Document Fragment View

Matching Fragments

14. The last and final question that arises is, if the disposition in favour of the heirs of Hoosein Noor Mahomed is void, whether the ultimate benefit to charity should be given effect to and whether the trustees are bound to spend the one-fifth income of the trust properties on the charitable objects mentioned in the will. The learned Advocate General has argued that the ultimate disposition in favour of charity is valid although the intermediate dispositions are void. He has relied upon the principles underlying Section 27 of the Transfer of Property Act and Section 129 of the Indian Succession Act. The principle of these two sections is that although a prior disposition may fail in a manner not contemplated by the settlor, the ulterior disposition would still take effect. The learned Advocate General has argued that in this case the settlor wanted charity to benefit in the event of there being no heirs of Hoosein Noor Mahomed. In this case although there are heirs of Hoosein Noor Mahomed but as they cannot take in law, there is a failure of the disposition although in a manner not contemplated by the settlor and, therefore, the ultimate disposition in favour of charity should be upheld. I do not think the argument of the learned Advocate General is sound. The failure contemplated by Section 27 of the Transfer of Property Act and Section 129 of the Indian Succession Act is the failure of a valid gift. When the gift is ab initio void, the subsequent gifts must also fail as provided by Section 16 of the Transfer of Property Act and Section 116 of the Indian Succession Act. The principle of English law is also similar, and that is expressed in the phrase that a limitation following upon a limitation void for remoteness is itself void even though it may not of itself transgress the rule against perpetuity. In Fatma-bibi v. The Advocate General of Bombay1, Mr. Justice West took the view that the rule of Mahomedan law appeared to be that should the intermediate purposes of the dedication fail the final trust for charity did not fail with them. This decision of Mr. Justice West has been adversely commented upon by the decision of the Privy Council in Mahomed Ahsanulla Chowdhry v. Ammchand Kundu2. No authority has been cited to me at the bar to show that that in fact was the principle of Mahomedan law, and I would be surprised if that were so, because in that case it would be difficult to understand why the Privy Council in a series of cases before the passing of Act VI of 1913 held the wakfs to be void on the ground that they were intended for the aggrandisement of the family of the settlor when they could have given effect to the ultimate trust for chanty after setting aside the intermediate dispositions in favour of the settlor's family. I, therefore, hold that the ultimate disposition in favour of charity is also void, and the trustees are not bound to spend the one-fifth income of the trust properties on the charitable objects mentioned in the will. My answers to the questions raised in the originating summons will be :