Civil Appeal Nos 722 1016 and 1221 of 1967
Appeal from the Judgment and Decree dated 9 8 1966 of the Bombay High Court in Appeal Nos 31 and 34 of 1963
K D Mehta and D N Mishra for the Appellant In CA 72267
section T Desai R B Datar and Girish Chandra for RR 3 and 65 in CA 72267
I N Shroff and H section Parihar for R 48 in CA 72267
section T Desai R B Datar for the Appellant and Respondent 40 in 101667
I N Shroff and H section Parihar for RR 27 28 in CA 101667 and also for the appellant in CA 122167
section T Desai and Girish Chandra for Respondent No 63 in CA 122167
The Judgment of the Court was delivered by PATHAK J
These appeals on certificate granted by the High Court of Judicature at Bombay are directed against the judgment and order 703 dated August 9 1966 passed by the High Court in its appellate jurisdiction against orders and directions issued by a learned Single Judge of the High Court on a petition filed by the Official Trustee of Maharashtra in regard to the properties of the former Sir Currimbhoy Ebrahim Baronetcy Trust
On July 21 1911 His Majesty King George V issued Letters Patent conferring the dignity state and degree of a Baronet of the United Kingdom of Great Britain and Ireland on Sir Currimbhoy Ebrahim of Bombay and the heirs male of his body lawfully begotten and to be begotten
In order to provide for the upkeep and dignity of the Baronetey the then Governor General of India in Council enacted the Sir Currimbhoy Ebrahim Baronetcy Act 1913 hereinafter referred to simply as the Baronetcy Act by virtue of which considerable properties belonging to Sir Currimbhoy Ebrahim were settled upon the trustee and for the purposes declared in the Act
The Trust was created by statute at the instance of Sir Currimbhoy Ebrahim
The Trustees who included the Baronet for the time being and three officials of the Government of Bombay designated by their office were constituted as a Corporation with perpetual succession and a common seal for the purpose of executing the trusts powers and purposes of the Act
By virtue of section 8 of the Baronetcy Act the residue of the income from the properties settled under trust after payment to the credit of a Sinking Fund and a Repairs Fund and payment of rates taxes and cost of ordinary repairs in respect of buildings comprising the trust properties was to be paid to the First Baronet and the heir male of his body who would for the time being have succeeded to the title of Baronet
The successive Baronets were also entitled in the circumstances mentioned in section 10 to the use and benefit of additional hereditaments vesting in the Corporation
Section 27 provided for the vesting of the trust properties and funds upon failure and in default of heirs male of the body of the last Baronet
The First Baronet Sir Currimbhoy Ebrahim died on May 29 1924 leaving behind a Will dated October 22 1916 in respect of certain other properties
His oldest son Mohamedbhoy assumed the title and became the Second Baronet
Mohamedhoy died on March 31 1928
He was succeeded by his son Hussainbhoy who became the Third Baronet
The third Beronet migrated to Pakistan some time between 1947 and September 1949
On September 29 1949 he was declared an evacuee under the Bombay Evacuees Administration of Property Act 1949 and certain properties belonging to him were declared vested in the Custodian of Evacuee Property by an order of that date
704 On November 15 1949 a notification was issued under subs1 of s7 of the Administration of Evacuee Properties Ordinance 1949 notifying two further immovable properties as well as the right title and interest of the Third Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust as evacuee property vesting in the Custodian of Evacuee Property
An appeal by the Third Baronet against the orders dated September 29 1949 and November 15 1949 was dismissed by the Custodian of Evacuee Property on February 13 1950
Two years later on March 4 1952 the Third Baronet died in Pakistan
He was succeeded by his son Mohamedbhoy as the Fourth Baronet
It seems that Mohamedbhoy was at the time residing in India but shortly thereafter he left for Pakistan
On June 10 1952 the Deputy Custodian of Evacuee Property made an order declaring the Fourth Baronet an evacuee under the and directing that his beneficial interest in the Sir Currimbhoy Ebrahim Baronetcy trust be notified as evacuee property
Therefore on June 16 1952 a notification was issued under sub s3 of s7 of the declaring that the beneficial interest of the Fourth Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust was evacuee property vesting in the Custodian of Evacuee Property The Fourth Baronet preferred an appeal to the Custodian General of Evacuee Property Delhi but the appeal was dismissed on August 26 1960 on the ground that it was barred by time
Meanwhile the Fourth Baronet having migrated to Pakistan alongwith his son Zoolfikar Ali the Bombay Legislature passed an Act titled the Sir Currimbhoy Ebrahim Baronetcy Repealing  Distribution of Trust Properties Act 1959 which we shall refer to as the Repealing Act The Act as its name shows repealed the Baronetcy Act and inter alia revoked and extinguished the trusts powers provisions declaration and purposes declared and expressed in that Act
It provided for the vesting of the properties and funds in the Official Trustee Bombay for the purpose of distributing them amongst the persons rightfully entitled thereto according to law
Acting under the Repealing Act the Official Trustee called upon persons claiming interest in the trust properties an expression which includes the properties and funds settled and created under the Baronetcy Act to submit their claims
As he found that the claims were contested and was unable to say which of them were justified he applied to the Bombay High Court under sub section2 of section 7 of the Repealing Act for orders and directions as regards the distribution of 705 the trust properties amongst the several claimants
The properties were valued at Rs 30 lakhs for the purposes of court fees
The petition was entertained in the High Court under its general and inherent jurisdiction and was registered as Trust Petition No 3 of 1962
It was disposed of by Tarkunde JOn December 20 1962
A contention raised by some of the claimants that the Repealing Act was ultra vires was rejected
As regards the claim of the Custodian of Evacuee Property the learned Judge took the view that the beneficial interest of the Fourth Baronet which had vested in the Custodian came to an end on the extinction of the trust and the Custodian was not entitled to the share of the Fourth Baronet in the trust properties
He ordered however that so much of the net income of the trust properties accruing upto March 15 1960 as had remained unpaid be transferred to the Custodian
He rejected the claim to maintenance made by the Third Baronet s widow the Dowagar Lady Amine Currimbhoy Ebrahim
On the material before him the learned Single Judge held that the Repealing Act had the effect of giving rise to a resulting trust in favour of the Settlor the First Baronet that the trust properties reverted to his estate as on his death on May 29 1924 and that they must be deemed to pass by inheritance according to the Muslim personal law as on an intestacy occurring on the death of the First Baronet
He observed that the residuary clause in the will dated October 22 1916 executed by the First Baronet did not cover the rust properties
On those findings he directed the Official Trustee to distribute the net trust properties amongst the several claimants according to the shares mentioned in an agreed statement subscribed to by the claimants
Against the order of Tarkunde J two appeals were filed in he High Court
Appeal No31 of 1963 was filed by the Dowagar Lady Amine Currimbhoy Ebrahim the Fourth Baronet Sir Currimbhoy Ebrahim and his son Zoolfikar Ali Currimbhoy Ebrahim and Appeal No 34 of 1963 was filed by the Custodian of Evacuee Property
The appeals were heard by a Division Bench of two learned Judges Kotval CJ and Mody J The Division Bench rejected the challenge to the constitutional validity of the Repealing Act but on the point whether a resulting trust had come into existence the learned Judges held that in view of the surrounding circumstances particularly the terms of the will executed by the First Baronet on October 22 1916 it must be taken that contrary intention had been manifested by the First Baronet that in the event of the failure of the trust the trust properties should after his life time be held for the benefit of the Baronet for the time being
Accordingly the learned 706 Judges laid down that the Fourth Baronet was entitled to the trust properties absolutely in his own right
On the claim of the Dowager Lady Amine Currimbhoy Ebrahim they pointed out that her son the Fourth Baronet had made a statement through counsel in court that the would pay the amount to her out of the corpus received by him
Appeal No31 of 1963 was allowed in part
In regard to the appeal filed by the Custodian of Evacuee Property the learned Judges rejected his claim to the corpus of the trust properties holding him entitled to a sum of Rs 133406 only representing the unpaid amount of the net income of the trust properties upto March 14 1960
Appeal No34 of 1963 was dismissed
Three appeals have been filed in this Court
Civil Appeal No722 of 1967 has been filed by Sir Fazalbhoy Currimbhoy Civil Appeal No 1016 of 1967 has been filed by the Custodian of Evacuee Property and Civil Appeal No1221 of 1967 has been filed by Munira Fazal Chinoy and Mumtaz Mohamed Rahimtoola daughters of the Third Baronet
The case of Sir Fazalbhoy Currimbhoy the appellant in Civil Appeal No722 of 1967 is that the effect of the Repealing Act on the trusts created by the Baronetcy Act is to revoke and extinguish those trusts and to give rise to a resulting trust in favour of the estate of the First Baronet as on the date of his death and that the estate would devolve as on an intestacy under the Muslim personal law
The case of Munria Fazal Chinoy and Mumtaz Mohamed Rahimtoola the appellants in Civil Appeal No1221 of 1967 is that no resulting trust comes into existence consequent on the repeal because a contrary intention must be presumed in the First Baronet that the trust properties should go to the Fourth Baronet
It is also contended by these appellants that alternatively the trust must be deemed to have extinguished on the death of the Third Baronet and that the trust properties devolved on them their mother the Dowager Lady Amine Currimbhoy and the Fourth Baronet as the heirs of the Third Baronet
The case of the Custodian of Evacuee Property the appellant in Civil Appeal No 1016 of 1967 is that the trust properties would ordinarily have passed to the Fourth Baronet but because of sub s4 of s7 of the Repealing Act the Official Trustee is required to transfer and vest the trust properties in the Custodian
It is contended on behalf of Sir Fazlbhoy Currimbhoy that the trust having been created by the Baronetcy Trust Act a legislative statute it must be regarded as a statutory trust and thereafter when the Baronetcy Act was repealed and the trust was revoked and 707 extinguished by the Repealing Act another legislative enactment the necessary and only result was that the trust properties reverted to the estate of the settler the First Baronet
Now no doubt the trust was created by statute
But it was created at the instance of the First Baronet
It had to be a trust in perpetuity in order that the upkeep of the dignity and title of the Baronetcy should always be ensured
A trust such as this has been regarded as a private trust
Indeed throughout the trial before the learned Single Judge and during the hearing of the appeals before the Division Bench of the High Court the case proceeded on the footing that the trust created by the Baronetcy Act was governed by the law relating to a private trust
The parties proceeded as if the trust was a private trust created directly by the First Baronet himself and it was assumed throughout that the repeal by the legislature was a repeal effected by him
We must therefore proceed in this case as if we are dealing with a private trust
The contention on behalf of Sir Fazalbhoy Currimbhoy that a resulting trust follows the revocation and extinction of the trust created by the Baronetcy Act rests on the provisions of section 83 of the Indian Trusts Act
Section 83 provides 83Where a trust is incapable of being executed or where the trust is completely executed without exhausting the trust property the trustee in the absence of a direction to the contrary must hold the trust property or so much thereof as is unexhausted for the benefit of the author of the trust or his legal representative
 The section incorporates in codified form the concept of what is known as a resulting trust
On the terms of section 83 a resulting trust can arise only in the absence of a direction to the contrary
It is not disputed that if there is no direction to the contrary the trust properties must be held for the benefit of the estate of the First Baronet
Can an intention to the contrary be inferred
Scott on Trusts declares If an owner of property transfers it inter vivos upon a trust which fails either at the outset or subsequently and he has not indicated what disposition should be made of the property in the event of the failure of the trust the trustee cannot retain it but will be compelled in equity to 708 restore it to the settlor
In such a case the trustee holds the property upon a resulting trust for the settlor
Since the trustee was not intended to have the beneficial interest and since the beneficial interest was not otherwise disposed of it reverts or results to the settlor
On the failure of the trust the court will put the parties in status quo by restoring the property to the settlor
But if the settlor properly manifested an intention that no resulting trust should arise in the event of the failure of the trust it will not arise but the property will be disposed of in accordance with his intention whether that intention is expressed in specific language or not
No resulting trust arises if it appears by evidence properly admissible that in the event of the failure of the trust the property should be transferred by the trustee to a third person or held upon a different trust or that it should be retained by the trustee free of trust
 And further it is said The resulting trust is rebutted when it is shown that the settlor intended that in the event of the failure of the trust the property should be held in trust for other purposes
In Cock vs Hutchinson Lord Longdale M R Observed Upon this deed a question is made whether there is or is not a resulting trust to the grantor as to the surplus with respect to which there is no declaration of trust and for the purpose of determining that question it is necessary to look carefully to the language of the deed and to the circumstances of the particular case
In general where an estate or fund is given in trust for a particular purpose the remainder after that purpose is satisfied will result to the grantor but that resulting trust may be rebutted even by parole evidence and certainly cannot take effect where a contrary intention to be collected from the whole instrument is indicated by the grantor
The distinctions applicable to cases of this kind are pointed out in the case of King vs Dinison 1 V  D 260 by Lord Eldon who adopts the principles laid down by Lord Hardwicks in Hill vs The Bishop of London  The conclusion to which Lord Hardwicks comes is that the question whether there 709 is or is not a resulting trust must depend upon me intention of the grantor 
Now it appears clearly from clause 2 of the will dated October 22 1916 executed by the First Baronet that a substantially large sum of Rs4750000 was gifted by the First Baronet in equal shares to each of his sons excepting the eldest son Mohamedbhoy
The gift was made inter vivos in respect of the major sons and under the will in respect of the minor son Ismail
Clause 18 of the will which constitutes the general residuary clause discloses that the residue of the property was bequeathed by the First Baronet to all his sons except Mohamedbhoy
Mohamedbhoy was apparently not included in those dispositions because he would succeed as Baronet to the benefit of the trusts constituted under the Baronetcy Act
He was the eldest son and there is no reason to suppose that the First Baronet intended to exclude Mohamedbhoy from the benefit of his bounty
The First Baronet planned to provide for all his sons
Had he intended to exclude Mohamedbhoy for any reason he would not have provided by clause 15 of the will that each one of his sons including Mohamedbhoy would enjoy an equal share in the mercantile business in Bombay and Calcutta in India Hongkong and Shanghai in China and at Kobe in Japan
The benefit of the trusts created under the Baronetcy Act according to the terms of that enactment were to devolve on the male heir of the body of the First Baronet who took the name Currimbhoy Ebrahim and when executing the Will the First Baronet had that benefit in mind for Mohamedbhoy as is apparent from clause 21 of the will wherein he declared Lastly it is my special desire that my son Mohamedbhoy on succeeding to the title of Baronet and every succeeding Baronet shall forthwith on such succession adopt the names of Currimbhoy Ebrahim and continue to do so as long as he holds the title
 The First Baronet had the line of Mohamedbhoy in mind for supplying the line of future Baronets
He gave a special position to him his eldest son
By clause 7 of the Will he bequeathed to Mohamedbhoy all the addresses testimonials and caskets presented to him symbols of the high status and dignity of the family to be retained and passed down as heirlooms
It is true that under section 4 of the Baronetcy Act the possibility could be envisaged that in the event of an existing descendant of Mohamedbhoy not using the name Currimbhoy Ebrahim the Baronetcy would pass to a descendant of 710 the next son of the First Baronet
But that envisions a very remote possibility
It is difficult to presume in reason that any male heir in the line of Mohamedbhoy would refuse to use the name Currimbhoy Ebrahim and deprive himself of the very real and substantial benefits of the Baronetcy
Therefore the only conclusion can be that the trust properties created under the Baronetcy Act were intended by the First Baronet to vest in Mohamedbhoy and his heirs
In that light section 27 of the Baronetcy Act assumes material importance in relation to the controversies before us
Section 27 reads Upon failure and in default of heirs male of the body of the said Sir Currimbhoy Ebrahim to whom the same title of Baronet may descend the said Corporation shall stand possessed of the said hereditaments and premises particularly described in the first Schedule hereunder written and of any other hereditaments of a freehold tenure and of the funds which may then be vested in them by virtue and operation of this Act upon trust for the heirs of the last Baronet absolutely and shall also stand possessed of the said hereditaments and premises particularly described in the Second Schedule hereunder written or such of them as may be still vested in the said Corporation and any other hereditaments of a leasehold tenure which may then be vested in the said Corporation by virtue of this Act upon trust for the heirs of the last Baronet for all the then residues of the terms granted by the lessees by which the same are demised
 Although section 27 can come into play only upon failure and in default of heirs male of the body of the said Sir Currimbhoy Ebrahim and that condition is absent in the present case the provision provides evidence in the light of what has been said above of the intention of the First Baronet that the trust properties and funds should be confined even ultimately to the line of Mohamedbhoy
They would go to the heirs of the last Baronet and not be distributed among his own heirs
We are of opinion that upon the provisions of the Baronetcy Act and of the Will a direction by the first Baronet must be necessarily presumed that if the trust created by the Baronetcy Act fails or is revoked the trust properties and funds must go to the last Baronet
The Division Bench of the High Court has found that the Fourth Baronet is entitled to the trust properties and funds and a resulting trust does not come into existence
For the reasons which have prevailed with us we hold that such a conclusion should ordinarily follow
However the ultimate determination must turn on the validity of the claim made by 711 the Custodian of Evacuee Property that by virtue of sub section4 of section 7 of the Repealing Act the trust properties and funds to which the Fourth Baronet would be entitled must vest in the Custodian
In understanding the import of sub section4 section 7 of the Repealing Act it is imperative to note that it is a part of the scheme embodied in section 7 providing for the distribution of trust properties by the Official Trustee to the persons rightfully entitled thereto
It comes into play as a step in the proceedings taken for that purpose
It is considered for application when the Official Trustee under sub section1 or the High Court under sub section2 is determining who are the persons entitled to the trust properties on distribution
Sub section1 declares that if the claims received by the Official Trustee are justified and uncontested he must distribute the trust properties in accordance with such claims
Sub section2 provides that if the Official Trustee is of the opinion that the claims are not justified or if they are contested he may apply to the High Court for orders and directions as regards the distribution of the trust properties amongst the several claimants
Sub section3 provides that on obtaining such orders and directions he must distribute the trust properties amongst the persons rightfully entitled thereto in accordance with the final decree or order passed in that behalf
Sub section 4 declares If any person entitled to the trust properties or any part thereof has been or is declared an evacuee within the meaning of the  and if any right title and interest of such person in the trust properties has been or is declared to be evacuee property under that Act then the Official Trustee shall subject to any order or direction which the High Court may make or give transfer and vest in the Custodian the trust properties or so much thereof as is found to be evacuee property and the provisions of the law relating to evacuee property shall as far as may apply to such right title and interest in the trust properties as they apply to any other evacuee property under that law
An analysis of the provisions of this sub section is necessary
It applies where a a person is entitled to the trust properties or any part thereof b such person has been or is declared as an evacuee with in the meaning of the and 712 c his right title and interest in the trust properties has been or is declared to be evacuee property under the 
If the three conditions are satisfied the Official Trustee is required to transfer and vest in the Custodian the trust properties or so much thereof as is found to be evacuee property
And the law relating to evacuee property the sub section says shall apply to such right title and interest in the trust properties as they apply to any other evacuee property under that law
When the sub section speaks of any person entitled to the trust properties it refers to the person found entitled to the trust properties by the Official Trustee under sub section1 of section 7 or by the High Court under sub section2 of that section
In the present case the Fourth Baronet has been found by us to be entitled to Repealing Act has been defined by cld of section 2 of that Act to mean all the trust properties and funds settled and created under the Baronetcy Act
The second condition is also satisfied because the Fourth Baronet was declared an evacuee on June 10 1952 under the 
The third condition is similarly fulfilled
The right title and interest of the Fourth Baronet in the trust properties that is to say his beneficial interest therein was declared to be evacuee property on June 16 1952 under the 
All three conditions being satisfied sub section4 takes effect and the direction contained in it must be carried out
The Official Trustee is required to transfer and vest in the Custodian the trust properties found to be evacuee property
Now the expression evacuee property has not been defined in the Repealing Act and therefore it must take its meaning from the definition in the  Clause f of section 2 defines evacuee property to mean any property of an evacuee
The definition does not require that for property to be evacuee property there must be a direction under the that it is evacuee property
A perusal of the relevant provisions of the indicates that the Act contemplates the necessity of a declaration that property is an evacuee property in order that it should vest in the Custodian of Evacuee Property
Unless that declaration is made the evacuee property even though it belongs to an evacuee cannot vest in the Custodian
But there may be another law under which evacuee property may vest in the Custodian sub section4 constitutes that law
It provides for another kind of case where evacuee property may also vest in the Custodian sub section4 of section 7 of the Repealing Act in essence is a law in addition 713 to the for vesting evacuee property in the Custodian
The provision in sub section1 that the Official Trustee shall transfer and vest in the Custodian the trust properties found to be evacuee property has the same statutory consequence is a declaration made under section 7 of the 
In opposition to the claim of the Custodian it was pointed out that a declaration that evacuee property is vested in the Custodian is barred after May 7 1954 by section 7A of the 
The provision in sub section4 of section 7 on which the Custodian relies is not a declaration under that Act
As we have held the Fourth Baronet to be entitled to the trust properties it must be taken that those properties in virtue of the definition of evacuee property mentioned above have been found to be evacuee property
The words found to be evacuee property mean found to be evacuee property in proceedings under section 7 of the Repealing Act
Therefore it is beyond dispute that the Official Trustee must by virtue of sub section 4 transfer and vest in the Custodian the trust properties
Sub section4 of section 7 further declares that the law relating to evacuee property shall apply to such right title and interest in the trust properties as they apply to any other evacuee property under the law
The words such right title and interest in the trust properties mean the right title and interest in the trust properties which we have found the evacuee entitled to in this proceeding under section 7 and which now vest in the custodian
That is distinct from the right title and interest of the Fourth Baronet in the trust properties which were declared to be evacuee property under the 
It is urged on behalf of Sir Fazalbhoy Currimbhoy that if sub section4 of section 7 of the Repealing Act is construed as declaring the trust properties to be evacuee property to which the provisions of the law relating to evacuee property would apply the sub section must be regarded as ultra vires on the ground that the State Legislature is not possessed of legislative competence to declare any property as evacuee property
The submission is misconceived
Sub section4 of section 7 of the Repealing Act can be attributed to the legislative power of the State Legislature in respect of Entry 41 of List III of the Seventh Schedule to the Constitution of India which speaks of 41Custody management and disposal of property including agricultural land declared by law to be evacuee property
Reference may also be made to Entry 27 of List III of the Seventh Schedule which speaks of 714 27Relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan
 The Repealing Act received the assent of the President
In case of any repugnancy between the Repealing Act and the  the former will prevail by reason of Article 2542 of the Constitution
On the view taken by us how ever the sub section is not repugnant to any provision of the for as we have pointed out already it is in the nature of additional legislation on the subject
It is also submitted on behalf of Sir Fazalbhoy Currimbhoy that as the definition of the expression the law relating to evacuee property  in the Repealing Act has been defined by clb of section 2 of that Act to include the  the Legislature must be taken to have intended that a part of the trust properties would be distributed among the heirs of the First Baronet
It seems to us that by defining the words the law relating to evacuee property in clb of section 2 of the Repealing Act to mean the  the  the and any other law for the time being in force in relation to evacuees or evacuee property the Legislature intended to give the same powers to the Custodian in dealing with the trust properties as he enjoys in respect of other evacuee property
The object in enacting sub section4 of section 7 of the Repealing Act is apparent
The Fourth Baronet had been declared an evacuee
His interest in the trust properties under the Baronetcy Act had been declared evacuee property under the 
With the repeal of the Baronetcy Act and the revocation and extinction of the trust that interest came to an end and the declaration ceased to have effect
The Legislature presumed that when the Official Trustee took proceedings for the distribution of the trust properties under section 7 of the Repealing Act the Fourth Baronet would be found entitled to the trust properties or part thereof
He had already been declared an evacuee and consistently with the earlier declaration vesting his interest in the trust properties as evacuee property in the Custodian now lapsed in consequence of the Repealing Act the Legislature intended that the trust properties falling in full ownership to the Fourth Baronet on repeal should likewise be vested in the Custodian
That could not be accomplished by a declaration under the  in view of section 7A 715 thereof which prohibited such a declaration after May 7 1954
The result could be accomplished under some other law and subsection 4 of section 7 was included in the Repealing Act to make provision accordingly
The trust properties were evacuee property because they belonged to an evacuee and by the operative clause in sub section4 of section 7 they were vested in the Custodian
The law relating to evacuee property was applied to the right title and interest of the evacuee in the trust properties even as they applied to any other evacuee property under that law
The terms in which the law relating to evacuee property has been applied to the trust properties fully confirms the conclusion that the trust properties falling to the Fourth Baronet were to be treated at par with evacuee property generally
It has been urged on behalf of the appellants in Civil Appeal No 1221 of 1967 that the trust failed on March 14 1952 on the death of the Third Baronet even before the Repealing Act was passed and that the trust properties devolve therefore on the heirs of the Third Baronet that is to say his widow son and two daughters The submission was made before a Division Bench of the Bombay High Court and was rejected
We are also of the view that there is no substance in this contention
On the death of the Third Baronet the benefit of the trusts created by the Baronetcy Act passed to the Fourth Baronet
Towards the conclusion of the hearing it was contended by learned counsel for Sir Fazalbhoy Currimbhoy that by virtue of the Notifications bearing No 12265 E PTY and No12365 E PTY dated September 10 1965 and September 11 1965 respectively the trust properties which could be rightfully claimed by the Fourth Baronet would stand vested in the Custodian of Enemy property under the Defence of India Rules 1962
For that reason it is said the Fourth Baronet cannot be held entitled to the trust properties and therefore they would not vest in the Custodian of Evacuee Property
The record before us does not show that the Custodian of Enemy Property filed any claim before the Official Trustee under sub section1 of section 7 of the Repealing Act and consequently we consider it inappropriate to enter into this matter
The Division Bench of the High Court has held that the Custodian of Evacuee Property is entitled to be paid a sum of Rs 133406 representing the unpaid amount of the net income of the trust properties upto March 14 1960
This finding has not been challenged and we affirm it
716 The Official Trustee has pointed out that various liabilities on account of Income tax Wealth tax House tax and other taxes are outstanding in respect of the trust properties
He prays for directions that those tax liabilities be allowed to be cleared before the trust properties are transferred by him
He also points out that there are fees charges costs and other expenses to be paid off
We propose to remand the case to the High Court for making necessary orders in that regard after satisfying itself as to the existence and amount of these liabilities
In the result Civil Appeal No 722 of 1967 and Civil Appeal No 1221 of 1967 are dismissed and Civil Appeal No 1016 of 1967 is allowed
There is no order as to costs of these appeals in this Court except an order for costs in favour of the Official Trustee who shall be entitled to recover his costs of these appeals from the trust funds in his hands
The judgment and order dated August 9 1966 of the Division Bench of the Bombay High Court are set aside except in so far as they contain the direction for payment of Rs 133406 to the Custodian of Evacuee Property and in so far as they direct and make provision for the payment of the costs of the Official Trustee and other parties and affirm the order for costs made by the learned Single Judge
The Official Trustee shall transfer to and vest in the Custodian of Evacuee Property the accumulated trust properties and funds settled and created under the Sir Currimbhoy Ebrahim Baronetcy Act 1913 subject however to the aforesaid directions and orders and to the directions and orders by the Bombay High Court for prior payment of the liabilities if any on account of Income Tax Wealth Tax House tax and other taxes and other charges expenses fees and costs incurred by the official Trustee
The case is remanded to the Bombay High Court for that purpose
PBR C A Nos 722  1221 of 1967 dismissed
C A No 1016 of 1967 allowed


Summary:
In 1911 King George V conferred the dignity status and degree of a Baronet on Sir Currimbhoy Ebrahim of Bombay
To provide for the upkeep and dignity of the Baronetcy the Sir Currimbhoy Ebrahim Baronetcy Act 1913 was passed by virtue of which considerable properties belonging to Sir Currimbhoy Ebrahim were settled upon the trust
Section 8 of the Baronetcy Act provided that the residue of income from the properties settled under the trust was to be paid to the first Baronet and the heir male of his body who would for the time being succeed to the title of Baronet
Section 27 provided for the vesting of all properties and funds in the Trust upon failure and in default of heirs male of the body of the last Baronet
 The First Baronet left behind a Will in respect of certain other properties
On the death of the First Baronet his eldest son assumed the title of Second Baronet and on the death of the Second Baronet his eldest son Hussainbhoy became the Third Baronet
The Third Baronet migrated to Pakistan between the years 1947 and 1949
He was therefore declared an evacuee
Certain properties belonging to him were declared vested in the Custodian of Evacuee Property
Two other immovable properties as well as the right title and interest of the Third Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust were declared as evacuee properties and vested in the Custodian of Evacuee Property
On the death of the Third Baronet in Pakistan in 1952 his eldest son Mohamedbhoy succeeded as the Fourth Baronet
At that time the Fourth Baronet was residing in India but shortly thereafter he migrated to Pakistan
The Deputy Custodian of Evacuee Property made an order declaring the Fourth Baronet an evacuee and notified his beneficial interest in the Trust as evacuee property vesting in the Custodian of Evacuee Property
The Fourth Baronet having migrated to Pakistan along with his son the Bombay Legislature passed the Sir Currimbhoy Ebrahim Baronetcy Repealing  Distribution of Trust Properties Act 1959
The Repealing Act inter alia revoked and extinguished the trusts powers provisions declaration and purposes declared and expressed in the Sir Currimbhoy Ebrahim Baronetcy Act and vested the properties and funds in the Official Trustee for the purpose of 700 distributing them amongst the persons rightfully entitled thereto according to law
The Official Trustee thereupon called upon the persons claiming interest in the trust properties to submit their claims
On the Official Trustee s application under section 72 of the Repealing Act seeking orders and directions of the High Court as regards distribution of the trust properties amongst the several claimants a single Judge of the High Court took the view that the Custodian was not entitled to the share of the Fourth Baronet in the Trust properties because the beneficial interest of the Fourth Baronet which had vested in the Custodian came to an end on the extinction of the Trust that the Repealing Act had the effect of giving rise to a resulting trust in favour of the settlor the first Baronet that the trust properties reverted to his estate on his death that they must be deemed to pass by inheritance according to the Muslim personal law and that the residuary clause in the will executed by the First Baronet did not cover the trust properties
A Division Bench of the High Court on appeal held that on the terms of the Will a contrary intention had been manifested by the First Baronet that in the event of the failure of the Trust the trust properties shall after his life time be held for the benefit of the Baronet for the time being and therefore the Fourth Baronet was entitled to the trust properties absolutely in his own right
The claim of the Custodian of Evacuee Property to the corpus of the trust properties was rejected
 HELD 1
Upon the provisions of the Baronetcy Act and of the Will a direction by the First Baronet must necessarily be presumed that if the trust created by the Baronetcy Act failed or was revoked the trust properties and funds must go to the last Baronet
710 G
a Although the trust was created by statute it was created at the instance of the First Baronet so as to keep the trust in perpetuity for the upkeep of the dignity and title of the Baronetcy at all times
A trust of this nature has been regarded as a private trust
707 B
b Section 83 of the Indian Trusts Act provides that where a trust is incapable of being executed or where the trust is completely executed without exhausting the trust property the trustee in the absence of a direction to the contrary must hold the trust property for the benefit of the author of the trust or his legal representatives
On the terms of this section which incorporates in codified form the concept of what is known as a resulting trust a resulting trust can arise only in the absence of a direction to the contrary
707 E F
c In the instant case the various clauses of the will show that substantially large sums of money were gifted by the First Baronet in equal shares to each of the sons except the eldest son
In all these clauses the eldest son Mohamedbhoy was not included because he would succeed as Baronet to the benefit of the trust constituted under the Act
There is no reason to suppose that the First Baronet intended to exclude Mohamedbhoy from the benefit of his bounty
According to the terms of the Act the benefits of the trust created under the Baronetcy Act were to devolve on the male heirs of 701 the body of the First Baronet who took the name of Currimbhoy Ebrahim and when executing the will the First Baronet had that benefit in mind for Mohamedbhoy
The First Baronet had the line of Mohamedbhoy in mind for supplying future Baronets
Therefore the only conclusion that can be drawn is that the trust properties created under the Act were intended by the First Baronet to vest in Mohamedbhoy and his heirs
Although section 27 comes into play only upon the failure and in default of heirs male of the body of the said Currimbhoy Embrahim the intention of the First Baronet was that the trust properties and funds should be confined even ultimately to the line of Mohamedbhoy his eldest son
They would go to the heirs of the last Baronet and not be distributed among his own heirs
709 B 710F 2
While ordinarily the trust properties and funds would have devolved on the Fourth Baronet the ultimate determination of the case must turn on the validity of the claim made by the Custodian of Evacuee Property under section 74 of the Repealing Act
710H a The Repealing Act was passed by the State Legislature under Entry 41 of List III of the Seventh Schedule to the Constitution and received the assent of the President
In case of any repugnancy between the Repealing Act and the the former will prevail by reason of article 2542 of the Constitution
Section 74 is not repugnant to any provision of the 1950 Act
It is in the nature of additional legislation on the subject
714 B
b Section 74 of the Repealing Act was passed because the Fourth Baronet had been declared an evacuee and his interest in the trust properties under the Baronetcy Act had been declared evacuee property under the 1950 Act
With the repeal of the Baronetcy Act and the revocation and extinction of the trust that interest came to an end and the declaration ceased to have effect
The Legislature presumed that when the Official Trustee took proceedings for the distribution of the trust properties under section 7 of the Repealing Act the Fourth Baronet would be found entitled to the trust properties or part thereof
He had already been declared an evacuee and consistently with the earlier declaration vesting his interest in the trust properties as evacuee property in the Custodian the Legislature intended that the trust properties falling in full ownership to the Fourth Baronet on repeal should likewise be vested in the Custodian
That could not be accomplished by a declaration under the  in view of section 7A thereof which prohibited such a declaration after May 7 1954
The result could be accomplished under some other law and section 74 of the Repealing Act was passed to make provision accordingly
The trust properties were evacuee property because they belonged to an evacuee vide section 2f  1950 and by the operative clause in section 74 of the Repealing Act they were vested in the Custodian
The law relating to evacuee property was applied to the right title and interest of the evacuee in the trust properties even as they applied to any other evacuee property under that law
The terms in which the law relating to evacuee properties has been applied to the trust properties fully confirms the conclusion that the trust properties falling to the Fourth Baronet were to be treated at par with evacuee property generally
714 F H
c Section 74 of the Repealing Act requires three conditions to be satisfied
They are i that a person is entitled to the trust properties or 702 any part thereof ii that such person has been or is declared as an evacuee within the meaning of the  and iii that his right title and interest in the trust properties has been or is declared to be evacuee property under the 
If these conditions are satisfied the official trustee is required to transfer and vest in the Custodian the trust properties or so much thereof as is found to be evacuee property and the law relating to evacuee property shall apply to such right title and interest in the trust properties as they apply to any other evacuee property under that law
711 G H
In the present case the first condition is satisfied because the Fourth Baronet had been found to be entitled to all the trust properties and funds settled and created under the Baronetcy Act
The second condition is satisfied because the Fourth Baronet was declared an evacuee
Similarly the third condition is satisfied because the right title and interest of the Fourth Baronet in the trust properties was declared to be evacuee property
All three conditions having been satisfied section 74 takes effect and the direction contained in it must be carried out
The Official Trustee is required to transfer and vest in the Custodian the trust properties count to be evacuee property
712 B D
There is no substance in the contention that on the death of the Third Baronet before the Repealing Act was passed the trust properties devolved on the heirs of the Third Baronet ie his widow son and two daughters
On the death of the Third Baronet the benefit of the trust created by the Baronetcy Act passed to the Fourth Baronet
715 D