[1943] EACA 2

# COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Norman WhitLey, C. J. (Uganda), MARK Wilson, Ag. C. J. (Tanganyika) and HAYDEN, J. (Kenya)

## ABDULLA REHEMTULLA WALJEE as one of the Trustees of the charitable bequests under the will of Rehmtulla Walji Hirji, deceased, Appellant (Original *Defendant*)

# ALIBHAI HAJI AND RAJABALI HASHAM PAROO as the remaining two Trustees of the said charitable bequests, *Respondents* (Original Plaintiffs)

## Civil Appeal No. 10 of 1942

#### Appeal from decision of H. M. Supreme Court of Kenya

Will—Charitable bequests—Trustees' scheme for Girls' High School—Grants from outside source not inconsistent with will—Costs.

By his will, a testator left certain properties for the purpose of founding charitable trusts. In his will, the testator expressed the hope that grants from outside sources might be made in order to assist in the esablishment or maintenance of the charitable institutions contemplated by him. There was nothing in the will to show that any institution esablished under the will should be entirely and exclusively dependent on the testator's charity or that no assistance from outside should be accepted. The present appeal arose out of a scheme for a Girls' High School put forward by the respondents-trustees. The appellant-trustee raised a number of objections and an originating summons was taken out by the two trustees, the respondents upon the appeal, applying for approval of the scheme. The Chief Justice made an order by which he directed certain modifications which met some of the appellant's original objections but held that subject thereto, the scheme was within the scope of the will.

Held $(19-2-43)$ .—(1) There was evidence upon which the trial Judge could find, as he did, that there were sufficient funds for the carrying out of the charitable scheme from the rents derivable from the free and available trust properties.

(2) Upon the terms of the will there was nothing to prevent the trustees from accepting grants from His Highness the Aga Khan or from the Government or from any other outside source in order to assist in the establishment or maintenance of an institution. such as the projected High School, established by the trustees under Clause 20 of the will provided that such grants were not accompanied by any conditions contrary to the provisions of the will.

(3) The appellant-trustee was entitled to take the opinion of the trial Judge but being absolutely protected as a trustee by the decision of that Court thus obtained, he appealed at his own risk and as there was no substance in his grounds of appeal, the appellant would have to pay the costs of the unsuccessful appeal, and an order that the costs of all parties be paid out of the deceased's estate would not be made.

Dictum of Esher, M. R. in In re Earl of Radnor's Trusts, 45 Ch. D. at p. 423 approved

# Shapley for the Appellant.

#### Slade for the Respondents.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The appellant is the son of the testator and one of the trustees of the charitable bequests under his will. The respondents are the remaining two trustees. The material clauses of the will are: $-$

#### Clause 6.

"Rs. $125,000/-$ rupees. One and a quarter lakes to be sent to Hazar Imam for community Hospital and a grant should be obtained from His Lordship for the maintenance of such institution."

# Clause 7.

"Every Friday's dinner should be given in Mombasa and for that purpose a sum of Rs. 125000 rupees One and a quarter lakes should be sent to Hazar Imam and an adequate grant should be obtained from His Lordship for its perpetual continuance."

## Clause 20.

"After handing over the properties mentioned in clauses 2, 4, and 5 to the persons whom they are to be given and after paying all the sums mentioned in the will from the above-mentioned my personal properties the rmaining of my personal immoveable and moveable properties I hand over to His Highness Sir Sultan Mohamed Shah Agakhan Saheb on the condition that His Honour will kindly establish out of the income of such properties any institutions for the benefit of the Ismalia Community either at Nairobi or at Mombasa or at any other place between these two places, and when these institutions are established and managing Committees are appointed to manage these institutions Abdulla Rehmtulla Waljee himself or any person whom he appoints must be a member of such managing Committees with power to work with such committees. It is my wish that any institutions out of the following which Hazar Imam thinks fit be established and he can do so at his discretion: -

#### Inn

Orphanage

**Boarding**

Nursing House

High School

Orphanage."

·Clause 21.

"A board should be placed on the institution which may be established out of the above-mentioned institutions in remembrance of Rehmtulla Walji Hirji."

#### Clause 22.

"If it becomes necessary to sell any properties out of the properties mentioned in clause 19 in order to establish any institutions as mentioned in clause 20 His Highness Sir Sultan Mohamed Shah Agakhan Saheb can do so, and the institutions established should be maintained from the rent income of the remaining properties after such sale and Abdulla Rehmtulla Walji himself or any person whom he may nominate will be one of the persons whom His Lordship Hazar Imam may appoint to manage and supervise the income of such rent."

The testator died twenty years ago and under the will three charities have been established, namely Friday dinners and a dispensary in Mombasa and a boarding house for students in Nairobi. The boarding house has ceased to function through no fault of the trustees. The present appeal arises out of a scheme for a girls' high school put forward by the respondent trustees to be established in Nairobi under Clause 20. The appellant trustee raised a number of objections and on the 2nd December, 1941, an originating summons was taken out by the other two trustees applying for approval of the scheme (with such modifications as might be directed) as being within the scope of the will. On that application the learned Chief Justice made an Order by which he directed certain modifications which met some of the appellant's original objections, but held that subject thereto the scheme was within the scope of the will. The substantial grounds of $appeal$ are: —

- (1) The learned Chief Justice erred in law and in fact in holding that the question of finance afforded no obstacle to the scheme and misdirected himself on the evidence in finding that there were sufficient funds for the carrying out of the scheme from the rents derivable from the free and available trust properties, whereas the evidence disclosed that such was not the case. - (2) The learned Chief Justice erred in law and in fact in holding that no exception to grants or gifts to the Institution could be taken, whereas Clause 22 of the will of deceased provided that the institutions, if and when established, should be maintained out of the income of the trust properties.

As regards the first ground we were referred to the figures set out in the affidavits and accounts and to the evidence led on this point, and in spite of Mr. Shapley's arguments I can see no reason to think that the learned Chief Justice was wrong in the conclusion to which he came. Furthermore this seems peculiarly a matter for the trustees themselves and has nothing to do with the construction of the will.

As regards the second ground in my opinion the learned Chief Justice was right in holding that there is nothing in the will to prevent the trustees from accepting grants from His Highness the Aga Khan or the Government or any other outside source in order to assist in the establishment or maintenance of an institution, such as the projected High School, established by the trustees under Clause 20 of the will provided that such grants are not accompanied by any conditions contrary to the provisions of the will. Mr. Shapley argued that the words "will kindly establish out of the income of such properties" in Clause 20 and "the institutions established should be maintained from the rent income of the remaining properties" in Clause 22 indicate a desire or direction by the testator that whatever institution might be established should owe its foundation to and be dependent upon his bounty alone. In effect he asks us to read into each clause the word "exclusively" after the words "establish" and "maintained" respectively. He relied upon the case of re Weir Hospital (1910) 2 Ch. 124. In that case the Court disallowed a scheme as being not in accordance with the clearly expressed wishes of the testator and it is of course well established law that effect must be given to the wishes of the testator and that those wishes must not be disregarded merely from consideration of expediency or possible greater benefit to beneficiaries.

If it appeared clearly from the wording of this will that the testator's intention and desire was that any institution established under the will should be entirely and exclusively dependent upon his charity and that no assistance from outside should be accepted it would be the clear duty of the Court to hold that grants such as those contemplated from His Highness the Aga Khan could not be accepted. But I can find no such expressed intention in the will and nothing to warrant the Court in reading into Clauses 20 and 22 any such restrictions or limitations.

It is clear from the will as a whole that the general charitable intention of the testator was that his properties should be used in such a way as to confer the greatest possible benefit upon the members of his sect. In the absence of any express words indicating the contrary it seems to me unthinkable that he would, if alive, have refused any contributions from outside sources, which, without in any way interfering with the functioning of an institution established according to his wishes, would necessarily increase its usefulness and enable a greater number of persons belonging to his section to enjoy the benefits flowing originally from his munificence. This would apply with particular force to grants from His Highness the Aga Khan, the spiritual head of the testator's sect, from whom the testator had already in Clauses 6 and 7 expressed a hope that grants in aid would be received for the other charities established under the will. In my opinion the learned Chief Justice was clearly right in the conclusion to which he came on this point.

Accordingly I would dismiss the appeal.

The only remaining question is whether costs of all parties should come out of the estate or whether the unsuccessful appellant should be ordered to pay to the respondents their costs of the appeal. Mr. Slade for the respondents contends that the appellant should pay. In the case of In re Earl of Radnor's Trusts, 45, Ch. D. at p. 423, Lord Esher, M. R., observed: "It is as clear a case as possible that the Court was justified in agreeing and there is not a single point of valid argument which can be suggested why Mr. Justice Chitty should not have come to the conclusion which he did. Under those circumstances certainly the burden of proof in this Court has not been satisfied by the appellants. One of the appellants was the surviving trustee of the will; he and the other appellant were perfectly entitled to take the opinion of Mr. Justice Chitty as to what was right to be done; but when they appeal to this Court from him, being absolutely protected as trustees by his decision—I do not say they are wrong in appealing, but they appeal to this court under the ordinary conditions of appellants and they fail in the appeal; therefore this appeal must be dismissed with costs".

That case was decided in 1890 and is still referred to in Daniell's Chancery Practice and the Annual Practice as the leading authority on this point. It is not right that estates should be frittered away by protracted litigation amongst trustees whose views may differ and applying the principles enunciated by Lord Esher to the present case I would say that the appellant trustee was perfectly entitled to take the opinion of the Chief Justice but being absolutely protected as a trustee by the decision of the Court thus obtained he appeals at his own risk, and since, in my opinion, there is no substance whatsoever in his grounds of appeal I would dismiss the appeal with costs.