13.This is of significance because though Cause 5 contains a
restraint on sale of the property, it also points out that at the time of
the Will, its rental income was Rs.11,000. Mr Hariani points out that
this rental income of the property was even then negligible; today it
is a pittance. The expenses on the property far exceed its income.
This leaves nothing at all for the purposes of the Trust.
Rameshchandra has been fulfllng those objectives from personali
finances. The interpretative tussle is thus between the restraint on
the one hand and the purposes of the trust, viz., the purposes of the
restraint, on the other. Evidently, the intention was that the rental
income would be used to (i) maintain the property in good repair, a
mandate of Clause 5 itself; and then (ii) provide for the purposes (a)
to (c) listed in that clause. Sub-clause (d) gave the left over income
to Rameshchandra. In my view, Mr Hariani is correct in his
submission that the restraint must yield to the overarching objective.
It cannot be, he submits, and I believe with complete justification,
that the passage of time, rising expenses, a fixed income and a
depreciating rupee value all combine to defeat the purposes of
Clause 5(a) to (c). The restraint cannot be read in isolation. It has to
be read in context, and as the foundation of the purposes listed in
the clause itself. The preservation of the structure, i.e. the restraint
on sale, if viewed in isolation as an absolute bar, would result in a
complete defeasance of the objectives. The result would be an
impossibility of realization of Clause 5(a) to 5(c). Correctly read,
therefore, the clause can only mean that the Matunga property is not
to be sold so long as its income, after meeting maintenance costs, is
sufficient to provide for the objectives of 5(a) to 5(c). Today, with
repair costs, taxes and duties, those costs leave a negative balance.
To permit the sale of the Matunga property is evidently necessary to
