Re Valibhoy Charitable Trust

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 19 February 1976
• Neutral Citation: [1976] SGCA 1
• Docket Number: Civil Appeal No 10 of 1975
• Date: 19 February 1976
• Year: 1976
• Published date: 19 September 2003
• Plaintiff Counsel: HE Cashin (Murphy & Dunbar)
• Citation: [1976] SGCA 1
• Defendant Counsel: HM Dyne (Donaldson & Burkinshaw),Warren Khoo (Deputy Senior State Counsel)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether trust ought to be applied cy-pres,Whether general charitable intention for advancement of education could be inferred,Provision for setting up schools for education of persons in English,Purpose trusts,Charitable trusts,Trusts,Whether scheme should be directed,Whether trust for general or particular charitable purpose,Trustees unable to implement trust

Cur Adv Vult

By his will made in April 1948 Haji Vali Mohamed bin Jooma otherwise known as Valibhoy Jumabhoy otherwise known as AA Valibhoy (the testator) who died on 8 April 1950 devised and bequeathed to his trustees all his property upon, inter alia, the following trust (the Valibhoy charitable trust):

4. My trustees shall set aside one third share of my net estate upon trust to pay thereout to the said ABDUL GANI BIN JINAH a sum of Rs 25,000 and to AMED BIN JINAH a sum of Rs 25,000 and upon Trust to HOLD the balance of such one third share of my net estate for charitable purposes (which said balance is hereinafter called `the Valibhoy Charitable Trust`) and shall subject to the provisions of para 6 hereof hold the same upon the trusts following, namely:

(i) To employ 30% of the capital of the Valibhoy Charitable Trust and any net income from time to time arising from such 30% for the purpose of buying land and buildings for and/or for building, maintaining, improving and establishing one or more schools at my trustees absolute discretion for religious instruction (known as Madrasahs) and one or more schools at my trustees absolute discretion for the education of persons in the English language and general matters. In connection with such schools I give to my trustees the following directions, namely:

(a) Such schools shall, subject to the provisions hereinafter contained, be established in Jetpur and the state of Khatiawar, or at places in its neighbourhood, and

(b) Persons who profess the Mohamedan religion and are of the Gatchee class shall be given preference at all times in attending such schools as scholars.

(ii) To invest 50% of the capital of the Valibhoy Charitable Trust in the investments hereinafter authorized and to use the net income arising therefrom for the general upkeep and maintenance of all or any of such schools and for the provision of scholarships to such schools and to pay for the salaries, accommodation and food of teachers, managers and other staff of the said schools and generally for the benefit of the said schools in such manner as my trustees shall in their absolute discretion think fit.

(iii) To invest 10% of the capital of the Valibhoy Charitable Trust in the investments hereinafter authorized and to use the net income arising therefrom in the repair and improvement of the said schools notwithstanding that there may be other moneys available for the said purpose.

(iv) To invest the remaining 10% of the capital of the Valibhoy Charitable Trust in the investments hereinafter authorized and to pay such part of the net income arising therefrom as my trustees shall in their absolute discretion think fit to or for the benefit of such of my sons and daughters as shall from time to time be indigent and to pay and use any balance of the net income arising from the said remaining 10% of the capital of the Valibhoy Charitable Trust to or for the benefit of such persons of the Gatchee class as shall profess the Mohamedan Sunni Hanafee religion and be indigent as my trustees shall in their absolute discretion think fit.

By cl 5(iii) of the will the testator gave his trustees in connection with the Valibhoy charitable trust power `to close and discontinue any school or schools so established as aforesaid if they shall so think fit and to establish another or others`.

Clause 6 of the will is in the following terms:

If any government shall adopt acquire or undertake the management or support of any schools established as aforesaid then my trustees shall have complete discretion if they shall so think fit to use and apply the whole or such part or parts of the income arising from the Valibhoy Charitable Trust and referred to in cll (ii) and (iii) of para 4 hereof as they shall from time to time determine upon and for the purposes of the trusts declared in cl (iv) of para 4 hereof instead of upon the trusts originally declared of and concerning the same.

For reasons, which it is unnecessary for us to set out, the actual appropriation of the one-third share of the net estate did not take place until 1964. Thereafter the trustees appeared unable to implement the direction in cl 4(i) of the will of establishing a school or schools for religious instruction or for the education of persons in the English language. In May 1971 one of the trustees wrote to the Ministry of Education, Ahmedabad, India in the foIlowing terms:

i. We intend to establish a Muslim Religious School (Madrasha) in or around the town of Jepur, Rajkot District in which the first preference would be given to the children of Ghanchi Community who are believing the Sunni Hanafi Sect of the Islam and then to all Muslim Children only believing to the same school of Islam as the Ghanchi Community.

ii. If such Religious School is not allowed to be established...