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TaxTMI 
TaxTMI 
TaxTMI 
1927 (10) TMI 2
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....count under date Posh Vad 4th Samvat year 1974, corresponding to January 1,1918, and the case made out on behalf of the Advocate General is that this sum is the balance of another sum of a lac of rupees which Jagannath obtained as profit in a certain transaction into which he entered with the firm of Messrs. Cawasji Framji & Co. So that, taking the summons, the plaint and the written statement, and the questions proposed, there is not the slightest doubt that what I am asked to decide is whether there is a trust in respect of this sum and this sum only in favour of a school called the Marwari Bepari School. 4. The facts as they appear from the evidence are briefly as follows. It appears that Jagannath Girgraj was managing a school called the Marwari Bepari School, and there is some evidence to show that either he established it himself or it was through his efforts that that school was established somewhere in 1916. It also appears from the evidence that Jagannath took very great interest in the education of the youth of his community. It is not clear on the evidence when Jagannath ceased to have direct connection with this school, but the evidence shows that somewhere in Samvat....
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....language used must, I think, as the decided cases show, make it certain (1) that the settlor intended to constitute a trust binding in law on himself or the person to whom the property was given; (2) that he intended to bind definite property by the trust; and (3) that he intended to benefit a definite person or persons in, a definite way. These three points which the language used must make certain are what are commonly spoken of as the three certainties. The principles to be applied to a case like this, where it is alleged that an oral trust was created, are laid down in two decisions of our Court. The first of these is the case of Hirabai v. Jan Mahomed Khalkdina I.L.R (1881) Bom. 229. In that case Sir Charles Sargent observed at p. 250 :- A long series of authorities in the Courts of Equity in England have established that, although the Court will not assist an incomplete gift, it will give effect to a declaration of trust by the donor when clearly and satisfactorily established. 7. Then the learned Judge cites the observations of Sir George Jessel in the well known case of Richards v. Delbndge (1874) L.R. 18 . This is what Sir George Jessel said (p. 14):- ....
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....tary. This latter consists of the entries to be found in the account books of Jagannath. I shall first deal with the oral evidence. The important witness on behalf of the fifth defendant is Narandas Parshottam, and I have no hesitation in saying that he certainly is not as interested witness, and if any one out of the four or five witnesses called on behalf of the fifth defendant was likely to know anything with regard to this sum of one lac, or with regard to the intention of Jagannath about the same, I think it would be Narandas Parshottam. But all that Narandas says is that Jagannath told him that he wanted to give this one lac to the Marwari Bepari School, and to set apart that sum for the Marwari Bepari School, That, in my opinion, is absolutely in sufficient to establish an express declaration of trust. This is all that Narandas says in his examination-in-chief. It is true that towards the conclusion of his cross-examination in answer to a question put by the Court Narandas stated that he knew from his knowledge that Jagannath had set apart this sum of one lac for the Marwari Bepari School. But, as to this, I find it difficult to understand how Narandas came to know that Jagg....
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....me people, whose perceptions of the importance of this or that small distinction in what took place were never really awakened, blend their own thoughts and wishes imperceptibly with the first simple suggestions of the memory. This may occur without positive dishonesty; and resentment at unkind usage, for which there appear to be grounds in this case, helps a halting conscience over many stumbling blocks. 13. In the light of these remarks, it is not necessary for me to examine in detail the evidence of other witnesses. But I cannot help remarking that I am not at all impressed by the evidence of the witness Parbhudayal Bhaniram. It is also clear on a careful consideration of the evidence of these witnesses that all the four witnesses excepting Narandas are interested witnesses. The first of them is a man called Madanlal Joharmal. His evidence is no doubt more definite as to the alleged trust created by Jagannath than the evidence of the other witnesses. But if, as I have pointed out, at the time that the transaction was entered into Jagannath intended to create a trust, he certainly would indicate it in more clear language to Narandas than possibly later on when he happened to t....
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....to the Marwari Bepari School the remarks which I have made with reference to the evidence of Narandas would also apply. It is not possible that Jagannath could have told him that he had set apart a sum for the Marwari School, whereas in fact he had not. I need not go into the other details of his evidence which show that the man is really mixing up his impression as to what Jagannath intended with his own conviction as to what Jagannath stated. Then the last witness is Harkison Mehra, who also is an interested witness inasmuch as he is a member of the managing committee of the school on behalf of whom this litigation has really been started, and all that he says is that Jagannath told him that he had given a lac of rupees to the Marwari Bepari School, and he would credit the amount to the school in his accounts. Then it appears that Jagannath had actually purchased a plot of land at Fanaswadi, and there are various discrepant statements made with reference to this plot by these two or three witnesses. Nor I am quite sure that Narandas is accurate when he says that he was taken to see this plot immediately after the transaction. It may be that he was taken to see the plot, but I am ....
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....dited in 1919 was carried through his books up to the time of his death. But it appears that after making this credit entry the amount was sent to the Central Bank, and if one examines the account of the bank, which was put in at a later stage of the case, one finds that at the end of 1920 the only balance in favour of Jagannath in that account is to the extent of about Rs. 700 odd. Tins coupled with the admitted fact that a few months before his death Jagannath sustained heavy losses, a fact which is admitted by every witness on behalf of the filth defendant, shows to my mind that the probabilities were that Jagannath undoubtedly intended to benefit the school out of this one lac at one stage, but owing to his business and financial engagements found himself unable to complete the gift and carry his intention into effect. One of the three points to be made clear before a trust can be established is, as I have pointed out, that there must be a definite object which the donor intended to benefit in a definite way. The credit of one lac of rupees in the name of Shri Ramchandra Hanumanprasad may show a general indication of charity, but is certainly not a credit from which it can be i....
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....hows, it was not given to the school by Jagannath alone but by Jagannath and Tarachand Joharmal. Therefore, there is no consistency in the various stories which have been put forward. 16. The position, therefore, is that undoubtedly there is the sum of one lac of rupees continued in the name of a deity and there is another sum of 88,000, and distinct from it, which has been in the books prior to May 1919, and I really do not know what case the Advocate General has. If the contention is that there was a trust with reference to the one lac of rupees, the answer to that is, that is not the fifth defendant's case, unless of course it is established that the sum of Rs. 88,000 which is referred to in the plaint and the originating summons is the balance of one lac of rupees, which certainly is not made out. If it be said, however, that there is a trust with reference to this sum of Rs. 88,000 which has been sometimes credited to what is called a school account and sometimes another account called a Pathshala account, then there is no evidence as regards any declaration of trust with reference to it. Not a single witness has ever mentioned this sum of Rs. 88,000 at all, and the mer....