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Mariambi Vs. Fatmabai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1054 of 1911
Judge
Reported in(1929)31BOMLR135
AppellantMariambi
RespondentFatmabai
Excerpt:
.....his counsel contended that the bequest was good and in this plaintiff supported him. the gujarati word 'kherat' is derived from the arabic 'khairat'.in arabic 'khair'means'good' and in pratt's urdu dictionary 'khairat' is said to mean 'good works, alms, charities'.in wilson's glossary the word 'khairat' is explained as meaning 'alms, charity; lands given as charitable endowments'.and it is said that the term is more especially applicable to 'grants or alms given by, or to, mohammadans'.pathak's gujarati dictionary gives 'kherat' as 'alms, charity'.the word 'vigere' may be fairly translated as 'et cetera' and like the phrase 'et cetera' is to be read m ejusdem generis with the words which it follows. 644 of 1902 on the original side of this court, it was rendered 'good works of charity'..........to be under any control.3. the word there considered was 'dharam' which is another form of the word 'dharma' used in the will before me. the meaning of that word is stated in their lordships' judgment. the gujarati word 'kherat' is derived from the arabic 'khairat'. in arabic 'khair'means'good' and in pratt's urdu dictionary 'khairat' is said to mean 'good works, alms, charities'. in wilson's glossary the word 'khairat' is explained as meaning 'alms, charity; lands given as charitable endowments'. and it is said that the term is more especially applicable to 'grants or alms given by, or to, mohammadans'. pathak's gujarati dictionary gives 'kherat' as 'alms, charity'. the word 'vigere' may be fairly translated as 'et cetera' and like the phrase 'et cetera' is to be read m ejusdem.....
Judgment:

Crump, J.

1. The position, so far as concerns the Advocate General, is peculiar. When the matter was argued his counsel contended that the bequest was good and in this plaintiff supported him. For this reason I reserved judgment though I was of a contrary opinion. Subsequently the Advocate General himself appeared and stated that- he did not think the bequest could be supported. I propose now to give shortly my reasons for the view which I take....

2. In Runchordas Vandrawandas v. Parvatibhai their Lordships of the Privy Council have adopted as appropriate to India the test laid down by Lord Eldon in Moriee v. The Bishop of Durham (1805) 10 V V 539. and as regards the case before them they say (p. 81):-

The objects which can be considered to be meant by that word ate too vague and uncertain for the administration of them to be under any control.

3. The word there considered was 'Dharam' which is another form of the word 'Dharma' used in the will before me. The meaning of that word is stated in their Lordships' judgment. The Gujarati word 'Kherat' is derived from the Arabic 'Khairat'. In Arabic 'Khair'means'good' and in Pratt's Urdu Dictionary 'Khairat' is said to mean 'Good works, alms, charities'. In Wilson's Glossary the word 'Khairat' is explained as meaning 'Alms, charity; lands given as charitable endowments'. And it is said that the term is more especially applicable to 'grants or alms given by, or to, Mohammadans'. Pathak's Gujarati Dictionary gives 'kherat' as 'alms, charity'. The word 'vigere' may be fairly translated as 'et cetera' and like the phrase 'et cetera' is to be read m ejusdem generis with the words which it follows. The word 'charity' must of course be understood in the sense in which lexicographers use it, and not as in any way connoting anything which English lawyers understand by that term. The English cases upon the technical meaning of the word 'charity' are no guide, and we are not concerned with the preamble of the English statute (43 Eliz. c. 4).

4. If the words 'dharma' and 'kherat' are to be read disjunctively then it is plain that 'the objects are too vague and uncertain' (cf. Blair v. Duncan [1902] A.C. 37. and Grimond (or Maointyre) v. Grimond [1905] A.C. 124.) But it is argued that we must take the three words used as a composite phrase. That is, I think, the correct view. 'Dharma' and 'kherat' are, as I understand the matter, practically synonymous, one derived from the Sanskrit, the other from the Arabic, the former probably due to Hindu ancestry, the latter to Islamic religion. On that construction it is urged that the vagueness of the word 'dharina' is clarified by its conjunction with the more definite term 'kherat'. I am unable to accept 'that interpretation. It might with equal justice be said that the definiteness of the word 'kherat' is obscured by the vagueness of the word 'dharma'. Nor is it easy to concede that 'kherat' is a definite term. In Suit No. 644 of 1902 on the Original Side of this Court, it was rendered 'good works of charity' and Batty J, held that a bequest as made was void for uncertainty. In another case (Advocate-General of Bombay v. Jimbabai I.L.R (1915) Bom. 181: 17 Bom L.R. 799 Beaman J. apparently held that 'Khairat' was correctly rendered by the English word 'charity' but did not decide whether a bequest so defined was good or not. On the words of the will in that case it was not necessary for him to do so. In the case before me I do not know what the testator meant. Even if the word 'kherat' stood alone, it would, in view of its indefinite meaning, be very difficult to say what the objects are to which the property is to be applied. The difficulty is not diminished by the addition of the word 'vigere'. Having regard to the position finally taken by the Advocate General, I do not consider it necessary to say more. In my opinion the bequest of one-third is void for uncertainty. [The rest of the judgment is not material to this report]


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