Henry Richards, C.J. and Muhammad Rafiq, J.
1. This appeal arises out of a suit in which the plaintiffs sought a declaration that a certain house was the property of the defendant No. 3 and was liable to be sold in execution of the decree against him. It appears that at one time the house belonged to a man called Krishna Aiyar, a Madrasee Brahman, He made a will, dated the 7th of September, 1886, in which he dealt with a considerable amount of property. The will recited that he had two nephews Ganpati and Subrai, His will provided that after his death Subrai should be the absolute owner of one of two houses he mentioned in Ms will. The will then proceeds:
In the other dwelling house consisting of throe sections of Thakurdwara including the staircase both the executors aforesaid should reside, put up pilgrims and attend on them jointly and from the income thereof daily perform the usual worship of the gods Murli Dhar, Raj Rajeshri and Mahadeo and the worship on Basant Panchimi, Ram Naumi, Janam Ashtami, Naurari, Shivaratri, Dhanurmas and Sami festivals and look after its repairs. After this is done both the executers should make a receipt and disbursement account of the income annually and after deducting the above expenses should divide the profile between them in half and half and should grant receipts and acquittances as between themselves.... None of the executors shall in any way be entitled to transfer, mortgage or sell this house, and if they do so it will be utterly null and void.
In this connection the members of my community and every body shall be entitled whenever they come to know that either of these persons or their heirs have in any way sold the said house, to make an application immediately and get the transfer sot aside.
2. The house with which the present suit is conversant is this last mentioned house. The lower court has held that the defendants, or the persons who represent the original devisees, hold the house subject to a charge for the worship of the gods and the observance of the religious festivals, and has so far decreed the claim holding that the house can be sold subject to the charge. The defendants appeal the case really turns upon the view we should take as to the true construction of the will we have mentioned. It will be seen at once that he draws a sharp contrast between the two houses. One he leaves absolutely to Subrai. He places no restriction on Subrai dealing with the house left to him as he should think fit. Idols of the various deities had been set up in different parts of the second house. It is absolutely clear that if a Muhammadan or Christian or even a Hindu other than a Brahman became the purchaser of this house, such purchaser could not possibly carry out the provisions of the will the chief profits that would arise to the nephews of the testator and their descendants would be offerings made by the pilgrims. In other words the nephews would profit by the opportunity of getting offerings from the pilgrims. These offerings would, of course, be personal to themselves. In our opinion the will created a trust. The only beneficial interest given under the will to the nephews wag the right to take the surplus profits, if any, after the worship had been performed and the festivals duly observed. We have no reason for holding under the circumstances of the present case that the bequest was merely colourable and that the intention of the testator was in reality to confer an absolute interest free from any trust upon his nephews. Some point has been made in the court below upon the dealings with the property by the two nephews. In our opinion such dealings can in no way affect the question which we have to decide, namely, as to whether the nephews took the house as a trust or for their own benefit. The facts of the present case closely resemble the facts in the case of Benode Behari Maulik v. Sita Ram Naik Daji Kalia (1909) 6 A.L.J. 444 and in the case of Debnarain Bose v. Sreemutty Comulmonee Dossee (1873) 20 W.R. C.R. 39. We allow the appeal, set aside the decree of the court below and dismiss the plaintiff's suit with costs in both courts.