Vol. 17, Part I · pages 321–325

296 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Prior. ‘A’s’ wife died and the children were placed under the care of Mary Prior by Mr. Cottee the surviving executor and testamentary guardian. The case proceeded on the assumption that the word recommend meant that a binding trust was created on the testamentary guardians so that Mr. Cottee was bound to appoint Mary Prior as the person to take care of the children. Inherent Powers The issue was this .... Did the recommendation take away all the powers of control belonging to Mr. Cottee as the testamentary guardian ? In deciding this issue the Lord Chancellor (Lord Denman) said....” I have had frequent opportunities of considering the effect of words of recommendation. One was in a recent case in this Court, where the question was whether a recommendation by the testator, that a certain person should be employed as receiver and manager of his property, gave that person any legal interest. Another case was of Shaw vs. Lawless where the House of Lords laid it down as a rule which I have since acted upon, that, though recommendation may in some cases amount to a direction and create a trust, yet that, being a flexible term, if such a construction of it be inconsistent with any positive provision in the Will. It is to be considered as a recommendation, and nothing more. In that case, the interest supposed to be given to the party recommended was inconsistent with other powers which the trustees were to exercise; and those powers being given in unambiguous terms, it was held that, as the two-provisions could not stand together, the ....... flexible term was to give way to the inflexible term.” Accordingly it was held that notwithstanding the fact that the recommendation was binding it did not take away the powers of control of Mr. Cottee as a testamentary guardian, over the children. Not Binding Direction The case is no doubt one relating to trust. But a trust is only another name for legal obligation and whether one speaks of recommendation creating a trust or creating a legal obligation it is

297DR. AMBEDKAR....................AWARD just the same. That being so the case is relevant because it enunciates a very important rule relating to the interpretation of the word ‘recommend’. As one can see from the judgment of Lord Denman the rule is that the word ‘recommend’ cannot be interpreted to mean a binding direction from which there is no escape if such an interpretation becomes inconsistent with the exercise of certain other positive powers vested in the person to whom the recommendation is made. Now in the case of Thakore Saheb vs. Vallabhbhai can it not be said that the position of the Thakore Saheb is the same as that of Mr. Cottee ? Can it not be further said that like Mr. Cottee the Thakore Saheb also in his capacity as the Crown possesses certain positive powers? Such as the power to appoint, reject or dismiss any person to or from any place, if it is right to say that the Thakore Saheb stands in the same position at that of Mr. Cottee then how can one escape the conclusion that the rule to be applied in deciding the case of Thakore Saheb vs. Vallabhbhai is the rule laid down in Knott vs. Cottee ? Another Authority There is also another authority Johnson vs. Rowlands (17 L. J. Ch 438) which can be usefully referred to in this connection. In this case the question was the interpretation of the word recommend as used in a Will. In the Will the testator had said, “I gave the same (a certain amount of money) to be disposed off in such a way as she shall think proper. But I recommend to her to dispose of ½ of it to her own relations.” The legatee did not dispose of the ½ to her own relations as recommended by the testator. Question was whether she could depart from the recommendation. The Court held that she could. To use the language of the judgement ‘recommendation’ may mean command. But it cannot mean command if it is inconsistent with the legal and equitable power of . the person to whom the recommendation is made to depart from the recommendation. It is true that the language of the letter written by the Thakore Saheb is different from the language of the Will in the Johnson vs. Rowlands. But supposing the letter written by the Thakore Saheb

298 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES to Mr. Vallabhbhai Patel had been written in these terms: “We have a right to constitute the committee in a way like. But you should recommend to us names of seven persons to be appointed on the committee and we shall appoint them.” It is true that in the Thakore’s case there is an agreement between him and Vallabhbhai while there was no such agreement between the legatee and her relations in Johnson vs. Rowlands. We are not however considering the question whether the agreement is binding on and enforceable against the Thakore Saheb which is made by him in his capacity as the Crown. That is a different question and raises important issues. The Absent Phrase The issue with which we are concerned is what is meant by the word ‘recommend’ and on this issue the case of Johnson vs. Rowlands seems to be on all fours with the case of Thakore Saheb vs. Vallabhbhai Patel. The absence of the words “we have a right to constitute the Committee in any way we like” in the letter of the Thakore Saheb to Vallabhbhai cannot, I submit, make any difference. Such words must be deemed to be present in every document executed by him as the Sovereign Ruler of Rajkot. Whether they are actually there or not the positive power of constituting the Committee at his pleasure in an inseparable incident of his position and run with him as part of the prerogative of the Crown. Nor does the fact that the Thakore Saheb in his letter did not reserve to himself the power to reject the recommendation of Mr. Vallabhabhai affect the situation. The question is not whether the Thakore Saheb has reserved for himself the power to reject. The question is whether there is anything in the word ‘recommend’ which can be said to take away the Thakore’s inherent powers of rejection which are always with him and which it was not necessary for him to save by any express stipulation. If this is so, the word ‘recommend’ cannot be given an interpretation different from the one given to it in these two cases.

299DR. AMBEDKAR....................AWARD Positive Powers In this as in the other two cases there are on the one hand positive powers of the Thakore Saheb which is an inflexible term and on the other there is recommendation which is always a flexible term. That being so according to the rule the flexible term must give way to the inflexible term. That is to say ‘recommend’ cannot mean direct or bind. The case reported in (1917) I. K. B. 19 referred to by Sir Maurice Gwyer seems to be in conflict with the two cases I have referred to. But on a closer examination it will be seen that there is no conflict and the case is easily distinguishable. In 1917 I.K.B. 19 the appointing authority, was ‘just’ an appointing authority and no more. It had no positive powers which could be said to be in danger of being nullified by interpreting the word . . . . . . ‘recommend’ to mean a binding direction. The rule as laid down in the two cases referred to by me seems to be that where there exist positive powers which are capable of being exercised independently, the word recommend cannot mean a binding direction, but where there are no positive powers it may have that meaning. In the two cases referred to by me there were positive powers and therefore the decision was that recommendation did not mean binding direction. In the case referred to by Sir Maurice Gwyer there were no positive powers and therefore it was held that recommendation could mean a binding direction. The case of Thakore Saheb vs. Vallabhbhai is one which in my opinion falls in the class under which the two cases cited by me fall and not under the class of cases reported in (1917) L K. B. 19.” 1 zz l: The Bombay Chronicle : dated 2nd May 1939.

24 I AM ANXIOUS MORE THAN MR. JINNAH... “Dr. Ambedkar To join Muslim Celebration Deliverance Day”: Support of Many Parsis. Dr. B.R. Ambedkar, leader of the Independent Labour Party, has decided to join in the celebration of “Deliverance Day” on Friday next. A number of Parsis have, already expressed their eagerness in their individual capacity, to cooperate with Mr. M. A. Jinnah, President of the All India Muslim League, in making the day a success. The sub-committee appointed by the Parsi Community a few months ago at a meeting held at Sir Cowasjee Jehangir Hall to protest against the Congress policy of prohibition will consider on Tuesday, the invitation extended to it to participation in the observance of “Deliverance Day”. The sub-committee consists of nearly 50 leading Parsis including Mr. M. P Khareghat, President of the Parsi Panchayat, Sir Cowasjee Jehangir, Sir H. P. Mody and Sir Byramjee Jeejeebhoy. Dr. Ambedkar, in a talk with a representative of this Paper on Monday said: “Eversince The Times of India published my cryptive reply to its representative only last week, supporting Mr. Jinnah’s appeal for the observance of “Deliverance Day”, I have had numerous inquiries from friends as well as foes to explain what I meant. I am, therefore, obliged to explain my position. “When I read Mr. Jinnah’s statement, I felt ashamed to have allowed him to steal a march over me and rob me of the language and the sentiments which I more than Mr. Jinnah, was entitled to use. “Harijans’ Position” “Whatever anyone may say with regard to the tyranny alleged to have been practised by the Hindus over the Muslims during the