1. By this originating summons a clause in the will of the deceased testator is sought to be construed. The will does not appear to be drafted by a lawyer and has been written out in Gujarati by the deceased himself. After making diverse provisions the particular clause in the will runs as follows :
Further my executors shall appropriate (utilise and spend) a sum of Rs, 3,000... towards some ' sadavarat' or building ' dharamshala/ or well, tank or havada (water trough) or towards feeding ' sadhus' and ascetics or spend the same towards any other object of ' dharam' (religious or charitable purpose) in order to perpetuate the memory of my wife Putlibai who is dead.
2. On behalf of the plaintiff, who is the executor and also residuary legatee, it is contended that by the use of the word 'or' between the various objects mentioned, the clause has become disjunctive and the executor cannot be charged with committing a breach of his duty if he utilised the fund for any one of the objects mentioned or for the purposes falling under the last alternative. It is urged that as the word 'dharam' is used; in the last alternative, if the executor spent the amount on any benevolent object (which according to the construction given to that word by the authorities would be covered by the word 'dharam'), it would not be considered that he, had acted wrongly. Therefore, the bequest is void on the ground of uncertainty. In support of that contention reliance is placed on the decisions in Davis, In re; Thomas v. Davis (1923) 1 Ch. 225 and Sarat Chandra Ghose v. Pratap Chandra Ghose I.L.R. (1912) Cal. 232. On the other hand on behalf of the Advocate General it is contended that the decisions in Bettett, In re Gibson v. Attorney-General (1920) 1 Ch. 305 and Ludlow (Baron), In re (1923) 93 L.J. Ch. 30. show that under similar circumstances the last words should be considered ejusdem generis.
3. In my opinion in construing a particular will it is generally unsafe to rely on the words used in another will unless the whole scheme of the two wills is found to be identical. The highest authorities and most eminent Judges have recognized the danger of trying to follow one decision in respect of the construction of a document, without observing the context or the exact scheme of the document, in another case. The nearest case out of those cited is Ludlow (Baron), In re, and if that is accepted as a guide, it favours the construction urged by the Advocate General.
4. In my opinion the proper course to follow is to bear in mind that this testator had made his own will and by the words used in the particular clause had clearly indicated his desire to set apart this sum to perpetuate the memory of his deceased wife. He had mentioned several objects, all of which considered individually were either religious or charitable. He had given the option to the executor to select any one of those and added thereafter that the executor may also select any other object of 'dharam.' These last words clearly indicate that his intention was that if the executor thought fit to apply the fund to none of the objects indicated he had the option to apply the same to any ether object of his own selection, but the general intention of charity is clearly there. The last words, under the circumstances, in my opinion, should be read as if they were : 'or any other similar charitable or religious object.' I recognize that the word 'other' is not in fact written in the will, but reading the clause as a whole, and bearing in mind the circumstances and the intention of the testator, the context clearly indicates that the clause should be read with that meaning attached to this word.
5. Costs of both the parties as between attorney and client to come out of this fund.