# L~cqttests v. Wybrants, (1845) Cg R R. 278 and Bailey v. Ekins, 7 Yes. 3r9

- **Citation:** [1962] 2 S.C.R. 28
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 147 of 1958
- **Bench:** B. P. Sinha, K. Subba Rao, ltAGHUBAR DAYAL, J .. R. l\JUDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-cqttests-v-wybrants-1845-cg-r-r-278-and-bailey-v-ekins-7-yes-3r9-2253
- **Pages:** 9

## Headnote

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 property 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.

## Text

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 property 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 January 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 paye11a,pam
ment of certain amounts to the first respondent, Utt11rHita\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 prnperty 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 Trustee 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, consisting 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 kstator, and appointed the Official Trustee as trustee
only in regard to the said share: on that basis, suitable directions were giviin.
The first respondent
accepted that position, bnt the appellants, i.e., the persons 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
Learned counsel for the appellants contends that
Ab .
-h
Ch
d
under the will not a trust but only a charge was creainas
an ra
.
.
Bannerji
ted m favour of the first respondent and, therefore,
v.
the first respondent could not invoke in aid the proUttarpa••
visions of s. 10 of the Act. Section 10 of the Act
Hitakari Sabha reads:
Subba Rao j.
"(l) If any property is subject to a trus1. other
than a trust which the Official Trustee is prohibited
from accepting under the provisions of this Act, and
there is no trustee within the local limits of the
ordinary or extraordinary original civil jurisdiction
of the High Court willing or capable to act in the
trust, the High Court may on application make an
order for the appointment of the Official Trustee
by that name with his consent to be the trustee of
such property."
It is common case that if the will created a trust, it
would not fall under any one of the exceptions mentioned in the section. Therefore, the only question is
whether the will created a trust or a charge in favour
of the first respondent.
The concepts of trust and charge are well defined.
A trust is "an obligation annexed to the ownership of
property, and arising out of a confidence reposed in
and accepted by the owner or declared and accepted
by him, for the benefit of another, or of another and
the owner." Where property "of one person is made
security for the payment of money to another, the
latter person is said to have a charge on the property."
The boundaries between the two concepts are well
demarcated; but, more often than not, courts found
considerable difficulty in construing a particular document to place it in one or other of the categories. The
same difficulty was encountered even in England.
The test. laid down for marking out the one from the
other by some of the authoritative text-books on the
subject may be useful in construing the will in question.
In Halsbury's Laws of England, 2nd Edn.
Vol. 33 (Lord Hailsham), the distinction between the
two concepts has been stated thus at p. 98:
"Where property is given to a person upon
condition that he does a certain act or confers a
'
,
1 2 S.C.R.
SUPREME COURT REPORTS
31
>
certain benefit on another person, the condition may
I96'
constitute, a trust if it is directed to be, or must neces- Abi•ash Chandra
sarily be, performed and satisfied out of the proBannnji
perty, and consequently imposes a fiduciary obligav.
tion in respect of the property; but it will not be
Uttarpara
construed as a trust if this is not the case and the Hitakari Sabha
condition merely imposes a collateral duty. Similarly, a devise of land upon condition of paying a
sum of money or au annuity does not create a trust,
though it may create a charge.
A charge does not in itself create a trust, but it
may do so if it is coupled with other trusts or the
context otherwise so requires. Conversely a trust
may amount merely to a charge."
Lord St. Leonards points out (Sugden on Powers, 7th
Edn., p. 122) that,
"What by the old law was deemed a devise upon
condition, would now, perhaps, in almost every case
be construed as a devise in fee upon trust, and by
this construction, instead of the heir taking ad vantage of the condition broken, the cestui que trust can
compel an observance of the trust by suit in
equity."
In The Commissioners of Charitable Donations and
Bequests v. Wybrants (')a testator had devised lands
to trustees and their heirs upon trust to grant and
convey the same to the use of John Wybrants for
life 'subject nevertheless to and charged and chargeable with' four annuities, three of which were to be
paid to charitable institutions and the fourth to the
poor of a parish. In construing that provision, the
Lord Chancellor said at p. 285:
"It certainly is not necessary to use the word
'trust' in order to create an express trust.
I do not
intend to lay it down that every charge creates a
trust, although it imposes a burden; but a charge
may create a trust; depending on the nature of the
charge. In Bailey v. Ekins (2) Lord Eldon said he
was confident Lord Thurlow's opinion was that a
charge (of debts) is a devise of the estate, in substance and effect, pro tanto upon trust to pay the
(1) (1845) 69 R.R. 278.
(2) 7 Ves. 319, 323.
Subba Rao J.
r96z
Abinash Chandra
Bannerji
v.
Uttarpara
Hitakari Sabha
Subba Rao ].
32
SUPREME COURT REPOltTS
[1962]
debts: and this is supported by the current of
authorities. The· principle is no less powerful in the
case of charities, particularly where the charity is to
a fluctuating, uncertain body, like the poor of a
parish. The testator gives the estate to one, subject
to this charge.
Who is to pay the annuities but the
person who is liable to the burden: and this, in the
case of a charity, impresses him with the character
of a trustee for the charity. By the ancient rule of
equity, no one could acquire an estate, with notice,
of a charitable use, without being liable to it."
·
The fact that a beneficial interest is also created in
favour of the trustees in respect of the property subject to a trust does not make the transaction any the
less a trust. The law permits a person to bequeath
his property to another subject to a trust in respect of
a portion of the income in favour of a third party or
"· charity. On this subject in Lewin on Trusts, it is
stated at p. 133~
"Upon this subject a distinction must be observed
between a devise to a person for a particular purpose with no intention of conferring ·the beneficial
interest, and a devise with the view of conferring
the benefical interest, hut subject to a particular
injunction."
So too, Tudor in his hook on Charities, 5th Edn., says
much to the same effect at p. 52:
"A charitable trust may he made to attach to a
part of the property only, or it may be limited to
particular p:i,yments directed to he made out of the
income, as in the numerous ca8es where property
has been given to a college, or municipal corporation, or city guild, upon trust or to the intent that
certain specified charitable payments shall be made
or subject to or charged with certain charitable
payments. In these cases, as will be seen, the
donees as a rule take beneficially, subject only to
the specified charitable payments."
The said tests may afford ·'> guide to ascertain
whether a document creates a charge or a trust; but
they are subject to the fundamental rule of construction that a trust may be created in language sufficient
\
'
'
2 S.C.R. SUPREME COURT REPORTS
33
to show the intention, and no technical words are
r96r
necessary; the s:i.id intention must be gathered from a
11
;;h d
fair reading of the provisions of the document.
.· · "1~~:";"''.; ra
In tho light of the foregoing discussion, let us look
v. •
at the provisions of the will to ascertain the express
uuartarn
intention of the testator.
At the time the testator !Iit«hari Sabha
executed the will he had a wife, and a nephew by
S
P
. b
h
Subba Rao ].
name ital rasad ChatterJi, ut no c ildrcn. He had
many other close relatives and dependants. He was
also charitably disposed. He executed tho will making
suitable provision for his wife, nephew, relatives a.nd
for charities. He could carry out his intention in two
ways: he could bequeath his entire property to his
widow and nephew subject to a fiduciary obligation
imposed on them to pay certain amounts to the relatives and the charities; or, he could give the entire
property to his widow and J:\ephew subject to the
payment of certain amounts charged on the said property. The question is, what did he intend to do by
this document? He did not use either the word "trust"
or "charge" and, therefore, we must gather the intention only from the circumstanees obtaining at the
time the document was executed and the recitals
found therein. Under the will the testator made the
following bequests depending upon different contingencies: Firstly, the property was given to his wife
and nephew in equal shares for their lifetime subject
to the payment of all his debts, annuities and charges;
it is also provided therein for the sale of a standing
jungle in Doomree and Sukhiao in the Gomkhpore
District for the purpose of discharging tho debts. The
second contingency related to tho event of the testator
and his nephew begetting son or sons; in that event,
after the lifetime of his wife and nephew the son or
sons of his nephew would get one-fourth share subject
to their paying one-fourth of the annuities and
charges, and whole of the remainder was given to his
son or sons subject to their paying the remaining
three-fourths of the annuities and charges. The third
contingency related to the testator getting no children,
bat his nephew having sons; in that event, after the
5
34
SUPREME COURT REPORTS
(1962]
z96z
death of his wife and nephew, the whole of his pro-
--
perty would go to the said son or sons subject to the
Abfoash Chandra
• d
· t'
d h
I
th
t
f th
Bannerji
sa1
annhui ~es anh"ldc arges.d
hn
e hevenh ?
e
v.
testator
avrng c 1 ren an
t e nep ew avmg no
uttarpara
son or sons, after the death of his wife and nephew,
Hitakari Sabha the property wonld go to his cPildren subject to the
payment of annuities and charges mentioned in the
Subba Rao f, first portion of the will. The last contingency contemplated was that neither the testator nor his
nephew had any issue; in that event the whole of the
'
property was given to his legal heirs subject to the
payment of annuities and charges. The quantum of
bequests made in favour of the Sabha expanded from
contingency to contingency. Dnring the lifetime of
the nephew and the widow, the said Sabha got rupees
fifteen per month. In the event of either the testator
or his nephew not having any children, the direction
was that the said Sabha should get rupees fifty per
month. In that contingency not only the said Sabha
but any other institution which took its place would
get the said amount. It was also mentioned that the
amount should be given only to be spent in paying
the school fees of indigent boys of Ooterpara reading
in the Ooterpara School and whose parents or guardians might not have the means to pay their school
fees. On the happening of the last contingency, that
is, both the testator and his nephew dying without
children, his legal heirs took the property subject
to the payment of half of the net income to the said
Sabha or any institution which might take its place.
The said amount was directed to be paid thus:
"Rupees fifty per month in payment of schooling fees
of indigent boys ofOoterpara reading in the Ooterpara school and the balance, if any, as scholarships
to persons resident of Ooterpara or failing such of
Bengal who after passing the entrance examination
of the Calcutta University may wish to learn practical
agriculture or Chemistry or Mechanics." At present
it is common case that all the relatives for w horn provision was made in the will passed away, that there
are no daughters of testator's nephew and that the
Sabha is the only institution entitled to receive the
'
2 S.C.R.
SUPREME COURT REPORTS
35
amounts provided for under the will: We are, therez96z
fore, only concerned with the question whether a Ab.
h Ch
d
d . ,.
f h fi
d
inas
an •·
trust was create m 1avour o t e rst respon ent or
Bann.,ji
not, on the happening of the last contingency, namely,
v.
the testator leaving no children and his nephew no
Uttarpara
sons. On the happening of that event the property Hitakari Sabha
passed to his legal heirs. When that stage was reached the testator was more interested in charities than Subba Rao J.
to make provision for persons for whom he had love
.. nd affection. The amount was payable to the Sabha
or any other institution which might take its place.
Further, there was a direction that the said amount
should be spent towards specified charitable purposes.
The direction was couched in an elastic form to prevent the charitable object being defeated. The charity
was conceived to be a permanent one and it was
necessary that the regular payment of the amount
was secured. It is, therefore, clear that under the
will, on the happening of the said contingency, the
testator clearly intended that his legal heirs should
regularly pay half the net income to the first respondent so that the specified charities may be carried out
perpetually. That object would not be achieved if the
first respondent was placed in the position of a creditor with a charge on the property with an off chance
of the charge being defeated by a bona fide purchaser
for value of the property bequeathed to the legal
heirs.
Learned counsel emphasized the fact that under the
will the first respondent had to spend the moneys for
specified objects and not the legal heirs and contended
that the first respondent might be in the position of a
trustee in respect of the amounts received from the
legal heirs, but the legal heirs were not trustees in
respect of the charity. The question is not whether
the legal heirs, or the first respondent, are the trustees
in respect of the fund after it reached the hands of
the first respondent; but the question is whether the
legal heirs, as owners of the property, were under a
fiduciary obligation to pay the said amount for charitable purposes. Having regard to the circumstances
visualized at the time the last contingency happened,
36
SUPREME COURT REPORTS
[1962]
r96r
the fluctuating amount the donees had to pay, the
Ab .
-h -
permanent nature of the charity and the declared
inas Chandra .
t'
of h
J!anneri
mten ion
t e testator to pay as much as half the
v.
1
net income towards the carrying out of the said charitu11"'pa.a
able object, we hold that the legal heirs took, the prollitakari Sabha perty of the testator subject to a trust rather than a
chavge.
Subba Rao /.
No other question arises in this appeal. For the
foregoing reasons, we hold that the conclusion arrived
at by the High Court is correct. In the result, the
appeal fails and is dismissed with costs.
I961
April I8.
Appeal dismissed.
MOHAN LAL GOENKA AND ANOTHER
v.
THE STATE OF WEST BENGAL
(B. P. SINHA, 0. J., s. K. DAS, K. 0. DAS GUPTA,
N. RAJAGOPALA AYYANGAR and
J. R. MuDHOLKAR, JJ.)
Mining-Regulations providing Crechcs for women employees
in mines-Breach of-Liability of owner, agent and managerI ndian Mines Act, x923 (4 of x923), cl. (bb) s. 30--Jndion Mines
Act, r952, (35 of r952), els. (r)(z) s. r8, cl. (d) s. 58--Mincs Creche
Rules, r946, sub-r. (I), r. 7-Gcneral Clauses Act, r897 (Act X of
r897), s, 24.
The appellants one of whom was the owner and the other
the manager of a colliery were convicted for contravening tbe
provisions of the l\lines Creche Rules, 1946, under which the
onwer of every mine employing women was required to const1 uct
creches for the use of the women employees and also to appoint
a "Creche-in-charge" for the supervision of the creches. Their
contentions mainly were (1) that the Mines Creche Rules, 1946
stood repealed as the Mines Act, 1923 itself under which those
rules were framed were repealed hy the Mines Act of 1952 and
(2) that the said rules having been framed under s. 3o(bb) of
the Mines Act, 1923, could not be deemed to be rules made under
the corresponding s. 58(d) of the 1952 Act the requirements of
which were different .from those of s. 3o(bb) of the 1923 Act. On
'
behalf of the manager a further contention was raised that he
was not liable for the contravention of r. 7(1) under which he