance, there was a gift to a body called ' Fagin College ' which appeared to exist for furthering the professional education of thieves-then, of course, the gift would be bad; but there is nothing of that sort here. The society is clearly a body of persons who believe in a religion of some sort, and when the House of Lords has held that a gift to a body, which might be briefly described as the society for the propagation of atheism is good, I cannot see why the gift to this society is not a good charitable gift. Its doctrines are most curious; they seem to be a fusion of all manners and kinds of religions. The sect seems largely to indulge in the curious habit of calling existing or historical persons and things by new and extraordinary names. America, for example, is called ' Gautama.' I do not know why-that was, in fact, the personal name of the Lord Buddha. Again for some reason, Jesus Christ is known as ' Looeamong '; and the God worshipped is, for some reason, known by the name of 'Jehovih.'' The title page says that it is ' A Kosmon Revelation in the words of Jehovih and His Angel Ambassadors. A Sacred History of the Dominions of the Higher and Lower Heavens of the Earth for the past Twenty-four thousand years, being from the submersion of the Continent of Pan in the Pacific Ocean, commonly called the Flood or Deluge, to the Koson Era,' together with, as the title modestly says, ' A Brief History of the Preceding Forty-five thousand Years.'

7. The book was copy-righted in 1882, and as far as I can gather, was compiled in America in the course of the last century by somebody who was, I should think, almost certainly a Christian by upbringing, because there is strong internal evidence that he has modelled his work upon the Christian Bible; who was obviously-for reasons which I am not at liberty to divulge-a Freemason: and who was, I should have said, equally obviously, a lunatic-probably a perfectly harmless one. However, it is extremely dangerous for Courts of Justice to speculate as to the sanity of prophets;.and the opinion I have just expressed is, as it happens, exactly that expressed by Felix about St. Paul 1900 or 2000 years ago. Though it is quite inconsistent with any other religion known of in its doctrines, the ethical teaching of this fanatistic creed seems to be perfectly consistent with good morals as conceived by all decent creeds and philosophies. It enjoins, for example, total abstinence, vegetarianism, and pacifism, but none of these things is in itself immoral. In these circumstances, as the society is apparently engaged in teaching those principles and tenets in which it believes, I think it is a good charity. I should add this, as regards uncertainty, that a meeting of this community has been held and certain personae designatae have been expressly authorised to receive the gift. There can be therefore no difficulty in making the gift or in expending it on the aims and objects of the society.

8. It has been argued that the plaintiff was acting improperly in coming before me at all, or, alternatively, in doing so without the previous consent of his co-executor. As far as I can judge from the correspondence and the will, his doubts as to the effect of the gift were, reasonable doubts, though, in the light of the arguments addressed to me, I have personally, now, no doubt as to its effect. He could hardly expect his co-executor to share his doubts because he was apparently a keen member of the community, while the plaintiff is either not a keen member of the community or actually retired from it many years ago. In the circumstances, the costs of the parties appearing before me, as between attorney and client, will come out of the estate.


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