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1951 Supreme(Bom) 37
HIGH COURT OF BOMBAY
TENDOLKAR, J.
Alexius Jacob Rebello
Versus
Alfred Camillo Rebello
O.C.J. Suit No. 2185 of 1946
Decided On : 13-03-1951
M.P. Laud, with J.M. Thakore, for Plaintiff; N.A. Mody with K.T. Desai, for Defendant 1; R.L. Dalai, with N.M. Shah, for Defendant 18; R.M. Kantawalla, with K.H. Bhabha, for Applicant, Archbishop of Damaun and, Goa; Dahir G.A.L., for Defendant 5.
A bequest for religious or charitable uses is void under Section 118 of the Succession Act unless certain conditions are met, and a particular residue of all shares and lands in cooperative societies not effectively disposed of includes any bequest that has lapsed by reason of the legatee having predeceased the testator.
Headnote:
SUCCESSION ACT - SECTION 105 - WILL - INTERPRETATION - RESIDUARY BEQUEST - LAPSE OF LEGACY - WHETHER LAPSE LEGACY FALLS INTO RESIDUE - WORDS "NOT SPECIFICALLY ASSIGNED" - CONSTRUCTION.
Fact of the Case:
The testator, Francis Anthony Cyril Rebello, died in 1934 leaving a will dated 1923. The will appointed Alexius Joseph Rebello as the sole executor and residuary legatee, but he predeceased the testator. In 1937, defendant 1 was granted letters of administration with the will annexed. A suit was filed for the administration of the estate, and questions arose regarding the interpretation of the will, particularly clauses (d) and (w).
Finding of the Court:
The court held that the bequest under clause (d) to the Bishop of Damaun was subject to a charge in favor of three individuals mentioned in the will, and that the bequest was void under Section 118 of the Succession Act, which prohibits bequests for religious or charitable uses unless certain conditions are met. The court also held that the bequest under clause (w) to the nephew Alexius Jacob was a particular residue of all shares and lands in cooperative societies not effectively disposed of, and that it included any bequest that had lapsed by reason of the legatee having predeceased the testator.
Issues: 1. Whether the bequest under clause (d) to the Bishop of Damaun was subject to a charge or was a bequest for religious or charitable uses, and whether it was void under Section 118 of the Succession Act. 2. Whether the bequest under clause (w) to the nephew Alexius Jacob was a particular residue of all shares and lands in cooperative societies not effectively disposed of, or whether it was a general residuary bequest.
Ratio Decidendi: 1. The court interpreted clause (d) of the will and found that the bequest to the Bishop of Damaun was subject to a charge in favor of three individuals mentioned in the will. The court held that the bequest was void under Section 118 of the Succession Act because it was a bequest for religious or charitable uses and did not meet the conditions set out in the section. 2. The court interpreted clause (w) of the will and found that the bequest to the nephew Alexius Jacob was a particular residue of all shares and lands in cooperative societies not effectively disposed of. The court held that the bequest included any bequest that had lapsed by reason of the legatee having predeceased the testator.
Final Decision: The court held that the bequest under clause (d) to the Bishop of Damaun was void under Section 118 of the Succession Act, and that the bequest under clause (w) to the nephew Alexius Jacob was a particular residue of all shares and lands in cooperative societies not effectively disposed of, including any bequest that had lapsed by reason of the legatee having predeceased the testator.
Judgment :- This is a suit for the administration of the estate of one Francis Anthony Cyril Rebello, who died at Bandra on or about 20-11-1934 leaving a will dated 21-12-1923, by which he appointed his cousin Alexius Joseph Rebello as his sole executor and residuary legatee. The said Alexius Joseph Rebello predeceased the said testator; and on 3-9-1937, defendant 1 was granted letters of administration with the will annexed of the estate of the deceased Francis Anthony Cyril Rebello by the District Judge, Thana.
2. Apart from the question of ascertaining the estate left by the deceased, which is always a matter for the Commissioner of this Court to determine, certain questions of law have been raised before me. One of them relates to the interpretation of Cl. (w) of the will and another to a legacy under cl. (d) of the will to the Bishop of Damaun.
3. One D. Jose Da Costa Nunes, Archbishop of Goa and Damaun, who is known as the Patriarch of the East Indies, was made a party defendant at his own instance, and he is defendant 25. He claims that he is entitled to the legacy given under cl. (d) of the will. The other parties to the litigation do not admit that defendant 25 is the Bishop of Damaun, who is the legatee under cl. (d), and put defendant 25 to strict proof of that fact. They further allege that in any event the bequest is bad, firstly, because, the will was not registered as required by S. 118, Succession Act, and, secondly, because the bequest is subject to an impossible condition and is, therefore, void under S. 126, Succession Act.
4. For the purpose of determining whether either of these two contentions is well founded, it is necessary to ascertain who is the legatee under this sub-clause and what the nature of the bequest to him is. Sub-clause (d) directs that the property therein mentioned shall be handed over and conveyed:
"To the Bishop of Damaun Dom Sebastiao Jose Pereira for such other dignitary of the Church as for the time being may be occupying the position and performing the duties of Bishop of Damaun for his own use."
It is, therefore, apparent that the bequest is not to the individual who occupied the position of the Bishop of Damaun but to a dignitary of the Church. Then the clause proceeds to say that the property shall be handed over and conveyed to the Bishop:
"On condition and with the obligation attached thereto that the said Bishop of Damaun or other dignitary afore said shall pay a sum of Rs. 60,000 (sixty thousand) in equal shares."
to three named individuals, all of whom predeceased the testator. The clause then provides for alternative modes of payment and finally it provides:
"The said sum of Rs. 60,000 (sixty thousand) shall be charged upon the said property in the hands of the Bishop of Damaun or other the dignitary aforesaid."
Now, it is well settled that words expressing a condition may sometimes be treated as words creating a charge on the property bequeathed. See Halsbury, vol. 34, para. 412, p. 363. In the case of this particular bequest, since a charge is in terms created on the property bequeathed to the Bishop of Damaun, although the bequest is expressed to be on condition of payment of Rs. 60,000, I must hold that upon a true interpretation of the clause the bequest is subject to a charge, in favour of the three individuals mentioned, for Rs. 60,000. The question then is whether this bequest is a bequest which attracts the application of S. 118, Succession Act. That section provides that no person, who has a nephew or a niece or any nearer relative, shall bequeath any property to religious or charitable uses except by a will executed not less than 12 months before his death and deposited within six months from its execution in some place provided by law for the safe custody of wills. The testator in this case had relatives mentioned in this section; and if this bequest is to a religious or charitable use, it must fail by reason of the fact that the will was not deposited for safe
