2011(7) ALL MR 483
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.S. DALVI, J.
Marten Borchert & Anr. Vs. Arzan Khambatta & Anr.
Misc Petition No.63 of 2010,Testamentary Petition No. 566 of 2008
18th April, 2011
Petitioner Counsel: Mr. HARESH JAGTIANI, Mr. Mr. SIDDHESH BHOLE, KATHLENE LOBO
Respondent Counsel: Mr. J.F. POCHKHANAWALLA, Mr. ADITYA CHITALE
(A) Succession Act (1925), S.317 - Administration of the estate - Steps to be taken.
Each Will requires a different reasonable period within which to fully administer the estate. In order to administer the estate the initial requirement is the making of inventory followed by the rendering of accounts. In some cases the administration would be merely complete upon these two steps being taken in administration. The only aspect which would remain for the executors to comply is the handing over of the estate of the Testatrix. This time frame would be enforced by the Court in case of a single bequest or simple bequest. In case of larger estate and more expansive and intricate directions in the Will for the handing over of the bequests, the Court would have an absolute discretion to grant such further time as would be required and as would be merited. [Para 7]
(B) Succession Act (1925), S.301 - Removal of executor - No undue burden can be cast upon executor and he must be given a decent time to perform his task - He can be removed if he is found to be inveterate non-worker by his inaction. (Para 8)
(C) Succession Act (1925), S.2(b) - Codicil - Is part of the will and must be read as well as probated along with will. (Para 29)
(D) Succession Act (1925), Ss.82-87 - Meaning of words - Word 'should' in the sentence "trustees should appoint and nominate the first trustees of the said trust the following" seven named persons - Word "should" is not imperative, it denotes what would be the right thing to do - Word 'should' used here would not make the direction so binding as never to be altered. (Paras 37, 38)
(E) Succession Act (1925), S.87 - Intention of testator, how to be gathered - A Testamentary Court is not as much concerned with sound nuances of the intricate English language as much as decipher even from an incorrect grammatical expression, the true meaning that the testator put upon such word.(Para 38)
(F) Succession Act (1925), S.87 - Construction of the will - Will directing that trustees should appoint and nominate the first trustees of the said trust the following seven named persons - Construction of.
The argument on behalf of the Petitioners that if a single trustee named in the Will would not accept the trusteeship none can be appointed and the possession of the property must itself be handed over to the Petitioner No.1 would have to be rejected as that would not only go diametrically contrary to the very intention of the Testatrix in forming a charitable trust with as many as seven trustees for the purposes mentioned therein, it would tantamount to rejecting an essential part of the Will of the Testatrix. Such construction being not reasonable cannot be accepted. Even if the Petitioner No.1 contends that he would form the trust and he would be the sole trustee, his offer cannot be accepted. There would be none to supervise or control his activities. He would in terms have a carte blanche to do what he pleases. He may dissolve the trust soon after its formation. He may not establish the trust which is specifically directed to be established. He may administer the benefits only for and on behalf of his son the ultimate beneficiary. He would, operate the account, if there be any, himself without being responsible not only to the other beneficiaries under the Will, but also to any other trustees or the executors who would require to see the administration of the estate of the Testatrix through. [Para 66]
Re. Rowland (deceased) Smith Vs. Russell, 1963 LR Ch.D 1 [Para 39]
Re Wright (deceased) Blizard and Anr. Vs. Lockhart and Ors., 1954 All England Law Reports 98 [Para 53]
Re Slevin, (1891) 2 Ch. 236 [Para 53]
Re. Soley, (1900) 17 T.L.R. 118 [Para 53]
Re. Lepton's Will Trusts, Re Lepton's Charity Ambler & Ors. Vs. Thomas & Ors., (1971) 1 All E.R. 799 Ch.D [Para 54]
Re Woodhams (Deceased) Lloyds Bank Ltd. Vs. London College of Music & Ors., (1981) 1 All E R 202 Ch. D [Para 55]
Attorney General for New South Wales Vs. Perpetual Trustee Co. Ltd., (1940) 63 CLR 209 [Para 57,59]
Re Mitchell's Will Trusts, (1966) 110 Sol Jo 291 [Para 58]
Attorney General for New South Wales Vs. Perpetual Trustee Co. Ltd., (1940) 63 CLR 209 [Para 59]
Redfern Vs. Bryning, 1877 LR. 6 Ch. D. 133 [Para 61]
Maddison Vs. Gill, 1908 LR 2 Ch.D 1908 [Para 62]
Wickham Vs. Haygarth, 1913 LR 3 Ch.D 9 [Para 63]
Radha Sundar Dutta Vs. Mohd. Jahadur Rahim, AIR 1959 SC 24 [Para 64]
Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia, AIR 1980 SC 446 [Para 65]
William Abbott Vs. Eliza Middleton, (1858) 7 HLC 68 [Para 65]
JUDGMENT :- The Petitioner No.1 is the father of Petitioner No.2. He is the brother of one Ursula Dara Mistry, the Testatrix who executed a Will dated 7th February 2004 and Codicil dated 29th November 2004 which have been probated. Respondents 1 and 2 are the executors under the said Will and the Codicil of the Testatrix. The Respondents have administered a large part of the estate of the testatrix as per the mandate contained in her Will.
2. The Petition is filed for removal of the Respondents as the executors and appointment of other executors in their place. The Petition is, therefore, essentially filed under Section 301 of the Indian Succession Act. The Petition is also filed for directing inventory of the estate of the Testatrix, information of the steps in administration, handing over of certain property being the Rural Electrification Corporation (REC) bonds, implementation of the Will, appointment of receiver and appointment of Petitioner No.1 as the sole trustee of the trust directed to be formed by the Testatrix within a time frame.
3. It may at once be mentioned that the prayer relating to removal of Respondents and appointment of others in their place as executors is diametrically different from and contradictory to the prayers for giving an inventory, information, handing over of specified movable properties being REC bonds and implementation of the Will within a time frame. Either of these reliefs may, therefore, be granted.
4. It may also be mentioned that the Petitioners have been unusually hasty as well as enthusiastic in the administration of the estate of the Testatrix, The Petitioners have corresponded with the executors after the Testamentary Petition for grant of probate came to be filed and before the probate was granted by the Court. This correspondence has largely been in respect of two immovable properties of the Testatrix in respect of which a trust has been directed to be formed with certain other trustees and Petitioner No.2 as the beneficiary. The despatch exhibited by the Petitioners in the administration of the estate is not strictly as per the mandate contained in the Will of the Testatrix, but as desired by them which is contrary to the intention of the Testatrix that the Will reflects.
5. A short chronology of events would show what the Petitioners have desired and how the Respondents have acted. The Will was executed on 7th February 2004. A Codicil has been executed on 29th November 2004. The Testatrix expired on 21st June 2007. A petition for probate came to be filed on 7th February 2008. Letters of Advocates on behalf of the Petitioners came to be addressed initially to the Respondents and later to their Advocate by 15th September 2009 and 9th October 2009 when the petition for probate was pending in this Court calling upon the Respondents to hand over possession of the disputed part of the estate of the Testatrix. Probate came to be granted on 21st November 2009. A copy of the probate was supplied to the Petitioner on 22nd December 2009.
6. The Respondents would be required to commence the work of administration of the estate of the Testatrix only on and from 21st November 2009 under the provisions of Section 317 of Indian Succession Act, 1925. The Respondents would require to make an inventory of the estate of the Testatrix within six months of the grant or further time as allowed by the Court. The Respondents would require to render accounts of the property and credits of the Testatrix within one year therefrom. The Respondents would enjoy a statutory period of one year or further time as allowed by the Court from the date of the grant to administer the estate, the undertaking of which is incorporated into the grant itself. Accordingly, the administration, as per the circumstances of the case, may be allowed to continue by the Court even after the aforesaid statutory period.
7. It must be appreciated that each Will requires a different reasonable period within which to fully administer the estate. In order to administer the estate the initial requirement is the making of inventory followed by the rendering of accounts. In some cases the administration would be merely complete upon these two steps being taken in administration. The only aspect which would remain for the executors to comply is the handing over of the estate of the Testatrix. This time frame would be enforced by the Court in case of a single bequest or simple bequest. In case of larger estate and more expansive and intricate directions in the Will for the handing over of the bequests, the Court would have an absolute discretion to grant such further time as would be required and as would be merited.
8. The case of removal of an executor would come up when the executor is shown to be an inveterate nonworker by his inaction in administration. Such a case could be made out only after the passage of sufficient time to allow the executor, who is an appointee of the Testator/Testatrix, a decent time in which to perform his duties. In view of the fact that executors perform their duties and functions and discharge their responsibilities gratis no undue burden can be cast upon them by the Testator/Testatrix as also or the Court or the beneficiaries. They are not enjoined to perform their functions at the whims and demands of the beneficiaries.
9. Under the Will of the Testatrix there are as many as five different and specific directions upon the executors for the distribution of specified movable and immovable properties to specific beneficiaries thus:
conducting her funeral, paying her debts, selling her residential flat at Malabar Hill, Mumbai and giving the sale proceeds to Petitioner No.1, forming a trust for two immovable properties at Alibag and collecting, selling and distributing the sale proceeds of her share, securities, bonds and bank accounts. There are six immovable properties bequeathed to six separate individuals out of which two properties being her residential flat and the aforesaid two properties are required to be administered by sale and by formation of the trust respectively. In both these two properties the Petitioners are the beneficiaries. Further there are as many as nine different heads of movable properties including sculptures and paintings, jewellery and antiques, sarees, electrical goods and household articles, writings, articles like computer printers cassettes etc., books, gems and crystals as also shares, securities, fixed deposits and bonds and bank accounts. The Will shows as many as eighteen independent beneficiaries, two of whom are the Petitioners.
10. There has been no complaint or grievance from sixteen of the beneficiaries against either of the Respondents. The relations between the parties herein were also cordial soon after the death of the testatrix. The Respondents as the executors commenced their work immediately after the death of the testatrix. Part of the estate came to be distributed within a week thereof including articles given to the Petitioner No.1 as well as his wife. It is contended that two pieces of antique furniture were appropriated by the Petitioner though specific bequests were made in respect of those articles in favour of other beneficiaries. The Petitioners have also not pressed charges against the Respondents in respect of the residential flat of the Testatrix which is directed to be sold and of which the sale proceeds are to be handed over to the Petitioner No.1 and this is despite the fact that there is an express allowance to the Respondents as the executors the discretion to postpone the sale of the residential flat "so long as they shall think fit without being liable or accountable for the loss, if any". That is the largest single immovable property of the Testatrix being her residential flat then sold for Rs.2.25 crores and the proceeds were invested as per the requirement of taxation law in REC bonds and Mutual funds out of which Rs.1.86 crores is stated to have been obtained and paid to Petitioner No.1 to effectuate the bequest in his favour. Rs.80 lakhs of the balance and her other investments is invested in Mutual Funds. There has been a needless dispute in respect of the use of a car which fell in the residue and which has since been handed over to Petitioner No. 1 as the residuary legatee. A Post office savings accounts, the proceeds of which have been given to the maid of the Testatrix also was not spared. The Post Master has, however, rightly directed that the proceeds shall not be paid over to anyone but the named legatee. Hence the Petitioners as also several other beneficiaries under the Will have been the beneficiaries of the actions of the Respondents. All those need not be enumerated since it has been accepted by the Petitioners.
11. The Petition for probate has been filed within 8 months of the death of the Testatrix. The probate, Exhibit-A to the petition has been granted within two years of its filing. Pursuant to the correspondence demanding quick discharge of duties and which has gone much further than the mandate under the Will, as shall be seen presently, a large part of the estate came to be administered within six months of the grant of probate. Consequently, whereas under the specific provisions of the Statute and the grant, during the period in which only an inventory of the properties are to be made, the Petitioners expected the entire estate to have been administered and since it was not administered they have sued for removal of the executors as also for directions directing them to carry out their functions under the Will itself. This is expecting undue diligence from the executors.
12. The Respondents have shown reasons why and how the estate could not be administered more expeditiously than it actually was. The Respondents have also shown the steps taken by them in administration. These include efforts put in by the Respondents prior to as well as after the filing of the above Petition for their removal. The Respondents have shown in their affidavit the acts performed by them as the executors under the Will of the Testatrix in unison with the beneficiaries including the Petitioner No.1 in distributing all the movable properties as well as acting for the procurement of their immovable properties so far as could be done with their consent and even without the application for probate.
13. The Respondents wrote several letters to the Chartered Accountant (C.A.) of the Testatrix since 16th August 2007 calling upon him to go through the accounts of the Testatrix and investments and advise them in administration. Given the large estate left by the Testatrix the C.A took time of more than three years to make a detailed report of the estate. The report came to be submitted on 20th August 2010 well before which the probate came to be obtained. As per the requirement of the Bank an application for the Executor's pancard came to be made and the card is stated to have been obtained nine months thereafter. It is only upon the C.A obtaining the joint pan card to operate the d-mat account of the testatrix, which was imperatively required, that the Respondents could administer the movable property of the Testatrix including her bank accounts and various investments made therefrom. Respondents 1 and 2 have shown in their affidavit in reply the transfer effected to the executors' bank account as also the redemption of matured bonds. From the C.A's certificate dated 20th August 2010 the executors deciphered further investments of the Testatrix in REC bonds, bank accounts, mutual funds etc. The Respondents handed over to the Petitioners the details of the bank accounts so unearthed.
14. It may be mentioned that certain bank accounts were initially not disclosed by the Respondents to the Petitioners. The Petitioners have made much about that fact as a suppression. Since the bank accounts are themselves not specified movable properties bequeathed under the Will and since they reflect the proceeds of the other movable properties of the Testatrix viz. FDRs, bonds shares and securities and the income therefrom, a disclosure of those specified securities would be sufficient compliance of the action on the part of the executors provided, of course that no single movable property reflected in the bank accounts is left undistributed as per the directions under the Will.
15. The hurry which is exhibited by the Petitioners in seeing the bank account of the Testatrix which is stated to be have been hitherto concealed, is matched by the response of the Respondents that they could not administer the movable estate of the Testatrix before they obtained the executors' pancard, which they applied and pursuant to which they were able to operate the bank accounts. Given the fact that this administrative acts do take up some time of the executors, who otherwise have their own independent calling or business which they have to attend to, the commencement of their action after procuring the pancard which was required as a condition precedent for operation of the bank accounts cannot be taken to be inaction on their part, which must visit them with the punishment of removal. In fact considering the vast estate, the procedural constraints and their obvious preoccupations, the Respondents have rather expeditiously administered the estate though a part of the estate may have been administered only upon the specific prodding and push of the Petitioners, however prematurely.Before and after the filing of the Petition for probate by the Respondents as well as this Petition by the Petitioners, the Petitioners have sought to take accounts of and demand administration for each aspect of the properties of the Testatrix, the exercise wholly outside the perview of the Petition under Section 301 of the Indian Succession Act for removal of executors.
16. A case for removal of the Respondents is, therefore, neither opportune nor matured and is rightly not pressed. The other reliefs aforesaid which have been pressed and have been allowed despite the fact that such mandatory reliefs for implementation of the Will including making inventory or handing over proceeds of REC bonds are outside the jurisdiction of the Testamentary Court and can be granted only by the Civil Court in a Civil Suit being filed upon payment of the requisite advelorum court fee therein. The misconception in the petition is, therefore, apparent from the prayers therein. Nevertheless upon the fair concession of the role of the Respondents in the discharge of their responsibilities as executors, they have applied for, obtained and distributed a large part of the estate including the estate bequeathed to the Petitioners, which they have been in an undue haste to receive.
17. At the time the Petition came up for hearing the Petitioners did not press the prayer for removal of the executors, at least as vehemently, on the ground of their inaction in procuring and transferring certain movable and immovable properties of the Testatrix, as they did in respect of one trust which the Respondents have been directed to create and form under the Will.
18. The formation of the trust is in respect of two immovable properties at Alibag of which Petitioner No.2 is the sole beneficiary. Under the aforesaid correspondence the Petitioners claimed to be put in possession of the said property by the executors absolutely. That demand is wholly contrary to the directions of the Testatrix under the Will.
19. Prayer (g) of the Petition is for appointment of Petitioner No.1 as the sole trustee of the trust in place of seven trustees appointed by the Testatrix under the Will in respect of the said property which is also inconsistent with the directions of the Testatrix relating to the formation of the trust.
20. It is argued by Mr. Jagtiani Senior Counsel on behalf of the Petitioners that the trust cannot be formed as per the directions of the Testatrix because three of the seven trustees named by the Testatrix herself as the first trustees of the trust have refused to act as trustees. It is, therefore, contended that the clause cannot be given effect in its entirety.
21. It would be apt to set out the clause relating to the formation of the trust to appreciate the intention of the Testatrix as reflected from the imperfect drafting of the clause giving various essential contradictory mandates thereunder to see whether, sitting in the armchair of the Testatrix, the Court can strictly or sufficiently have the said clause executed or whether the Court would be constrained not to give effect to the said clause, partly or fully.
"Clause 12. I own another separate immoveable property at Agarsure, Alibag being Survey No.146, Hissa No.3 and Survey No.146, Hissa No.6, on which I have intended to establish a Centre devoted to spread of knowledge of Indian culture, yoga, sustainable living, organic vegetable growing, healing arts and forestry. I direct my executors to assign to a private charitable trust to be created and formed in the name of "Dara Mistry's Green World" both the said immovable properties situated at Agarsure, Alibag. If the said Trust is not created in my lifetime I direct my Executors and Trustees after my death that in that event they should appoint and nominate the first Trustees of the said Trust the following persons:
|Firooz Bomi Pavri and|
my nephew Bernhard Dara Borchert to be the beneficiary of the Trust who could live on the said properties and manage in the Trust properties and make a living therefrom. If the trust is not formed then my brother Martin Borchert will administer the benefits on behalf of Bernhard Dara Borchert and operate the accounts of Dara Mistry's Green World singly and without being responsible to any other beneficiary under this Will."
(emphasis of the most essential words supplied)
22. A dissection of the aforesaid clause shows that for the aforesaid two properties a private charitable trust is required to be formed. The name of the trust would be "Dara Mistry's Green World", Dara Mistry being the late husband of the Testatrix. The Testatrix desired to create a trust in her life time. She failed to do that. The executors had to appoint the first trustees. The first trustees were named by her. These were as many as seven trustees. The Petitioner No.2 was the beneficiary. The Petitioner No.2 was allowed to live on the said properties, if he wished. He was also allowed to manage "in" the trust properties. If that trust was also not formed the Petitioner No.1 was directed/allowed to administer the benefits (of the trust). He was also allowed to operate the accounts of the trust. He was allowed to operate them singly. He was not responsible to other beneficiaries - the other beneficiaries as aforesaid, are as many as eighteen persons including the trust itself and Petitioner No.2 himself. He would however be responsible as a trustee of the said trust which responsibility has not been waived under the Will by the Testatrix. He, therefore, would not get the said property absolutely and accordingly neither would his son get an absolute bequest of the said property.
23. A reading of the clause as a whole shows that the prime desire of the Testatrix was to establish a center for the spread of Indian Culture and Yoga. The Testatrix even named her trust. It was named after her husband. That trust had to be formed under any circumstances. She could form it herself in her life time. If that was not formed the executors had to form the trust with the trustees whom she appointed as her first trustees. If that was also not formed her brother would have to form the trust, administer it and operate its accounts. The exclusion of responsibility of her brother, Petitioner No.1, was against the beneficiary (in the singular mentioned under the Will). The other sixteen beneficiaries had nothing to do with the trust and have not taken any exception to its formation or the appointment of the trustees.
24. The real portion of the clause which is sought to be effectuated by the Respondents and which is strenuously resisted by the Petitioners as the proposed administrator and beneficiary respectively is the formation of the trust by the executors and the assignment of the properties to such trust. It is clear that the Testatrix has nominated seven persons as the first trustees. These are one too many, given the fact that they would require to discharge their duties gratis for Petitioner No.2 who is the sole beneficiary of the trust. A construction of the clause "they should appoint and nominate the first trustees of the said trust the following persons" is differently sought to be put by the parties. It is contended on behalf of the Petitioners that this is a mandatory requirement; the only mandate of the Testatrix for the creation of the trust. The Testatrix has not given any other directions to the executors for the formation of the trust. It is sought to be shown to Court that the writing of the names of seven trustees itself reflects the purpose of the specific direction of appointing not less than seven persons as trustees. Three of the trustees are Respondent No.1 and its two family members. The other four trustees are outsiders. It is, therefore, justifiably contended that the Testatrix sought to offset the influence that each of the family members of the Respondent No.1 might yield upon the other trustees, if they outnumber such other trustees and hence to power balance the working of the trustees, four independent outsiders have been sought to be named and appointed to work alongside the three members of the family of the Respondent No.1 including himself. Though this stands to reason, it cannot be gainsaid that the Testatrix could have also contemplated less than three members of the family of the Respondent No.1 as also less than four independent outsiders for equal power balancing, if the independent outside trustees would outnumber Respondent No.1 and/or his other family members.
25. What however has actually happened would show and demonstrate the intent of the Testatrix. Three of the trustees have refused to act leaving just one independent outsider as a trustee to act along with three of the family members of the Respondent No.1, a situation considered rather gross and overwhelming by the Petitioners who contemplate and apprehend mismanagement or maladministration of the trust at the hands of the trustees so as to deprive Petitioner No.2 of the benefits of the aforesaid two properties. It is, therefore, argued on their behalf that since the three trustees appointed by the Testatrix cannot be compelled to act the entire mandate of appointment of trustees itself falls and the Court cannot give effect to such direction. Of course it is accepted that the said two immovable properties cannot devolve upon the Petitioner No.2 absolutely and without formation of any trust whatsoever and that is reflected from prayer (g) to the Petition itself in which Petitioners have applied for the relief of appointment of Petitioner No.1 as the sole trustee of the trust specifically named in the said prayer as "Dara Mistry's Green World". This aspect is further fortified by the last sentence in the aforesaid clause 12 of the Will which directs the Petitioner No.1 to operate the accounts of "Dara Mistry's Green World" singly. It would, therefore, imply that if the trust is not formed by the executors or cannot be formed by the executors, Petitioner No.1 would form the trust of which he would be the sole trustee having the duty to administer the benefits of the trust on behalf of his son Petitioner No.2 and have the right to operate the accounts of the trust singly for that purpose. Though, therefore, he would not be responsible to any beneficiary (including Petitioner No.2) he would be enjoined to form the trust of the specified name given by the Testatrix.
26. A reading of further clauses of the Will also posits that the only essential intention of the Testatrix is to the creation of "Dara Mistry's Green World", evidenced from clauses 17 and 20 of the Will in which separate bequests of movable properties and/or their values are made to "Dara Mistry's Green World". The specific bequest under clause 17 is of computers, printers, other hardware, cameras, computer peripherals, yoga books, spiritual literature and web collections to be utilized for teaching purposes. The specific bequest under the clause 20 which deals with the sale of the shares, securities, FDRs and bonds to nine specific bequests grants the balance of such investments of the Testatrix as the residuary amount of such investments to "Dara Mistry's Green World".
Further the words "my nephew Bernhard Dara Borchert to be the beneficiary of the Trust who could live on the said properties and manage in the Trust properties" show that Petitioner No.2, the beneficiary of the trust, would be entitled to enjoy the properties under the management of the Trustees but not obtain them absolutely. The words "my brother Martin Borchert will administer the benefits on behalf of Bernhard Dara Borchert and operate the accounts of Dara Mistry's Green World singly" are to be operational only if the trust is not formed by the Executors. In that case Petitioner No.1 is enjoined to form the trust and as a sole trustee operate its accounts.
27. The first of the named trustees was also appointed one of the two executors under the Will. She sought to renounce her executorship during the life time of the Testatrix herself. She tendered her resignation as executrix to the Testatrix. The Testatrix executed a Codicil on 7th February 2004 and appointed Petitioner No.2 instead. The Testatrix knew that she was not only the executrix and trustee of the Will, but also the first named trustee amongst the seven named trustees of "Dara Mistry's Green World". Yet the Testatrix has not made any provision with regard to the appointment of the trustees in the place and stead of the said sole executrix and trustee of the Will. Consequently, during the life time of the Testatrix herself the properties to be settled under Trust came to be only under a trust of the six named persons as the first trustees.
28. The Testatrix has not appointed another person as trustee in the place of said executrix who was the first named trustee during her life time. This was though the will as well as the Codicil were executed in 2004 and she expired in June 2007.
29. The Codicil is a part of the Will and must be read as well as probated along with the Will. A reading of the will unmistakably shows the intention of the Testatrix to create a trust called "Dara Mistry's Green World" for the various noble purposes mentioned therein. However a reading of the Will and the Codicil also shows that she herself did not name seven trustees as the first trustees prior to her death. This is the strongest circumstance of the intention of the Testatrix to show that it was not imperative for all of the seven named persons to be the seven trustees of the trust without whom the entire trust could not have been formed.
30. There is nothing to show that the original executrix of the Will who resigned as such executrix expressed her desire to act as one of the first trustees of the trust during the life time of the Testatrix. She has expressed her desire not to be one of the first trustees after the death of the Testatrix along with two other trustees. It is true that if the trust is formed of only the remaining four trustees, the entire control of the trust would remain only in the family of the Respondent No.1 who may be inimical to the Petitioner No.2 who is the sole beneficiary of the trust. However by the mere fact of three of the trustees expressing their desire not to be the first trustees, the entire trust cannot be dissolved. No such mandate of the Testatrix can be read into the Will. The act of the Testatrix during her life time after the execution of the Will and the Codicil does not show or suggest the requirement of such appointment as an imperative directive.
31. The trust itself is the focal point and the most paramount intention. The positive and oft repeated intention of the Testatrix can never be bypassed or brushed aside by the Court. It will have to be effectuated.
32. It can, therefore, be seen that aside from the paramount intention of the Testatrix to form the trust called "Dara Mistry's Green World" on the aforesaid two immovable properties which is clear and specific, the actual administration and management of the trust, the operation of the bank accounts, as also the first trustees of the trust are left flexible.
34. It would have to be seen how that part of clause 12 which is not imperative could be effectuated. Some words may have to be supplied in it. The necessary mandate under the Will must be ascertained and deciphered from a reading of the Will. The sense in which some of the words with regard to this aspect are used - restricted or wide - would have to be ascertained. A meaning would have to be given to each part of the clause, but without rejecting any part of it giving full effect to the intention of the Testatrix.
35. To that end the provisions contained in Chapter VI of the Indian Succession Act relating to construction of Wills as also English Law with regard to the construction of Wills and the precedents therefrom would have to be considered.
36. It would be apt to commence from a reading of some of the statutory provisions in the Indian Succession Act itself. The specific provisions for the construction of the Will of the Testatrix would be read thus:
"Section 77. When words may be supplied - Where any word material to the full expression of the meaning has been omitted, it may be supplied by the context.
The testator gives a legacy of "five hundred" to his daughter A and a legacy of "five hundred rupees" to his daughter B. A will take a legacy of five hundred rupees.
Section 82. Meaning of clause to be collected from entire Will - The meaning of any clause in a Will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other.
Section 83. When words may be understood in restricted sense, and when in sense wider than usual - General words may be understood in a restricted sense where it may be collected from the Will that the testator meant to use them in a restricted sense; and words may be understood in a wider sense than that which they usually bear, where it may be collected from the other words of the Will that the testator meant to use them in such wider sense.
(i) A testator gives to A "my farm in the occupation of B", and to C" all my marshlands in L". Part of the farm in the occupation of B consists of march-lands in L, and the testator also has other march-lands in L. The general words "all my marsh-lands in L," are restricted by the gift to A. A takes the whole of the farm in the occupation of B, including that portion of the farm which consists of march-lands in L.
(ii) The testator (a sailor on ship-board) bequeathed to his mother his gold ring, buttons and chest of clothes, and to his friend, A (a shipmate), his red box, clasp-knife and all things not before bequeathed. The testator's share in a house does not pass to A under this bequest.
(iii) A, by his Will, bequeathed to B all his household furniture, plate, linen, china, books, pictures and all other goods of whatever kind; and afterwards bequeathed to B a specified part of his property. Under the first bequest, B is entitled, only to such articles of the testator's as are of the same nature with the articles therein enumerated.
Section 84. Which of two possible constructions preferred - Where a clause is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred.
Section 85. No part rejected, if it can be reasonably preferred - No part of a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it.
Section 87. Testator's intention to be effectuated as far as possible - The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible".
37. With regard to the appointment of the seven named persons in the Will as the first trustees a lot of emphasis has been placed by Mr. Jagtiani on behalf of the Petitioners to the conjugation "should". He has contended that this expression shows the imperative tense. English grammer goes to show that in fact it is not so. That would have been so if the conjugation "shall" had been used. The expression "Shall" denotes an imperative direction in the sentence. The expression "should" denotes what would be the right thing to do. The dictionary meaning of the term "shall" in Concise Oxford Dictionary Eleventh Edition at page 1321 shows that it expresses " a strong assertion or intention" as it expresses "an instruction or command". The expression "should" on the other hand is defined in the said Dictionary at page 1333 to show that it is a third person singular tense used to indicate obligation, duty, or correctness - it is used to give or ask advice or suggestions - it is used to indicate what is probable. It is defined to be a formal expression of the conditional mood indicating the consequence of an imagined event. It refers to a possible event or situation. It expresses a polite request or acceptance or a conjecture or hope (in the first person).
38. The expression "should" in clause 12 of the Will (See emphasis in the quoted clause above) therefore, would not make the direction so binding as never to be altered. Though the executors should appoint the seven persons named by the Testatrix, it would have to be seen whether the trustees can appoint all of those seven persons. For an illustration one must ask the question - if one of these seven persons had suddenly expired and only six of the seven named persons remained, would the executors not be entitled to create and form the trust at all ? What would be the consequence, if all the seven trustees are appointed and on the next day one of them suddenly expires? Would the trust have to be dissolved for want of one of them ? The expression "should" answers these questions in the negative. And this is not only because of the use of word "should" whatever be its dictionary meaning. A Testamentary Court is not as much concerned with sound nuances of the intricate English language as much as decipher even from an incorrect grammatical expression, the true meaning that the testator put upon such word.
39. In Re. Rowland (deceased) Smith Vs. Russell 1963 LR Ch.D 1 the construction of the language of the will has been set out by Lord Denning M.R (though in a dissenting judgment on another point) thus:
"For in point of principle the whole object of construing a will is to find out the testator's intentions, so as to see that his property is disposed of in the way he wished. True it is that you must discover his intention from the words he used: but you must put upon his words the meaning which they bore to him. If his words are capable of more than one meaning, or of a wide meaning and a narrow meaning, as they often are, then you must put upon them the meaning which he intended them to convey, and not the meaning which a philologist would put upon them. And in order to discover the meaning which he intended, you will not get much help by going to a dictionary. It is very unlikely that he used a dictionary, and even less likely that he used the same one as you. What you should do is to place yourself as far as possible in his position, taking note of the facts and circumstances known to him at the time: and then say what he meant by his words."
40. Hence the Court must see not the meaning put upon the word "should" as argued by Mr. Jagtiani and as verified from the dictionary, but as was intended and, in fact, acted upon by the Testatrix herself. Hence though the executors should have appointed these seven persons, in preference to any others, the executors may not appoint them the trustees in case of certain unavoidable circumstances. One of such conditions is the trustees refusing to act as such or expressing their desire to renounce or resign or not accept the trusteeship. None can be forced to undertake a legal obligation and incur legal responsibilities flowing therefrom. That precisely happened with the first named of the trustees who was the original executrix. Her resignation from her executorship was honoured and accepted by the Testatrix herself. That appointment also had similar legal consequences. It entailed similar rights, privileges, as well as duties, functions, responsibilities and obligations. Her resignation was, therefore, respected and accepted. Her similar resignation or rejection to act as a trustee of "Dara Mistry's Green World" must also be similarly respected and accepted. The same applies to two other trustees. It is not for those persons who are merely named by the Testatrix, but who fail to take up their legal position to determine the trust. The trust has to be unmistakably formed. The name of the trust is also clear. The purposes of the trust must be carried out. The only dichotomy is with regard to the appointment of the first trustees. That is not the most important of the requirements. The first trustees may have a very short tenure after their appointment as the first trustees. They may seek to resign. They may be adjudicated insolvents. They may be convicted of an offence involving a moral turpitude or they may expire. In all these cases they would be incompetent to contract and hence incompetent to continue as trustees. New trustees would have to be appointed. The trust would go on. The show does go on. The clauses of appointment of trustees is, therefore, not so sacrosanct as not to permit itself of any variation or modification to bring it in consonance with the intention of the Testatrix to create and form the trust. Supply of, but one word by the Court in consonance with Section 77 of the ISA in the place relating to appointment of first trustees would, therefore, enhance rather than frustrate the intention of the Testatrix and the consequent justice. Supply of the words would be upon ascertaining the intention from a reading of the entire Will to effectuate her intention upon construing the Will reasonably and so as to eschew rejecting any part of her Will. Before the words "the following persons", therefore, addition of the words "amongst", or "any of" would serve the purpose. Similarly the word "as", however innocuous, appears to have been missed and can be similarly supplied after the word "named" followed by a comma in the same sentence. The direction of the Testatrix would read thus:
"....In that event they should appoint and nominate, as the first trustees of the said trust, amongst the following persons...."
"...in that event they should appoint and nominate, as the first trustee of the said trust, any of the following persons".
41. There can be no prejudice caused to the trust by the addition of the aforesaid words. There can be no prejudice caused to the ultimate beneficiary also by such addition. The most formidable of the intentions of the Testatrix being the creation and formation of the trust called "Dara Mistry's Green World", which is writ large in the length of the Will and which finds a place in clauses 12 (twice) and 17 as well as 20 of the Will, would be effectuated. The executors would have performed their functions as per the mandate in the Will and the noble purpose expressed in the Will for the creation of the said trust would have been attained.
42. Of course, the creation of the trust with the four of the seven named persons including three persons from one family of Respondent No.1 would indeed cause prejudice to the beneficiary and thus indeed appear inconsistent with broad intention of the Testatrix to have four outsiders along with those three persons. Consequently, three other independent outsiders would have to replace the three trustees who have rejected the offer to be trustees, or such majority would otherwise have to be maintained.
"370. Functions of the court of construction. The cardinal rule of English law as to the effect of a will is that the testator's intention, as declared by him and apparent in the words of his will, is effect given to it, so far and as nearly as may be consistent with law. The application of the rule requires a court of construction to consider two matters: (1) the intention of the testator disclosed by the will, and (2) the manner in which effect can be given to that intention. In ascertaining the testator's intention, it is a settled principle that his intention is to be sought in the words that he has used in his will given, normally, their natural and grammatical meaning, but that that meaning can admit of modification to accord with a real intention shown by the will as a whole".
"Where the court finds on the face of the will a clear, general or paramount intention to which effect can be given, and a particular or subordinate intention to which, by reason of some rule of law, the court cannot wholly or partially give effect, or which is inconsistent with or does not carry out all the intentions which the testator has or is presumed to have, then the particular intention must be rejected or modified, and the general intention of the testator carried into effect".
"If, therefore, the intention of the testator can be collected with reasonable certainty from the whole will, with the aid of extrinsic evidence of a kind properly admissible, that intention must have effect given to it beyond and even against the literal and ordinary sense of particular words and expressions, and the court is not bound to adhere to the ordinary or legal meaning in such a case".
The intention of the Testatrix in forming the trust is the most apparent. The formation of the trust can never be sidelined. The manner in which effect can be given thereto would be by a reasonable construction of the otherwise inarticulate expression with regard to the appointment of the first trustees in the Will as also the operation of the accounts of the trust by the Petitioner No.1 singly and the lack of responsibility to "any other beneficiary" under the Will. The clause, therefore, would admit of some modification to accord her real intention shown in the Will as a whole.
"397. Evidence of surrounding circumstances. Where the words of the will have no reasonable application to the circumstances proved, further evidence of the surrounding circumstances, including, in construing the will of a testator who dies on or after 1st January 1983, evidence of his actual intention, is admissible to discover the meaning of the words which give the will full effect".
In this case the execution of the Codicil is the intrinsic evidence which is required to be considered to set the Court on the right track as to not only the intention, but the subsequent action, of the Testatrix.
48. It is contended on behalf of the Petitioners that the clauses relating to the formation of the trust is rather ambiguous and would be void for uncertainty. Under Section 89 of the Indian Succession Act a bequest is void for uncertainty when it is not expressive of any definite intention. Section 89 runs thus:
"Section 89. Will or bequest void for uncertainty. - A Will or bequest not expressive of any definite intention is void for uncertainty.
If a testator says "I bequeath goods to A", or "I bequeathed to A", or "I leave to A all the goods mentioned in the Schedule" and no Schedule is found, or "I bequeath 'money', 'wheat', 'oil', or the like, without saying how much, this is void."
49. A reading of the entire clause 12 may suggest the clause relating to the direction contained in the Will, if the trust is not formed in the later part of clause 12, in fact, to be ambiguous. But not the clause relating to the formation of the Will in the former part of clause 12 at all. The expression "administer the benefits" as well as "without being responsible to any other beneficiary under this Will" would be rather ambiguous though not so devoid of expression as to hold them void for total uncertainty. The expression "administer the benefits" only shows that the Petitioner No.1 would have to administer the benefits of the trust. Even in this clause the words "of the trust" would have to be added to lend better expression to the intrinsic intention of the Testatrix. The further expression "operate the accounts of the Dara Mistry's Green World singly would itself show that the trust by that name would just have to be formed, though it may not have been formed in the manner specified in the earlier part of clause 12 of the Will. Similarly the expression without being responsible to any other beneficiary under the Will would only admit of the intent that as many as sixteen other beneficiaries would not be concerned with the trust. The other responsibility of the Petitioner No.1, if he administered the benefits of the trust and if he operated the accounts of the trust, would be as per the procedure prescribed in that behalf under the applicable law. The ambiguity, if any, is removable and could be removed only upon the aforesaid benevolent construction and by the addition of the aforesaid words in the last part of clause 12 of the Will.
50. It is in this behalf that the text of Halsbury's Laws of England, Fourth Edition relating to the chapter on Construction of Wills, Volume 50 in paragraph 412 at page 242 would give the appropriate direction and guidance to the Court, and which runs thus:
"412. Effect where words are ambiguous in context. Where a context is found which is sufficient to control the meaning of the words, but the words in that context are ambiguous, contradictory or obscure, or where the words have no special meaning given them by the context, and have two or more meanings in ordinary use (and there is no evidence of the testator's intention), the court adopts that construction which it considers most likely that, in the circumstances, the testator meant by the words of the will, taking into account the general scope of the will and his general purpose. Such considerations are, however, permissible only where it is a question of choice between two possible interpretations; they are not legitimate where the normal meaning of the words offers no difficulty."
51. Clause 12, keeping in mind clauses 17 & 20 also, would be required to be construed in this light. These clauses reveal an unmistakable intent of creating the trust which specified objects. The argument that it is void of uncertainty betrays only the desire of the Petitioners to rid the estate of the executors, so that they can free the property of the shackles of trusteeship by any means. This is demonstrated from the previous conduct and action of Petitioner No.1 brought on record by his own documents. He knew about the trust, he knew he had to accept it and get around it by whatever means; fair or foul and assume control. He sought to act upon it himself. In his desire to appropriate the trust property absolutely to himself, he assumed the role of a legatee in possession ! He executed another separate power of attorney on 18th March 2008 in favour of his Constituted Attorney, aside from the Power of Attorney appointing her to prosecute this litigation, seeking to appoint her to look after and maintain the property of the Testatrix held by him as a "sole trustee" of a private trust known as "Dara Mistry's Green World" ! Clause 12 of the Will does not appoint the Petitioner No.1 as the sole trustee; it does not appoint him even as one of the trustees. He is a German national residing in Berlin and would not be in a convenient or fit position to hold the fiduciary and onerous task of the trustee of the private charitable trust promoting essentially Indian culture and way of living. Further strangely the recitals in the power of attorney show that the Petitioner No.1 audaciously executed a Declaration of Trust dated 7th March 2008 appointing himself as the sole trustee of the trust and declared that he was possessed of the immovable properties being the two pieces of land in Alibag on which "Dara Mistry's Green World" was setup. This egregious use of position as well as the property is not only presumptions, but rather contemptuous. This is more than a year prior to his letters dated 15th September 2009 and 14th December 2009 written by the Petitioner No.1 to the executors to put him in possession of the property and this is without informing the executors of the creation of any alleged trust or appointment of himself as the sole trustee of the trust. In fact if the third recital in the power of the attorney of the Petitioner No.1 were to be accepted as true, for the power of attorney, to be validly acted upon by his constituted attorney upon the trustee being in possession of the immovable property, one fails to see what drove him to write to the executors to put him in possession of the properties more than a year thereafter and before the probate was obtained by them. In fact, the alegal action, if any, of Petitioner No.1 or his constituted attorney as per his direction would tantamount to Petitioner No.1 being liable to the estate as an executor de son tort. Aside from an attempted abusive expropriation of his position, it betrays the charactor of Petitioner No.1 to put the Court on guard in allowing him any position in the trust in any measure.
52. This is, therefore, a fit case for the application of the doctrine of cy-pres in which the Court would have to make such reasonable amends as would be justified to effectuate the intention of the Testatrix as much as would be justifiable. A true guide in this exercise would be the judgments of the Courts in England and India applying the doctrine of cypres in cases of bequests, which could not be effectuated strictly in terms of the tenor of the Will.
53. In the case of Re Wright (deceased) Blizard and Anr. Vs. Lockhart and Ors. 1954 All England Law Reports 98 a bequest of the residue was granted to take effect after the death of a tenant for life. The tenant died nine years after the Testatrix herself. At such distance of time the Court was called upon to rule whether the charitable bequest which was to take effect on her death was practicable. Under the charitable bequest a convalescent home was to be established and maintained. The Court held that the bequest had to be effectuated. It was observed that once money was effectively dedicated to charity, the testatrix's next of kin who was residuary legatee was excluded therefrom. Such a bequest would not lapse. It was observed that even if the legacy could not be actually received after the death of the testator it becomes the absolute property of the legatee upon the death of the testator and hence would not fall within the residue. Such a legacy can be effected whenever it was practicable - in that case it become practicable about a decade after the death of the testatrix when the tenant having the life interest expired. The Court considered the case of Re Slevin ( 2 Ch. 236) in which a legacy to an orphanage which was in existence at the time of the testator's death, but which was discontinued before his assets were administered fell into the residue because the legacy to the orphanage itself lapsed and the purpose of the gift became impracticable. However, the Court observed that the orphanage existed and was capable of taking the gift when the testator died. Even the case of Re. Soley (1900) 17 T.L.R. 118; 8 Digest 346, 1402 which was considered in that judgment in which the testator bequeathed money upon trust to a person for life and after his death to be applied for certain scholarships in a college. During the life time of the person with the life interest the college ceased to exist. The Court directed the amount to be applied for charitable purposes cy-pres.
54. In the case of Re. Lepton's Will Trusts, Re Lepton's Charity Ambler & Ors. Vs. Thomas & Ors.  1 All E.R. 799 Ch.D separate bequests were made to two charities. One charity was to get an annual sum and the other was to get the residue. The Will specified the bequest to be of a particular amount; in that case 3 pounds. Years after the death of the testator due to inflation the relevant value of the gift were largely distorted because one charity was given a specified sum whereas the other charity would get the remainder. For a Will made in 1715 when the testator died in 1716 income of the trust properties in 1967 came up for consideration. The trust which has to be paid 3 pounds which was earlier about 3/5th of the annual income would get a disproportionately less amount of the income earned by the trustees in 1967 upon inflation. The Court allowed 100 pounds to be paid in place of 3 pounds under the extended doctrine of cy-pres upon the construction of the Will by considering that the changes in the income and the value of the money would completely distort the benefits under the respective trusts. It was held that the Court has to consider not what was stated by the testator itself, but what he had meant. The Court observed that the intention of the gift was to divide the sum according to value of 1715 in a particular ratio. The intention would be defeated if one charity took the specified amount and the ratio became grossly disproportionate due to inflation. In that case the ratio 3:5 in 1715 became 3:791 in 1967. Consequently, under Section 13 of the Charities Act 1960 the alteration of the gift under the doctrine of cy-pres came to be made.
55. In the case of Re Woodhams (Deceased) Lloyds Bank Ltd. Vs. London College of Music & Ors.  1 All E R 202 Ch. D the testator who was a musician and teacher of music made a charitable bequest of the residue of his property to be used by music colleges or music schools for orphans from named charitable homes. The colleges refused to accept the gift on grounds of impracticability of restricting the scholarships as required by the Will. They were prepared to accept the gift only without conditions. It was to be considered whether the gift failed. The Court observed, upon construction of the Will, that the restrictions of scholarships were an inessential part of the testator's scheme; the dominant charitable intention was to further music by funding the scholarships. The Court, therefore, allowed the scholarships for the charitable bequests to be effectuated without the condition that they be offered to those orphans from specific homes who could not be admitted to the benefits of the music college.
56. It was held that notwithstanding the form in which the Will was expressed, the paramount intention was to make a gift for the general charitable purpose of music so that even if a particular restriction was found impracticable to give effect to the particular purpose expressed in the Will, the Court could, by a scheme, apply the legacy for a general charitable purpose. The dominant purpose of the bequest was to further musical education by funding scholarships in two colleges. Hence though the testator had chosen orphans from certain named homes who most likely needed assistance for music, it was not found to be such essential part of the scheme that the scholarship should be restricted to them and the testator's charitable purpose could be modified by the Court without frustrating his intention. Accordingly it was held that the trust did not fail since it could be effectuated by a modification by deleting the restriction contained in the Will. The Court considered whether the testator's true intention was to fund a particular class of poor people or whether it was to propagate music. It observed that :
"A general charitable intention, then, may be said to be a paramount intention on the part of a donor to effect some charitable purpose which the court can find a method of putting into operation, notwithstanding that it is impracticable to give effect to some direction by the donor which is not an essential part of his true intention - not, that is to say, part of his paramount intention".
Considering the earlier cases the Court observed that the mode by which the charitable purposes was to be carried into effect was not the substance of the legacies. The actual bequest to charity required the application of the doctrine of cy-pres.
"The construction of the language in which the trust is expressed seldom contributes much towards a solution. More is to be gained by examination of the nature of the charitable trust itself and what is involved in the author's plan or project".
58. In the contrary case of Re Mitchell's Will Trusts (1966) 110 Sol Jo 291 also considered by the Court, the testator accorded a life interest to a hospital for providing four beds only for the use of injured workmen from mines. The hospital could not setup four beds for that purpose as they would have been under-used. The hospital could have however provided four beds though not exclusively for those workmen. The gift in the Will could not be construed as a gift to the hospital; it was a gift to the workmen of the mines. Therefore, if four beds were maintained for the hospital, generally it would have frustrated the testator's evident intention to benefit "miners from the named pits". Consequently, the doctrine of cy-pres could not be applied and the gift failed, as a modification of the terms of the gift could not be made against the bequest to the mines workers.
59. The Court further considered the case of Attorney General for New South Wales Vs. Perpetual Trustee Co. Ltd., (1940) 63 CLR 209 in which a particular property named 'Milly Milly" was given on trust for training orphans. It was found to be too small and insufficient and was held capable of modification by the sale of the property applying the proceeds for the purpose of the same training for the orphans as directed under the Will.
60. The conclusion of allowing the bequest for the scholarship in musical education though not precisely to the boys of a particular orphanage could be squarely applied to the will in this case. The dominant intention of the Testatrix was for creation of the trust for propagation of yoga, naturopathy etc., in the name and style of "Dara Mistry's Green World". There can be no modification of that bequest. The Testatrix desired a trust to be formed. The seven trustees named by the Testatrix was not the dominant intention of the Testatrix. Of course, the Testatrix could have considered offsetting the impact of three trustees from one family by four independent trustees to obtain an independent democratic working of the trust. That however can be obtained by less than seven trustees, first or later. It only requires one more trustee from the independent trustees than would be from the family members of the Respondent No.1. The intent of the Testatrix of having a democratic solution to the trust problems could be effectuated by the executors. Similarly the intrinsic evidence in the Codicil prepared by the Testatrix is that though the first named trustee was shown to be a reluctant executrix it did not compel the Testatrix to name another in her place. If that trustee refused to act or even expired the trust cannot fail. The same would apply for more than one trustees. The trust would have to be founded, but with lesser number of trustees. Modification is required to allow the independent outsiders to have a reasonable majority. The doctrine of cy-pres demands that the Court modified the trust deed accordingly. Upon such modification in the names of first trustees, which would be a temporary appointment until one or some of them may cease to be trustees, the dominant intention of the Testatrix would be honoured and perpetuated.
61. Further in the case of Redfern Vs. Bryning 1877 LR. 6 Ch. D. 133 the Court provided an additional word which could be read into the Will upon seeing the intent of the testator. The testator left two sons and five daughters. He gave 1/7th share of the estate to each of them. He named the five daughters. He further specified that after the death of each of those daughters their children would get their 1/5th share. This provision was made separately showing the children of the daughters. Whilst doing so the name of one daughter was missed. Yet each of the four named daughters' children were given 1/5th share. The Court construed the Will, to read not only the bequest for the children of four named daughters, but also of the fifth daughter who remained to be mentioned.
62. In the case of Maddison Vs. Gill 1908 LR 2 Ch.D 1908 the Court construed an inaccurate enumeration in the Will. The testator gave residue to A, B and "the six children now living" of C. On that date all but one of the children of C had already expired. The Court construed the mistake from the dominant intention of the testator which was read into the Will "to benefit the members so described". The Court, therefore, gave effect to it by rejecting the inaccurate number of children described.
The judgment of Justice Cozens Hardy, M.R., referred to the judgment of Lord Justice Lindley, at page 195 thus:
"If the Court comes to the conclusion, from a study of the will, that the testator's real intention was to benefit the whole of a class, the Court should not and will not defeat that intention because the testator has made a mistake in the number he has attributed to that class. The Court rejects an inaccurate enumeration."
63. In the case of Wickham Vs. Haygarth 1913 LR 3 Ch.D 9 the principles of construction of the Wills by supplying the omission taking into account " the intention of the testator, which can be collected with reasonable certainty from the entire will" was laid down thus:
"the intention .... must have effect given to it, beyond, and even against, the literal sense of particular words and expressions. The intention, when legitimately proved, is competent not only to fix the sense of ambiguous words, but to control the sense even of clear words, and to supply the place of express words, in cases of difficulty or ambiguity."
64. In the case of Radha Sundar Dutta Vs. Mohd. Jahadur Rahim AIR 1959 SC 24 (V. 46 C 5) the most elementary interpretation of deeds and documents has been held to put such construction as to give effect to all the clauses rather than render one of the clauses nugatory, if the document is admissible of two constructions under the maxim "ut res magis valeat quam pereat".
65. In the case of Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia AIR 1980 SC 446 certain words were supplied to effectuate the intention of the Testator in the Will which do not otherwise show accurately and /or completely the meaning of the expression upon reading of the Will as a whole. The Supreme Court deciphered the intention of the Testator that his son alone and none else would be the ultimate owner of his properties. In that case the Testator specified that his son was to take the properties after his wife predeceased him, but he did not specify that his son should take the properties if his wife survived him and enjoyed the life estate given to her under the Will.
Upon reading the Will which showed that the daughter-in-law of the testator, who was the wife of another predeceased son, lived separately with her daughter and another daughter of the testator who was directed to be married off as per custom, the Supreme Court considered that the intention of the testator was not that either of his grandchildren or his daughter-in-law would succeed to his estate and that only his son would succeed whether or not his wife predeceased him. The entire bequest, therefore, came to be granted to the son by the Supreme Court upon supplying the required words. The Supreme Court considered the case of William Abbott Vs. Eliza Middleton (1858) 7 HLC 68 in which the words "without leaving any child" were supplied by the Court after the word "dying" in the Will of the Testator. The Supreme Court accordingly only "read into the Will" the bequest in favour of the son even if his wife did not predecease him, which was not expressly stated in the Will.
66. Consequently, the argument on behalf of the Petitioners that if a single trustee named in the Will would not accept the trusteeship none can be appointed and the possession of the property must itself be handed over to the Petitioner No.1 would have to be rejected as that would not only go diametrically contrary to the very intention of the Testatrix in forming a charitable trust with as many as seven trustees for the purposes mentioned therein, it would tantamount to rejecting an essential part of the Will of the Testatrix. Such construction being not reasonable cannot be accepted. Even if the Petitioner No.1 contends that he would form the trust and he would be the sole trustee, his offer cannot be accepted. There would be none to supervise or control his activities. He would in terms have a carte blanche to do what he pleases. He may dissolve the trust soon after its formation. He may not establish the trust which is specifically directed to be established. He may administer the benefits only for and on behalf of his son the ultimate beneficiary. He would, operate the account, if there be any, himself without being responsible not only to the other beneficiaries under the Will, but also to any other trustees or the executors who would require to see the administration of the estate of the Testatrix through.
67. It may be mentioned that since the very inception of the correspondence and even prior to the grant of probate and pending the probate petition, Petitioner No.1, who has been in rather indecent haste, has only sought possession of the trust properties and to administer and manage the same on behalf of his son. His intentions are hence apparent and it is the duty of the Court to contain his zeal in taking over possession of the estate of the Testatrix who desired the trust property under the trusteeship of seven others.
68. The Petitioner No.1 may be entitled to administer the benefits of the trust on behalf of his son and to operate the accounts of the trust only if the trust is not formed by the executors in the manner set out in clause 12 of the Will. Even in such a contingency Petitioner No.1 would never be entitled to possession of the property absolutely. Petitioner No.2 would never have an absolute bequest. The Petitioner No.1 would have to work under the trust formed by the executors, which would be none other than "Dara Mistry's Green World" and operate the accounts of such trust. If however the trust is formed, the latter part of clause 12 would not come into play. It would be operative only if the executors fail to form or refrain from forming the trust mandated to be formed. The executors have not refrained from doing anything in administration of the estate of the Testatrix.
69. Consequently, as argued on behalf of the Petitioners, merely by reason of rejection of three of the seven trustees the entire trust cannot be tossed away. The Petitioner No.1 cannot be given possession of the property as demanded by him. Even the Petitioner No.1 cannot be made a sole trustee leaving to him the absolute discretion to dissolve the trust at his will. More than one sole trustee is in fact the specific intention in the Will. Seven trustees cannot be brought down to a sole trustee. However, seven number of trustees can be modified to a lesser number as aforesaid. Since every clause in the Will has to be given effect to only the subjective word "should" cannot make the Court cause a gift under the Will to fail.
70. The trust would be formed in accordance with the draft trust deed submitted by the executors to Court with such of the modifications as it would admit and require. The draft trust deed, therefore, deserves to be considered.
72. The Respondents got executed a trust deed called "Dara Mistry's Green World" after the probate was obtained. It has been registered on 2nd August 2010 and upon which the requisite stamp duty and registration charges have been paid. The Petitioners have legitimately taken exception to certain clauses of the trust deed as drafted and executed by the Respondents. Their imputation upon certain other clauses cannot be countenanced in view of the legal rights of Petitioner No.2 (and not Petitioner No.1) as the beneficiary which can be exercised and sued upon when necessitated. All such clauses may be considered separately thus:
Under Clause 3 of the said trust deed the executors have sought to put restrictions with regard to the creation of third party rights in the trust properties except as specifically provided in the trust deed itself.
This would be in aid of lending perpetuity to the trust.
Under Clause 5 of the trust deed the directions in the Will with regard to the cash amount obtained from the investments of the Testatrix are directed to be deposited in the name of the trust. Similarly a bank account in the trust name is directed to be opened in which the amounts of the investments would be deposited by the Respondents as the executors. Further the executors are empowered to operate the bank account in such capacity until the trust is registered, when the bank account of the trust would be handed over to the trustees.
There can be no quarrel with the clause which in terms carries out the directions of the Testatrix under the Will with regard to the specific legacies made to the trust.
Clause 15 of the trust deed inter alia requires not less than two and not more than five trustees to be appointed.
If three of the five trustees are from one family, which the Petitioners take such strong objection to, the democratic effect of the trust may be completely diluted and hence the clause of the number of trustees as drafted cannot be allowed by the Court. Since seven trustees of a given trust indeed appear to be one too many, the Respondents have, as per usual terms for trust deeds of the kind, sought to have minimum two and maximum five trustees. Given the specific names of the seven trustees by the Testatrix, the trust deed containing maximum five trustees may appear to be inconsistent with her desire. Given the fact that three of them would be from one family, it would be destructive of her intention, if not cause a death knell to the very continuation of the trust. The Court would, therefore, not countenance appointment of any five persons or less than five persons as trustees per se. For so long as the three persons from one family continue to act as trustees there would have to be four other independent outsiders for the trust to continue in a healthy democratic atmosphere as would have been expected by the Testatrix. Therefore, rather than having minimum or maximum number of trustees the trust would have to have such number of minimum trustees as would have at least one more of the independent trustee than the three trustees of one family. The trust can have more than that number. The first of such trustees would be in the discretion of the executors to appoint under the aforesaid parameters. In fact, the Respondents as the executors are stated to have suggested the names of three eligible persons having affiliation to qualifications required and expected of the trustees for the specified objects of the trust. Further trustees would be appointed as per procedure established by law under which the trust would be governed. Such direction would effectuate the Testatrix's intention as far as possible. It would reasonably construe the Will without rejecting any part thereof.
Clause 22 of the trust deed requires the firm of the C.A appointed by the Respondents to make up accounts showing the income of the trust which would be paid to the ultimate beneficiary.
Petitioner No.2 the nephew of the Testatrix who is the beneficiary, would in fact be entitled only to such of the income as could be generated from the properties upon which "Dara Mistry's Green World" shall function aside from living on the properties and managing in the properties personally, if he wished. All trust accounts are required to be audited. Petitioner No.2 would be entitled to inspect the accounts and sue the trustees if it is found wanting. This right is required to be exercised bona fide and within limits.
Under Clause 28 of the trust deed upon the relinquishment or retirement of any of the trustees the remaining trustees would be entitled to appoint any other trustees.
This is normally done. No fault can be found with the said clause. The Petitioners would not be entitled to appoint any of the trustees. However the appointment of the trustees must be made bona fide and such as would facilitate and further the intention of the Testatrix.
Under Clause 30 of the trust deed the right to dissolve has been given to the trustees as they deem fit.
This can be done only by the appropriate Court under an application for such purpose. Hence though the latter part of the clause may not stand judicial scrutiny, the former would be in terms of the norms of trust which could be considered at appropriate stage by the appropriate Court for its bonafides. The argument on behalf of the Petitioner is that the beneficiaries must be involved in the process. However at appropriate time the dissolution, if any, of the trust can be considered only in accordance with the procedure established by law relating to private Trusts.
Clause 31 of the trust deed allows the trustees to dispose off the part of the property as they deem it necessary and proper, if the income of the trust is insufficient to meet the objects of the trust.
The exception taken to the said clause by the Petitioners is not unfounded. Under these exigencies the trust at the relevant time would be in the same position as the trust which could be "created" or "formed". If such a contingency arises, the only result would be to allow the Petitioner No.1 to administer the benefits of the trust and operate its accounts on behalf of his son, Petitioner No.2 without being responsible to any other beneficiary under the Will, but with all responsibilities as the law enjoins. Consequently, the empowerment of the trustees to dispose off a part of the property cannot be allowed by the Court as being wholly inconsistent with the intention of the Testatrix.
Clause 33 of the trust deed allows the trustees to add, alter, modify the trust deed, which also does not find favour with the Petitioners. However, the modification, addition or alteration is specified to be "to achieve the desired results and on behalf of the Center".
Upon the clarification that such addition, modification or alteration should achieve the results desired by the Testatrix and not the trustees on behalf of the Center, such addition, modification or alteration can be allowed.
(a) The largest single dispute with the use of the trust is on the premise that the family of the Respondent No.1 would monopolise the trust by virtue of its majority in the trust. Hence the most substantial amendment to the trust is required to be and must be directed to be in clause 15 for it to be appropriately worded either to have minimum seven trustees at all relevant times who would further the intention of the Testatrix in the working of the trust or to have such number of minimum trustees as would enable the independent outsiders to gain a majority over the family members of the Respondent No.1.
(b) The accounts of the trust can, as provided by law, be inspected by the Petitioner No.2 as the beneficiary and the Petitioner No.2 would be entitled to take recourse to law in respect of the accounts generating the income of the trust to which he would be entitled as per the mandate contained in clause 12 allowing him to stay and manage in the trust properties and as per law.
(c) The relinquishment or retirement of the trustees would necessarily require other trustees to be appointed by the then prevailing trustees, but subject to the bona fides of such appointment.
(d) The dissolution of the trust would only be subject to the orders of the Court upon the application of the trustees with notice to the Petitioner No.2 as the ultimate beneficiary. Petitioner No.1 would then be entitled to administer the benefits of the trust or operate its accounts.
(e) The other aforesaid clauses to which the Petitioners have taken exception need no modification.
74. Upon the trust deed dated 2nd August 2010 being amended as above by the Respondents as the executors and as the party of the first part thereto, the actual working of the trust shall be entitled to be commenced. It would be for the executors to diligently pursue the said exercise. It is only in this regard that the aforesaid directions for the implementation of the Will of the Testatrix under a reasonable time frame can be passed as prayed for in prayers (e) and (h) of the Petition.
1. Prayers (a), (f) and (g) are refused.
2. Prayers (b), (c) and (d) are worked out as already complied.
3. Directions under prayers (e) and (h) are passed as follows:
The Respondents shall, within 3 weeks from today, amend and alter the trust deed dated 2nd August 2010 or execute a fresh trust deed so as to alter clauses 15, 22, 28, 30 and 31 as follows:
(a) The minimum number of trustees shall be seven or such other number as would have at least one more trustee from amongst the independent outside trustees other than the family members of Respondent No.1 and maximum number of trustees shall be such further number of trustees as may be deemed fit by the Respondents so as to give the independent outsiders a majority at all relevant times.
(b) Clause 22 shall contain a proviso that the Petitioner No.2 shall be entitled to inspect the accounts of the trust annually.
(c) A proviso shall be added to clause 28 showing that the new trustees appointed in the place of the trustees who have resigned or who have relinquished the trusteeship or have retired are responsive to the specific needs of the trust in propagation of Indian Culture, Yoga and the other objects of the trust specified in Clause 12 of the Will of the Testatrix.
(d) The word "or" in line 3 of clause 30 shall be deleted. The words "or any other judicial forum having authority of deciding the issue related to the dissolution of the trust and also the property of the trust" shall be deleted.
(e) The power to the trustees to dispose off any part of the property of the trust cannot and shall not be granted. Clause 31 of the trust deed shall specify that if the income of the trust is insufficient to meet the objects of the trust (and not deemed insufficient only by the Petitioner No.2 as his income) the Petitioner No.1 would become entitled to administer the benefits of the trust on behalf of the Petitioner No.2, the sole beneficiary of the trust, and operate the accounts of the trust being "Dara Mistry's Green World" singly provided however that he shall continue and be able to continue the purposes and activities of the trust and meet the objects of the trust to derive sufficient income therefrom.
(f) It shall be specified in clause 33 that the alterations, additions or modifications of the trust shall be allowed only to the end that it achieves the results desired by the Testatrix as specified by her in clause 12 of the Will.
4.The Petition is disposed off in terms of the aforesaid directions.
5.The costs of the Respondents of this litigation shall come out of the estate of the Testatrix.