Arnold White, C.J.
1. On April 19, 1892, Mr. W. Taylor executed a will in the following terms:
This is the last will and testament of Mr. William Taylor, of Parlakimidi, Ganjam, India. I give, devise and bequeath unto S S.S. Gourachandra Gajapati Narain Deo, zamindar of Parlakimidi, all that I may possess at the time of my death, including my property at Kodaiknal, and shares and other property in the Commercial and Land Mortgage Bank, Madras, also books, furniture and other property, movable and immovable, and I appoint the said S.S.S. Gourachandra Gajapati Narain Deo to be my sole executor. I have no doubt that he will carry out my wishes. In witness whereof, I, the said William Taylor, have to this, my last Will and Testament, set my name this 19th day of April, one thousand, eight hundred and ninety-two, (1892).
(Signed.) W. TAYLOR.
Signed by the testator, arid acknowledged by him to be his last Will and Testament, in the presence of us, at the same time at his request and in the presence of each other have subscribed our names as witnesses.
The testator died on January 29, 190$, After his death a letter was found addressed, to the then zamindar of Parlakimidi and containing an endorsement that it was to be opened after his death. The letter is dated April 28, 1895, and was in the following terms:
28th April 1895.
MY DEAR GAJAPATI,
When you open this I shall be dead. We have always been great friends and I suppose you will be sorry for a few days. You know where my 'will' is, and I leave everything to you and I wish you to burn all my private papers and to arrange all my affairs yourself alone/Dispose 6f everything in my house, books, furniture, &c.;, as you like. A good deal of them belongs to you. Please get my houses in Kodaikanal sold, and also in shares in the Commercial and Land Mori-gage Bank, and any other property I may possess and remit the proceeds to Messrs. H.S. King & Co., London, for transmission to my brother, Richard in California. His address is 1301, West State Street, Los Angelos, California, America.
Good-bye, from my grave, dear Goura-Chandra.
(Sd.) A. TAYLOR.
2. The zamindar proved the will. He died on or about April 27, 1905.
3. The next-of-kin of the testator brought a suit for the administration' of the testator's estate against the son of the zamindar as his heir and legal representative.
4. Boddam, J. held that the letter of April 28, 1895, was inadmissible in evidence, that under the will the executor took the beneficial interest in the testator's estate and he dismissed the suit.
5. The questions which arise for determination in this appeal are:
(1) Is the letter admissible for the purpose of establishing a trust in favour of the testator's brother, Richard?
(2) If not, is it admissible for the purpose of establishing a resulting trust in favour of the next-of-kin.
(3) If it is not admissible for either purpose does the will itself show that it was not the intention of the testator that the zamindar should take the beneficial interest in the property?
6. As regards the first question the English Law is clear. It is thus laid down in Lewin on Trusts, Edition 11, page 59, 'if a testator by his will devise an estate, and the devisee, so far as appears on the face of the will, is intended to take the beneficial interest and the testator leaves a declaration of trust not duly attested, and not communicated to the devisee and assented to by him in the testator's lifetime, the devisee is the party entitled both to (he legal and beneficial interest, for the estate was well devised by the will, and the informal declaration of the trust is not admissible in evidence.
7. The law on this question was discussed by Wallis, J., in the recent case of Manuel Louis Kunha v. Jnana Coelho 31 M.K 187. The rule of English Law is stated by Wallis, J., on pages 190 and 191 and by Sankaran Nair J., on pages 195 and 196. I think the law is there correctly stated by the learned Judges.
8. Section 5 of the Indian Trusts Act contains a proviso that the rules enacted by the section shall not apply when they would operate so as to effect a fraud. Both the learned Judges who decided Manuel Louis Kunha v. Jnana Coelho 31 M.K 187 were of opinion that the object of this proviso was to import into the Indian Law of Trusts the rules of equity which were discussed in Kunha v. Jnana 31 M.K 187 Mr. Sundara Aiyar contended that the proviso to Section 5 was wider than the English rule and that the legislature intended to. depart from the English rule. I see no reason for taking this view. I am of opinion that with reference to secret trusts' under a will the law of India is the same as that of England and that extrinsic evidence to show a specific trust is inadmissible unless the legatee under the will has assented to the trust or led the testator to believe that he has assented to it. In the present case it is not suggested that the zamindar was aware of the existence of the letter till after the testator's death. I am of opinion that the letter of April 25, 1895, cannot be looked at for the purpose of establishing a trust in favour of Richard Taylor. The next question-and it is one of greater difficulty is- is there a resulting trust.
9. It is contended on behalf of the next-of-kin that, under Section 81 of the Trusts Act, there is a resulting' trust in favour of the next-of-kin; or in the language of the Indian legislature, there is an obligation in the nature of a trust under which the legatee holds the property for the benefit of the legal representative of the owner. Here again the English law seems to be clear. It is thus stated in Lewin on Trusts, Edition 11, page 60, 'should the testator devise the estate in such language that the will passes the legal estate only to the devisee, and manifests an intention of not conferring the equitable, in short, stamps the devisee with the character of the trustee, and yet docs not define the particular trusts upon which he is to hold, in this case, no paper not duly attested (except, of course, papers existing at the date of the will and incorporated by reference) will be admissible to prove what were the trusts intended. Nor will the divisee be allowed to retain the beneficial interest in himself, but while the legal estate passes to him, the equitable will, according to the date and terms of the will, result to the testator's heir-at-law or general residuary devisee.'
10. Cosens-Hardy, L. J. in his judgment Maddock, In re Llewelyn v. Washington (1902) 2 Ch. 220 : 71 L.J. Ch. 567 : 86 L.T. 644 states the law thus: It is necessary to 'consider upon what principle the undoubted rule of the Court, that effect is to be given under certain circumstances to declarations in writing not properly attested, is based. It is clear that no unattested document can be admitted to probate or treated as part of the will. It is established that a devisee or legate?, who is entitled absolutely upon the terms of the will is in no way affected by the existence of a document showing that he, was not intended to enjoy beneficially, if he had no knowledge of the document until after the death [of the testator. Such a memorandum may or may not influence him as a man of honor, but no legal effect can be given to it.' The argument was that the legislature in enacting Section 81, intended to depart from the English law. and that the letter was an attendant circumstance,' and could he looked at for the purpose, of deciding, whether the testator intended to, pass the beneficial interest in the property, to the legatee.
11. On principle it is difficult to see why evidence which is not admissible, except in the special class of cases where a man in fraud of the testator seeks to take advantage of the Statute of Frauds, to show the intention, of the testator to create a specific trust, should be admissible to show that it was not the intention of the testator that the legatee should take the interest which the testator, by his will, purported to give him. In my opinion it was not the intention of the legislature to depart from the established rule of English law. I think attendant circumstances means circumstances in existence at the date of the execution, of the will and means the same as surrounding circumstances. The phrase is usually employed in the numerous judicial decisions on the question, and it is only when surrounding circumstances can be considered for the purpose of ascertaining' the intention of the testator under the English law that evidence of an attendant circumstance may be given for the purpose of showing that a testator...did not intend to dispose of the beneficial interest in property which is the subject-matter of a testamentary disposition. The cases are collected in Theobald on Wills, Edition 11, page 192 et seq., and in Ameer Ali and Wbodroffe on the Law of Evidence, Edition 4, page 5.60. It is not necessary to discuss them. It is, I think, clear that under the English law the letter could not be looked at to show that the testator did not intend, the legatee named in the will to take the beneficial interest, and 1 think the Indian law is the same. The facts in In Re: Bayes, Bayes v. Carritt 26 Ch. D. 531 on which Mr. Sundara Aiyar relied, decided by Kay, J., were of a special character. There the testator instructed his solicitor to prepare a will leaving all his property to the solicitor, but to be disposed of according to written instructions to be given subsequently. The will was executed making the solicitor universal legatee and sole executor,; No directions were: given to the solicitor during, the testator's life-time. After the testator's death, an, unattested paper was found in which the testator stated his wish that Mrs. B. should have his property except a small sum which he gave to the solicitor. The solicitor disclaimed all beneficial interest in the property except to the extent of his legacy. It was held that as the testator had not in his own life-time communicated to; the solicitor the object of the trust no valid trust in favour of Mrs. B had been created and that the solicitor held the property as trustee for the next-of-kin of the testator. There may be room for doubt whether evidence of the instructions given, by the testator which were not embodied in the will as executed was admissible. But, however, this may be, Kay, J., based his judgment on the express ground of the admission by the executor and legatee. In the present case there is no admission. As I have said the facts of this case were of a very special character. The solicitor disclaimed all beneficial interest. In view of the disclaimer the Court may well have thought that it would be useless to insist upon the solicitor taking the beneficial interest. The recent decision of Bigham, J., in In Re: Bell 99 L.T. 919 would also seem to have been based on the ground of admission. In his judgment Kay, J., puts the hypothetical case of an engagement to hold the property not upon the terms -of any paper communicated to the legatee, or put into his hands, but of any paper that :might be found after the testator's death. In such a case, the learned Judge observed, the legatee might be a trustee, but the trust de-.dared by the unattested paper would not be good, and that for this purpose there was no difference whether the legatee was not declared to be trustee on the face of the will or by an engagement with the testator not appearing in the will. In the case before us there is no evidence of any engagement with the testator.' In his judgment in In Re: Haddock, Llewelyn v. Washington 26 Ch. D. 531 on Cosens-Hardy, L. J. makes the following observation: 'The so-called trust does not affect the property except by reason of a personal obligation binding tire individual devisee or legatee. If he renounces or dies in the life time of the testator the persons claiming under the memorandum can take nothing against the heir-at-law or next-of-kin or residuary devisee or legatee.'
12. I think these words are wide enough to cover the facts of In Re: Bayes 26 Ch. D. 531 where the solicitor took out probate of the will, but disclaimed Beneficial interest as legated Mr. Sundara Aiyar argued that if evidence of all admission or disclaimer was admissible for the purpose of depriving the legatee of his beneficial interest, evidence of any other extrinsic fact which showed that the testator did not intend that the legatee should take the beneficial interest was also admissible. He was not able to cite any authority in support of this contention, and it seems to me to be contrary to the principles in which the law with reference to the admissibility of extrinsic evidence is based. Under the law prior to the passing of the Executor's Act, 1830, when the executor was entitled to the residue not disposed of, evidence on behalf of the next-of-kin would appear to have been only admissible to contradict evidence given in support of the executor's title. See The Bishop of Cloyne v. Young 2 Ves. Sen. 91 cited in Theobald on Wills, Edition 7, page 136.
13. If I am light in my view that the letter is inadmissible as evidence of an 'attendant circumstance' to show that the testator did not intend to dispose of the beneficial interest, the question of the construction of Section 81 does not arise. The question was argued before us, as it was argued before Wallis and Sankaran Nair, JJ. in Manuel Louis Kunha v. Juana Coelho 31 M.K 187; Sankaran Nair, J. in effect held that the section should be construed by reading into the section the words 'To the transferee or legatee' after the words 'interest therein'. This -was no doubt obiter but the learned Judge arrived at this conclusion after a very full discussion of the English and of the Indian law. The words of Section 81 are 'intended to dispose of the beneficial interest in the property' and it may reasonably be argued that if the attendant circumstance' shows an intention to dispose of the beneficial interest to A.B., there is no resulting trust in favour of the next-of-kin and they cannot claim the benefit of the section. It seems paradoxical to hold that the next-of-kin gets the beneficial interest where the 'attendant circumstance,' which shows that it was not the intention of the testator that the legatee should get it, also shows that it was his intention that the next-of-kin qua next-of-kin should not get it.
14. If the section is to be construed as applying to any disposition of the beneficial interest, inasmuch as the letter shows an intention to dispose of the beneficial interest to Richard, its admission in evidence would not help the next-of-kin. The result would be that Richard could not take, although the testator intended him to take, because the law will not allow it, and the next-of-kin could not take because there was an intention to dispose 6f the beneficial interest to Richard. However, in the view I take as to the admissibility of the letter, I need not express any final opinion On this point.
15. The third question is, can it be said having regard to the language of the will, that it was not the intention of the testator to dispose of the beneficial interest in the property.
16. The only Words in the Will which can be laid hold of as indicating that the testator did not intend to pass the beneficial interest to the legatee are the words 'I have so doubt he will carry out my wishes;' I do not think they are enough. Mr. Sundal Aiyar relied on the decision in Briggs v. Penney 42 Eng. 371 which would seem to fee the strongest case' to be found in support of his consideration. The testatrix in that case gave a specific sum to her executrix, a further specific sum to her for the trouble she would have in acting as executrix, and then bequeathed her-property to the executrix, 'well knowing that she will make a good use and dispose of it in accordance with my views and wishes.' In the will before there is no (specific legacy to the executor, Who was universal legatee and the words 'I have no doubt he will carry out my wishes' have no express reference as in Briggs V. Penny 42 Eng. 371 to the testator's property. In Steel v. Mellor 5 Ch. D. 2226 Jessel, M. R. observed that Briggs v. Penny 42 Eng. Reports 371 had never been followed so far as he knew. However, I need not pause to consider whether the decision in Briggs v. Penny 42 Eng. 371 is now good law since the language of the will in that case was certainly stronger for the purpose of indicating that the testator intended to create a trust than the language of the will in the present case.
17. On the hearing of the appeal Mr. Sundara Aiyar applied for the admission as additional evidence of two letters which were not put in evidence before Boddam, J. The existence of the first letter was known to the plaintiff's advisers when the case was heard by Boddam, J. The existence of the 2nd letter was apparently not known. Mr. Sundara Aiyar asked that the letters should be admitted for the purpose of showing that the zamindar had accepted and acted under that trust. This case is not suggested in the plaint. I do not think that good grounds have been shown for the admission of additional evidence. Further, it seems to me, the additional evidence, if admitted, would not help the plaintiffs. One of the letters is a letter from the zamindar to Richard Taylor. This letter, as printed as Ex. A to the affidavit in support of the application to admit the additional evidence, is incomplete. We have looked at what is riot denied to be a true copy of the letter and in it the zamindar in effect claims to be entitled to the beneficial interest in the property. The other is a letter from Sir Henry King and Co., London, to the Collector of Ganjam, enclosing statements of the late zamindars personal account and of his account as executor of the late William Taylor. I do not see how keeping an account as executor in respect of property of which he was universal legatee is an admission of liability as trustee.
18. The question whether the law of benami would be relied on for the purpose of making out that the zamindar took the property as be-namidar and was to be deemed to hold it in trust for Richard Taylor was not raised in the written statement and was not argued on the hearing of the appeal. Mr. Sankaran Nair, J. in his judgment in Kunha v. Juana 31 M.K 187 in discussing Section 81 of the Succession Act observes if the transferee is only a benamidar then no question arises. As regards the question I do not desire to say more than is necessary for the purposes of this case. In questions arising in connection with a will executed by an English testator I do not think that the law of benami can be relied upon when the effect of its application would be to override the express provisions of the Trusts Act, the Succession Act or the English Rules of Equity on which these provisions are based.'
19. I think this appeal fails and must be dismissed. Speaking for myself I think there can be no question that Mr. Taylor desired that his property, with the exception of the house, books, furniture, &C;, should go to the brother, Richard. Mr. Taylor, however in expressing his desire, failed to comply with the requirements of the law. There is thus no legal obligation on the present zamindar. The nature and extent of the moral obligation which rests upon him will no doubt be duly considered by the present zamindar and his advisers.
20. In the circumstances I think all the costs of the appeal may be paid out of the estate.
21. The result is the appeal is dismissed. Costs out of the estate.
Sankaran Nair, J.
22. By his will, dated 18th April, 1892, according to its terms, William Taylor gives the property absolutely to the zamindar of Parlakimidi.
23. The letter of the 25th April 1895 was not communicated to the zamindar by William Taylor during his life-time. The Court cannot, therefore, impose upon the conscience of the zamindar a trust to carry out the wishes of the testator as declared by him in his letter. This letter does not creates a trust under Section 5 of the Trusts Act. It cannot be treated as a will or part of a will as it is not attested. As a non-testamentary instrument it is of no effect as it is not registered and does not dedicate any property to any trust or place it beyond the power of William Taylor to deal with it.
24. Mr. Sundara Aiyar no doubt contended that the provisions of the section as to the creation of trusts do not apply as the proviso exempts cases of fraud and it would be a fraudulent act on the part of Parlakimidi to take the property himself and frustrate the wishes of the testator. The term 'fraud' no doubt has been used in India in a wider sense than in English law. See Pattakara Amamalai Goundan v. Rangasami Chetti but I adhere to my opinion in Kunha v. Jnana 31 M.K 187 that the Court will impose a trust on a legatee only when there is fraud according to English law.
25. The other question remains, whether the letter may be used to show that Parlakimidi is only a benamidar or trustee and that he took no benficial interest in the property devised.
26. In the case of an ordinary transfer by mortgage which may have been registered and attested by two witnesses, it has not been doubted so far as I know that it is open to any person interested to show that the ostensible transferee is only a benamidar or trustee for another person. The case is the same in respect of any other transfer inter vivos. Section 92 of the Evidence Act applies only to the terms of a transfer and does not preclude the admission of any evidence to show the benami character of the transaction. Otherwise benami transactions would have practically ceased to exist long ago. I cannot find any principle which would justify admission of such evidence in cases of sales, mortgages, &c.;, and its rejection in the cases of wills. The case of benami and trust for this purpose stand on the same footing.
27. Section 82 of the Indian Succession Act on which Mr. Napier laid much, stress has nothing to do with the matter as it only declares as to wills the rule applicable ordinarily to every transfer.
28. I am, therefore, of opinion that this letter may be looked at for the purpose of determining the question whether the Parlakimidi was only a benamidar or trustee for Richard Taylor. The fact that this is the case of an English testator makes no difference. The next question is, assuming that it does not show that he was only a benamidar or trustee for Richard Taylor, can it also be admitted for showing that Parlakimidi was only a trustee under Section 81 of the Trusts Act.
29. Section 81 runs thus, so far as it is now material where the owner of property transfers it or bequeaths it, and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein.'
30. It appears clear to me that the disposal of the beneficial interest therein 'has reference to the transfer or bequest referred to in the earlier part of the section, or in other words, if it is legally proved that the transferor or testator did not intend by such transfer or bequest to part with the beneficial interest the transferee or legatee is a trustee for the transferor or his legal representative and cannot claim the property under such transfer or bequest.
31. It was further argued that this intention cannot be proved as it is not 'an attendant circumstance' under Section 81. An 'attendant circumstance' in this section, I conceive, means a circumstance that accompanies or follows the transfer or bequest. It appears to me that this letter in question was intended to accompany; or follow the will and, therefore, may be taken into consideration to discover the intentions of the testator.
32. The legal representative of the testator takes the property, not because the testator intends he should take it, but because he has shown his intention that the legatee should not take it, the law gives it to him. I have already stated my opinion that if the letter and the will give the property to Richard Taylor he would take it. Otherwise the legal representatives take under Section 81. I have discussed the question fully in my judgment in Manuel Louis Kunha v. Jnana Coelho 31 M.K 187 and there given the reasons for the conclusions herein summarised. I have not referred to the English cases on the subject for the following reasons.
33. I am not aware that the doctrine of English law that the appointment of executors is a gift to them of the personal estate has ever been applied in India. In the case of Hindus, an executor has only been treated as a manager of the property. The Trusts Act was intended to get rid of conceptions of double ownership, a legal' and an equitable ' estate. Further, a benami transfer by A to B for the benefit of C was not in the contemplation of English lawyers. The English law, therefore, may be referred to, to explain the Anglo-Indian law, and not for the purpose of determining whether there has been a departure from it. I have nothing to add to my review of the English cases in Kunha v. Jnana 31 M.K 187. Mr. Napier's explanation of Re Bayes 26 Ch. D. 531 cannot be accepted after the recent decision of Bigham J, in Law Times, Vol., XCIX, page 939. Where the trustee in bankruptcy did not admit that the bankrupt was only a trustee yet the Court upheld the trust on the admission of the bankrupt only.
34. The letter though written three years after the will must be read with the words in the will that the testator had no doubt that Parlakimidi will carry out his wishes. And reading the two together, I have no doubt that according to the intention of the testator the will gave no beneficial interest to Parlakimidi and he was to take it for the benefit of Richard Taylor or the next-of-kin of the testator. It is unnecessary to decide between their claims as Richard Taylor also now claims for the benefit of all of them. I would, therefore, allow the appeal and declare that the defendant holds the property in his possession for the benefit of the plaintiffs. The costs must come out of the estate. I cannot in conclusion help expressing my regret that the Court of Wards has allowed the matter to come before the Court when the plaintiffs do not claim the amount deposited in Arbuthnot & Co.
35. The appeal is dismissed.