1. By a deed of trust dated December 3, 1942, the late Mr. Abdeally Hyderbhai, hereinafter called the 'the settlor', settled a sum of money on certain charitable trusts, which I need not now go into in detail. By Clause 14 of the deed he provided as follows:
It is hereby agreed and declared that it shall be lawful for the said settlor, at any time or times hereafter by any deed or deeds revocable or irrevocable or by will 01 codicil expressly referring to this power, wholly or partially to revoke the trusts, powers, and provisions herein declared and contained of and concerning the same and premises hereby settled and the income thereof and to declare such new or other charitable trusts of and concerning the same or any part or parts thereof as he may think fit.
2. This is an originating summons by the present trustees of the settlement to determine whether in view of this provision the settlement is void or is valid. The respondents are the Advocate General, representing charity, and, by amendment, the executors of the settlor's will, as it now transpires that he died testate in 1943.
3. It is conceded by all parties that if the clause in question amounts to a general power of revocation of the charitable provisions of a deed of wakf, the whole deed becomes void on the principle that what has been dedicated to God cannot be wholly taken away by man. If, on the other hand, it merely empowers the settlor to vary the charitable trusts created by the wakf, I do not know of any authority to show that there is anything wrong about it. On the contrary, it seems to have been assumed in Abdul Satar v. Advocate-General of Bombay (1982) 35 Bom. L.R. 18 that such a limited power of revocation and reappointment for charitable purposes would be valid. The material provision which was considered in that case was almost verbatim the same as the provision which I have to consider, with this important difference that between the words 'new or other' and 'trusts of and concerning the same' there is in this ease inserted the word 'charitable' which was conspicuous by its absence in the deed which their Lordships had to consider in Abdul Satar v. Advocate General of Bombay.
4. In that case the learned trial Judge, Mr. Justice Kania, apparently thought that he could collect from the terms of the deed a general charitable intention on the part of the settlor, and he therefore felt justified for importing into the clause in question the word 'charitable'; he held that the deed was valid because the power contemplated only the appointment of new charitable trusts. The appellate Court held that he was wrong in that, and that the clause amounted to a general power of revocation and therefore vitiated the whole deed. As I understand the ratio decided, the case turned entirely on the absence from the deed before their Lordships of the word 'charitable' at the point now in question. I, therefore, approach the construction of the present deed with a hand not directly fettered by any authority. First of all, it is noticeable that the word linking the power of revocation and the power of re-appointment is 'and' and not 'and/or'. So, literally, it seems that the settlor reserved to himself power to revoke exercisable only if he also reappointed. It is, however, well settled that in construing documents which confer a power, as distinct from a duty, the word 'and' should, in general, be read as if it were 'and/or'. Take a simple illustration. A licence to sell 'tobacco and cigars' could not be construed as meaning that the licensee must not sell tobacco to a person who does not also purchase cigars, or vice versa. Following here what I understand to have been decided in Abdul Satar's case, I think that it would be possible for the testator under this clause, as it stands, to revoke in whole or in part, without declaring any new trusts whatsoever; and if that construction is right, it is clear that the case is covered by Abdul Satar's case.
5. In case, however, it is wrong, it is necessary to consider the nature of the trust that the testator must create if he reappoints. If that must be charitable, and if he must reappoint, the deed is valid. There is this to be said in favour of construing the word 'and', as meaning literally 'and' and not 'and/or', in the present case that, as the late Chief Justice said in Abdul Satar's case (p. 22) :-
If the words of the deed are ambiguous, the Court may, I think, lean to a construction which produces a legal arrangement rather than one which is illegal, on the principle that it is better to effectuate than to destroy an intention [instrument] which, one may naturally presume, was not intended to transgress the law.
Equally, and on the same principle, there is much to be said for the argument which Mr. Shah has addressed to me that the expression 'new or other charitable trusts' means nothing more nor less than 'other' charitable trusts, the words 'new or' being surplusage. Mr. Desai, on the other hand, contends that it is the words 'or other charitable' which are surplusage, because, he says, the whole thing means 'such new trusts or other charitable trusts' which means no more and no less than 'new trusts'. I do not think it necessary to express a decided opinion on this point, though, if the matter rested there, I am inclined to (think that Mr. Shah's argument involves doing less violence to the language than Mr. Desai's. But what clinches the matter is this: The trusts which the settlor takes power to revoke are those of the deed, and he takes power to revoke them wholly or partially. The new trusts which it is contemplated that he may declare are trusts of and concerning the same, or any part or parts thereof as he may think fit. If the settlor had meant that he should declare new trusts of any part of the trusts which he revoked, or if he revoked the whole, then he should declare new trusts of the whole, the settlor could easily have said so, and he has not said so. Mr. Shah says that I can collect from the clause a general charitable intention. I do not think I can. I am not at all sure that the settlor was not actuated really by a hypothetical uncharitable intention, and thought he might like to get some of the money back for his own purposes. As I read the clause, it seems to me that he might wholly revoke the charitable (trusts declared by the deed and not declare any new charitable trust at all, or he might, I think, declare new charitable trusts of some illusory portion of the property covered by the revoked trusts and put the rest in his pocket. As I say, if it had been intended that the property reappointed should exactly correspond with the property of the trust which was revoked, the settlor could easily have (expressed it in apt language, and with every desire to uphold rather than destroy the gift to charity, I feel bound to come to the conclusion, in which I am strongly fortified by Abdul Satar's case, that this is a general power of revocation and therefore renders the whole deed of trust void including Clause 17, to which Mr. Shah quite properly directed my attention as conveying a general charitable intention on the part of the settlor.
6. Costs of all parties as between attorney and client to come out of the estate.