Pursuttamdas Agarwalla Vs. Gobind P. Agarwalla

Pursuttamdas Agarwalla vs Gobind P. Agarwalla

Disposition Appeal dismissed Court Mumbai Decided Mar 12, 1926

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Citation: sooperkanoon.com/332440
Court: Mumbai
Judge: Chancellor, ;Parmoor, ;Blanesburgh, ;John Edge and ;Ameer Ali, JJ.
Decided On: Mar 12, 1926
Subject: Family
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

Hindu will-Gift of income-Failure of portion of such gift-Residue for charitable purpossa,;A testator by his will directed his trustees inter alia (Clause 17) be pay out of the income of his estate the sum of Rs. 650 to the managers of a mandir, of which Rs. 100 were to be given as a gift to certain persons in succe...

Key legal issue: Family
Outcome / disposition: Appeal dismissed

Parties & Advocates

Appellant / Petitioner

Pursuttamdas Agarwalla

Respondent

Gobind P. Agarwalla

Legal References

Reported In: (1926)28BOMLR917

Excerpt

hindu will-gift of income-failure of portion of such gift-residue for charitable purpossa,;a testator by his will directed his trustees inter alia (clause 17) be pay out of the income of his estate the sum of rs. 650 to the managers of a mandir, of which rs. 100 were to be given as a gift to certain persons in succession, and the rest applied for the performance of puja and the feeding of the poor ; and that (clause 23) 'after paying the monthly sums and the monthly expanses hereinbefore directed to be paid or incurred, and also after providing for the payment of baxes, government revenue and assessments and repairs of his immoveable property, the surplus of the rents, income, and profits of his property and estate shall be monthly and every month remitted to' the managers of the said mandir ' and applied in manner respecting the said monthly sum of rs. 660, or so much thereof as is not required for the support of my family there, towards the performance of pujas and other religious ceremonies, and for the daily feeding of the poor at his mandir there.';the baneficiariea of the sum of rs. 100 bequeathed by clause 17 had all died, and the trusts thereof for the benefit of other persons not named therein had become inoperative by reason of such persons not having been born in the testator's lifetime. in a suit instituted by the testator's grandson for the construction of the will :-;that the rs. 100 per month fell into the general residue, and that the true effect of clause 23, a general residuary clause, sweeping up all that was not disposed of by the preceding clauses, was that the residue should be applied for the religious and charitable purposes referred to in clause 17, being the purposes applicable under that clause applied to the residue of the rs. 650 per month after deducbing the rs. 100 per month ; there was, accordingly, no sum undisposed of by the will. - - 1. this appeal raises a question as to the construction of the will of babulal agarwalla, who die.....month having failed, that sum falls into the residue of the rs. 650 a month and is applicable according to the trusts of clause 17. it is not necessary to decide that question, as it has been assumed throughout, and their lordships will assume in favour of the appellant, that the rs. 100 a month does not fall into that particular residue of which the trusts are declared by clause 17.3. the second question is whether, assuming that to be so, the rs. 100 a month fall into the general residue which is disposed of by clause 23, in their lordships' opinion it does. clause 23 is a general residuary clause, sweeping up all that is not disposed of by the previous clauses; and, accordingly, by virtue of the ordinary rule, the monthly sum of rs. 100, assuming it not to be disposed of by clause 17, falls into the residue of which trusts are declared by clause 23.4. then a third question is raised: clause 23 directs the surplus to be 'applied in manner respecting the said monthly sum of rs. 650, or so much thereof as is not required for the support of my family there towards the performance of pujas and other religious ceremonies, and for the daily feeding of the poor at my mandir there,' it is suggested on behalf of the appellant, and the learned judge who first dealt with the matter was disposed to hold, that the effect of that trust was that a proportion of the residue, bearing the same proportion to the whole as the rs. 100 bore to the total sum of rs. 650, became applicable for the support of the testator's family, described in clause 17, and that particular trust having failed, is undisposed of and passes to the testator's heirs. in their lordships' opinion that is not the true effect of the clause. the clause in substance directs that the residue shall be applied for the religious and charitable purposes referred to in clause 17, being the purposes applicable under that clause applied to the residue of the ks. 650 per month after deducting the rs. 100 per month, and.....

Full Judgment

Chancellor, J.

1. This appeal raises a question as to the construction of the will of Babulal Agarwalla, who died in the year 1873. The will is in the English language and states (among other things) the testator's intention to erect a mandir and suitable buildings for the residence of members of his family and for the reception of poor and homeless persons at Sri Brindaban. Then by a clause, which has been referred to as Clause 17, he directs that out of the income of his estate ' a num of Rs. 650 (subject to the increase hereinafter mentioned) be remitted monthly and every month by my executors or trustees to the managers for the time being of the mandir of Brindaban to be erected as aforesaid, out of which sum Rs. 100 shall be paid to' certain persons in succession; and then the clause continued, 'and the residue or surplus shall be appropriated towards the expenses of performing pujas at or otherwise maintaining the said mandir and of the daily feeding of the poor there.' The beneficiaries of the monthly sum of Rs. 100 named in this clause are all dead, and it is common ground that the trusts declared of that monthly sum for the benefit of other persons not there named is inoperative, those persons not having been born in the testator's life-time. Then by Clause 23 of the will the testator says this :-

I further direct) that) after paying the monthly sums and the monthly expenses hereinbefore directed to be paid or incurred and also after providing for the payment of taxes, Government revenue and assessments and repairs of my immoveable property, the surplus of the rents, income and profits of my property find estate shall be monthly and every month remitted to Brindaban and applied in manner respecting the said monthly sum of Ks 650, or be much thereof as is not required for the support of my family there, towards the performanee of pujas and other religious ceremonies, and for the daily feeding of the poor at my mandir there.

2. Upon those clauses throe points arise. The first question is whether, the trusts of the sum of Rs. 100 per month having failed, that sum falls into the residue of the Rs. 650 a month and is applicable according to the trusts of Clause 17. It is not necessary to decide that question, as it has been assumed throughout, and their lordships will assume in favour of the appellant, that the Rs. 100 a month does not fall into that particular residue of which the trusts are declared by Clause 17.

3. The second question is whether, assuming that to be so, the Rs. 100 a month fall into the general residue which is disposed of by Clause 23, In their lordships' opinion it does. Clause 23 is a general residuary Clause, sweeping up all that is not disposed of by the previous clauses; and, accordingly, by virtue of the ordinary rule, the monthly sum of Rs. 100, assuming it not to be disposed of by Clause 17, falls into the residue of which trusts are declared by Clause 23.

4. Then a third question is raised: Clause 23 directs the surplus to be 'applied in manner respecting the said monthly sum of Rs. 650, or so much thereof as is not required for the support of my family there towards the performance of pujas and other religious ceremonies, and for the daily feeding of the poor at my mandir there,' It is suggested on behalf of the appellant, and the learned Judge who first dealt with the matter was disposed to hold, that the effect of that trust was that a proportion of the residue, bearing the same proportion to the whole as the Rs. 100 bore to the total sum of Rs. 650, became applicable for the support of the testator's family, described in Clause 17, and that particular trust having failed, is undisposed of and passes to the testator's heirs. In their lordships' opinion that is not the true effect of the clause. The clause in substance directs that the residue shall be applied for the religious and charitable purposes referred to in Clause 17, being the purposes applicable under that clause applied to the residue of the Ks. 650 per month after deducting the Rs. 100 per month, and this view is supported by the words 'subject to the increase hereinafter mentioned,' contained in Clause 17, The result is that, in their lordships' opinion, there is no sum not disposed of by the wll, and, accordingly, that the judgment of the High Court at Calcutta is right and should be affirmed. Their lordships will, therefore, humbly advise His Majesty that the appeal fails and should be dismissed with costs.

Same Parties Pursuttamdas Agarwalla vs Gobind P. Agarwalla Same Subject Family Same Judge Chancellor, ;Parmoor, ;Blanesburgh, ;John Edge and ;Ameer Ali...

Family