Re Valibhoy Charitable Trust

• Jurisdiction: Singapore
• Judge: A V Winslow J
• Judgment Date: 28 February 1975
• Neutral Citation: [1975] SGHC 4
• Date: 28 February 1975
• Subject Matter: Charitable trust,Impractical to carry out intentions of testator,Cy-pres doctrine,Trusts to be carried out in India,Whether capital and income can be applied cy-pres,Whether there was a general charitable intention,Charities
• Docket Number: Originating Summons No 97 of 1974
• Published date: 19 September 2003
• Defendant Counsel: Warren Khoo (Attorney General's Chambers),Eric Choa (Oehlers & Choa)
• Court: High Court (Singapore)
• Plaintiff Counsel: HM Dyne (Donaldson & Burkinshaw)

The question which I have to decide is whether, upon the true construction of the testator`s will made on 12 April 1948 and in the events which have happened since his death on 8 April 1950 the trusts declared by cl 4(i), (ii) and (iii) of the said will have become impracticable and, if so, whether the capital and income set aside for the said trusts ought to be applied cy-pres or whether such capital and income ought to be distributed as on an intestacy among those persons entitled thereto according to Muslim law.

The trusts thereby declared are three of the four trusts set out in cl 4 and described collectively therein as the `Valibhoy Charitable Trust`.

A one-third share of the testator`s net estate (less a sum of Rs 50,000 whose destination does not concern us) has been appropriated and set aside for the purposes of the said trust and is being held for charitable purposes upon the aforesaid four trusts, subject to the provisions of cl 6 of the said will, as follows:

(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 of 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 Mardarsahs) 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 in 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 investment hereinafter authorised 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 authorised 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.

After the death of the testator in 1950 there appears to have been dissension between two of the trustees of this estate, as a result of which little was done towards implementing the trusts with which I am now concerned until a later action commenced by the Attorney General, on the relation of a Mr Kassam Mohamed Moonshi, a respected member of the Indian Muslim community in Singapore who was a friend of the testator accelerated the appointment of British & Malayan Trustees Ltd as additional trustees to act jointly with the then trustees in 1960 of that part of the testator`s estate ordered to be appropriated for the purposes of the Valibhoy Charitable Trust aforesaid referred to in this judgment as `VCT` or the said trust.

The actual appropriation of the one-third share of the net estate in India for the purposes of the said trust, however, took place in 1964, whereas the one-third share of the net estate in Singapore and Malaysia was so appropriated in 1962.

The time had accordingly arrived by the end of May 1964 for action to be taken to implement the said trust and, in July 1966 the trustees sought to obtain leave for a partial implementation of the trust contained in cl 4(i) of the testator`s will by seeking the court`s approval of a scheme for providing scholarships for indigent Muslim students of the Gatchee community resident in or around Jetpur in the State of Gurajat (formerly Khatiawar), India. The court did not, however, consider that this course was the appropriate one and directed that the trustees of the Charitable Trust should purchase suitable land for building a Madarsha in or around Jetpur in exercise of the powers conferred by cl 4(i) and authorized one of the applicants to travel to Jetpur, India for the purpose of making inquiries as to suitable land and the purchase thereof in terms of the powers conferred by the will.

A history of this estate with reference to the legal proceedings instituted in connection with it since the testator`s death is set out in the judgment of Buttrose J of 27 March 1961 in Suit 1380 of 1957 (see Re Valibhoy, decd [1961] MLJ 187 ) which is the relator action instituted by the Attorney General to which reference has already been made. This was the time when British & Malayan Trustees Ltd were appointed trustees. It may be pertinent to note that this was also the time when appropriation for the purposes of the said trust was ordered to be made. The trial judge also held that the said trust was a direct, specific and express trust which it was the duty of the trustees to carry out in a proper manner and within a reasonable time and that there was no question of the exercise of the discretion of the trustees. It was an out and out bequest of the one-third share of the net estate on trust for charitable purposes. I do not think that any one would question the proposition that each one of the four trusts set out in cl 4 is a valid charitable trust in itself.

Even after that judgment of 1961 and until the direction given in 1966 for the purchase of suitable land in Jetpur as aforesaid, little progress was made in the implementation of the charitable trusts concerned. The exhibits to the affidavit of Mr Chellam, an officer of British & Malayan Trustees Ltd dated 25 March 1974 set out the position as it stood by the time the case came to be argued before me.

The order of court of 1966 relating to the purchase of suitable land for building a Madarsha has never been implemented for the simple reason that, according to the trustees, a piece of land held under Grant No 162 in Jetpur had already been appropriated to the said Trust in India and was suitable for building a Madarsha in or around Jetpur. Moreover, representatives of the Gatchee community in Jetpur did not seem happy about the terms of the Order of Court of August 1966 and preferred to have the money remitted direct to India. Furthermore, the trustees had also come to realise that it would not be possible to set up English schools in India. Little or no progress was made until 1971 when approaches were made to the Charity Commissioner in Gujarat State inquiring whether religious schools for members of the Gatchee community professing the Sunni Hanafee Muslim religion could be set up in Gujarat in terms of cl 4(i). To this no satisfactory reply was forthcoming from the Charity Commissioner and as a consequence in May 1971 Mohamed Yunus Valibhoy, the eldest son of the Testator and a trustee from 1957 wrote personally to the Secretary of the Ministry of Education in Gujarat inquiring whether a Muslim religious school could be established in Jetpur. In June 1971 he received a reply to the effect that he ought to address the Director of Education in Ahmedabad.

On 5 August 1971 Mohamed Yunus Valibhoy, as one of the trustees, wrote to the Director of Education, Ahmedabad in the following terms, as he had done earlier in May 1971:

i. We intend to establish a Muslim Religious School (Madrasha) in or around the town of Jetpur, Rajkot District in which the first preference would be given to the children of Ghanchi Community who are believing the Sunni Hanafi Sect of 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 due to laws of your state, then the trustees of the Trust would like to establish an English Language School along with the Islamic Religious teaching subjects for the persons referred in foregoing paragraph.

It will be seen that the terms of the letter addressed to the Director of Education in Ahmedabad do not pose the question which Messrs Mallal & Namazie in 1966 (see exh VNC 10 to the affidavit of Mr Chellam) as solicitors for the relator posed to the British & Malayan Trustees Ltd asking them to make inquiries as to the legality of the establishment of private schools in India for the education of persons in the English language and general matters as provided in the will. To this Messrs Donaldson & Burkinshaw on behalf of the trustees replied in September 1966 to British & Malayan Trustees Ltd as follows:

Mr Mohamed Yunus Valibhoy, who is familiar with present conditions prevailing in India, has informed the writer that the establishment of a private school educating persons in a language other than the State National Language is not permissible without the prior sanction of the Minister of Education for the state concerned.

In reply to the inquiry made by Mohamed Yunus Valibhoy in 1971 the Director of Education in Ahmedabad in November 1971 replied that permission...