TMI Blog1966 (7) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... add that, if respondents Nos. 6 to 8 were able to challenge the Repealing Act on the ground that it imposes unreasonable restrictions on the right guaranteed under Article 19(1)(f) of the Constitution, they might have been able to make out an arguable case. As I will show while dealing with the various claims on the merits, what the Repealing Act has achieved is to divest the Custodian of a valuable interest which was vested in him and to debar respondent No. 6 from acquiring a beneficial life interest in the trust properties which he might have acquired, and on the other hand, to allow the trust properties to go to persons who, apart from the Repealing Act, did not have the least moral or legal right thereto. It appears to me that, as a result of the Repealing Act, large shares in the trust properties (which I am told are at present of the value of between ₹ 39-lakhs and ₹ 40-lakhs) will go to some of the claimants as a mere windfall. 2. A notice of the preliminary objection to the validity of the Repealing Act was given to the Advocate General. The learned Advocate General appeared and at his request the State of Bombay was made a party-respondent. 3. A prelimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a comparison of one of the provisions of the Repealing Act with the corresponding provision of two other Bombay Acts by which other Baronetcy Trusts were extinguished. Those Acts werethe Sir Chimibhai Madhavlal Ranchhodlal Baronetcy (Repealing) Act, 1956 (Bombay Act No. T of 1957), and the Sir Sassoon Jacob David Baronetcy (Repealing) Act, 1957 (Act No. 36 of 1957). By both these Acts the trusts created by the corresponding Baronetcy Acts were revoked and extinguished. It was, however, provided by Section 2(7;) of the Sir Chinubhai Madhavlal Ranchhodlal Baronetcy (Repealing) Act, 1956, that from the commencement of that. Act all the trust properties shall be deemed to be transferred to, and shall vest in, the present Baronet, Provision to the same effect was made by Section 2(6) of the Sir Sassoon Jacob David Baronetcy (Repealing) Act, 1957, The present Repealing Act, however, instead of transferring the trust properties to the present Baronet (respondent No. 8), as was done in the earlier Acts, provided by Section 4(7) that the Official Trustee shall hold the trust properties upon trust to distribute the same amongst the persons rightfully entitled thereto according to law . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. Mr. Chagla argued that the Official Trustee is a Corporation sole, that the Repealing Act provides for the transfer of the right to possession of the trust properties to the Official Trustee, and that therefore the Repealing Act must be deemed to provide for compulsory acquisition or requisitioning of property. The argument is palpably untenable. The Official Trustee may be a corporation sole, but a corporation consisting of the Official Trustee is not owned or controlled by the State , Under the provisions of the Repealing Act, the Official Trustee acts as a statutory authority and not as an agent of the State. Moreover, the Official Trustee is vested under the Repealing Act with the trust properties for the specific purpose of distributing them amongst the persons rightfully entitled thereto, and it is a novel proposition that such an Act results in a compulsory acquisition or requisition of the trust properties by the State and is invalid in the absence of a provision for compensation. Since it is obvious that Article 31 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature. It seems clear, however, that in substance the Repealing Act was an Act dealing with a trust, and the winding up of the Corporation which was set up by the Baronetcy Act of 191.3 was merely incidental to the main purpose of the Legislature, which was to revoke the trust created by the Baronetcy Act, 1913. Hence the topic covered by the Repealing Act falls in the tenth item of List III (Concurrent List) of the Seventh Schedule of the Constitution. Item 10 of List III is Trust and Trustees . The main argument of Mr. Chagla as to the validity of the Act was on the basis that the Repealing Act deals with a topic in the concurrent field of legislation. 7. Mr. Chagla's argument in this behalf related to the terms of Clause (2) of Article 254 of the Constitution. In order to appreciate the argument, the whole of Article 254 may be quoted: 254. (1) If any provision of a; law made by the Legislature of a State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal an Act passed by another Legislature even if it has the power of passing an Act inconsistent therewith. It was further urged by Mr. Chagla that the concept of repugnancy involves the continued existence of both the laws the earlier law as well as the subsequent law which is repugnant thereto. 8. It is implied in these arguments that, where a State Legislature wishes to repeal an existing law on a concurrent topic with the assent of the President, it can do so indirectly but not directly. Secondly, the argument necessarily covers amendments as well as repeals, for an amendment repeals a part of an earlier Act and often, but not always, substitutes another provision in its place. Thirdly, the argument necessarily applies to all existing laws in the concurrent field of legislation, and not merely to laws passed by the Central Legislature in that field. It implies for instance that the State Legislature cannot directly repeal or amend any Act passed by the Governor in Council prior to 1935 or by the Provincial Legislature between 1935 and 1950 and the rules made under these Acts, if the topic covered by them is included in the Concurrent List. 9. Prima facie this argument ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, Canada, in relation to that of the Provincial Legislature, in a situation similar to that under Section 107(2) of the Government of India Act, it was observed by Lord Watson in Attorney -General for Ontario v. Attorney-General for the Dominion [1896] A.C. 348, that though a law enacted by the Parliament of Canada and within its competence would over-ride Provincial legislation covering the same field, the Dominion Parliament had no authority conferred upon it under the Constitution to enact a statute repealing directly any Provincial statute. That would appear to have been the position under Section 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List. Now, by the proviso to Article 254(2) the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature could not under Section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to e matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can, acting under the proviso to Article 254(2), repeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be inflicted by the Customs Officers under the Sea Customs Act was ₹ 1,000. After observing that it was necessary in the interests of judicial uniformity and judicial discipline that all the High Courts must accept as binding the obiter dicta of the Supreme Court in the same spirit in which they accepted the obiter dicta of the Privy Council, Chagla C.J. in his judgment observed (p. 1160): Now, an obiter dictum is an expression of opinion on a, point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and point which is not necessary for the determination of the case. But in both eases points must arise for the determination of the tribunal. Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the ratio decidendi; the opinion of the tribunal on the question which was not necessary to decide the case would be only an obiter dictum. The learned Chief Justice further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Privy Council. However, there are several reasons why I cannot accept the view which appears to be implicit in these observations. For the sake of clarity, and in order to do justice to the elaborate arguments advanced before me, I will first give1 the reasons why I cannot accept, the inference which can be logically deduced from these observations, and then deal with the reasons one by one. The reasons are: (1) That the proposition which can be inferred from the aforesaid observation (namely, that a State Legislature while legislating in the concurrent field cannot directly repeal or amend an existing law) is contrary to well-established tenets as to the scope of legislative powers of Indian Legislatures laid down by the Privy Council, followed by the Federal Court, and accepted and approved by the Supreme Court. (2) That the above proposition is contrary to legislative history between 1935 and 1950 (between the Government of India Act, 1935, and the promulgation of the Constitution), which history must be assumed to have been known to the Constituent Assembly when it passed Article 254(2) of the Constitution in essentially the same terms as were found in Section 107( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled. In The Queen v. Burah (1878) L.R. 5 I.A. 178 the Privy Council considered the question whether conditional legislation could be passed by the Governor General in Council, the then central legislative authority in India. Their Lordships observed (p. 193); The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple laid down in The Queen v. Burah was accepted by the Supreme Court on several occasions, one of which was in The Union of India v. Madan Gopal Kabra. [1954] S.C.R. 541. In that case, the Supreme Court considered whether the Indian Parliament could levy retrospectively a tax on income which accrued prior to the promulgation of the Constitution and in circumstances under which it was not subject to any income-tax. In holding that the Union Parliament had such power, the Supreme Court observed in its judgment (p. 554) : The legislative powers conferred upon Parliament under Article 245 and Article 246 read with List I of the Seventh Schedule could obviously be exercised only after the Constitution came into force and no retrospective operation of the Constitution is involved in the conferment of those powers. But it is a different thing to say that Parliament in exercising the powers thus acquired is precluded' from making a retroactive law. The question must depend upon the scope of the powers conferred, and that must be determined with reference to the 'terms of the instrument by which, affirmatively, the legislative powers were created and by which, negatively, they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly, and it must follow from the fact that the same words were employed, in Article 254(2) of the Constitution as were found in Section 107(2) of the Government of India Act, 1935, that the State Legislatures under the Constitution had the same rights of amending and (within their territorial limits) repealing existing Acts which Provincial Legislatures enjoyed under the Government of India Act, 1935. A similar approach was adopted by the Privy Council in The Queen v. Burah, where their Lordships held that the Indian Legislature had the same power to pass conditional legislation which it had before the Councils Act of 1861. After pointing out that certain provisions of the Code of Civil Procedure and the Code of Criminal Procedure which were passed prior to 1861 were in the nature of conditional legislation, their Lordships observed (p. 196): If their Lordships were to adopt the view of the majority of the High Court, they would (unless distinctions were made on grounds beyond the competency of the judicial office) be casting doubt upon the validity of a long course of legislation, appropriate, as far as they can judge, to the peculiar circumstances of India ; great part of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such an artificial restriction. In fact, the Bombay Industrial Relations Act ha* been amended several times by the State Legislature after the Constitution. 18. (5) The proviso to Clause (2) of Article 254 of the Constitution, from which the power of the Indian Parliament to repeal or amend a previous law passed by a State Legislature on a concurrent topic is supposed to arise, relates only to a law which might be passed by Parliament after a State Legislature has made a law repugnant to an existing law. The proviso does not cover a situation where a State Legislature passes a non-repugnant law on a concurrent topic. It cannot, however, be doubted that such a State law on a concurrent topic can also be repealed or amended by Parliament. It must, therefore, follow that the power of Parliament to amend or repeal a State law on a concurrent topic arises independently of the proviso to Article 254(2). For instance, the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, and the Bombay Hindu Divorce Act, 1947, were non-repugnant Acts on a eon-current topic, that is to say, they were Acts which were not repugnant to any existing law or any earlier law made by Parliament. Yet th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 100 of the Government of India Act, 1935, or which may arise under Clauses (1) and (3) of Article 246 of the Constitution. That is to say, the Central Legislature, while legislating in its own exclusive field (on a topic included in List I of the Seventh Schedule), might make a law which happens to be repugnant to a law made by the Provincial or State Legislature legislating in its own exclusive field (on a topic included in List II of the Seventh Schedule). It is well settled that in such a case the Central Act prevails over the Provincial or the State Act to the extent of the repugnancy. It is also clear that in such a situation, while the Central Legislature might pass a repugnant Act when legislating in its own exclusive field, it cannot enter the legislative field of the Provincial or State Legislature and directly repeal or amend an Act passed by the Provincial or State Legislature on a topic covered by List II of the Seventh Schedule. This in essence was the decision of the Privy Council in the Ontario Prohibition Case. 21. In the Ontario Prohibition Case the main facts were that the Dominion Legislature of Canada passed the Canada Temperance Act, 1886, and som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een frequently recognised by this Board, and it may now be regarded as settled law, that according to the scheme of the British North America Act the enactments of the Parliament of Canada, in so far as these are within its competency, must override provincial legislation. But the Dominion Parliament has no authority conferred upon it by the Act to repeal directly any provincial statute, whether it does or does not come within the limits of jurisdiction proscribed by Section 82. The repeal of a provincial Act by the Parliament of Canada can only be effected by repugnancy between its provisions and the enactments of the Dominion ; and if the existence of such repugnancy should become matter of dispute, the controversy cannot be settled by the action either of the Dominion op of the provincial legislature, but must be submitted to the judicial tribunals of the country... After referring to Section 129 of the British North America Act, their Lordships went on to say (p. 366): It appears to their Lordships that neither the Parliament of Canada nor the provincial legislatures have authority to repeal statutes which they could not directly enact... The old Temperance Act of 1864 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority of the Ontario Prohibition Case, that the repealing provision in the Ordinance was bad because when two equally competent legislative bodies deriving the authority to legislate from the same paramount Legislature, namely the Parliament, can operate on the same field, one of such bodies cannot directly repeal or amend the laws passed by the other unless the authority which created those two legislative bodies had expressly conferred on one the power of repealing or amending the enactments made by the other. Of the three Judges, Mitter J. accepted this view and Sen J. agreed with him. The third Judge, Khundkar, J., delivered a dissenting judgment in the course of which, after quoting the above passage from the Ontario Prohibition Case he observed (p. 401): In the light of this passage, the general import of the words of Lord Watson quoted by my learned brother is really no more than this, that an authority which cannot make a law of a particular kind, can have no power, unless such power is expressly given, to repeal or amend a law of that particular kind. It may be mentioned in passing that, in the course of his judgment Mitter J. emphasised the similarity between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 88(1) of the Government of India Act, 1935, was in question. The Ordinance purported to amend the West Bengal Security Act, 1948, passed by the Provincial Legislature. In his judgment Harries C.J. rejected the argument that an Ordinance could not directly repeal or amend an existing Provincial law by repugnancy, but that it might do so indirectly by making repugnant provisions. The learned Chief Justice observed: ...It was contended that there was nothing in Benoari Lal a case, which threw any doubt on the view of this Court as to how far an Ordinance could repeal or amend existing legislation. Viscount Simon, L.C. it was urged, must have been referring to repeal or amendment by repugnancy in the passage in his judgment to which I have just made reference. In my view, however, it is clear that Viscount Simon was referring to direct repeal and amendment in his judgment and therefore it is not now possible to contend that an ordinance cannot directly repeal or amend existing legislation. All the Judges of the Full Bench concurred in this view, and it may be noted that Mitter and Sen JJ., who constituted the majority in the earlier decision in Shit Nath v. Porter, were partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be distributed according to law. The properties must, therefore, spring back or'' result to the estate of the First Baronet. 27. Mr. Peerbhoy, who appeared with Mr. Chagla for respondents Nos. 6 to 8, argued that the First Baronet was to all intents and purposes the real author of the trust embodied in the Baronetcy Act, and that even after the repeal of that Act by the State Legislature, the trust properties should be distributed according to the intention of the First Baronet. Mr. Peerbhoy referred to the Will of the First Baronet, which shows that he gave an amount of approximately ₹ 10-lakhs to each of his six other sons, but gave nothing to Mohamedbhoy who was expected to be the Second Baronet. The residuary properties of the First Baronet were also bequeathed to the six surviving sons excluding the would-be Second Baronet. The reason according to Mr. Peerbhoy why the eldest surviving son (Mohamedbhoy) was excluded from the gift of ₹ 10-lakhs each made to the other sons as well as from the residuary clause of the Will was that properties worth about ₹ 20-lakhs were included in the Schedules of the Baronetcy Act, and Mohamedbhoy and his male ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed of in accordance with his intention, whether that intention is expressed in specific language or not. No resulting trust arises if it appears by evidence properly admissible that in the event of the failure of the trust the property should be transferred by the trustee to a third person, or held upon a different trust, or that it should be retained by the trustee free of trust. 29. It appears to me that none of the descendants of the First Baronet, other than the heirs of the Third Baronet, had any claim, legal or moral, to the trust properties prior to the passing of the Repealing Act. I have, therefore, considered the arguments advanced by Mr. Peerbhoy for respondents Nos. 6 to 8 with a good deal of sympathy. I do not however, see how in law the claim of respondents Nos. 6 to 8, that respondent No. 8 (the Fourth Baronet) should get the corpus of the trust properties, can be sustained. In the first place, the legal author of the trust was the Legislature and not the First Baronet. The Legislature has expressed in Section 3 of the Repealing Act its intention that the Trust created by the Baronetcy Act shall stand revoked and extinguished. Secondly, even supposing- that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act; but this fact does not entitle the Fourth Baronet to claim, any beneficial interest in the trust properties. 31. A claim was made on behalf of the other heirs of the Third Baronet (his daughters, respondents Nos. 26 and 27) that the trust created by the Baronetcy Act failed when the- Third Baronet was declared an evacuee, and that the trust properties should go on the failure of the trust to the heirs of the Third Baronet. This contention was mentioned rather than argued before me. The contention is palpably untenable, for there was no provision in the Baronetcy Act to the effect that on a Baronet being deprived of his beneficial interest in the trust properties by operation of some law, the properties would pass to his heirs. 32. I, therefore, hold on the first issue that, on the repeal of the Baronetcy Act, the trust properties reverted to the estate of the First Baronet. 33. [His Lordship after considering Issue No. 2, proceeded.] 34. This brings me to the most hotly contested issue in the case, namely, whether the properties are carried by the residuary clause in the Will of the First Baronet. If they are so carried, the properties pass to the six sons of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidue; nor was it a residuary clause the general terms of which could be circumscribed on the principle of ejusdem generis. The following statement from Halsbury on the scope of a general or true residuary clause was relied upon (Halsbury, 3rd edn., Vol. 16, p. 377, para. 734): A general residuary gift passes everything not disposed of, whether the testator has not attempted to dispose of it or whether the disposition fails by lapse or any other event. In order to exclude from such a gift a particular property belonging to the testator and not otherwise disposed of by Will, it is necessary to find a plain and unequivocal intention on the part of the testator not to include that property in the residuary gift; the mere fact that the testator is under the erroneous impression that the particular property is not his to dispose of does not exclude the property from the residue. To the same effect is the provision of Section 103 of the Indian Succession Act, which says: Under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve intimated that a residuary bequest would not include property which a testator thought was not his. But this is a proposition which cannot be supported. The result of the cases cited before the Court of Appeal was summarised by A.L. Smith, L.J., in these terms (p. 361): ...To prevent personal property which would otherwise fall into the general residue, assuming a true general residuary bequest to exist, there must be found in the will an expression of the testator's intention not only to except such property either from the operation of the residuary clause in the will in favour of a particular recipient, but an intention to except it from the operation of the will, or the residuary clause, as the ease may be, whether the proposed recipient in the events which happen can take the property or not. To the same effect is the decision in Blight v. Hartnoll. (1883) 23 Ch. D. 218. In that case the bequest of a wharf failed for remoteness and it was held that the wharf fell into the residue and was covered by the residuary clause. There were no express words in the Will to the effect that, if the bequest of the wharf failed, the wharf should not go into the residue. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to his intention with regard to the disposal of the trust properties in case the statutory trust failed or was extinguished. Secondly, the intention of the testator must be ascertained from the contents of the Will itself. For it is the terms of that Will that are determinative of the disposal of the properties which belonged to the testator at the time of his. death. Provisions like Section 4 and Section 27 of the Baronetcy Act, which lay down the manner in which the trust properties were to be disposed of in certain contingencies, merely have this effect, that in the event of those contingencies the trust properties would not have reverted to the estate of the First Baronet. The Court must gather the intention of the testator from the language used in the Will itself and the Court can travel outside the Will only when surrounding circumstances are required to be considered for ascertaining the meaning of the words used by the testator. The duties of a Court in construing a Will were thus explained by the Privy Council in Narasimhammha v. Parthasarathy (1914) I.L.R. 37 Mad. 199, p.c. (p. 221): ...In all cases the primary duty of a Court is to ascertain from the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that, wherever a settlor creates by deed or will an express trust, an implied trust may arise in favour of himself or his estate, by virtue of his presumed intention. In such cases, transfer of properties to a trustee leaves with the settlor or his estate a contingent beneficial interest which falls into possession on the failure of the express trust. This contingent beneficial interest is capable of being bequeathed and would then be carried, in the absence of any other specification, by a general residuary clause. 40. In the present case, however, the trust was not created by the First Baronet either by deed or by will, and no beneficial interest, vested or contingent, remained with the First Baronet after the passing of the Baronetcy Act. The Baronetcy Act was passed with the consent of the First Baronet, but he was not in law the author of the trust. The legal sanction for the trust was the Act of the Legislature having plenary powers, and not the consent given by the First Baronet before the Act was passed. The Act created a Board of Trustees, constituted the Board into a Corporation with perpetual succession and a common seal, and vested the Corporation with the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him has failed, but because a statutory trust has been extinguished by the Legislature without making any provision for the further disposal of the trust properties. Since there was no interest, vested or contingent, left in the First Baronet after the passing of the Baronetcy Act, no interest in the trust properties could be covered by the Will of the First Baronet or be swept by the residuary clause thereof. It follows that the trust properties must be deemed to pass to the heirs of the First Baronet as on an intestacy. 41. This reasoning applies not only to the Will of the First Baronet, but also to the Wills made by some of the descendants of the First Baronet on which some of the claimants have relied. The shares of these testators in the trust properties will not be covered by the Wills made by them because they had no interest in the trust properties at the time of their respective deaths. For instance, the Fourth Baronet has relied on an alleged Will made by his father, the Third Baronet, contained in a letter which has been produced at exh. B to the Fourth Baronet's Statement of Claim. The advocate who appeared for respondents Nos. 26 and 27 (the step-sisters of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baronet (respondent No. 8) and respondents, Nos. 6 and 7 appealed. This appeal [No. 31 of 1963] was heard with the appeal [No. 34 of 1963] filed by the Custodian of Evacuee Property. 45. A.A. Peerbhoy, with S.C. Chagla and Ashok Desai, instructed by Nagindas Hoosseinally Co., for appellants Nos. 1, 2 3. L.M. Zaveri, with Miss Usha Parikh, for respondent No. 2. E. II. Pandia, for respondents Nos. 3 22 in Appeal No. 31/63 and for respondents Nos. 3 25 in Appeal No. 34/63. M.M. Jlwiveri, for respondent No. 4 in both the appeals. K.H. Bhabha, with F.S. Nariman, for respondent No. 5 in both the appeals. E.G. Vahanvati, with B.A. Dada, for respondent No. 7 in Appeal No. 31/63 and respondent No. 10 in Appeal No. 34/63. F.G. B. Khairaz with JV.B. Soman, for respondents Nos. 8, 9 to 9D, 10 to 10B, 10D to 10-1, 11 to 11B in Appeal No. 31/63 and for respondents Nos. 11, 12 to 12D, 12 to 13B, 13D to 13-1 and 14 to 14B in Appeal No. 34/63. Kaka, for respondents Nos. 12, 12A and 12-G in Appeal No. 31/63 and for respondents Nos. 15, 15A to 15D in Appeal No. 34/63. M.P. Kenia, with Z.E. Ladhabhoy, for respondents Nos. 13, 13A and 13-B.G. 0. Sanghvi, for respondents Nos. 14 to 17 in App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Baronet and a trust was created of these properties. The first Baronet passed away on May 29, 1934. He left behind a will dated October 22,1916, to which reference will be made in connection with the several claims of his heirs. After the death of the first Baronet his eldest son Mahomedbhoy assumed the title and became the second Baronet. He held the title till his death on March 31, 1928. He was succeeded by his son Husseinali who became the third Baronet. The third Baronet migrated to Pakistan some time prior to 194'9. The exact date is not known. Consequent upon his migration his properties were dealt with under the provisions of the then operative Bombay Evacuees (Administration of Property) Act, 1949 and on September 29, 1949, the third Baronet was declared an Evacuee and his properties vested in the Custodian of Evacuee Property. The orders in this respect are at exh. A both dated September 29, 1949. 49. On March 4, 1952, Husseinali, the third Baronet, passed away in Pakistan and was succeeded by his son Mohamedbhai as the fourth Baronet. He is the title holder at present and is the original claimant No. 8. On the date on which he succeeded as the fourth Baro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desirous of settling in perpetuity certain property on himself and the heirs male of his body who may succeed to the title of Baronet and therefore he had set apart properties of the aggregate market value of about ₹ 20 lakhs upon trust and for the purposes declared in the Act. It is also recited that the Act was being passed at the desire of the Baronet and because he had asked that it should be passed. 52. So far as the provisions of the Act itself are concerned, Section 2 names the trustees. They were all State Officials except the Baronet for the time being holding the title. The trustees were created into a corporation with perpetual succession and a common seal under the style and title of The Trustees of the Sir Currimbhoy Ebrahim Baronetcy . They were to execute the trusts, powers and purposes of the Act. Section 3 enjoined that the heirs male of the body of Sir Currimbhoy Ebrahim who shall succeed to the title shall take upon themselves respectively the name of Currimbhoy Ebrahim in lieu and place of any other name or names whatever and they shall always subscribe themselves accordingly. Section 4 of the Act provided that in the event of any person to whom the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy Ebrahim. The provision made was that the Corporation shall continue to hold the trust property and funds which may then be vested in them by virtue and operation of this Act upon trust for the heirs of to last Baronet absolutely and shall also stand possessed of the said hereditaments and premises particularly described in the second schedule...upon trust for the heirs of the last Baronet for all the then residues of the terms granted by the leases by which the same are demised. This is another of the sections of the Act upon which the fourth Baronet has relied to claim the trust properties for himself consequent upon the revocation and extinction of the trusts by the Repealing Act. We will indicate presently how this claim arises. 55. Then we turn to the Repealing Act. It is prefaced by a long preamble, most of the paragraphs of which were the subject of some comment by on or the other of the several parties before us. The preamble recites the facts, as we have stated them above and this recital comprises of 9 paragraphs which for convenience' of reference we have numbered and in our references hereinafter we shall refer to the said numbers of the paragraphs. The firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rustees. Clause (c) of Section 3 provides the trust properties, in so far as they consist of immovable property shall by force and virtue of this Act vest in, and in so far as they consist of any moneys, investments, securities or other movable property shall stand transferred to, the Official Trustee, and be handed over to him (anything in Official Trustees Act, 1913 notwithstanding), and the Official Trustee shall hold and stand possessed of the same for the purposes, and with and subject to the powers and provisions, hereinafter expressed. 57. Section 4, Sub-section (1) states how the properties shall be dealt with after they vest in the Official Trustee. Actually there is hardly any provision made which can be said to be an effective provision or one which can provide any guidance to this Court. All that Sub-section (1) of Section 4 says is that As soon as may be after the commencement of this Act, the Official Trustee shall take possession or charge of the trust properties and make an inventory thereof, and hold the trust properties upon trust to distribute the same amongst the persons rightfully entitled thereto according to law, and until such distribution to manage th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onetcy Act must be taken as having created nothing more or less than a private trust and that though it came into being1 as a result of legislation that fact cannot have any influence upon the points arising in the appeals. We say this here because in deciding certain important points arising before him the learned Single Judge answered those points by saying that the trust was a creature of the Legislature and that, therefore, the author of the trust must be deemed to be the Legislature and not the first Baronet. The entire arguments before us were on that footing and we must, therefore, take it for the purpose of this argument that what the Baronetcy Act created was no more and no less than a lawful private trust. No doubt in the course of his arguments which were confined only to the Constitutional questions that arise in these appeals, the learned Advocate General did point out that the aid of the Legislature had to be sought by the first Baronet in making the provisions to succession which so to say created an estate in tail male which in the absence of legislative sanction would have been illegal because it would militate against the rule against perpetuity. It was, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Khojas in 1924 or should the succession be governed by the Muslim Personal Law an provided by the Shariat Act of 1937 ; and 5. Whether the Custodian of Evacuee Property is entitled to such share in the trust properties as the fourth Baronet may be held entitled to or to any part thereof. The learned single Judge held that upon the passing of the Repealing Act the properties reverted to the estate of the first Baronet by virtue of a resulting trust and that they would pass by succession according to the Muslim Personal Law to the heirs of the first Baronet on his death on May 29, 1924. He negatived all the remaining contentions. We shall deal with the reasons why the learned Judge so held when we come to deal with the individual contentions. advanced on behalf of the several claimants. 61. The principal arguments before us in these appeals have been advanced on behalf of the fourth Baronet and his mother and son, claimants Nos. 8, 7 and 6 respectively by Mr. Peerbhoy. The arguments naturally fall into two main parts viz. the attack against the Constitutionality of the Repealing- Act and the arguments going to show who are the persons rightfully entitled according to law t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which to solve the so-called difficulties which had arisen in the administration of the trusts. He urged that the operative provisions of the Act do not in the first place conform to the very purpose of the Act but go far beyond it and in the second place in so far as they have gone far beyond it, they have worked a discrimination against the fourth Baronet and his heirs as compared to other similar enactments whereby similar other Baronetcies were put an end to and their respective Acts repealed. In particular, he referred to two Acts viz. the Sir Chinubhai Madhavlal Ranchhodlal Baronetcy (Repealing) Act, 1956, also passed by the Legislature of the then Bombay State as Bombay Act No. 1 of 1957 and the Sir Bassoon Jacob David Baronetcy (Repealing) Act, 1957, passed by the same Legislature as Bombay Act No. XXXVI of 1957. 63. Both these Acts revoked and extinguished the trusts created by the original Acts which constituted the Baronetcies namely the Sir Chinubhai Madhavlal Ranchhodlal Baronetcy Act, 1924 and the Sir Sassoon Jacob David Baronetcy Act, 1915. He also pointed out that those Acts were for all intents and purposes repealed and that the second section of both the Repea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Repealing Act makes provision for the distribution also of the corpus. To that extent again Sir Currimbhoy Ebrahim is being treated on a footing entirely-different and highly discriminatory than the other two Baronets were treated under the other two respective Acts. There is a denial of equality before the law or the equal protection of the laws guaranteed by Article 14 of the Constitution. 64. The provisions of Article 14 of the Constitution have been expounded and interpreted in several cases by the Supreme Court of India and so far as the meaning of the key phrases in the article equality before the law or the equal protection of the laws are concerned, there is no doubt or difficulty. The pronouncement in Chiranjitlal Chowdhuri v. The Union of India [1960] S.C.R. 869 laid down the ambit of those expressions. As to the meaning and effect of the guarantee contained in that article the Supreme Court accepted the statement by Willis in his Book on Constitutional Law and they quoted with approval the following passage (p. 877): The guarantee of the equal protection of the laws means the protection of equal Jaws, It forbids Glass legislation, but does not forbid clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be achieved by the statute in question. The classification may be founded on different bases; namely geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. Further Article 14 condemns discrimination not only by a substantive law but also by a law relating to procedure. The same tests were reiterated in Bam Krishna Dalmia's case. 66. In the light of these principles we turn to consider whether the Repealing Act in such differences which it has made so far as Sir Currimbhoy Ebrahim is concerned as compared to the other two Baronetcy Repealing Acts has worked a discrimination against the former. Now, in the first place, the Baronetcy Act and the Repealing Acts which related thereto were all pieces of legislation which dealt with the rights to which one private citizen was entitled for the time being. They were so to say private Acts which necessarily, therefore, concerned themselves with the facts, conditions and circumstances peculiar to those particular individuals, They were not like other public Acts, applicable to or operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are recited in the nine paragraphs of the preamble in Sir Currimbhoy Ebrahim Baronetcy Repealing Act are to be found in the former Acts. One important and distinguishing circumstance was that both the third and the fourth Baronets had left India for Pakistan leaving the trust properties, which were intended to support the dignity of the title, behind in India, Obviously the very purposes for which the Baronetcy Act had intended the trust properties to be used were thereby frustrated. The Act recites these circumstances in the eighth and ninth paragraphs of the preamble and it is with specific reference to this fact that the provisions of Section 1(4) were enacted. We will presently refer to that section in detail and attempt to- construe it; suffice it to say here that Mr. Peerbhoy on behalf of the claimants Nos. 6, 7 and 8 gave it a certain interpretation whereby the property continued as the property of the 4th Baronet, whereas Mr. Cooper on behalf of the Custodian of Evacuee Property gave it an interpretation whereby the entire trust properties would be vested in the Custodian. The very fact that this provision was incorporated into the Act shows the basis upon which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution. 71. Considerable comment was made upon the provisions of Section 4(1) in so far as it provides that the trust properties shall be held by the Official Trustee upon trust to distribute the same amongst the persons rightfully entitled thereto according to law.... . It was said that this is hardly any provision at all for it leaves the matter at large and indicates nothing as to who is to be entitled and how the property is to be distributed. No doubt the Legislature' in this respect could have spoken with more clarity and particularity, but we have to take the provisions such as they are and to consider whether there was any discrimination against the persons whose rights are being affected. As we have said, if the trusts created by the Baronetcy Act failed in that purpose, in so far as the principal beneficiary thereof and the possible beneficiary, Ms son, had left India and the managing trustee had also left India, the Legislature could well decide that it was no longer necessary to keep the Baronetcy Act in force and to repeal it. Having repealed it, it was not for the Legislature to indicate to whom the properties should go. Perhaps if the Legislature had indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r interpretation which is placed upon Sub-sections (4) of Section 7, he urged that even the corpus of the trust properties would pass to the Custodian. Mr. Peerbhoy, on the other hand, on behalf of the claimants Nos. 6, 7 and 8 put forward a different construction resulting in the corpus of the trust properties reverting to the fourth Baronet himself. We need not at this stage go into this question. We shall deal with it separately when we consider the Custodian's appeal, but we may say for the present that upon a proper construction of Sub-section (4) of Section 7, we can gee no discrimination arising* under Article 14. 73. It is now well settled that where a certain result is achieved by a legislation which in itself is not discriminatory, even if other methods are open and possible to achieve that result, the legislation will not be struck down for the reason that- those other methods were not followed, for the Legislature is the sole judge of the method to be adopted (See Shri Bam Krishna Dalmia v. Justice S.B. Tendolkar). In considering this question of equality before the law or the equal protection of the laws , we are not only confined to the provisions of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as he is being prosecuted under a void low, his prosecution is bad and ho cannot be convicted of an offence under a void law. To that extent even a non-citizen may rely on any of the fundamental rights, not indeed for the purpose of enforcing those rights, but merely in order to point out to the Court that a particular law being in violation of any of those fundamental rights is bad, inoperative and no penal consequence can follow, from the breach of such a law. If Mr. Peerbhoy could satisfy us that this particular piece of legislation does discriminate contrary to what is provided under Article 15(1), then undoubtedly it would be bur duty to say that Section 497 is bad, and as Mr. Peerbhoy's client is being prosecuted under a void law, the prosecution must be quashed. That is precisely the line of argument which Mr. Peerbhoy has adopted in the present case. He says that though his clients may not be entitled directly to take advantage of Article 19 nonetheless they are entitled to show that the particular law under which their property is being dealt with is a void law. 77. No doubt Yusuf Abdul Aziz's case was a case where Article 15(7) was invoked and here it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void. Therefore, the laws under Sub-section (1) which are already in existence at the commencement of the Constitution, as well as the laws which are made after the coming into force of the Constitution are void only to the extent of the inconsistency or to the extent of the contravention. This in the first place would be sufficient to show that the assumption made in Yusuf Abdul Aziz's case that a law which contravenes a fundamental right is necessarily void is not justified. 79. But we need not merely found our conclusion that it is doubtful if the decision in Yusuf Abdul Aziz's case is any good law upon a mere consideration of Article 13 itself, for the decision of a Division Bench of this Court is binding upon us unless set aside by a larger Bench or directly or indirectly by the superior Court. There is, however-, clear authority of the Supreme Court for a contrary view. In Behram Khurshed Pesikaka v. The State of Bombay [1956] I S.C.R. 613, s.c. 57 Bom. L.R. 575 discussin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amental right alleged to have been infringed was the right to practise any profession, or to carry on any occupation, trade or business under Article 19(1)(g) and the Supreme Court pointed out at p. 598 that ...Article 13(1) by reason of its language cannot be road as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, a3 was held in Keshavan Madhava Menon's case. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right. and a little later they pointed out that The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right. The Division Bench in Yusuf Abdul Aziz's case was dealing with an offence arising under the Indian Penal Code which is a pre-Constitution law and will be governed by Article 13(1) of the Constitution. Therefore, so far as the decision in Yusuf Abdul Aziz's case is concerned, there is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons may be stated thus : Parliament and the Legislatures of States have power to make laws in respect of any of the matters enumerated in the relevant lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution including Article 13 i.e. the power is made subject to the limitations imposed by Part III of the Constitution. The general power to that extent is limited. A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13. Article 13(1) deals with laws in force w the territory of India before the commencement of the Constitution and such laws in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. The clause therefore, recognises the validity of the pro-Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part III; whereas Clause (2) of that article imposes a prohibition on the State making laws taking away or abridging the rights conferred by Part III and declares that laws made in contravention of this clause shall, to the extent of the contravention, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. What is being argued here is that claimants Nos. 6, 7 and 8 are admittedly foreigners or, at any rate, non-citizens and they cannot take advantage of the provisions of Article 19 at all, for Article 19 commences with the recital All citizens shall have the right... . Obviously, therefore, the preliminary condition of Article 19(1) is not fulfilled in this case. Nonetheless, it is urged that these claimants can show that the law is void, although they may not be able to claim the fundamental rights themselves. The whole of this theory is founded upon the remarks of the Division Bench in Yusuf Abdul Aziz's case and we have shown that the ratio of that case can no longer be binding on us in view of the several subsequent pronouncements of the Supreme Court. 85. Viewing this doctrine on its own, it seems to us that the argument which Mr. Peerbhoy has advanced comes to this that though his clients are not citizens, though for that reason they cannot take advantage of Article 19 at all, or challenge the Repealing Act as contravening that article, nonetheless they can produce the same result by pointing out that the law before the Court is void. It virtually amounts to sayin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the provisions of the Act all that Section 4, Sub-section (1) says is that the property shall go to those persons who are rightfully entitled thereto according to law . Now in so far as that is what the statute says, we cannot see how it can infringe any right to acquire, hold or dispose of property. The statute simply says that the property shall go to the person rightfully entitled thereto according to law, i.e. no one's claim if it is just and rightful under law would be ignored and therefore would not infringe any right under Article 19(1)(f), No doubt if a course of succession or devolution different from the personal law of the parties had been indicated there was something to be said for the contention, but the Legislature went up to a point and then left the matter entirely to be decided by this Court according- to law. In the result no doubt there is a very vague and controversial provision of law which has given rise to much difficulty but we can hardly say that that provision infringes the guarantee under Article 19(1)(f). Apart from this we may also point out that there is nothing which prevents the Legislature' from making any law imposing reasonable res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was feebly suggested that the transfer to and vesting of the trust properties in the Official Trustee was to a Corporation owned or controlled by the State. The argument has only to be stated to be rejected. There is no question of the Official Trustee being a Corporation owned or controlled by the State, though he has been constituted into a Corporation sole under the Official Trustees Act. There is nothing to show that there is any control over the Official Trustee by the State. 90. Then we turn to examine the last of the Constitutional objections to the Repealing Act namely its legislative competence. The argument under this head has been two-fold. The first argument is directed to showing that the Repealing Act falls within the ambit of entry 44 of List IUnion Listand that, therefore, it was beyond the legislative competence of the Legislature of the then State of Bombay which passed it. In answer the Advocate General sustained the legislative competence of the enactment on the basis of the Entry 10 of List III (Concurrent List). Entry 44 of List I relates to Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d faith. Section 13 excludes the operation of the Official Trustees Act, 1913. It is clear, therefore, that the principal object of the enactment was to get rid of the trusts created by the Baronetcy Act and for that purpose alone the Corporation comprising of the erstwhile trustees in directed to be dissolved. Save this provision in Section 3(b), there is hardly any other provision referring to the- Corporation in the Act. No doubt Section 3(b) winds up the Corporation but in the totality of the provisions of the Act, that provision probably is most innocuous and incidental to the other provisions. It is clear to us that the pith and substance of this enactment was to deal with the trust, the trust properties and the trustees under the Baronetcy Act and that it is only in an incidental manner that the legislation has provided for a Corporation. Since by the Baronetcy Act the Trustees were constituted into a Corporation sole, the Repealing Act had to say that the Corporation is dissolved. We cannot for that reason, however, hold that the legislation is in regard to the winding up of the Corporation. It directly and in substance makes provisions only for the trusts declared under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red upon the State Legislature to repeal it because it was not a legislation enacted by it but by an erstwhile Central Legislature. 93. Reliance was placed in this respect upon the remarks in two decisions of the Supreme Court. One was the decision in Zaverbhai Amaidas v. The State of Bombay. Discussing the provisions of Article 254(2) of the Constitution the Supreme Court compared them with those of Section 107 of the Government of India Act and pointed out that the article was in substance a reproduction of that section. Then Venkatarama Ayyar J. on behalf of the Court referred to the decision of the Privy Council in Attorney-General for Ontario v. Attorney-General for the Dominion [1896] A.C. 348 in order to construe Article 254. The remarks which the Supreme Court made in that connection at p. 806 and which Mr. Peerbhoy relied on were: ...Discussing the nature of the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, in a situtation similar to that under Section 107 of the Government of India Act, it was observed by Lord Watson in Attorney-General for Ontario v. Attorney-General for the Dominion, that though a law enacted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III. The power to make that law is referrable to Article 246(2) of the Constitution which confers the power upon thf1 Legislature of any State to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. Once, therefore, the legislation clearly falls within the ambit of the power conferred by the Constitution upon the Legislature it would require a clear provision to show that it is taken out of that power. It was ruled long ago in the leading case of The Queen v. Burah (1878) L.R 5 I.A. 178 at p. 193 that The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of courses do nothing beyond the limits which circumscribe these powers. But the Privy Council hastened to add But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, us large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when question arises whether the prescribed limits have been exceeded, must of necessity determine that question ; and the only way in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 254 in the Government of India Act was, as pointed out by the Supreme Court, Section 107 of the Government of India Act. Sub-section (2) of Section 107 of the Government of India Act provided that, Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General has received the assent of the Governor-General, the Provincial law shall in that Province prevail, but nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter. The concluding words nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter would, in our opinion, clearly include a provision repealing the previous legislation. This conclusion is further strengthened by a consideration of Section 292 of the Government of India Act, 1935, which is an analogous provision to Article 372 of the Constitution. It says that notwithstanding the repeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) says: Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. Here again the power of repeal is assumed and all that is provided for is the necessary qualification namely the competence of the Legislature to enact a law. We cannot, therefore, accede to the contention that the power to enact and the power to repeal must be separately conferred on a Legislature. Nowhere have the two powers been separated from each other so far as the Constitution is concerned. Sub-article (2) of Article 372 deals with the power of the President to make laws in order to bring the provisions of any law in force in the territory of India into accord with the provisions of the Constitution and the power of the President is stated in these words, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution . 99. We have pointed to these provisions, of the Constitution to show that it is not essential that an express power of repeal should be conferred upon a Legislature even if it be the repeal of a legislation passed by another Legislature, but obviously so long as the remarks of the Supreme Court in Zaverbhai's case stand, they would be binding upon us, even if they be obiter dicta. The learned single Judge, however, has held that these remarks were mere casual observations and not binding upon him and it is in connection with that finding that we have ventured to refer to the several provisions of the Constitution. 100. The finding of the learned single Judge that the remarks in Zaverbhai's case were mere casual observations was, however, strongly attacked by Mr. Peerbhoy. Zaverbhai's case was not a case where the proviso to Article 254(2) was applicable and there was no question of repeal involved in that case. The case arose out of two different enactments. A Central Act had prescribed a punishment of three years' imprisonment for an offence under Section 7 of the Essential Supplies (Temporary Powers) Act. The then State of Bombay considered that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Judicial discipline undoubtedly requires it. But we also pointed out what are the obiter dicta which require to be followed by the High Courts in India. Any considered opinion by the Supreme Court, even on a point which does not strictly arise for decision, must be accepted by the High Courts as laying down a statement of law which must be followed. But with great respect to the Supreme Court, we do not read this particular observation as laying down that the views of the Supreme Court, expressed with great emphasis and after due deliberation, have been set aside by a passing casual observation that Article 19(1)(f) applied to the facts of that case. In the earlier case to which reference was made, the same learned Judge defined what was an obiter dictum as follows (p. 1160): But the question still remains as to what is an obiter dictum given expression to by the Supreme Court which is binding upon the Courts in India. Now, an obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich we have reproduced were mere casual observations not binding on us. In that view we have already referred to the relevant provisions of the Constitution from which we infer that a power of repeal is implicit in a power to legislate on one and the same subject and so long as the particular Legislature remains within the ambit of its legislative power and has legislative competence, it is immaterial that its legislation has the effect of repealing the legislation of another Legislature. 105. We may also refer to a recent decision of the Supreme Court in M/s. Ram Krishna v. Janpad Sakha where a tax legislation was repealed after the commencement of the Government of India Act, 1935, and while Section 143 declared that the tax may continue to be levied, there was no express power of repeal. The Supreme Court referred once again to the Ontario case and used it to construe the relevant provision namely Section 143(2) of the Government of India Act. Dealing with the argument that the power to levy a tax does not give a power to repeal the legislation, the Supreme Court held at page 1079, para. 14 as under: It must however be observed that merely because the legislature is emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to legislate cannot amend its own legislation. That again would show that the power to repeal a legislation is implicit in the power to enact itself. 108. The Supreme Court considered this position in State of Orissa v. M. A. Tulloch Co. and pointed out that the entire theory underlying implied repeals is that there is no need for the later enactment to- state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions indicating a supersession of an earlier law then there is in law a repeal notwithstanding the absence of the word repeal in the later statute. If the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded a legislation without stating in express terms that it is repealing another enactment can achieve that object. If the Legislature by passing positive legislation can impliedly repeal another legislation it is. not necessary for them to have an express power to repeal. If a Legislature, acting within the scope of its legislative competen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers and provisions hereinafter expressed. Now upto this stage, nothing more was done by the Repealing Act than to destroy the rights and liabilities created under the Baronetcy Act, but the trust properties remained and they were directed to be held by the Official Trustee for certain purposes. Curiously enough those purposes are nowhere stated in the subsequent provisions of the Act. The only provision as to what is to happen in future to the trust property is Sub-section (1) of Section 4 and all that it says is that the Official Trustee shall take possession or charge of the trust properties, (which is a repetition of the concluding words of Section 3(c)), make an inventory thereof and hold the trust properties upon trust to distribute the same amongst the persons rightfully entitled thereto according to law . No words that we have come across in recent legislation have caused more difficulty than those words in this legislation, for instead of specifying any positive intent the Legislature has virtually said nothing except that the Courts should find out who are the persons rightfully entitled according to law, and give the property to them. 110. It is on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passage in that Article of which the passage formed a part, was not referred, we would reproduce the entire passage in Article 411 to show what the principle consists in: If an owner of property transfers it inter vivos upon a trust which fails either at the outset or subsequently, and ho has not indicated what disposition should be made of the property in the event of the failure of the trust, the trustee cannot retain it but will be compelled in equity to restore it to the settlor. In such a case the trustee holds the property upon a, resulting trust for the settlor. Since the trustee was not intended to have the beneficial interest, and since the beneficial interest was not otherwise disposed of, it reverts or results to the settlor. On the failure of the trust the court will put the parties in state quo by restoring the property to the settlor. If, however, the settlor property manifested an intention that no resulting trust should arise in the event of the failure of the trust, it will not arise, but the property will be disposed of in accordance with his intention, whether that intention is expressed in specific language or not. No resulting trust arises if it appears by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of construction not only may, but must, look to for aid and guidance. The same principles are to be found stated in Lewin on Trusts, 15th edn., at pages 130 and 131 and in Halsbury 's Laws of England, Simonds edn., Vol. 38, at pages 861 and 862 in paras, 1451 and 1453. As an illustration of how a resulting trust arises Underhill at page 11 gives the following illustration: A., by his will, gives property to B., in trust for C., who dies before the testator. Here the trust in favour of C. fails ; but, as it is obvious that the testator never intended that B. should have the beneficial interest in the property, equity constructs or implies a trust in favour of A.s heir, or residuary devisee, or residuary legatee, as the case may require. That is an example of that species of ' constructive trust' which is known as a ' resulting trust,' from the Latin verb resultare, to spring back. Similarly, there is a resulting trust for the settlor where an express trust fails for uncertainty as, for example, because it is impossible to ascertain the beneficiaries. Of course, as we have shown above, the whole of this illustration is subject to the rule that a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties and the object and purport of the instrument, the Court came to the conclusion that the father intended to part with all beneficial interest in the property, and that he meant his son to have the benefit of that part of the property of which the trusts were not expressly declared. 115. It may at once be admitted that the case of Cook v. Hutchinson may not be an authority under similar circumstances in India for in England the principle of advancement operates where a near relation to the settlor is concerned. It is equally clear that in India the principle of advancement does not operate and that was settled many years ago by decision of the Privy Council. Nevertheless it seems to us that the circumstance that a person is a near relation of the settlor cannot wholly be ignored and that it would be one of the circumstances and an important circumstance to be taken into account in the Court discharging its duty to find the true intent of the settlor or the testator. 116. The principles, therefore, to be culled from these authorities regarding resulting trusts and an intention contrary to resulting trust are as follows: (a) When a gift or a trust fails equity pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [His Lordship after referring to some points not germane to this report, proceeded]. 120. Then we turn to examine whether there is any impediment in law to our giving effect to this doctrine of a contrary intention. First we turn to the provisions of the Repealing Act to see if the Repealing Act has debarred us from giving effect to the doctrine or put any impediment in the way of enforcing that doctrine. The only relevant provisions are Sections 3 and 4. We have already referred to these provisions. By Clause (a) of Section 3 the trusts, powers, provisions, declarations and purposes by and in the Baronetcy Act were revoked and extinguished and by Clause (b) the Corporation was dissolved and it ceased to function. Therefore, so far as the trusts and the trustees under the Baronetcy Act were concerned, they ceased to exist. Clause (c) then vested the trust properties in the Official Trustee who was enjoined to hold and stand possessed of the same for the purposes and with and subject to the powers and provisions, hereinafter expressed . Section 4(7) no doubt gave effect to a new trust. It says As soon as may be after the commencement of this Act the Official Trustee shall take p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was created by the Legislature the purpose of the trust is so stated as not to preclude the application of the doctrine of resulting trust or the doctrine of an intention contrary to a resulting trust. We do not think that there is any impediment to the application of the doctrine so far as the Repealing1 Act is concerned. 123. Then we turn to consider whether there is anything in any other law preventing- the- application of the doctrine. In the several arguments that were advanced in opposition, two provisions of law were referred to viz. Sections 83 and 94 of the Indian Trusts Act. The principal argument in this respect was advanced by Mr. Bhabha supported by Mr. Pandya and Mr. M.M. Zaveri. The argument is that either Section 83 or Section 94 applies to this ease and that, therefore, the Legislature having crystallised the doctrine of resulting trust or an intention contrary to a resulting trust in the statute, itself, the Courts are precluded from giving effect to the general doctrine as we have stated it above. Section 83 runs as follows: Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust-property, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 77 and the cases are (a) where its purpose is completely fulfilled, (b) where its purpose becomes unlawful, (c) where the fulfilment of its purpose becomes impossible and (d) where the trust being revocable is expressly revoked. The first three clauses cannot apply to the present case, but it was urged that this was a case where the trust being revocable is expressly revoked. We have already shown that the provisions of Sections 3 and 4 of the Repealing Act are peculiar; possibly if such provisions have been made by a deed of private settlement it would have been inoperative and of no effect, for the purposes of the trust newly created under Section 4(1) seem to be utterly vague land uncertain, but apart from that, the trust properties under the Baronetcy Act were unprovided for after the revocation and extinguishment of the trust and the dissolution of the Corporation and Section 4(1) immediately vested them in the Official Trustee upon trust. The second trust undoubtedly has not become incapable of being executed nor, it seems to us, in spite of the revocation of the first trust can that trust be said to be incapable of being executed. The illustrations to Section 83 indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law as to what are known in ordinary legal language as 'resulting trusts' is stated in Section 83 of the Indian Trusts Act and it was urged that that is the authority for the view that the English doctrines of a resulting trust and a contrary intention cannot apply in India and that we are governed only by the provisions of Section 83. Dwarkadas's case, in our opinion, is distinguishable. In that case the daughter of the settlor was the sole heir of the settlor and it was held that she was also the sole beneficiary capable of taking under the settlement. Therefore her life interest under the settlement merged in her reversion on the principle that (p. 350) ... whenever a greater estate and a less coincide and meet in one and the same person without any intermediate estate, the less is immediately annihilated ; or, in the law phrase, is said to be merged, that is, sunk or drowned, in the greater. Section 83, therefore, was not applied and it was not a case falling under that section. 127. Then we turn to Section 94. It runs as follows: In any case not coming within the scope of any of the preceding sections, where there i3 no trust, but the person having posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent necessary to satisfy their just demands, still remains to be determined and to that extent, we think that Section 94 does not carry the case any further than Section 4(1) of the Repealing Act. In that view it is not necessary to consider Section 94 in greater detail. We do not think that there is any impediment to the application of the doctrine of resulting trust and of an intention contrary to a resulting trust so far as the provisions of law are concerned. 129. Then we turn to consider certain arguments (advanced by Mr. Palkhivala. On the application of the doctrines he urged that the doctrine postulates certain fundamental conditions and in the absence of those conditions the doctrine cannot be invoked. He did not rely upon Section 83 or any other provision of the Trust Act. The argument runs as follows: 130. That the doctrine of a resulting trust or the doctrine of an intention contrary to a resulting trust is by itself never the foundation of a right or title. A resulting trust is unheard of where a trust is completely abolished or as in the present case is revoked and extinguished, for both the legal and equitable interests are terminated thereby. Section 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument. The passage which we have quoted from the judgment of Lord Justice James in Merchant Taylors' Co. v. Attorney General, at page 518, shows that this intention can be gathered from all the circumstances. What the learned Judge stated will bear reproduction And, in considering that question where it fairly arises, every surrounding circumstance, the character and position of the donor and donee, the more or less probability of one intention or another, the current of authorities in similar, or nearly similar cases, are all matters which the Court of construction not only may, but must, look to for aid and guidance. There is no scope for postulating that a title or right must co-exist in the person claiming under this rule before he can claim under the doctrine. It may be that in several of the cases which arose in England where this doctrine was applied, the claimant had a right or title in himself upon the circumstances of those cases, but the doctrine as stated in the authorities, does not, in our opinion, require any such pre-existing right or title in the claimant. Secondly, the argument that the Fourth Baronet is a third person i.e. a person who has no right or ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Master of the Rolls, after setting forth the terms of these transactions asked himself Now, what m the legal effect of that? and he answered it as follows (p. 211): ... It is emphatically a question of intention. You are to ascertain from the deed whether the appointor, or in this lease the appointors intended to deal with the beneficial interest, and then I suppose those authorities would have some application which say that when you conceive that a single appointor intended to destroy the ownership or the ownerships of the persons entitled under the settlement in default of appointment, there must be an intention to make the money his own, because it could be nobody else' We cannot find a word in this decision to suggest that a prior right or title inherent in the person claiming on the basis of an intention contrary to a resulting trust is essential. On the other hand, it seems that the cardinal rule reiterated is that one must look to the intention of the settlor and nothing else irrespective of whether the person who gets the property by application of the rule has or has not in him a title. 134. The manner in which the contrary intention of a testator is to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of the heirs male of his body. That he had to take recourse to legislation and the aid of the Legislature in doing so was due to the fact that by himself he could not create a perpetuity and a perpetual succession to that property as has been created under the Act. Indeed it is so suggested in the preamble and it is for that purpose that the trustees also had to be constituted into a Corporation by a legislation. Thus the intention is still the intention of the settlor though an Act of the Legislature supervened. This aspect of the settlement was not brought to the notice of the learned single Judge. On the other hand, it seems to us that a perusal of the provisions of the Baronetcy Act and particularly of the preamble thereof clearly indicates that the entire Act was passed at the desire of the First Baronet. Nowhere does it appear that the Act was passed contrary to his intention. 138. The second reason which prevailed with the learned single Judge was stated by him: Even supposing that the First Baronet can be looked upon as the settlor of the properties in trust, he has not expressed in any legally effective form his intention with regard to the disposal of the trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40. Now it is clear upon the facts that though upon a reading of the definitions in the Administration of Evacuee Property Act, the corpus of the trust properties may be evacuee property, it is equally clear that they were never dealt with according to the procedure in Section 7 of the Administration of Evacuee Property Act. Therefore, there was never any declaration in regard to the corpus and in so far as such a declaration was lacking an essential condition to the operation of Sub-section (4) of Section 7 of the Repealing Act was not fulfilled. We may also point out that the two clauses which lay down the two conditions upon which alone Sub-section (4) can come into force are joined by the conjunction and thus indicating that both the conditions must be simultaneously fulfilled, before the consequences indicated in the sub-section flow. Since one of the conditions and an essential condition was not fulfilled we do not think that the section and the consequences flowing from that section would be attracted to the corpus of the trust properties which we have now held the Fourth Baronet is entitled to.... 141. In the result, therefore, we confirm the findings of the learned si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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