Parvatibhai and Others vs Runchordas Vandra Wandas and others

Richard Couch, J. 1. Kallianji Sewji, a Hindu who died on January 6, 1809, made his will on the previous day in the following terms. 2. After specifying his immovable and movable property, and giving to his wife Nenavahoo a piece of land and a house, and to his other wife Cooverbai a garden and a house, the will says:

According to these particulars out of the above-mentioned estates belonging to me the above-mentioned estates four in number have been given to my wives for enjoying the rent (thereof) and for making dharam dhan (charitable or religious gifts &c.) (of the same) and whatever other estates belonging to me remain and whatever profit appertaining to my share may remain after deducting the debts &c. in my books belong wholly to me personally I have during my lifetime appointed three persons trustees over the same. (Here follow the names of the trustees.) According to these particulars I have appointed trustees. The said trustees are to act in such manner as they think proper for preserving my name so that my money might always be used for some good dharam (religious or charitable purpose) after my death (and) by which good might be done to me. No one shall have any right (or) claim whatsoever thereto. (Then there is a direction to make certain monthly payments out of the dharam fund to his brother, stepmother, and step-brother.) Further it is as follows. As to the estates which have been given by me to my wives they are to enjoy the rents of the said estates during their natural lives and on the death of my wives the said estates are to revert to my dharam (religious or charitable fund) and whatever income may be derivable from the said estates is to be expended for my dharam (religious or charitable purposes). 3. On March 2, 1869, probate of the will was granted to the persons named in it as trustees. Cooverbai died in 1871 and Nenavahoo in 1888. On December 21, 1888, after her death, Cursondas Govindjee, who was the heir-at-law of Kallianji Sewji, brought a suit in the High Court at Bombay against Vandrawandas Purshotumdas, the sole, surviving executor and trustee, who having died is now represented by the appellants Runchordas and others, his executors and executrix, and also against the Advocate-General of Bombay. Cursondas Govindjee, having also died during this appeal, is now represented by the respondents Parvatibhai and others, his executrix and executors. 4. The plaintiff in his plaint submitted that the bequests in the will for dharam were void and inoperative, and that the property which was the subject of them was undisposed of by the will, and prayed that the estate might be administered under the direction of the Court, and it might be declared that the bequests for dharam were void. This was disputed by the first defendant, the Advocate-General submitting himself to the order of the Court. Issues were settled, one being whether the suit is barred by limitation and another whether the bequests to dharam are void. The other issues need not be noticed. The learned judge of the High Court who tried the suit held "that the provisions constituting the dharam and directing the executors to expend the income of the estate for dharam were void, and that the suit was not barred by limitation." Vandrawandas Purshotumdas appealed, and the Appeal Court held that the devise to dharam "is too general and too indefinite for the Court to enforce and is therefore void." It also held that the suit was not barred by limitation as to the immovable properties. 5. It is not necessary for their Lordships to refer particularly to the cases in the Indian Courts, where it has been held that a devise or bequest for dharam is void for vagueness and uncertainty. They begin at an early period both in Bombay and Calcutta, and according to the judgment of the Appeal Court are numerous. The reasons for the decisions of the English Courts upon devises or bequests of a similar nature are stated by Lord Eldon in his judgment in the leading case of Morice v. Bishop of Durham. (1804) 9 Ves. 399; 10 Ves. 521 He says 10 Ves. 539: "As it is a maxim that the execution of a trust shall be under the control of the Court, it must be of such a nature that it can be under that control so that the administration of it can be reviewed by the Court, or if the trustee dies the Court itself can execute the trust-a trust therefore which in case of maladministration could be reformed and a due administration directed, and then, unless the subject and objects can be ascertained upon principles familiar in other cases, it must be decided that the Court can neither reform maladministration nor direct a due administration." Lindley L.J. refers to this judgment and says In re Macduff, 1896 2 Ch. 463: "That is the principle of that case and has been enunciated or repeated from time to time." In the latter case the words of the bequest were "purposes charitable or philanthropic." In Wilson''s Dictionary "dharam" is defined to be law, virtue, legal or moral duty, and the language of Lord Eldon applies as strongly, if not more so, to dharam as to the words used in the English cases. The objects which can be considered to be meant by that word are too vague and uncertain for the administration of them to be under any control. 6. It is therefore necessary to decide the question of limitation, The Act which is applicable to this case is Act XV. of 1877. The plan of this Act, following the plan of the repealed Act IX. of 1871, is to specify in the second schedule to it the period of limitation for every description of suit. The division of them is so complete that the schedule contains one hundred and eighty articles or divisions in three columns, headed "Description of suit," "Period of limitation," "Time from which period begins to run." Article 141 is that which applies to the present suit. It is "like suit (for possession of immovable property) by a Hindu or Muhammadan entitled to the possession of immovable property on the death of a Hindu or Muhammadan female. When the female dies." The period given is twelve years. Article 144, which makes the time begin to run from when the possession of the defendant becomes adverse to the plaintiff, is not applicable where the suit is otherwise specially provided for. The article which applies to the movable property is 120, in which the time (six years) begins to run when the right to sue accrues. The suit, therefore, for both kinds of property is not barred by the Act. 7. The learned Counsel for the appellants relied on Section 28, which provides that at the determination of the period limited for instituting a suit for the possession of property the right to the property shall be extinguished. The obvious answer to this argument is that in this case the period limited is not deter mined. It is not necessary to consider what might be the case if the widows or the survivor of them were suing, as the plaintiff does not derive his right from or through them, and the extinguishment of their right would not extinguish his. 8. It has been held by the Appeal Court as to the movable property (if any) in the hands of the defendant at the death of Nenavahoo, and the rents and profits of the immovable properties in the defendant''s hands at the same period, that her claim was barred at her death and that there is no provision of the Limitation Act which gives the plaintiff a fresh starting-point from that period. Accordingly, the Appeal Court has varied the decree of the First Court. Their Lordships do not agree to this view. The right of the plaintiff to this property (if any) accrued at the death of Nenavahoo. The decree of the First Court, dated July 27, 1896, should not have been varied as it has been. It is for an account of the movable property left by Cooverbai and Nenavahoo at the time of their deaths distinguishing between such of it as was their stridhan and "as such" formed part of the estate of the testator. "As such" appears to be an error for "such as." With this alteration their Lordships think the decree will be right. 9. Their Lordships will therefore humbly advise Her Majesty to dismiss the principal appeal (No. 44 of 1898), and in the cross-appeal (No. 45) to set aside the order of the Appeal Court and affirm the order of the First Court with the alteration mentioned. The appellants in the principal appeal will pay the costs of both appeals.