1. This is an appeal against a direction in the final decree in a suit for administration, O.S. No. 17 of 1939, that an extent of ac. 9-97 cents belonging to the testator, Rupakula Venkatappaiah, shall be delivered to the trustees of Kanakadurga temple, Vijayawada.
2. The facts relevant for purposes of this appeal are these: One Rupakula Venkatappaiah executed a will in respect of his properties on 17-4-1939 and died the next day. Under the will he gave many legacies and made his son, Rupakula Suryanarayana, a residuary legatee. He appointed his son and two others Apparao and Mohana Rao, sons of one Balabhadrapat-runi Venkatappaiah as his executors. One of the bequests he made, which is relevant for purposes of this appeal was as follows:
'The income derived from the lands belonging to me viz., Rupakulavari Chenu bearing No. 337 measuring acres 5-43 cents, Mella Chervnvari Chenu bearing D. No. 599/1 measuring acres 3-40 cents, Paruchurvari chenn hearing D. No. 495/4 measuring acre 1-14 cents measuring in all acres 9-97 cents shall he utilised by the executors for giving doles of food to the Brahmins who visit Kanka Durga Temple in Bezwada.'
This is para 9 of the printed will in the Supreme Court record in Appeal Nos. 862 of 1948 and 557 of 1951. One of the legatees under the will, Sunkara Rajeswari laid the Suit O. S. 17 of 1939 for an administration of the estate of Rupakula Venkatappaiah by Court, for directions to pay the debts and the legacies to the several persons, for the appointment of an Administrator or Receiver to take possession of the property and for incidental reliefs, alleging inter alia that the executors had not carried out the directions in the will, and that particulars the 1st defendant (the son of the testator) was disputing the truth and the validity of the will with selfish motives. The executors were made parties to the suit as also the legatees.
3. After contest a prelimmary decree was passed on 30-8-1948 providing inter alia that an account be taken of the assets left behind by Rupakula Venkatappaiah at the time of his death, that an account be taken of the assets due to the plaintiff and all other creditors and legatees of the deceased Rupakula Venkatappaiah, that an account be taken of the funeral and testamentary expenses of the said deceased Rupakula Venkatappayya, that enquiries be made with regard to the liabilities of the said Rupakula Venkatappayya by publication of notices in the Fort St. George Gazettee etc., that the estate of the late Rupaknla Venkalappayya after discharging the funeral expanses and testamentary expenses and his other lawful liabilities be applied in pursuance of the provisions made in his will Exhibit A and for discharging the said liabilities, properties other than those which are subjected to specific bequests in the will be sold first as far as possible so that specific bequests be given effect to, etc. The other provisions are not necessary for purposes of this appeal. Suffice it to state that one Sri T.V. Subrahmanyam, interim Administrator already appointed in the suit was appointed Receiver. The suit stood posted to 1-3-1949 for passing the final decree.
4. Thereafter the 1st defendant in the suit filed I. A. 153 of 1955 on 19-1-1955 praying for delivery of ac. 9-97 cents bequeathed for charitable purposes as recited in Para, 9 of the will aforequotea. He alleged that legacy was void in law as it was vague and uncertain. He alleged in the affidavit filed in support of the petition thus:
'The legacy is void in law and is vague and uncertain. The legacy states that Brahmins who visit Kanaka Durga Devalayam should be fed. The object of charity is indefinite body of persons and no place of feeding is limited and further the legacy is not made to any legal entity or institution. The legacy as it stands, is so uncertain that any part of the country can be said to come within the category, on the pretext that he proposes to visit Kanaka Durgalayam and hence the feeding of any Brahmin in any part of this world could be done. So It amounts that the feeding can he made at any place in the world and to any Brahmin who merely asserts that he it going to Wijayawada Kanaka Durgalayam, which statement is not capable of proof. As I submitted above the legacy leads to such absurd situation. Hence it is void (Para. 4).
'I, therefore, submit that in so far the said ac. 9-97 cents is concerned, there will be intestacy and I being the sole and nearest heir to my deceased father, the testator, I should be given possession of the ac. 9-97 cents covered by Para. 9 of the Will. Also I will suffer great loss.'
5. To this petition, counters were filed by the plaintiff in the suit Sunkara Rajeswari the Kanaka Durga Temple represented by its trustee, the 8th defendant. The plaintiff in her counter alleged that there was no uncertainty of the legacies as alleged and that further this plea not having been raised in the written statement, was barred by res judicata. The 8th defendant (4th respondent in the petition) opposed the petition in similar terms. Inter alia it was alleged in the counter thus;
'The allegation in the petitioner's affidavit that the legacy was vague and uncertain and was void in law is not true. Further the objection raised is belated as the High Court also confirmed this Court's decree. The legacy is clear and certain and valid in law.
The petitioner cannot question the legaoy at this stage.'
6. The learned Subordinate Judge framed the point for consideration thus:
'Whether the legacy is void and whether the petitioner is entitled to raise this contention now ?'
He found that the legacy was not void and further that the petitioner was not entitled to raise the contention at that stage. In accordance with these findings, the learned Subordinate Judge dismissed the petition and directed in the final decree that the property be delivered to the trustees of the Kanaka Durga Temple. The appeal is preferred against this direction.
7. The appellant is the petitioner in I. A. 153 of 1955 and the 1st defendant in the suit. The appellant's learned counsel Sri Bala-koteswara Rao contended that this contention raised by him was not the subject mutter of an issue in the suit and so it was still open to him to contend that the legacy was void for the reasons that he alleged and secondly that this provision could not be worked out as it was vague and uncertain.
8. On the first question whether it was still open to the 1st defendant to raise this contention, I have perused the written statement filed by the 1st defendant-petitioner. Therein he raised the pleas that it was not true that late Venkatappaiah Gam, his father, executed any will and that the will put forward was a rank forgery. He also pleaded that the recitals in the alleged will including the legacies in favour of the plaintiff and near relations were palpably false, he further alleged that the so called legacies by way of charity were inserted by those who concocted the will so as to secure the sympathy and support of the interests concerned and of the public in general. These pleas were rejected and the will was upheld and a preliminary decree was passed, the relevant provisions whereof have been set out by me supra. There is now no controversy that this preliminary decree was confirmed by the High Court and the Supreme Court.
9. Now the question arises in this form: Whether in view of the provisions of the preliminary decree that the specific bequests have to be given effect to, it is open to the 1st defendant now to take the pleas against this bequest of charity.
10. Section 11. C. P. C. states expressly that
'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court'.
11. Explanation IV is particularly relevant:
'Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'
12. It is settled law that the principle of res Judieata applies at a later stage in the same litigation to the extent that a Court, (the trial Court or a higher Court) having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. That is so as the principle of res judicata is based on the imperative need of giving a finality to judicial decisions. Vide Satyadhyan Ghosal v. Smt. Deorajin Debi, : 3SCR590 .
13. It is, therefore, manifest that the proliminary decree with regard to effect being given to the specific bequests has become final and may not be agitated in final decree proceedings.
14. The learned counsel, Sri Krishna Rao cites Section 97. C, P. C. as precluding such a contention being raised. Section 97 is in these terms:
'When: any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may he preferred from the final decree,'
15. So, it looks as if T have to support the said picas that such a contention cannot he raised against giving effect to it bequest directed by the preliminary decree, at this stage both on grounds of res judicala and Section 97 C. P. C.
16. However, Sri Balakoteswara Rao seeks to say that this being a suit for administration, any objection could be raised at any stage. But for this extreme proposition, the learned counsel is not able to gain support by reference to any authority. 1 therefore agree with the learned Subordinate Judge that this objection cannot be raised after the preliminary decree which directs specifically that effect shall be given to the specific bequests.
17. Even on the assumption that he could raise. I am unable to accede to his contention that the bequest is vague and uncertain and therefore void. The bequest of charity has already been extracted. It is seen that there is a certainly of the income to be derived from the specific properly of the testator. It is also seen that there, is a specific direction to the Executors that the income, shall be utilised by them for the purpose specified, viz., for giving doles of food to the Brahmins who visit Kanaka Durga Temple in Bezwada. The allegations in the petition that the object of charity was an indefinite body of persons, that no place of feeding was specified, and that the legacy was not made to any legal entity by institution have no substance. The further allegation that legacy is so uncertain that any one in any part of the country can be said to come within the category, on the pretext that he proposes to visit Kanaka Durgalayam and hence the feeding of any Brahmin in any part of this world could be done, is only a misreading or misinterpretation of the explicit and unambiguous terms of the bequest. The bequest is absolutely clear that the Brahmins, who visit Kanakadurga temple in Bezwada, shall be fed. The people who are fed are Brahmins who are certain and definite. It is an accepted interpretation that if it is ascertainable, it is tantamount to having been ascertained.
18. Sri Krishna Rao has filed certain decisions wherein a clause in the will to the effect that Brahmins shall be led was held to be valid. In Lakshmishankar v. Vaijnath, (1881-82) ILK 6 Bom 21 the material part in the will which was considered in the case was as follows:
'Whatever properly might remain at the time of my death, it is my wish to expend it in the performance of ceremonies and giving feasts to Brahmans, according to the customs of my caste, as far as it may be possible....,'
Justice Melvill, who delivered the Judgment of Court, observed that the Courts have no reason for holding that bequest for the performance of ceremonies and giving feasts to Brahmans was invalid and referred to the Cal-culta Case: Dwarakanath Bysack v. Burrock Persawd Bysack, (1879) ILB 4 Cal 4-13, as in support of their view. He observed that cases, which held that a devise to 'dharma', was void, were distinguishable as the word 'dharma' was too vague in indication of the testator's intention to constitute' a valid gift to charily. He observed that a specific bequest for the purpose of particular charily stood on a different fooling.
19. Kedar Nath Dutta v. Atul Krishna Ghose. (1908) 12 Cal WN 1083, upheld a provision in the will of Rejendra Dutt to the effect that the trustees whom he appointed under the will should spend for the performance of the worship of Siva on the night of Sivratri and feed the Brahmins on the next day following and pay 'them in cash as much as the funds permit. The learned Judge reasoned thus at p. 1086:
'Now, it has been argued that the direction to feed and pay the Brahmins is not charitable and. therefore, not a valid bequest. In my opinion, the direction in the Will to feed and pay the Brahmins constitutes a valid bequest. The testator was a Hindu and his will must be construed with reference to Hindu law.'
'There can be no doubt but that the feeding and paying the Brahmins would, in accordance with Hindu ideas, be a meritorious act.'
20. Sri Balakoteswava Rao has sought to distinguish the decisions as cases where the occasion was specified. He would say that in the present instance no such occasion of feeding was specified. But, I am unable to sea any substantial distinction. Feeding of Brahmins is an occasion and the occasion is when the Brahmins are to be fed. when they visit the shrine of Kanaka Durga. I do not see any unworkable and impracticable situation arising from the statement of the testator in the will.
21. A Division Bench of this Court has had occasion to consider a bequest of a similar nature in Appeal No. 50 of 1956 (Judgment, dated 7-9-1960 (AF)). The bequest in the will of one Chakravarthula Venkata Tatachary, dated 23-5-1951 was that Brahmins and Vaishnavites should be fed in the choultry to be established in his native village. It was contended that the provision that Brahmins and Vaishnavites should be fed in the choultry was void. That argument did not find favour with the Judges who observed that the class of persons described could be ascertained by the trustees, and the mere circumstance that the ascertainment was to be made by the trustees did not render the gift void for uncertainty.
22. For the reasons stated, it seems to me that the decisions are in support of the certainly of the bequest in the instant case. J would, therefore, affirm the finding of the learned Subordinate Judge that the legacy for charitable purposes is not void.
23. It is next pointed out that the direction in the decree that the lands shall be delivered to the trustees of Kanaka Durga temple is wrong. That appears to be an obvious mistake, because under the will there is no bequest in favour of the Kanaka Durga shrine and only the Executors were directed to give doles of food to the Brahmins who visited the Kanaka Durga Temple in Bezawada.
24. The appeal, therefore, fails; but ther' will be a modification in the decree deleting that the land of an extent of ac. 9-97 cents specified in Clause 9 of the will shall be delivered to the trustees of the Kanaka Durga temple. The Executors could take steps to obtain delivery of the said land in question.
25. No other points are raised before me.
28. In the result, except for the aforesaid modification in the decree, the appeal fails and is dismissed with the costs of respondents 2, 3 and 8. Advocates' fee one set. The costs will come out of the estate.
C. R. P. 1458 of 1957
27. The C. H. P. has been filed as an alternative remedy. As the appeal is competent, the revision petition is dismissed, but in the circumstances without costs.