1. I think it is very clear that this defence must fail for two different reasons, first because upon the schedule put in by the defendant-executrix herself, if we deduct a fair proportion from the Municipal charges corresponding with the relative values of the properties in Mahim and Pitha Street, and if further we deduct the monies expended by the executrix on funeral and other ceremonies in excess of the sum allotted by the testator for that purpose, her necessary expenditure will not exceed the assets which came into her hands or at any rate not exceed those assets to any extent making it worth while for a Court to inquire further , upon that head; so that no question of abatement really need arise. Secondly, because in my opinion the defendant is strong in contending that the bequest of Pitha Street house upon trust, the trustees to give her the rents and profits thereof for her life and thereafter be conveyed to the Parsi Panchayet for charitable purposes, is a specific bequest to her.
2. I have considered all the cases which the diligence of the defendant's counsel has embled him to lay before the Court upon the somewhat obscure distinction between specific and general bequests. I say that distinction is somewhat obscure not because upon the face of it or having regard to the ordinary meaning of the terms employed it should be so but because the illustrations in our Indian Succession Act and the decisions upon sets of facts which give rise to like discussions in England sometimes do appear to refine away the distinction until it becomes barely intelligible. Broadly and generally, however, I think I am safe in saying that a bequest of rent-producing property on trust, the trustees to apply the rents and profits for the benefit of a legatee, cannot, either having regard to the ordinary meaning of the word 'specific' or the course of the authorities, fall within the meaning of that legal term, for it is plain that the object of the testator's bounty would not necessarily in these circumstances attain a specific, that is to say, a fixed and named annual sum. The rents and profits might fluctuate, and would probably fluctuate, from year to year, and to that extent would fall without the definition contained in our Indian Succession Act of specific bequests. And in the case of Creed v, Creeds (1844) 11 C. & F. 491, Lord Cottenham has laid it down broadly that while an annuity to be purchased out of a money fund could then no longer be considered as anything but a pecuniary bequest and therefore personal money bequest like an annual charge issuing out of an estate would direct the definition to its origin and so necessarily be specific. That general statement, no doubt, encouraged the defendant's counsel to press the argument that here inasmuch as the rents and profits to be applied to his client's uses issued out of real estate the bequest was specific. That argument overlooks an important point of difference, which is that those cases which Lord Cottenham had in view were cases in which a definite rent charge or annual sum issuing out of real estate had been bequeathed. While here that is not so.
3. If these two reasons are not sufficient, a third might be drawn from Section 291 of our Indian Succession Act. There it is laid down without qualification that when bequests come into computation for the purpose of abatement, a legacy for life shall be treated as though it were a general bequest. I understand that section to be advisedly an amplification of the definition and illustrations of specific bequests contained in Section 129. If I am right in so interpreting it, it would again entirely overturn the defendant's contention.
4. I have, therefore, no hesitation in coming to the conclusion that the plaintiff succeeds in this suit and is entitled to a decree she asks for, that is to say, in terms of prayers (a) and (b) to the plaint, and costs. Suit decreed.