Case: Abinash Chandra Bannerji And Others Vs. Uttarpara Hitakari Sabha And Others

the circumstances obtaining at the time the document was executed and the recitals found therein. Under the will the testator made the following bequests depending upon different contingencies : Firstly, the property was given to his wife and nephew in equal shares for their lifetime subject to the payment of all his debts, annuities and charges; it is also provided therein for the sale of a standing jungle in Doomree and Sukhiae in the Gorakhpore District for the purpose of discharging the debts. The second contingency related to the event of the testator and his nephew begetting son or sons; in that event, after the lifetime of his wife and nephew the son or sons of his nephew would get one-fourth share subject to their paying one-fourth of the annuities and charges, and whole of the remainder was given to his son or sons subject to their paying the remaining three-fourths of the annuities and charges. The third contingency related to the testator getting no children, but his nephew having sons; in that event, after the death of his wife and nephew, the whole of his property would go to the said son or sons subject to the said annuities and charges. In the event of the testator having children and the nephew having no son or sons, after the death of his wife and nephew, the property would go to his children subject to the payment of annuities and charges mentioned in the first portion of the will. The last contingency contemplated was that neither the testator nor his nephew had any issue; in that event the whole of the property was given to his legal heirs subject to the payment of annuities and charges. The quantum of bequests made in favour of the Sabha expanded from contingency to contingency. During the lifetime of the nephew and the widow, the said Sabha got rupees fifteen per month. In the event of either the testator or his nephew not having any children, there direction was that the said Sabha should get rupees fifty per month. In that contingency not only the said Sabha but any other institution which took its place would get the said amount. It was also mentioned that the amount should be given only to be spent in paying the school fees of indigent boys of Ooterpara reading in the Ooterpara School and whose parents or guardians might not have the means to pay their school fees. On the happening of the last contingency, that is, both the testator and his nephew dying without children, his legal heirs took the property subject to the payment of half of the net income to the said Sabha or any institution which might take its place. The said amount was directed to be paid thus : "Rupees fifty per month in payment of schooling fees of indigent boys of Ooterpara reading in the Ooterpara school and the balance, if any, as scholarships to persons resident of Ooterpara or failing such of Bengal who after passing the entrance examination of the Calcutta University may wish to learn practical agriculture or Chemistry or Mechanics." At present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testators nephew and that the Sabha is the only institution entitled to receive the amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bona fide purchaser for value of the property bequeathed to the legal heirs.Learned counsel emphasized the fact that under the will the first respondent had to spend the moneys for specified objects and not the legal heirs and contended that the first respondent might be in the position of a trustee in respect of the amounts received from the legal heirs, but the legal heirs were not trustees in respect of the charity. The question is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whether the legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes. Having regard to the circumstances visualized at the time the last contingency happened, the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than a charge.8. No other question arises in this appeal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is common case that if the will created a trust, it would not fall under any one of the exceptions mentioned in thedid not use either the word "trust" or "charge" and, therefore, we must gather the intention only from the circumstances obtaining at the time the document was executed and the recitals foundAt present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testators nephew and that the Sabha is the only institution entitled to receive the amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bona fide purchaser for value of the property bequeathed to the legalquestion is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whetherthe legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes.Having regard to the circumstances visualized at the time the last contingency happened, the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than aother question arises in this appeal.