{"id":244710,"date":"1978-12-12T00:00:00","date_gmt":"1978-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/fazalbhoy-currimbhoy-etc-vs-official-trustee-of-maharashtra-on-12-december-1978"},"modified":"2016-02-01T22:15:22","modified_gmt":"2016-02-01T16:45:22","slug":"fazalbhoy-currimbhoy-etc-vs-official-trustee-of-maharashtra-on-12-december-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/fazalbhoy-currimbhoy-etc-vs-official-trustee-of-maharashtra-on-12-december-1978","title":{"rendered":"Fazalbhoy Currimbhoy Etc vs Official Trustee Of Maharashtra & … on 12 December, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Fazalbhoy Currimbhoy Etc vs Official Trustee Of Maharashtra & … on 12 December, 1978<\/div>\n
Equivalent citations: 1979 AIR 687, \t\t 1979 SCR (2) 699<\/div>\n
Author: R Pathak<\/div>\n
Bench: Pathak, R.S.<\/div>\n
           PETITIONER:\nFAZALBHOY CURRIMBHOY ETC.\n\n\tVs.\n\nRESPONDENT:\nOFFICIAL TRUSTEE OF MAHARASHTRA & ORS., ETC.\n\nDATE OF JUDGMENT12\/12\/1978\n\nBENCH:\nPATHAK, R.S.\nBENCH:\nPATHAK, R.S.\nFAZALALI, SYED MURTAZA\nSINGH, JASWANT\n\nCITATION:\n 1979 AIR  687\t\t  1979 SCR  (2) 699\n 1979 SCC  (3) 189\n CITATOR INFO :\n R\t    1980 SC1206\t (19)\n D\t    1983 SC 259\t (21)\n\n\nACT:\n     Sir Currimbhoy  Ebrahim Baronetcy Act, 1913-Act created\na trust\t of  the  properties  of  the  First  Baronet-Fourth\nBaronet migrated  to Pakistan  and was\tdeclared an evacuee-\nState  Legislature   passed  the   Sir\tCurrimbhoy   Ebrahim\nBaronetcy (Repealing  and Distribution\tof Trust Properties)\nAct, 1959-S.7(4)  of the  Repealing Act-Scope  of-Effect  of\nrepeal-Official Trustee-If  required to transfer and vest in\nthe Custodian  the trust  properties  found  to\t be  evacuee\nproperty.\n\n\n\nHEADNOTE:\n     In 1911  King George  V conferred\tthe \"dignity, status\nand degree\"  of a  Baronet  on\tSir  Currimbhoy\t Ebrahim  of\nBombay. To  provide  for  the  upkeep  and  dignity  of\t the\nBaronetcy the Sir Currimbhoy Ebrahim Baronetcy Act, 1913 was\npassed by  virtue of which considerable properties belonging\nto Sir Currimbhoy Ebrahim were settled upon the trust.\n     Section 8\tof  the\t Baronetcy  Act\t provided  that\t the\nresidue of  income from\t the properties\t settled  under\t the\ntrust was  to be paid to the first Baronet and the heir male\nof his\tbody, who  would, for  the time being succeed to the\ntitle of Baronet. Section 27 provided for the vesting of all\nproperties and\tfunds in  the Trust  \"upon  failure  and  in\ndefault of  heirs male of the body of the last Baronet.\" The\nFirst Baronet left behind a Will in respect of certain other\nproperties. On the death of the First Baronet his eldest son\nassumed the  title of Second Baronet and on the death of the\nSecond Baronet\this eldest  son Hussainbhoy became the Third\nBaronet.\n     The Third\tBaronet migrated  to  Pakistan\tbetween\t the\nyears 1947 and 1949. He was, therefore, declared an evacuee.\nCertain properties  belonging to him were declared vested in\nthe Custodian  of  Evacuee  Property.  Two  other  immovable\nproperties as  well as\tthe right, title and interest of the\nThird Baronet  in the Sir Currimbhoy Ebrahim Baronetcy Trust\nwere declared  as  evacuee  properties\tand  vested  in\t the\nCustodian of  Evacuee Property.\t On the\t death of  the Third\nBaronet in  Pakistan in\t 1952  his  eldest  son\t Mohamedbhoy\nsucceeded as  the Fourth  Baronet. At  that time  the Fourth\nBaronet was  residing in  India, but  shortly thereafter  he\nmigrated  to  Pakistan.\t The  Deputy  Custodian\t of  Evacuee\nProperty made  an order\t declaring  the\t Fourth\t Baronet  an\nevacuee and notified his beneficial interest in the Trust as\nevacuee\t property   vesting  in\t the  Custodian\t of  Evacuee\nProperty.\n     The Fourth\t Baronet having\t migrated to  Pakistan along\nwith  his   son,  the  Bombay  Legislature  passed  the\t Sir\nCurrimbhoy Ebrahim  Baronetcy (Repealing  & Distribution  of\nTrust Properties)  Act, 1959.  The Repealing  Act inter alia\nrevoked and  extinguished the  trusts,\tpowers,\t provisions,\ndeclaration and\t purposes declared  and expressed in the Sir\nCurrimbhoy Ebrahim  Baronetcy Act  and vested the properties\nand funds in the Official Trustee for the purpose of\n700\ndistributing them  amongst the\tpersons rightfully  entitled\nthereto, according to law.\n     The Official  Trustee thereupon called upon the persons\nclaiming interest  in the  trust properties  to submit their\nclaims.\n     On the  Official Trustee's application under s. 7(2) of\nthe Repealing  Act seeking orders and directions of the High\nCourt  as  regards  distribution  of  the  trust  properties\namongst the  several claimants,\t a single  Judge of the High\nCourt took  the view  that the Custodian was not entitled to\nthe share  of the  Fourth Baronet  in the  Trust  properties\nbecause the  beneficial interest of the Fourth Baronet which\nhad vested in the Custodian came to an end on the extinction\nof the Trust that the Repealing Act had the effect of giving\nrise to\t a resulting  trust in\tfavour of  the settlor,\t the\nfirst Baronet;\tthat the  trust properties  reverted to\t his\nestate on  his death,  that they  must be  deemed to pass by\ninheritance, according\tto the Muslim personal law, and that\nthe residuary  clause in  the will  executed  by  the  First\nBaronet did not cover the trust properties.\n     A Division\t Bench of the High Court on appeal held that\non the\tterms of  the Will  a contrary\tintention  had\tbeen\nmanifested by  the First  Baronet that\tin the\tevent of the\nfailure of  the Trust  the trust properties shall, after his\nlife time,  be held  for the  benefit of the Baronet for the\ntime being  and therefore the Fourth Baronet was entitled to\nthe trust  properties absolutely in his own right. The claim\nof the\tCustodian of  Evacuee Property\tto the corpus of the\ntrust properties was rejected.\n^\n     HELD: 1.  Upon the\t provisions of the Baronetcy Act and\nof  the\t  Will\ta   direction  by  the\tFirst  Baronet\tmust\nnecessarily be\tpresumed that  if the  trust created  by the\nBaronetcy Act failed or was revoked the trust properties and\nfunds must go to the last Baronet. [710 G].\n     (a) Although  the trust  was created by statute, it was\ncreated at  the instance  of the First Baronet so as to keep\nthe trust  in perpetuity  for the  upkeep of the dignity and\ntitle of  the Baronetcy at all times. A trust of this nature\nhas been regarded as a private trust. [707 B].\n     (b) Section  83 of\t the Indian Trusts Act provides that\nwhere a\t trust is  incapable of\t being executed or where the\ntrust is  completely executed  without exhausting  the trust\nproperty, the  trustee, in the absence of a direction to the\ncontrary, must\thold the  trust property  for the benefit of\nthe author of the trust or his legal representatives. On the\nterms of  this section,\t which incorporates in codified form\nthe concept  of what  is  known\t as  a\tresulting  trust,  a\nresulting trust can arise only in the absence of a direction\nto the contrary. [707 E-F].\n     (c) In the instant case the various clauses of the will\nshow that  substantially large\tsums of money were gifted by\nthe First Baronet in equal shares to each of the sons except\nthe  eldest  son.  In  all  these  clauses  the\t eldest\t son\nMohamedbhoy was\t not included  because he  would succeed  as\nBaronet to  the benefit\t of the\t trust constituted under the\nAct. There  is no  reason to  suppose that the First Baronet\nintended to  exclude Mohamedbhoy  from the  benefit  of\t his\nbounty. According  to the  terms of the Act, the benefits of\nthe trust created under the Baronetcy Act were to devolve on\nthe male heirs of\n701\nthe  body  of  the  First  Baronet  who\t took  the  name  of\nCurrimbhoy Ebrahim,  and when  executing the will, the First\nBaronet had  that benefit in mind for Mohamedbhoy. The First\nBaronet had  the line  of Mohamedbhoy  in mind for supplying\nfuture Baronets.  Therefore the\t only conclusion that can be\ndrawn is  that the  trust properties  created under  the Act\nwere intended  by the  First Baronet  to vest in Mohamedbhoy\nand his\t heirs. Although s. 27 comes into play only upon the\nfailure and in default of heirs male of the body of the said\nCurrimbhoy Embrahim,  the intention of the First Baronet was\nthat the  trust properties and funds should be confined even\nultimately to  the line\t of Mohamedbhoy his eldest son. They\nwould go  to the  heirs of  the\t last  Baronet\tand  not  be\ndistributed among his own heirs. [709 B-710F]\n     2. While  ordinarily the  trust  properties  and  funds\nwould have  devolved on\t the Fourth  Baronet,  the  ultimate\ndetermination of  the case  must turn on the validity of the\nclaim made  by the  Custodian of  Evacuee Property  under s.\n7(4) of the Repealing Act. [710H]\n     (a)  The\tRepealing  Act\t was  passed  by  the  State\nLegislature under  Entry 41  of\t List  III  of\tthe  Seventh\nSchedule to  the Constitution and received the assent of the\nPresident. In  case of\tany repugnancy between the Repealing\nAct and the Administration of Evacuee Property Act, 1950 the\nformer\twill  prevail  by  reason  of  Art.  254(2)  of\t the\nConstitution. Section 7(4) is not repugnant to any provision\nof  the\t 1950  Act.  It\t is  in\t the  nature  of  additional\nlegislation on the subject. [714 B].\n     (b) Section  7(4)\tof  the\t Repealing  Act\t was  passed\nbecause the  Fourth Baronet had been declared an evacuee and\nhis interest in the trust properties under the Baronetcy Act\nhad been  declared evacuee property under the 1950 Act. With\nthe repeal  of the  Baronetcy Act  and\tthe  revocation\t and\nextinction of  the trust,  that interest  came to an end and\nthe declaration\t ceased\t to  have  effect.  The\t Legislature\npresumed that when the Official Trustee took proceedings for\nthe distribution  of the  trust properties under s. 7 of the\nRepealing Act, the Fourth Baronet would be found entitled to\nthe trust  properties or  part thereof.\t He had already been\ndeclared  an  evacuee  and  consistently  with\tthe  earlier\ndeclaration vesting  his interest in the trust properties as\nevacuee property  in the Custodian, the Legislature intended\nthat the  trust properties  falling in full ownership to the\nFourth Baronet\ton repeal  should likewise  be vested in the\nCustodian. That\t could not  be accomplished by a declaration\nunder the  Administration of  Evacuee Property Act, 1950, in\nview of\t s. 7A\tthereof which  prohibited such a declaration\nafter May  7, 1954.  The result\t could be accomplished under\nsome other  law and  s. 7(4) of the Repealing Act was passed\nto make\t provision accordingly.\t The trust  properties\twere\nevacuee property  because they\tbelonged to an evacuee [vide\ns. 2(f)\t Administration of Evacuee Property Act, [1950], and\nby the operative clause in s. 7(4) of the Repealing Act they\nwere vested  in the  Custodian. The  law relating to evacuee\nproperty was applied to the right, title and interest of the\nevacuee in  the trust properties even as they applied to any\nother evacuee  property under  that law.  The terms in which\nthe law\t relating to  evacuee properties has been applied to\nthe trust  properties fully confirms the conclusion that the\ntrust properties  falling to  the Fourth  Baronet were to be\ntreated at par with evacuee property generally. [714 F-H].\n     (c) Section  7(4) of  the Repealing  Act requires three\nconditions to  be satisfied.  They are: (i) that a person is\nentitled to the trust properties or\n702\nany part  thereof; (ii)\t that such  person has\tbeen  or  is\ndeclared  as   an  evacuee   within  the   meaning  of\t the\nAdministration of Evacuee Property Act, 1950, and (iii) that\nhis right,  title and  interest in  the trust properties has\nbeen or\t is  declared  to  be  evacuee\tproperty  under\t the\nAdministration of  Evacuee  Property  Act,  1950.  If  these\nconditions are satisfied the official trustee is required to\ntransfer and  vest in  the Custodian the trust properties or\nso much\t thereof as  is found to be evacuee property and the\nlaw relating  to evacuee property shall apply to such right,\ntitle and  interest in the trust properties as they apply to\nany other evacuee property under that law. [711 G-H].\n     In the  present case  the first  condition is satisfied\nbecause the  Fourth Baronet had been found to be entitled to\nall the trust properties and funds settled and created under\nthe Baronetcy Act. The second condition is satisfied because\nthe Fourth  Baronet was\t declared an evacuee. Similarly, the\nthird condition\t is satisfied  because the  right, title and\ninterest of  the Fourth\t Baronet in the trust properties was\ndeclared to be evacuee property. All three conditions having\nbeen satisfied,\t s. 7(4)  takes\t effect\t and  the  direction\ncontained in it must be carried out. The Official Trustee is\nrequired to  transfer and  vest in  the Custodian  the trust\nproperties count to be evacuee property. [712 B-D].\n     3. There  is no substance in the contention that on the\ndeath of  the Third  Baronet before  the Repealing  Act\t was\npassed, the  trust properties  devolved on  the heirs of the\nThird Baronet  i.e. his widow, son and two daughters. On the\ndeath of  the Third Baronet the benefit of the trust created\nby the Baronetcy  Act passed to the Fourth Baronet. [715 D].\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos.\t722,
\n1016 and 1221 of 1967.\n<\/p>\n
     Appeal from  the Judgment\tand Decree dated 9-8-1966 of
\nthe Bombay High Court in Appeal Nos. 31 and 34 of 1963.\n<\/p>\n
     K. D.  Mehta and  D. N.  Mishra for the Appellant In CA
\n722\/67.\n<\/p>\n
     S. T.  Desai, R.  B. Datar\t and Girish Chandra for RR 3
\nand 65 in CA 722\/67.\n<\/p>\n
     I. N. Shroff and H. S. Parihar for R 48 in CA 722\/67.
\n     S.\t T.  Desai,  R.\t B.  Datar  for\t the  Appellant\t and
\nRespondent-40 in 1016\/67.\n<\/p>\n
     I. N.  Shroff and\tH. S.  Parihar for  RR 27-28  in  CA
\n1016\/67 and also for the appellant in CA 1221\/67.\n<\/p>\n
     S. T. Desai and Girish Chandra for Respondent No. 63 in
\nCA 1221\/67.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     PATHAK, J. These appeals, on certificate granted by the
\nHigh Court of Judicature at Bombay, are directed against the
\njudgment and order
\n703<\/span>
\ndated August  9, 1966  passed  by  the\tHigh  Court  in\t its
\nappellate jurisdiction\tagainst orders and directions issued
\nby a  learned Single  Judge of\tthe High Court on a petition
\nfiled by  the Official\tTrustee of  Maharashtra in regard to
\nthe  properties\t  of  the   former  Sir\t Currimbhoy  Ebrahim
\nBaronetcy Trust.\n<\/p>\n
     On July  21, 1911,\t His Majesty  King George  V  issued
\nLetters Patent conferring the “dignity, state and degree” of
\na Baronet of the United Kingdom of Great Britain and Ireland
\non Sir\tCurrimbhoy Ebrahim  of Bombay  and the heirs male of
\nhis body  lawfully begotten  and to be begotten. In order to
\nprovide for  the upkeep\t and dignity  of the  Baronetey, the
\nthen Governor  General of  India in  Council enacted the Sir
\nCurrimbhoy Ebrahim Baronetcy Act, 1913 (hereinafter referred
\nto simply  as  “the  Baronetcy\tAct”)  by  virtue  of  which
\nconsiderable properties\t belonging to Sir Currimbhoy Ebrahim
\nwere  settled  upon  the  trustee,  and\t for  the  purposes,
\ndeclared in the Act. The Trust was created by statute at the
\ninstance  of   Sir  Currimbhoy\tEbrahim.  The  Trustees\t who
\nincluded the  Baronet for the time being and three officials
\nof the Government of Bombay designated by their office, were
\nconstituted as a Corporation with perpetual succession and a
\ncommon seal  for the purpose of executing the trusts, powers
\nand purposes  of the  Act. By  virtue of  section 8  of\t the
\nBaronetcy Act, the residue of the income from the properties
\nsettled under  trust, after  payment  to  the  credit  of  a
\nSinking Fund and a Repairs Fund, and payment of rates, taxes
\nand  cost  of  ordinary\t repairs  in  respect  of  buildings
\ncomprising the\ttrust properties was to be paid to the First
\nBaronet and the heir male of his body who would for the time
\nbeing have succeeded to the title of Baronet. The successive
\nBaronets were  also entitled  in the circumstances mentioned
\nin s.  10 to the use and benefit of additional hereditaments
\nvesting in  the Corporation.  Section 27  provided  for\t the
\nvesting of  the trust properties and funds “upon failure and
\nin default of heirs male of the body of the last Baronet”.\n<\/p>\n
     The First\tBaronet, Sir Currimbhoy Ebrahim, died on May
\n29, 1924  leaving behind  a Will  dated October\t 22, 1916 in
\nrespect\t of   certain  other  properties.  His\toldest\tson,
\nMohamedbhoy,  assumed\tthe  title  and\t became\t the  Second
\nBaronet. Mohamedhoy died on March 31, 1928. He was succeeded
\nby his son, Hussainbhoy, who became the Third Baronet.\n<\/p>\n
     The  third\t Beronet  migrated  to\tPakistan  some\ttime
\nbetween 1947  and September,  1949. On September 29, 1949 he
\nwas  declared\tan  evacuee   under  the   Bombay   Evacuees
\n(Administration\t of   Property)\t Act,\t1949,  and   certain
\nproperties belonging  to him  were declared  vested  in\t the
\nCustodian of Evacuee Property by an order of that date.\n<\/p>\n
704<\/span><\/p>\n
On November  15,  1949,\t a  notification  was  issued  under
\nsub.s.(1) of s.7 of the Administration of Evacuee Properties
\nOrdinance, 1949\t notifying two\tfurther immovable properties
\nas well\t as the\t right, title  and  interest  of  the  Third
\nBaronet in  the Sir  Currimbhoy Ebrahim\t Baronetcy Trust  as
\nevacuee\t property   vesting  in\t the  Custodian\t of  Evacuee
\nProperty. An  appeal by the Third Baronet against the orders
\ndated September 29, 1949 and November 15, 1949 was dismissed
\nby the Custodian of Evacuee Property on February 13, 1950.\n<\/p>\n
     Two years\tlater, on  March 4,  1952, the Third Baronet
\ndied in\t Pakistan. He was succeeded by his son, Mohamedbhoy,
\nas the\tFourth Baronet. It seems that Mohamedbhoy was at the
\ntime residing  in India,  but shortly thereafter he left for
\nPakistan. On  June 10, 1952, the Deputy Custodian of Evacuee
\nProperty made  an order\t declaring  the\t Fourth\t Baronet  an
\nevacuee under  the Administration  of Evacuee  Property Act,
\n1950 and  directing that  his beneficial interest in the Sir
\nCurrimbhoy Ebrahim  Baronetcy trust  be notified  as evacuee
\nproperty. Therefore,  on June  16, 1952,  a notification was
\nissued under  sub-s.(3) of  s.7\t of  the  Administration  of
\nEvacuee Property  Act, 1950  declaring that  the  beneficial
\ninterest of the Fourth Baronet in the Sir Currimbhoy Ebrahim
\nBaronetcy  Trust   was\tevacuee\t  property  vesting  in\t the
\nCustodian of  Evacuee Property\tThe Fourth Baronet preferred
\nan appeal  to the  Custodian General  of  Evacuee  Property,
\nDelhi, but  the appeal\twas dismissed  on August 26, 1960 on
\nthe ground that it was barred by time.\n<\/p>\n
     Meanwhile,\t the   Fourth  Baronet\thaving\tmigrated  to
\nPakistan  alongwith   his  son\tZoolfikar  Ali,\t the  Bombay
\nLegislature passed  an Act titled the Sir Currimbhoy Ebrahim
\nBaronetcy (Repealing  & Distribution  of  Trust\t Properties)
\nAct, 1959,  which we  shall refer to as “the Repealing Act)”
\nThe Act,  as its name shows, repealed the Baronetcy Act and,
\ninter alia,  revoked and  extinguished “the  trusts, powers,
\nprovisions, declaration and purposes” declared and expressed
\nin that\t Act. It  provided for the vesting of the properties
\nand funds in the Official Trustee, Bombay for the purpose of
\ndistributing them  “amongst the\t persons rightfully entitled
\nthereto according  to law”.  Acting under the Repealing Act,
\nthe Official  Trustee called  upon persons claiming interest
\nin the\t“trust properties”, an expression which includes the
\nproperties and funds settled and created under the Baronetcy
\nAct, to\t submit their  claims. As  he found  that the claims
\nwere contested\tand was\t unable to  say which  of them\twere
\njustified, he  applied to the Bombay High Court under sub-s.
\n(2) of\ts. 7  of the Repealing Act for orders and directions
\nas regards the distribution of
\n705<\/span>
\nthe trust  properties amongst  the  several  claimants.\t The
\nproperties were\t valued at  Rs. 30 lakhs for the purposes of
\ncourt fees.\n<\/p>\n
     The petition  was entertained  in the  High Court under
\nits general  and inherent jurisdiction and was registered as
\nTrust Petition\tNo.  3\tof  1962.  It  was  disposed  of  by
\nTarkunde, J.  On December  20, 1962.  A contention raised by
\nsome of the claimants that the Repealing Act was ultra vires
\nwas rejected.  As regards  the claim  of  the  Custodian  of
\nEvacuee Property,  the learned\tJudge took the view that the
\nbeneficial interest  of the Fourth Baronet, which had vested
\nin the\tCustodian, came\t to an\tend on the extinction of the
\ntrust and the Custodian was not entitled to the share of the
\nFourth Baronet in the trust properties. He ordered, however,
\nthat so\t much of  the net  income of  the  trust  properties
\naccruing upto  March 15,  1960, as  had remained  unpaid  be
\ntransferred to\tthe Custodian.\tHe  rejected  the  claim  to
\nmaintenance made  by the  Third Baronet’s widow, the Dowagar
\nLady Amine  Currimbhoy Ebrahim.\t On the\t material before him
\nthe learned Single Judge held that the Repealing Act had the
\neffect of  giving rise to a resulting trust in favour of the
\nSettlor,  the  First  Baronet,\tthat  the  trust  properties
\nreverted to  his estate\t as on his death on May 29, 1924 and
\nthat they must be deemed to pass by inheritance according to
\nthe Muslim  personal law as on an intestacy occurring on the
\ndeath of  the First  Baronet. He observed that the residuary
\nclause in  the will  dated October  22, 1916 executed by the
\nFirst Baronet  did not\tcover the  rust properties. On those
\nfindings, he directed the Official Trustee to distribute the
\nnet trust properties amongst the several claimants according
\nto the shares mentioned in an agreed statement subscribed to
\nby the claimants.\n<\/p>\n
     Against the  order of  Tarkunde, J.,  two appeals\twere
\nfiled in  he High  Court. Appeal  No.31 of 1963 was filed by
\nthe  Dowagar  Lady  Amine  Currimbhoy  Ebrahim,\t the  Fourth
\nBaronet, Sir  Currimbhoy Ebrahim, and his son, Zoolfikar Ali
\nCurrimbhoy Ebrahim,  and Appeal\t No. 34 of 1963 was filed by
\nthe Custodian of Evacuee Property. The appeals were heard by
\na Division  Bench of  two learned  Judges, Kotval,  C.J. and
\nMody, J.  The Division\tBench rejected\tthe challenge to the
\nconstitutional validity\t of the\t Repealing Act,\t but on\t the
\npoint whether  a resulting trust had come into existence the
\nlearned\t Judges\t  held\tthat  in  view\tof  the\t surrounding
\ncircumstances, particularly  the terms\tof the will executed
\nby the\tFirst Baronet  on October 22, 1916, it must be taken
\nthat contrary  intention had  been manifested  by the  First
\nBaronet that  in the  event of the failure of the trust, the
\ntrust properties  should after his life time be held for the
\nbenefit of  the Baronet for the time being. Accordingly, the
\nlearned
\n706<\/span>
\nJudges laid down that the Fourth Baronet was entitled to the
\ntrust properties  absolutely in\t his own right. On the claim
\nof the\tDowager Lady  Amine Currimbhoy Ebrahim, they pointed
\nout that  her son,  the Fourth Baronet, had made a statement
\nthrough counsel\t in court  that the  would pay the amount to
\nher out\t of the corpus received by him. Appeal No.31 of 1963
\nwas allowed  in part.  In regard  to the appeal filed by the
\nCustodian of  Evacuee Property,\t the learned Judges rejected
\nhis claim to the corpus of the trust properties, holding him
\nentitled to  a sum  of Rs.  1,334.06 only,  representing the
\nunpaid amount of the net income of the trust properties upto
\nMarch 14, 1960. Appeal No.34 of 1963 was dismissed.\n<\/p>\n
     Three appeals  have been  filed in\t this  Court.  Civil
\nAppeal No.722  of 1967\thas  been  filed  by  Sir  Fazalbhoy
\nCurrimbhoy, Civil  Appeal No. 1016 of 1967 has been filed by
\nthe Custodian  of Evacuee  Property and Civil Appeal No.1221
\nof 1967\t has been  filed by  Munira Fazal  Chinoy and Mumtaz
\nMohamed Rahimtoola, daughters of the Third Baronet.\n<\/p>\n
     The case  of Sir Fazalbhoy Currimbhoy, the appellant in
\nCivil Appeal  No.722 of\t 1967 is  that\tthe  effect  of\t the
\nRepealing Act  on the trusts created by the Baronetcy Act is
\nto revoke  and extinguish those trusts and to give rise to a
\nresulting trust in favour of the estate of the First Baronet
\nas on  the date\t of his\t death, and  that the  estate  would
\ndevolve as  on an  intestacy under  the Muslim personal law.
\nThe  case   of\tMunria\t Fazal\tChinoy\tand  Mumtaz  Mohamed
\nRahimtoola, the\t appellants in\tCivil Appeal No.1221 of 1967
\nis that\t no resulting  trust comes into existence consequent
\non the\trepeal because a contrary intention must be presumed
\nin the\tFirst Baronet that the trust properties should go to
\nthe Fourth Baronet. It is also contended by these appellants
\nthat  alternatively   the  trust  must\tbe  deemed  to\thave
\nextinguished on\t the death of the Third Baronet and that the
\ntrust properties  devolved on them, their mother the Dowager
\nLady Amine Currimbhoy and the Fourth Baronet as the heirs of
\nthe Third  Baronet. The\t case of  the Custodian\t of  Evacuee
\nProperty, the  appellant in Civil Appeal No. 1016 of 1967 is
\nthat the  trust properties  would ordinarily  have passed to
\nthe Fourth  Baronet but\t because of  sub-s.(4) of s.7 of the
\nRepealing Act  the Official  Trustee is required to transfer
\nand vest the trust properties in the Custodian.\n<\/p>\n
     It is  contended on  behalf of  Sir Fazlbhoy Currimbhoy
\nthat the  trust having\tbeen created  by the Baronetcy Trust
\nAct, a\tlegislative  statute,  it  must\t be  regarded  as  a
\nstatutory trust\t and, thereafter, when the Baronetcy Act was
\nrepealed and the trust was revoked and
\n707<\/span>
\nextinguished  by  the  Repealing  Act,\tanother\t legislative
\nenactment, the\tnecessary and only result was that the trust
\nproperties reverted  to the estate of the settler, the First
\nBaronet. Now, no doubt the trust was created by statute. But
\nit was\tcreated at the instance of the First Baronet. It had
\nto be  a trust in perpetuity in order that the upkeep of the
\ndignity and title of the Baronetcy should always be ensured.
\nA trust\t such as  this has been regarded as a private trust.
\nIndeed, throughout the trial before the learned Single Judge
\nand during  the hearing\t of the\t appeals before the Division
\nBench of  the High  Court the  case proceeded on the footing
\nthat the  trust created by the Baronetcy Act was governed by
\nthe law\t relating to  a private trust. The parties proceeded
\nas if  the trust was a private trust created directly by the
\nFirst Baronet  himself, and  it was  assumed throughout that
\nthe repeal  by the legislature was a repeal effected by him.
\nWe must,  therefore, proceed  in this  case  as\t if  we\t are
\ndealing with a private trust.\n<\/p>\n
     The contention  on behalf\tof Sir\tFazalbhoy Currimbhoy
\nthat a resulting trust follows the revocation and extinction
\nof the\ttrust created  by the  Baronetcy Act  rests  on\t the
\nprovisions of  section 83  of the Indian Trusts Act. Section
\n83 provides:-\n<\/p>\n
\t  “83. Where a trust is incapable of being executed,
\n     or where  the  trust  is  completely  executed  without
\n     exhausting the  trust-property,  the  trustee,  in\t the
\n     absence of\t a direction  to the contrary, must hold the
\n     trust-property, or\t so much  thereof as is unexhausted,
\n     for the benefit of the author of the trust or his legal
\n     representative.”<\/p><\/blockquote>\n
     The section  incorporates in  codified form the concept
\nof what\t is known  as a\t resulting trust.  On the  terms  of
\nsection 83, a resulting trust can arise only “in the absence
\nof a  direction to the contrary”. It is not disputed that if
\nthere is  no direction\tto the contrary the trust properties
\nmust be\t held for  the benefit\tof the\testate of  the First
\nBaronet. Can an intention to the contrary be inferred? Scott
\non Trusts declares:-\n<\/p>\n
\t  “If an  owner of property transfers it inter vivos
\n     upon a  trust which  fails\t either\t at  the  outset  or
\n     subsequently, and he has not indicated what disposition
\n     should be\tmade of\t the property  in the  event of\t the
\n     failure of\t the trust, the trustee cannot retain it but
\n     will be compelled in equity to
\n708<\/span>
\n     restore it\t to the\t settlor. In such a case the trustee
\n     holds the\tproperty upon  a  resulting  trust  for\t the
\n     settlor. Since the trustee was not intended to have the
\n     beneficial interest,  and since the beneficial interest
\n     was not otherwise disposed of, it reverts or results to
\n     the settlor. On the failure of the trust the court will
\n     put the parties in status quo by restoring the property
\n     to the  settlor. But if the settlor properly manifested
\n     an intention  that no  resulting trust  should arise in
\n     the event\tof the\tfailure of  the trust,\tit will\t not
\n     arise,  but   the\tproperty  will\tbe  disposed  of  in
\n     accordance with  his intention,  whether that intention
\n     is expressed  in specific language or not. No resulting
\n     trust  arises   if\t it  appears  by  evidence  properly
\n     admissible that  in the  event of\tthe failure  of\t the
\n     trust the property should be transferred by the trustee
\n     to a  third person,  or held upon a different trust, or
\n     that it  should be\t retained by  the  trustee  free  of
\n     trust.”\n<\/p><\/blockquote>\n
     And further it is said:\n<\/p><\/blockquote>\n
\t  “The resulting  trust is rebutted when it is shown
\n     that the  settlor intended\t that in  the event  of\t the
\n     failure of\t the trust  the property  should be  held in
\n     trust for other purposes.”\n<\/p><\/blockquote>\n
In Cock v. Hutchinson Lord Longdale, M. R. Observed:-\n<\/p>\n
\t  “Upon this  deed a question is made, whether there
\n     is or is not a resulting trust to the grantor as to the
\n     surplus, with  respect to which there is no declaration
\n     of trust;\tand for\t the  purpose  of  determining\tthat
\n     question, it  is necessary\t to look  carefully  to\t the
\n     language of  the deed,  and to the circumstances of the
\n     particular case. In general, where an estate or fund is
\n     given in trust for a particular purpose, the remainder,
\n     after that\t purpose is  satisfied, will  result to\t the
\n     grantor; but  that resulting trust may be rebutted even
\n     by parole\tevidence, and  certainly cannot\t take effect
\n     where a  contrary intention  to be\t collected from\t the
\n     whole instrument,\tis indicated  by  the  grantor.\t The
\n     distinctions applicable  to  cases\t of  this  kind\t are
\n     pointed out  in the  case of King v. Dinison (1 V. & D.\n<\/p><\/blockquote>\n
     260) by Lord Eldon, who adopts the principles laid down
\n     by Lord  Hardwicks in  Hill v.  The Bishop of London (1
\n     Atk. 618). The conclusion to which Lord Hardwicks comes
\n     is, that the question whether there
\n709<\/span>
\n     is or  is not  a resulting\t trust must  depend upon  me
\n     intention of the grantor…….. “<\/p><\/blockquote>\n
     Now, it appears clearly from clause 2 of the will dated
\nOctober 22,  1916 executed  by\tthe  First  Baronet  that  a
\nsubstantially large  sum of Rs.47,50,000\/- was gifted by the
\nFirst Baronet  in equal shares to each of his sons excepting
\nthe eldest  son, Mohamedbhoy.  The gift was made inter vivos
\nin respect  of the  major sons and under the will in respect
\nof the\tminor son,  Ismail. Clause  18 of  the\twill,  which
\nconstitutes the general residuary clause, discloses that the
\nresidue of  the property was bequeathed by the First Baronet
\nto  all\t  his  sons,  except  Mohamedbhoy.  Mohamedbhoy\t was
\napparently not\tincluded in  those dispositions\t because  he
\nwould succeed  as Baronet  to  the  benefit  of\t the  trusts
\nconstituted under  the Baronetcy Act. He was the eldest son,
\nand there  is no  reason to  suppose that  the First Baronet
\nintended to  exclude Mohamedbhoy  from the  benefit  of\t his
\nbounty. The  First Baronet  planned to\tprovide for  all his
\nsons. Had he intended to exclude Mohamedbhoy for any reason,
\nhe would  not have  provided by\t clause 15  of the will that
\neach one  of his sons, including Mohamedbhoy, would enjoy an
\nequal  share  in  the  mercantile  business  in\t Bombay\t and
\nCalcutta in  India, Hongkong  and Shanghai  in China  and at
\nKobe in\t Japan. The  benefit of the trusts created under the
\nBaronetcy Act,\taccording to  the terms\t of that  enactment,
\nwere to\t devolve on  the male  heir of the body of the First
\nBaronet who  took the  name “Currimbhoy\t Ebrahim”, and\twhen
\nexecuting the  Will the\t First Baronet\thad that  benefit in
\nmind for  Mohamedbhoy as  is apparent  from clause 21 of the
\nwill, wherein he declared:-\n<\/p>\n
\t  “Lastly it  is  my  special  desire  that  my\t son
\n     Mohamedbhoy on  succeeding to  the title of Baronet and
\n     every  succeeding\t Baronet  shall\t forthwith  on\tsuch
\n     succession adopt  the names  of Currimbhoy\t Ebrahim and
\n     continue to do so as long as he holds the title.”<\/p><\/blockquote>\n
     The First\tBaronet had  the line of Mohamedbhoy in mind
\nfor supplying the line of future Baronets. He gave a special
\nposition to him, his eldest son. By clause 7 of the Will, he
\nbequeathed to  Mohamedbhoy all\tthe addresses,\ttestimonials
\nand caskets presented to him, symbols of the high status and
\ndignity of  the family,\t to be\tretained and  passed down as
\nheirlooms. It  is true that under section 4 of the Baronetcy
\nAct the\t possibility could be envisaged that in the event of
\nan existing  descendant of  Mohamedbhoy not  using the\tname
\n“Currimbhoy  Ebrahim”\tthe  Baronetcy\t would\tpass   to  a
\ndescendant of
\n710<\/span>
\nthe next son of the First Baronet. But that envisions a very
\nremote possibility.  It is  difficult to  presume in  reason
\nthat any  male heir  in the line of Mohamedbhoy would refuse
\nto use\tthe name “Currimbhoy Ebrahim” and deprive himself of
\nthe very  real and  substantial benefits  of the  Baronetcy.
\nTherefore,  the\t only  conclusion  can\tbe  that  the  trust
\nproperties created  under the Baronetcy Act were intended by
\nthe First  Baronet to  vest in Mohamedbhoy and his heirs. In
\nthat light, section 27 of the Baronetcy Act assumes material
\nimportance in  relation\t to  the  controversies\t before\t us.
\nSection 27 reads:-\n<\/p>\n
\t  “Upon failure\t and in default of heirs male of the
\n     body of  the said\tSir Currimbhoy\tEbrahim to  whom the
\n     same title\t of Baronet may descend the said Corporation
\n     shall stand  possessed of\tthe said  hereditaments\t and
\n     premises particularly  described in  the first Schedule
\n     hereunder written\tand of\tany other hereditaments of a
\n     freehold tenure  and of  the funds\t which may  then  be
\n     vested in them by virtue and operation of this Act upon
\n     trust for\tthe heirs of the last Baronet absolutely and
\n     shall also\t stand possessed  of the  said hereditaments
\n     and  premises  particularly  described  in\t the  Second
\n     Schedule hereunder\t written or  such of  them as may be
\n     still vested  in the  said Corporation  and  any  other
\n     hereditaments of  a leasehold  tenure which may then be
\n     vested in\tthe said  Corporation by  virtue of this Act
\n     upon trust\t for the  heirs of  the last Baronet for all
\n     the then  residues of  the terms granted by the lessees
\n     by which the same are demised.”<\/p><\/blockquote>\n
     Although s.  27 can  come into  play only “upon failure
\nand in\tdefault of  heirs male\tof the\tbody of the said Sir
\nCurrimbhoy Ebrahim”-  and that\tcondition is  absent in\t the
\npresent case-the  provision provides  evidence, in the light
\nof what\t has been  said above, of the intention of the First
\nBaronet that  the  trust  properties  and  funds  should  be
\nconfined even  ultimately to  the line\tof Mohamedbhoy. They
\nwould go  to the  heirs of  the last  Baronet,\tand  not  be
\ndistributed among his own heirs.\n<\/p>\n
     We are  of opinion\t that upon  the\t provisions  of\t the
\nBaronetcy Act  and of  the Will,  a direction  by the  first
\nBaronet must  be necessarily  presumed\tthat  if  the  trust
\ncreated by  the Baronetcy Act fails or is revoked, the trust
\nproperties and\tfunds must  go\tto  the\t last  Baronet.\t The
\nDivision Bench\tof the\tHigh Court has found that the Fourth
\nBaronet is entitled to the trust properties and funds, and a
\nresulting trust\t does  not  come  into\texistence.  For\t the
\nreasons which  have prevailed  with us,\t we hold that such a
\nconclusion should  ordinarily follow.  However, the ultimate
\ndetermination must turn on the validity of the claim made by
\n711<\/span>
\nthe Custodian  of Evacuee  Property that by virtue of sub-s.
\n(4) of\ts. 7  of the  Repealing Act the trust properties and
\nfunds to  which the  Fourth Baronet  would be  entitled must
\nvest in the Custodian.\n<\/p>\n
     In understanding  the import  of sub-s. (4) s. 7 of the
\nRepealing Act  it is imperative to note that it is a part of
\nthe scheme  embodied in\t s. 7 providing for the distribution
\nof trust  properties by the Official Trustee to “the persons
\nrightfully entitled  thereto”. It  comes into play as a step
\nin the\tproceedings taken for that purpose. It is considered
\nfor application\t when the  Official Trustee under sub-s. (1)
\nor the\tHigh Court  under sub-s.  (2) is determining who are
\nthe  persons   entitled\t  to   the   trust   properties\t  on
\ndistribution.  Sub-s.\t(1)  declares  that  if\t the  claims
\nreceived  by   the  Official   Trustee\tare   justified\t and
\nuncontested he\tmust  distribute  the  trust  properties  in
\naccordance with such claims. Sub-s. (2) provides that if the
\nOfficial Trustee  is of\t the opinion that the claims are not
\njustified, or  if they\tare contested,\the may\tapply to the
\nHigh  Court   for  orders  and\tdirections  as\tregards\t the
\ndistribution of\t the trust  properties amongst\tthe  several
\nclaimants. Sub-s. (3) provides that on obtaining such orders
\nand directions,\t he must  distribute  the  trust  properties
\namongst\t the   persons\trightfully   entitled\tthereto\t  in
\naccordance with\t the final  decree or  order passed  in that
\nbehalf. Sub-s. (4) declares:\n<\/p>\n
\t  “If any  person entitled  to-the trust properties,
\n     or any part thereof, has been or is declared an evacuee
\n     within the\t meaning of  the Administration\t of  Evacuee
\n     Property  Act,  1950,  and\t if  any  right,  title\t and
\n     interest of  such person  in the  trust properties\t has
\n     been or  is declared  to be evacuee property under that
\n     Act, then\tthe Official  Trustee shall,  subject to any
\n     order or  direction which\tthe High  Court may  make or
\n     give, transfer  and vest  in the  Custodian  the  trust
\n     properties, or  so much  thereof  as  is  found  to  be
\n     evacuee  property,\t  and  the  provisions\tof  the\t law
\n     relating to  evacuee property shall as far as may apply
\n     to\t such\tright,\ttitle  and  interest  in  the  trust
\n     properties as  they apply to any other evacuee property
\n     under that law”.<\/p><\/blockquote>\n
     An analysis  of the  provisions of\t this sub-section is
\nnecessary. It applies where:\n<\/p>\n
     (a)  a person  is entitled\t to the\t trust properties or
\n\t  any part thereof;\n<\/p><\/blockquote>\n
     (b)  such person  has been or is declared as an evacuee
\n\t  with in  the\tmeaning\t of  the  Administration  of
\n\t  Evacuee Property Act, 1950 and
\n712<\/span>\n<\/p><\/blockquote>\n
     (c)  his  right,\ttitle  and  interest  in  the  trust
\n\t  properties has  been or  is declared to be evacuee
\n\t  property  under   the\t Administration\t of  Evacuee
\n\t  Property Act, 1950.<\/p><\/blockquote>\n
     If the  three conditions  are satisfied,  the  Official
\nTrustee is  required to\t transfer and  vest in the Custodian
\nthe trust  properties, or  so much thereof as is found to be
\nevacuee property.  And the law relating to evacuee property,
\nthe sub-section\t says, shall  apply to such right, title and
\ninterest in  the trust properties as they apply to any other
\nevacuee property under that law. When the sub-section speaks
\nof “any\t person entitled  to the trust properties” it refers
\nto the\tperson found entitled to the trust properties by the
\nOfficial Trustee  under sub-s.\t(1) of\ts. 7  or by the High
\nCourt under sub-s. (2) of that section. In the present case,
\nthe Fourth  Baronet has\t been found  by us to be entitled to
\nRepealing Act  has been\t defined by  cl. (d) of s. 2 of that
\nAct to\tmean all  the trust properties and funds settled and
\ncreated under  the Baronetcy  Act. The\tsecond condition  is
\nalso satisfied\tbecause the  Fourth Baronet  was declared an
\nevacuee on June 10, 1952 under the Administration of Evacuee
\nProperty  Act,\t 1950.\tThe  third  condition  is  similarly
\nfulfilled. The\tright, title  and  interest  of\t the  Fourth
\nBaronet in  the\t trust\tproperties,  that  is  to  say,\t his
\nbeneficial interest  therein, was  declared  to\t be  evacuee
\nproperty on  June  16,\t1952  under  the  Administration  of
\nEvacuee\t Property  Act\t1950.  All  three  conditions  being
\nsatisfied,  sub-s.   (4)  takes\t effect\t and  the  direction
\ncontained in it must be carried out. The Official Trustee is
\nrequired to  transfer and  vest in  the Custodian  the trust
\nproperties found to be evacuee property.\n<\/p>\n
     Now, the  expression “evacuee  property” has  not\tbeen
\ndefined in  the Repealing  Act and,  therefore, it must take
\nits meaning  from the  definition in  the Administration  of
\nEvacuee Property  Act, 1950.  Clause (f)  of  s.  2  defines
\n“evacuee property” to mean “any property of an evacuee”. The
\ndefinition does\t not require that for property to be evacuee
\nproperty, there must be a direction under the Administration
\nof Evacuee  Property Act  that it  is  evacuee\tproperty.  A
\nperusal of  the relevant provisions of the Administration of
\nEvacuee\t Property   Act,  1950\t indicates  that   the\t Act
\ncontemplates the necessity of a declaration that property is
\nan evacuee  property in\t order that  it should\tvest in\t the
\nCustodian of  Evacuee Property.\t Unless that  declaration is
\nmade the  evacuee property,  even though  it belongs  to  an
\nevacuee, cannot\t vest in  the Custodian.  But there  may  be
\nanother law  under which  evacuee property  may vest  in the
\nCustodian. sub-s.  (4) constitutes that law. It provides for
\nanother kind of case where evacuee property may also vest in
\nthe Custodian.\tsub-s. (4)  of s. 7 of the Repealing Act, in
\nessence, is a law in addition
\n713<\/span>
\nto the\tAdministration of  Evacuee Property  Act,  1950\t for
\nvesting evacuee\t property in the Custodian. The provision in
\nsub-s. (1) that the Official Trustee shall transfer and vest
\nin the\tCustodian the  trust properties\t found to be evacuee
\nproperty has the same statutory consequence is a declaration
\nmade under  s. 7  of the  Administration of Evacuee Property
\nAct, 1950,.  In opposition to the claim of the Custodian, it
\nwas pointed  out that a declaration that evacuee property is
\nvested in the Custodian is barred after May 7, 1954 by s. 7A
\nof the\tAdministration of  Evacuee Property  Act, 1950.\t The
\nprovision in  sub-s. (4)  of s.\t 7, on\twhich the  Custodian
\nrelies, is not a declaration under that Act. As we have held
\nthe Fourth  Baronet to\tbe entitled to the trust properties,
\nit must\t be taken  that those  properties in  virtue of\t the
\ndefinition of  “evacuee property  mentioned above  have been
\nfound to be evacuee property. The words “found to be evacuee
\nproperty” mean\tfound to  be evacuee property in proceedings
\nunder s.  7 of\tthe Repealing  Act. Therefore  it is  beyond
\ndispute that  the Official Trustee must, by virtue of sub s.
\n(4),  transfer\t and  vest   in\t the   Custodian  the  trust
\nproperties. Sub-s. (4) of s. 7 further declares that the law
\nrelating to evacuee property shall apply to such right title
\nand interest  in the  trust properties\tas they apply to any
\nother evacuee property under the law. The words “such right,
\ntitle and  interest in the trust properties” mean the right,
\ntitle and  interest in\tthe trust  properties which  we have
\nfound the evacuee entitled to in this proceeding under s. 7,
\nand which  now vest  in the custodian. That is distinct from
\nthe right,  title and  interest of the Fourth Baronet in the
\ntrust properties  which were declared to be evacuee property
\nunder the Administration of Evacuee Property Act, 1950.\n<\/p>\n
     It is  urged on behalf of Sir Fazalbhoy Currimbhoy that
\nif sub-s.  (4) of  s. 7 of the Repealing Act is construed as
\ndeclaring the  trust properties\t to be\tevacuee property  to
\nwhich the provisions of the law relating to evacuee property
\nwould apply, the sub-section must be regarded as ultra vires
\non the ground that the State Legislature is not possessed of
\nlegislative competence\tto declare  any property  as evacuee
\nproperty. The submission is misconceived. Sub-s. (4) of s. 7
\nof the\tRepealing Act  can be  attributed to the legislative
\npower of  the State  Legislature in  respect of\t Entry 41 of
\nList III  of the  Seventh Schedule  to the  Constitution  of
\nIndia, which speaks of:-\n<\/p>\n
\t  “41. Custody,\t management and disposal of property
\n     (including agricultural  land) declared  by law  to  be
\n     evacuee property”.\n<\/p><\/blockquote>\n
Reference may  also be\tmade to\t Entry 27 of List III of the
\nSeventh Schedule, which speaks of:-\n<\/p>\n
714<\/span><\/p>\n
\t  “27.\tRelief\t and   rehabilitation\tof   persons
\n     displaced from  their original  place of  residence  by
\n     reason of\tthe setting up of the Dominions of India and
\n     Pakistan.”\n<\/p><\/blockquote>\n
The Repealing  Act received  the assent of the President. In
\ncase of\t any repugnancy\t between the  Repealing Act  and the
\nAdministration of  Evacuee Property  Act, 1950,\t the  former
\nwill  prevail\tby  reason   of\t Article   254(2)   of\t the
\nConstitution. On  the view  taken by  us, how ever, the sub-
\nsection\t is   not  repugnant   to  any\t provision  of\t the
\nAdministration of  Evacuee Property  Act  for,\tas  we\thave
\npointed out  already, it  is in\t the  nature  of  additional
\nlegislation on the subject.\n<\/p>\n
     It\t is  also  submitted  on  behalf  of  Sir  Fazalbhoy
\nCurrimbhoy that as the definition of the expression “the law
\nrelating to  evacuee property’ in the Repealing Act has been
\ndefined by  cl. (b)  of s.  2 of  that Act  to\tinclude\t the
\nEvacuee Interest  (Separation) Act,  1951,  the\t Legislature
\nmust be\t taken to  have intended  that a  part of  the trust
\nproperties would be distributed among the heirs of the First
\nBaronet. It  seems to us that by defining the words “the law
\nrelating to  evacuee property”\tin cl.\t(b) of\ts. 2  of the
\nRepealing Act to mean the Administration of Evacuee Property
\nAct, 1950,  the Evacuee Interest (Separation) Act, 1951, the
\nDisplaced Persons  (Compensation  and  Rehabilitation)\tAct,
\n1954 and  any other  law for  the time\tbeing  in  force  in
\nrelation to  evacuees or  evacuee property,  the Legislature
\nintended to give the same powers to the Custodian in dealing
\nwith the  trust properties  as he enjoys in respect of other
\nevacuee property.\n<\/p>\n
     The object\t in enacting  sub-s. (4)  of  s.  7  of\t the
\nRepealing Act  is apparent.  The  Fourth  Baronet  had\tbeen
\ndeclared an  evacuee. His  interest in\tthe trust properties
\nunder the  Baronetcy Act  had been declared evacuee property
\nunder the Administration of Evacuee Property Act, 1950. With
\nthe repeal  of the  Baronetcy Act  and\tthe  revocation\t and
\nextinction of  the trust,  that interest  came to an end and
\nthe declaration\t ceased\t to  have  effect.  The\t Legislature
\npresumed that when the Official Trustee took proceedings for
\nthe distribution  of the  trust properties under s. 7 of the
\nRepealing Act, the Fourth Baronet would be found entitled to
\nthe trust  properties or  part thereof.\t He had already been
\ndeclared an  evacuee,  and  consistently  with\tthe  earlier
\ndeclaration vesting  his interest in the trust properties as
\nevacuee property  in the Custodian-now lapsed in consequence
\nof the Repealing Act-the Legislature intended that the trust
\nproperties falling  in full  ownership to the Fourth Baronet
\non repeal,  should likewise be vested in the Custodian. That
\ncould  not  be\taccomplished  by  a  declaration  under\t the
\nAdministration of  Evacuee Property Act, 1950, in view of s.
\n7A
\n715<\/span>
\nthereof which  prohibited such\ta declaration  after May  7,
\n1954. The result could be accomplished under some other law,
\nand sub. s. (4) of s. 7 was included in the Repealing Act to
\nmake  provision\t  accordingly.\tThe  trust  properties\twere
\nevacuee property because they belonged to an evacuee, and by
\nthe operative clause in sub-s. (4) of s. 7, they were vested
\nin the\tCustodian. The\tlaw relating to evacuee property was
\napplied to  the right,\ttitle and interest of the evacuee in
\nthe trust  properties, even  as they  applied to  any  other
\nevacuee property  under that law. The terms in which the law
\nrelating to  evacuee property  has been applied to the trust
\nproperties fully  confirms the\tconclusion  that  the  trust
\nproperties falling  to the Fourth Baronet were to be treated
\nat par with evacuee property generally.\n<\/p>\n
     It has  been urged on behalf of the appellants in Civil
\nAppeal No.  1221 of  1967 that\tthe trust failed on March 14
\n1952, on  the death  of the  Third Baronet,  even before the
\nRepealing Act  was passed,  and that  the  trust  properties
\ndevolve, therefore  on the  heirs of the Third Baronet, that
\nis to  say his\twidow, son and two daughters, The submission
\nwas made  before a  Division Bench  of the Bombay High Court
\nand was\t rejected. We  are also of the view that there is no
\nsubstance in  this contention.\tOn the\tdeath of  the  Third
\nBaronet, the  benefit of the trusts created by the Baronetcy
\nAct passed to the Fourth Baronet.\n<\/p>\n
     Towards the conclusion of the hearing, it was contended
\nby learned  counsel for\t Sir Fazalbhoy\tCurrimbhoy  that  by
\nvirtue of  the Notifications  bearing No.  12\/2\/65-E-PTY and
\nNo.12\/3\/65-E-PTY dated\tSeptember 10, 1965 and September 11,
\n1965  respectively  the\t trust\tproperties  which  could  be
\nrightfully claimed  by the Fourth Baronet would stand vested
\nin the\tCustodian of  Enemy property  under the\t Defence  of
\nIndia Rules,  1962. For\t that reason, it is said, the Fourth
\nBaronet cannot be held entitled to the trust properties, and
\ntherefore they\twould not  vest in  the Custodian of Evacuee
\nProperty. The  record before  us  does\tnot  show  that\t the
\nCustodian of  Enemy Property  filed  any  claim\t before\t the
\nOfficial Trustee  under sub-s.\t(1) of s. 7 of the Repealing
\nAct and, consequently, we consider it inappropriate to enter
\ninto this matter.\n<\/p>\n
     The Division  Bench of the High Court has held that the
\nCustodian of  Evacuee Property\tis entitled to be paid a sum
\nof Rs.\t1,334.06 representing  the unpaid  amount of the net
\nincome of  the trust  properties upto  March 14,  1960. This
\nfinding has not been challenged, and we affirm it.\n<\/p>\n
716<\/span><\/p>\n
     The Official  Trustee  has\t pointed  out  that  various
\nliabilities on\taccount of Income-tax, Wealth tax, House tax
\nand other  taxes are  outstanding in  respect of  the  trust
\nproperties.  He\t  prays\t for   directions  that\t  those\t tax
\nliabilities be\tallowed\t to  be\t cleared  before  the  trust
\nproperties are\ttransferred by\thim. He also points out that
\nthere are fees, charges, costs and other expenses to be paid
\noff. We\t propose to  remand the\t case to  the High Court for
\nmaking necessary  orders in  that  regard  after  satisfying
\nitself as to the existence and amount of these liabilities.\n<\/p>\n
     In the  result, Civil  Appeal No. 722 of 1967 and Civil
\nAppeal No.  1221 of 1967 are dismissed, and Civil Appeal No.
\n1016 of\t 1967 is  allowed. There  is no order as to costs of
\nthese appeals  in this\tCourt except  an order\tfor costs in
\nfavour of  the Official\t Trustee, who  shall be\t entitled to
\nrecover his  costs of  these appeals from the trust funds in
\nhis hands.  The judgment  and order  dated August 9, 1966 of
\nthe Division  Bench of\tthe Bombay High Court are set aside,
\nexcept in  so far  as they contain the direction for payment
\nof Rs.\t1,334.06 to the Custodian of Evacuee Property and in
\nso far\tas they\t direct, and make provision for, the payment
\nof the\tcosts of  the Official Trustee and other parties and
\naffirm the order for costs made by the learned Single Judge.
\nThe Official  Trustee shall  transfer to  and vest,  in\t the
\nCustodian  of\tEvacuee\t Property   the\t accumulated   trust
\nproperties and\tfunds settled  and  created  under  the\t Sir
\nCurrimbhoy Ebrahim  Baronetcy Act, 1913, subject, however to
\nthe aforesaid  directions and  orders and  to the directions
\nand orders by the Bombay High Court for prior payment of the
\nliabilities, if\t any, on  account of Income Tax, Wealth Tax,
\nHouse tax  and other taxes and other charges, expenses, fees
\nand costs  incurred by\tthe official  Trustee. The  case  is
\nremanded to the Bombay High Court for that purpose.
\nP.B.R.\t\t    C. A. Nos. 722 & 1221 of 1967 dismissed.\n<\/p>\n
\t\t\t     C. A. No. 1016 of 1967 allowed.\n<\/p>\n
717<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Fazalbhoy Currimbhoy Etc vs Official Trustee Of Maharashtra & … on 12 December, 1978 Equivalent citations: 1979 AIR 687, 1979 SCR (2) 699 Author: R Pathak Bench: Pathak, R.S. PETITIONER: FAZALBHOY CURRIMBHOY ETC. Vs. RESPONDENT: OFFICIAL TRUSTEE OF MAHARASHTRA & ORS., ETC. DATE OF JUDGMENT12\/12\/1978 BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-244710","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nFazalbhoy Currimbhoy Etc vs Official Trustee Of Maharashtra & ... on 12 December, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/fazalbhoy-currimbhoy-etc-vs-official-trustee-of-maharashtra-on-12-december-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Fazalbhoy Currimbhoy Etc vs Official Trustee Of Maharashtra & ... on 12 December, 1978 - 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