- (1.)This is an originating summons taken out in order to have certain provisions of an indenture of trust dated March 15, 1909, construed. The indenture of trust was executed on March 15, 1909, by Datoobhai Sajan, a Khoja Mahomedan inhabitant of Bombay. It settled upon trust a certain immoveable property. The income of the property was to be given to the settlor Datoobhai; after his death to his wife Bajbai; and after the death, of the survivor of them, the income was to be divided into two equal parts and to be paid to the two sons of the settlor, the two plaintiffs to this originating summons. On the death of plaintiff No. 1 the moiety of the trust property and the income thereof was given absolutely to his sons, and similarly the other taoiety of the trust property and the income thereof was given absolutely to the sons of plaintiff No. 2. At the date of the settlement neither of the two plaintiffs had any children. Defendants Nos. 2 and 3 are the sons of plaintiff No. 1 and defendant No. 4 is the son of plaintiff No. 2 who were born subsequently to the execution of the indenture of trust. Defendant No. 1 is the sole trustee of .the trust.
(2.)The main question that is raised by the originating summons is whether the dispositions in favour of defendants Nos. 2, 3 and 4 are valid inasmuch as they were not In existence at the date of the settlement. The parties before me are governed by Shia law.
(3.)There are certain principles of Mahomedan law which, are elementary and well established. Under Mahomedan law a gift cannot be made to a person not in existence and a trust other than a wakf is merely a medium through which a gift may be made. But in the case of a trust all the principles that are applicable to the making of a gift equally well apply. If a simple gift cannot be made under Mahomedan law, it would be equally bad if it is made through the medium of a trust. It is therefore contended that inasmuch as defendants Nos. 2, 3 and 4 were not in existence at the date of the settlement, any gift in their favour is void. Now it has got to be remembered that there is no direct gift in favour of defendants Nos. 2, 3 and 4. In the first place, there is a gift in favour of the settlor and his wife, then in favour of their two sons, and ultimately in favour of defendants Nos. 2, 3 and 4. The gift, therefore, is in the first instance in favour of persons in existence and it is followed by a gift in favour of persons not in existence. In other words, life estates are created in favour of living persons and finally the vested remainder is conferred upon persons not in existence.
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