LexABINASH CHANDRA BANNERJI AND OTHERS versus UTTARPARA HLTAKARI SABHA AND OTHERS
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April IR.
28
SUPREME COURT REPORTS
AHINASH CHANDRA BANNERJI
AND OTH.ERS
v.
[1962]
liT'.;:'AJU'ARA Hll'AKARI SABHA AND OTHERS
(B. P. SINHA, c .. T., K. SUBBA RAO,
ltAGHUBAR DAYAL and J .. R. l\JUDHOLKAR, JJ.)
Will·· -Construction of.· Tesla/or giving prnpcrly to heirs with
direction to pay half the income to charity-- Whether creates trust or
charge.
One P died in 1874 leaving cono•irlerablc property.
He also
left a will which provirled for several contingencies; the first
respondent \Vas given an intt.rcst under each contingency \Vhich
\Vas enlarged irorn co11tingenry to contingency.
Under the last
contingency ,vhich h.ippened the entire property v;ras given to
the heirs with a Jirrctinn that half of the income of the pro-
perty be given to t!te first respondent.
The heirs contended
that the direction merely created a charge and not a trust of
half of the property.
Held, that the din·ction created a trust rather than a
charge. 1'he charity \vas conceived to be a pern1anent one and
it was necessary to secure regular P~-tyinents to it. The t('Stator
clearly intended that the heirs sl1ould tegularly pay half the
income tn thr first respondent so that the specified charities may
be carried on perpetually. This object could not be achieved if
the direction merely created a charge and not a trust.
The Co·f-n1nis:Jioners of ClurritablJ Donations and
L~cqttests v.
Wybrants, (1845) Cg R R. 278 and Bailey v. Ekins, 7 Yes. 3r9,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
147 of 1958.
Appeal from the judgment and decree dated Janua-
ry 4, J 955, of thA Allahabad High Court in Special
Appeal No. 36of1955.
A. V.
Viswanatha Sastri, C. P. Lal and 0. C .
. Mathur, for the appellanLs.
K. B. Bagchi, S. N. JY!ukheijee for P. K. Bose, for
the respondent No. 1.
1961. April 18. The Judgment of the Court was
delivered by
Subba Rao J.
SUBBA RAO, J.-This a.ppeal by certificate raises
the question of construction of a will executed by one
Pyare Mohan Bannerji.
,..
Ji
,
2 S.C.R. SUPREME COURT REPORTS
29
The facts giving rise to this appeal lie in a small
r961
compass and they are as follows: Pyare Mohan Ban.
--
nerji died in October 1874 leaving behind him conside- Abinna.<h Chamlra
anncr;i
rable property. He executed a will dated February
v
12, 1874, making various bequests, including tho pay-
e11a,pam
ment of certain amounts to the first respondent, Utt11r-
Hita\a,i Sabha
para Hitakari Sabha. After his death, his widow hdd
the property for life till her death on March 25, 1945.
inbba 11"
0 J.
Thereafter, the propArty went into the possession of
the appellants, who are the heirs at law of the testator.
On March 17, 1950, the first respondent, Uttarpara
Hitak1ri Sabha (hereinafter referred to as the Snbha)
filed an applica.tion in the High Court of Judicature a.t
Allahabad under s. 10 of the Official Trustees Act
(Act II of 1913) claiming that the late Pyare Mohan
Bannerji had created a trust by his will and praying
that an official trustee be appointed to be the trustee
of the properties of the trust. This was registered as
Testamentary Case No. 9 of 1950.
The appellants
contested the claim of the Sabha i1nd contended, inter
alia, that no trust had been created by the testa.tor
and that the appellants, being the legal heirs of the
testator, were entitled to succeed to the entire prn-
perty left by him. Mootham, J., as he then wa-R, who
heard the said caSe at the first instance, held that by
his last will Pyare Mohan Bannerji created a trust in
favour of the Sabha, and appointed the Official Trus-
tee a trustee of all the properties left by Pyare .i\Iohan
Bannerji specified in Schedule B to the petition. On
appeal, a division bench of the said High Court, con-
sisting of Malik, C. J., and Agnrw~.Ja, J., agreed with
Mootham, C. J., that the will created a trust in favour
of the Sabha; but the learned Judges held that the
Sabha was entitled only to a half share in the cash
and properti<es pertaining to the estate of the said ks-
tator, and appointed the Official Trustee as trustee
only in regard to the said share: on that basis, suit-
able directions were giviin.
The first respondent
accepted that position, bnt the appellants, i.e., the per-
sons claiming to be the heirs at law, preferred the
present appeal against the judgment of the High
Court in so far as it went against them.
30
SUPREME COURT REPORTS
[IIJ62]
r96r
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