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Civil Petition for Special Leave to Appeal NQ. K‑35 of 1973, decided on 2nd Mach 1973.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan dated 19‑12‑72 passed in Miscellaneous Appeals Nos. 32 of 1972 and 6 of 1970).

S. 6‑Trust‑Testatrix creating trust by will and appointing her brother trustee and directing him to sell portion of property for construction of a home for beggars and travellers‑Litigation between parties ending in declaration of validity of will and trust‑Trust having in fact come into existence and not contingent upon sale of portion of property, held, valid and cannot be said to have not been executed.

S. A. Jamali, Advocate instructed by S. Anwar Ali, Advocate -on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 2nd March 1973.

.---‑The dispute in this case relates to a property situate in Ward C, Hyderabad. It was owned by a Hindu lady by the name of Mst. Lakshami Bai and she had be queathed it to charity, on certain terms, by her will dated the 6th of September 1909. In this will she appointed her brother as a trustee and directed him to sell a specified portion of the property and use the sale proceeds for constructing, on the remaining part of the property, a home for Sadhoos, travellers and beggars. There was litigation between the heirs of the deceased, Mst. Lakshami B3i, and it was finally held in appeal that the will was valid and the property was shown in the city survey register as trust property.

However, after partition the property was treated as evacuee property and transferred to Abdul Majid, the late husband of the present petitioner Mst. Mehrun Nisa Begum. The Evacuee Property Trust Board filed an application under subsection (3) of section 4 of the Displaced Persons (Compensation and Rehabilita tion) Act of 1958, claiming that the property was evacuee trust property and did not, therefore, form part of the compensation pool, but this application was dismissed by the learned Settlement Commissioner.

Aggrieved by this order of the learned Settlement Commis sioner the Evacuee Property Trust Board filed an appeal under subsection (3) of section 4 of the Act which was accepted by a learned Single Judge by his order dated 19‑12‑72, holding that the trust had validly come into existence under the will of Mst. Lakshami Bai, and that the fact that a portion of the property was not sold as envisaged in the will did not in any manner show that the trust itself had not been executed. As a result of the decision of the High Court, the property is no longer in the compensation pool ands therefore, not transferable to the petitioner.

Special leave to appeal is sought manly on the ground that the trust was not executed as it was contingent upon certain steps to be taken by the brother of the testatrix but those steps were not taken, namely, that a portion of the property was not sold for the purpose of constructing a home as envisaged in the will.

There is no merit in this contention. From the terms of the will and the decisions rendered by the civil Courts in the litigation between the heirs of the late Mst. Lakshami Bai it is clear that the trust had in fact come into existence and it was not con tingent upon the sale of certain portion of the property. Such being the case, the High Court was undoubtedly right in accepting the appeal against the decision of the Settlement Commissioner, and holding that the property in dispute was evacuee trust property.

The petition, therefore, fails and is hereby dismissed.

Petition dismissed.

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