Report No. 110
V. Deficiencies and Vagueness
16.20. Section 87-Effect to be given to testator's intention.-
Section 87 provides that the intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible. We have already indicated how1 it is the policy of the Act to give effect to the testator's intention, as far as possible. The same policy is reflected in section 87.
The section needs no change.
1. See discussion as to sec. 84, supra (Para. 16.17).
16.21. Section 88-Introductory.-
Inconsistency in a will is dealt with by a simple rule in section 88, in these terms:
"88. Where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail."
If it is not possible at all to give effect to two clauses of a will, there can be only two alternatives:-
(i) disregard both, or
(ii) prefer one of the two.
The legislature has adopted the second alternative, so that at least effect will be given to one of the clauses of the will. The reason why the last clause shall prevail is that the last clause may be taken as expressing the considered opinion of the testator.
We recommend no change in the section.
16.22. Section 89-ills void for uncertainty-Case law on "Dharma".- Section 89 reads-
"89. A will of bequest not expressive of any definite intention is void for uncertainty."
The section applies to Hindus etc.
One of the most important classes of bequests held to be void for uncertainty under this section comprises bequests for "Dharma" (or similar purposes). It was held by the Privy Council1 long ago, that the-word, "Dharma" is void for uncertainty. This decision had, naturally, to be followed by the High Courts, but it was not wholeheartedly welcomed in India.
The earliest pronouncement on the point is that of Sir Brakine Perry and S.M. Yardley.2 This was followed in Pranjivan Das v. Dev Kuvarbai, 1 BHCR 130 (Note). The question was elaborately considered by Farran, C.J. and Tyabji,3 J. in a succession case. In that case, the testator, after giving certain properties to his two wives, left the residue to his trustees who were to apply the same for "Dharma". It was held that the trust was void for uncertainty.
1. Runchordas v. Parvati, 1899 ILR 28 Born 725 (PC).
2. Advocate-General v. Damothar, Perry's Oriental Cases 526.
3. Vandraban Das v. Curzon Das, 1897 ILR 21 Bom 646.
16.23. Judicial decision in India.-
From time to time, there were judicial expressions of view favouring a different approach.1-2 Many eminent Hindu Judges who had occasion to consider this matter3 were of the opinion that the contrary view was the correct one. However, because the Privy Council was not prepared to reconsider the view expressed by it in earlier decision, the decision4 was held to be binding on Indian courts.
B.K. Mukherjea in his Tagore Law Lectures5 has called for a reconsideration of this view.
1. Parthasarthy v. Theurvengade, 1907 ILR 30 Mad 340 (judgements of Subramania Ayyer, J.).
2. Advocate-General v. Jimbai, 1917 ILR 41 Boni 281 (282, 283, 284) (Beatnan, J,).
3. Sec the observations of Mookerjee, J. in Bhupati v. Ram Lal, 1910 ILR 37 Cal 13728 (FB) and of Jailal, J. in Brijlal v. Naraindas, 1933 ILR 14 Lah 827.
4. Runchordas v. Parvati, 1899 LR 26 IA 71: 1899 ILR 28 Born 725 (PC).
5. Mukherjee Hindu Law of Religious and Charitable Trusts, (1979) p. 118, para. 3.16 and p. 119, para. 3.16A.
16.24. Bill of 1938.-
It is understood that in order to give effect to the popular view, a Bill to amend the law was introduced in the Central Legislative Assembly in 1938. However, the Bill was dropped,1 as it was thought that the subject fell under the legislative entry relating to "religious and charitable endowments" which (under the Government of India Act, 1935 which was then in force) fell in the Provincial List.
1. Bill No. 10 of 1938, Gazette of India, Part 5, dated 17-9-1938, Paruck Succession Act, commentary on, section 89.
16.25. Bombay Public Trusts Act, 1950.-
In 1950, the erstwhile State of Bombay passed the Bombay Public Trusts Act, which not only enacts a general rule that, a public trust is not void on the ground that the purposes of the trust are unascertained or unascertainable, but also specifically provides"1 that a public trust created for such objects as "dharma, dharmada, punyakarya or punyadan" shall not be void only on the ground that the objects for which the trust is created are not ascertained. This provision is more in consonance with the notions of Indian society than the view laid down judicially.
Section 10 of the Bombay Public Trusts Act, 1950, is quoted below2:
"10. Notwithstanding any law, custom or usage a public trust shall not be void only on the ground that the persons or objects for the benefit of whom or which it is created are unascertained or unascertainable.
Explanation:-A public trust created for such objects as dharma, dharmada or punyakarya, or punyadan shall not be deemed to be void, only on the ground that the objects for which it is created are unascertained or unascertainable.".
1. Section 10, Explanation, Bombay Public Trusts Act, 1950.
2. Section 10, Bombay Public Trusts Act, 1950.<
16.26. Recommendation to amend section 89.-
Having regard to what is stated above, it is in our opinion, desirable to add an Explanation to section 89, Succession Act on the same lines as has been done1 in the Bombay Public Trusts Act, 1950. We recommend accordingly.
1. Section 10, Explanation, Bombay Public Trusts Act, 1950 (Para. 16.25, supra).
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