1. This is an appeal from the First Class Subordinate Judge at Broach. The relevant facts are that the testator, one Dulab, died on February 20, 1902, having made a will dated February 17, 1902, by which he appointed five persons as trustees. The last surviving trustee, one Gordhan, died on March 7, 1925. Gordhan by his will appointed defendant No. 2, in effect, as trustee of the will of the original testator. Defendant No. 1 is the daughter and heir of Gordhan. The plaintiffs are the heirs of the original testator, Dulab, and they commenced this suit in the year 1925 and claimed, in the first place, that the will of Dulab is invalid; secondly, and, in the alternative, that if the will is valid, then according to the true construction of Clause 6 thereof there is an intestacy as to residue and they are entitled under the Indian Succession Act.
2. The learned trial Judge held that the will of Dulab was well executed, relying on the facts, first, that it was registered, secondly, that a certificate of succession was obtained, thirdly, on the oral evidence as to attestation, and, fourthly, on the lapse of time which had expired between the date when the will was made and the date when it was challenged, and Mr., Thakor, in this Court, has agreed that it is not possible for him to challenge those findings.
3. The next point to determine is as to the construction of the will.By Clause 4 the testator states that he is the owner of certain properties, and that the same are his own property, and are to be gifted and managed in the manner he proposed thereunder. Then, by Clause 5 he appointed five persons, including Gordhan, to be trustees. Then Clause 6 is the material clause, and by that clause the testator provides that as soon as he dies his trustees should own and possess and manage the properties, and then be provides as follows:-
The funeral ceremony expenses of my brother Shivlal is left undone. If I am alive I shall do the same, else if I die, my trustees by a majority of votes as they think best according to the custom and my repute in the case should perform the funeral ceremony expenses both of my deceased brother's as well as of mine. Besides the said trustees should do by a majority of votes and as they think beat, the Gorani N'at after the death of Bai Amba my aunt (father's sister) who is now living. None should object therein and all objections to the same shall be void.
4. Then there are some directions to pay legacies, which are not material, and then in Sub-clause (iii) of Clause 6 the testator provides:-
Whatever properties are left after deductions (of expenses and payment of debts) as in paras. 1 and 2 should be sold of and moneys and credits be collected by the said trustees and out of the said collected amount, the trustees should by a majority of votes utilise the same, with the object of perpetuating my brother's as well as my name either in distributing brass (vessels) or in giving dinner to Brahmins in Shukaltirth, or in providing water wells where ever there be scarcity of water and if any amount is still left in surplus the same should be utilised in the Sadavarta of Shukaltirth.
5. And then Clause 7 provides:-
If by chance any of the said trustees dies either before or after my death, the surviving trustees should appoint a new one in his place and that the said newly appointed trustee shall have the same authority and powers as the others.
6. Mr. Thakor on behalf or the plaintiff's says that the gift under Sub-clause (iii) of Clause 6 of the will is void. He says that the direction to distribute brass vessels is not charitable and is too vague to be enforced, and he says that the direction to give dinner to Brahmins in Shukaltirth is also not charitable, and, being unlimited in point of time, is void. He agrees that the provisions for providing water wells and the gift to the Sadavarta are both charitable, but he relies on the principle which is, I think, established by the authorities that where gifts are in the alternative and some are charitable and some non-charitable then if the non-charitable gifts are void the whole gift is void.
7. We have been referred to Mulla's Hindu Law and certain eases therein referred to on the question whether a gift for giving food to Brahmins is charitable, the cases particularly referred to being Lakshmishankar v. Vaijnath I.L.R. (1881) Bom. 24 and Dwarkanath Bysack v. Burroda Persaud Bysack I.L.R. (1878) Cal. 443 I desire to keep an open mind as to that, because I think it is not necessary to decide the point, and I am not sure whether the cases go as far as is claimed, On my reading of the will the ultimate gift by the words 'and if any amount is still left in surplus, the same should be utilized in the Sadavarta of Shukaltirth' is by itself a good residuary gift, and therefore if any of the previous gifts fail the result is that the property in respect of which the gift has failed falls into residue and passes to the Sadavarta. That being so, Mr. Thakor's clients, the plaintiffs, have no interest in the residuary estate.
8. Mr. Thakor's next point is that even supposing that is so, and assuming that the defendants are the properly constituted trustees of the will, nevertheless, his clients, as the heirs of the testator, have a right to see that the provisions of the will are carried out. I know of no authority for that proposition. Generally speaking, if a trust is of a charitable or public nature, the Advocate General or the Collector-that is the officer corresponding to the Attorney General in England-is the only person who can apply to the Court to enforce the trust. In the case of a private trust it is the beneficiary interested who can apply. There are no doubt sometimes provisions in a will, for instance as to the funeral of the testator or the disposal of his body in the performance of which no person has any direct interest. In such cases, so far as I am aware, there is no one who can insist on these provisions being carried out. It is not, I think, the law that a person who claims to be the nearest relative of the testator has in that capacity a loans stand to apply to the Court to enforce the provisions of the will in which no one is directly interested.
9. Then, the next point is as to whether the defendants are the properly constituted trustees of the will. Clause 7 provides that on the death of a trustee the surviving trustees can appoint any one in his place. Originally there were five trustees, of whom four died, leaving Gordhan, and I have no doubt that Gordhan in his lifetime as the surviving trustee could have appointed new trustees, notwithstanding that Clause 7 refers to the plural 'surviving trustees.' But in my view Clause 7 does not authorise the last surviving trustee to appoint a new trustee by will in his own place or in the place of the others. When the will takes effect he has ceased to be a surviving trustee, and I think, therefore, that the language of Clause 7 does not cover that case, and that the defendants were not, therefore, properly constituted trustees of the will.
10. Then, Mr. Thakor says that, if that is so, the plaintiffs, as the heirs of the testator, are the proper persons to manage his estate as the trustees, and for that he refers to a passage in Mulla's Hindu Law at page 440 and to a decision of this Court in Kashinath v, Gangubai (1928) 31 Bom. L.R. 319 confirmed in : (1930)32BOMLR1687 . I think there is some force in that contention, and that it may well be that there being no trustees the plaintiffs are the persons entitled to manage the trusts of this will. But the defendants in their evidence say that they have handed over the whole property to the Sadavarta, and if they have done so, and if the Sadavarta is satisfied that they have got everything which they can get, then it seems to me that there is no trust left to manage. There is no evidence that the trustees, either the original trustees or the survivors of them, ever exercised the discretion given to them under Clause 6 (iii) of the will to apply part of the estate in distributing brass vessels or in giving dinners to Brahmins or in providing water-wells. Having regard to the lapse of time and the impossibility now of getting any evidence as to what the trustees did in the matter, I think, we must assume that the trustees elected not to exercise their discretion by using the testator's property in any of those ways. I think, therefore, that the position is that the Sadavarta of Shukaltirth has become the sole residuary legatee, and, as I say, if, in fact, they have got the whole of the residue then there is nothing to manage. But the evidence of defendant No. 2 seems to me not very satisfactory. He says he has handed over the property to the Sadavarta's trustees, but he does not know their names and it is not suggested that he has executed any legal conveyance, and I am not prepared to assume that the property has all been correctly accounted for.
11. It seems to me impossible to pass a final order in this matter without ascertaining the views of the residuary legatee, that is to say, the trustees of the Sadavarta of Shukaltirth, and I think that inasmuch as the plaintiffs are asserting that they have a right to manage this property, it is for them to bring the residuary legatee before the Court. I think, therefore, that the appeal will have to stand over till April 16, in order to enable the plaintiffs to bring before the Court the trustees of the Sadavarta, and, if they think fit, the Advocate General, and we can then find out what is the proper way of dealing with the matter.
12. The defendants who say that they have handed over the property to the trustees of the Sadavarta should give every facility to the plaintiffs to enable them to find out who those trustees are and effect service upon them, and of course in dealing with the question of costs we shall have regard to the way in which the parties have behaved.