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6. We shall proceed to discuss the facts of this case bearing the above principles in mind. Clause 5 of the preliminary decree and the corresponding clause 6 of the final decree in the prior suit clearly provide that the two brothers of the deceased Zacharia Sait should take the suit properties free of all encumbrances for the purpose of constituting a proper and valid trust for the establishment of a maternity hospital in the name of Zacharia Sait. Paragraph 10 of the preliminary decree and the corresponding paragraph 11 of the final decree show that the properties were set apart for the aforesaid charity and the first defendant was directed to keep the other heirs and the said properties indemnified against all mortgage debts and all sums due to the municipal councils, the Government or the Central Excise department the Indian Coffee Board and the Income-tax department. It is abundantly clear that all the heirs of Zacharia Sait have agreed to constitute two among themselves, namely, S. A. Rahiman Sait and Ismail Sait as trustees in respect of the suit properties set apart for the trust for the charitable object of establishing a maternity hospital in the name of the deceased Zacharia Sait. Thus the heirs of Zacharia Sait divested themselves of any right to share the properties, which have been so set apart for the charitable trust.

Thus even if the relevant clause in the preliminary and final decree is construed as creating only an executory charitable trust, it cannot be ignored as invalid. Obviously charitable trusts created with the object of starting a school or a college, or constructing a new church, mosque or a temple or establishing a hospital as in this case are all cases where the charitable objects have to be carried out in future and the fact that such objects have not been carried out is not a ground for attacking the validity of such charitable bequests or trust. It is true S. A. Rahiman Sait and Ismail Sait made no attempt to carry out the objects of the charitable trust during their lifetime. In Mohammed Afzal v. Din Mohammed. AIR 1947 Lah 117 at p. 126 it is observed that subsequent act may and very frequently do amount to a breach of trust, but from a breach it is impossible to argue that there never was a trust created. It is pointed out in the decision that though an element in determining whether a trust has or has not been created the fact that the intentions in a deed have not been carried out, or in other words, the trust has not been acted upon, does not necessary show that a valid trust was not created.