JUDGMENTBY: WEE CHONG JIN CJ

(delivering the judgment of the Court): By his Will made in April 1948 Haji Vali Mohamed bin Jooma otherwise known as Valibhoy Jumabhoy otherwise known as A.A. Valibhoy (hereinafter referred to as "the Testator") who died on April 8, 1950 devised and bequeathed to his Trustees all his property upon, inter alia, the following Trust (hereinafter referred to as "the Valibhoy Charitable Trust"):--

"4. My trustees shall set aside one third share of my net estate upon

trust to pay thereout to the said ABDUL GANI BIN JINAH a sum of

Rs. 25,000 and to AMED BIN JINAH a sum of Rs. 25,000 and upon

Trust to HOLD the balance of such one third share of my net

estate for charitable purposes (which said balance is hereinafter

called "the Valibhoy Charitable Trust") and shall subject to the

provisions of para 6 hereof hold the same upon the trusts

following, namely:--

(i) To employ 30% of the capital of the Valibhoy Charitable Trust and

any net income from time to time arising from such 30% for the

purpose of buying land and buildings for and/or for building,

maintaining, improving and establishing one or more schools at my

trustees absolute discretion for religious instruction (known as

Madrasahs) and one or more schools at my trustees absolute

discretion for the education of persons in the English language

and general matters. In connection with such schools I give to my

trustees the following directions, namely:--

(a) Such schools shall, subject to the provisions hereinafter

contained, be established in Jetpur and the state of

Khatiawar, or at places in its neighbourhood, and

(b) Persons who profess the Mohamedan religion and are of the

Gatchee class shall be given preference at all times in

attending such schools as scholars.

(ii) To invest 50% of the capital of the Valibhoy Charitable Trust in

the investments hereinafter authorised and to use the net income

arising therefrom for the general upkeep and maintenance of all

or any of such schools and for the provision of scholarships to

such schools and to pay for the salaries accommodation and food

of teachers, managers and other staff of the said schools and

generally for the benefit of the said schools in such manner as

my trustees shall in their absolute discretion think fit.

(iii) To invest 10% of the capital of the Valibhoy Charitable Trust in

the investments hereinafter authorised and to use the net income

arising therefrom in the repair and improvement of the said

schools notwithstanding that there may be other moneys available

for the said purpose.

(iv) To invest the remaining 10% of the capital of the Valibhoy

Charitable Trust in the investments hereinafter authorised and to

pay such part of the net income arising therefrom as my trustees

shall in their absolute discretion think fit to or for the

benefit of such of my sons and daughters as shall from time to

time be indigent and to pay and use any balance of the net income

arising from the said remaining 10% of the capital of the

Valibhoy Charitable Trust to or for the benefit of such persons

of the Gatchee class as shall profess the Mohamedan Sunni Hanafee

religion and be indigent as my trustees shall in their absolute

discretion think fit."

By Clause 5(iii) of the Will the Testator gave his Trustees in connection with the Valibhoy Charitable Trust power "to close and discontinue any school or schools so established as aforesaid if they shall so think fit and to establish another or ot