1. This is an appeal from the judgment of Mr. Justice Buckland in a suit brought for the construction of the will of Sreeman Chandra Mukherji who died in the year 1878.
2. The plaintiff, as the learned Judge states is one of the heirs of the testator and the defendants Nos. 2 to 12 are also heirs. The first defendant, Lakhi Narain Ganguly, is a great-nephew of the testator. He was not alive at the death of the testator, as he was born in the year 1886, and he is interested in this will as having been appointed by the will of Rama Sundari Debi, the widow of the testator, who died in 1918, the shebait of the property to which the former will referred and dedication and management of which are in question.
2. By the first clause of his will the testator gave his interest in a taluq called Dehee Ulasee to his only daughter and her husband.
3. The second clause calls for no mention.
4. By the third clause the testator made provisions for the performance of his sradha and for the monthly expenses of his widow. By that clause he also provided annuities for certain persons and directed his widow to perform his annual sradha and also to perform pilgrimages to Ishur Gyadham and other shrines and other religious ceremonies.' The moneys necessary for these purposes was to come-out of a taluq named Fatiabad. The clause ends with these words : 'After deducting all these expenses whatever surplus shall remain from the profits of the said taluq to my share shall be devoted to the undermentioned Debseva and Atithiseva (entertainment of strangers).'
5. The fourth clause calls for no comment.
6. The fifth clause is in these terms : 'I do hereby dedicate to the Ishur Debseva the whole of my immovable property and all the residue of the profits save and except the said share in Dehee Ulasee and1 the aforesaid profits of the said Taluk Fatiabad. My hereinafter named executrix shall for my salvation consecrate a Shivaloy and a Shiva and shall performs the seva, etc., of the said Shiva from .the profits of the whole of my property that is to say she will out of the profits of all the said immovable properties cause to be performed the daily and periodical seva of the said Shiva, the feeding of Brahmins and entertainment of strangers. My hereinafter named executrix will be able, if she shall so desire, to consecrate a Shivaloy and Shiva out of my estate for her own salvation. It is my heart felt desire that the said Debseva, the feeding of Brahmins and the entertainment of strangers shall be performed daily out of profits of my said immovable properties.'
7. In the sixth clause the testator referred to certain provisions which he had already made for his widow during his life-time.
8. The seventh clause is important. It runs : 'I do hereby appoint my wife, Srimati Rama Sundari Debi, my executrix and the shebait, she will perform all the acts according to my aforesaid instructions and the person whom she, shall appoint to the duties of executrix and shebait shall be vested with the power to perform all the said acts after her death.'
9. The first point raised before the learned Judge turns upon the meaning of the word 'surplus' in the concluding sentence of the third clause which I have quoted. The question, as stated by the learned Judge, was what was to be done with the amounts of the annuities formerly payable under the will to persons who are now dead. The learned Judge said : 'In my opinion the amounts of such annuities will fall into the surplus and should be devoted to the sevas to be performed under the 5th paragraph of the will.'
10. In my opinion, that is the natural meaning of the language used and I see no reason to differ from the learned Judge.
11. Then as to the fifth paragraph of the 'will, it seems to have been suggested that a dedication of property to the Ishur Debseva' was not a sufficient dedication to a particular Hindu deity. But as the learned Judge indicates, the clause must be read as a whole, and if the objection may be regarded as having even a superficial plausibility, the subsequent direction to consecrate a Shivaloy and Shiva deprive it of all force. Indeed, if the point has been referred to in the argument before us, it has not been pressed and, in my opinion, the clause contains a valid dedication of property to religious uses.
12. A further point taken in connection with this clause may perhaps be regarded as having more substance. It is contended that according to the true construction of the clause, the testator did not dedicate the absolute interest in the property but merely created a charge on the property for the stated purposes. It was argued that the direction to the testatrix was to consecrate a Shiva and Shivaloy and to perform the other duties imposed 'out of' or 'from the profits of all the said immovable properties.' It was also argued that the feeding of Brahmins and the entertainment of atithis or strangers coming to the house has no necessary relation to the worship of Shiva and that the amount required for those purposes must necessarily rest in the discretion of the testator's representative. The contention was sought to be reinforced by reference to the power given to the testatrix in the following sentence - 'if she shall so desire, to consecrate a Shivaloy and Shiva out of my estate for her own salvation.' Stress was laid upon the words 'out of my estate' and the question was put how could the executrix consecrate a separate Shivaloy and Shiva for her own salvation unless she had herself an interest in the property from which the necessary funds were to come.
13. As to these arguments, if the concluding sentence of the third clause and the fifth clause be read together and if regard be had to the express saving in the fifth clause of the share in Dehee Ulasee dealt with in the first clause and the profits in Taluk Fatiabad required for the purposes of the third clause, and if regard be also had to express mention in the sixth clause of the provision which the testator had already made for his wife during his lifetime, then it seems clear that the testator intended to dedicate the whole of his estate, both corpus and income, less the, excepted items, to religious charity. The language used is sufficient, prima facie at any rate, to express that intention. The direction to feed Brahmins and strangers is a common form of charity in connection with Hindu endowments and affords no reason for putting other than its natural meaning on the language used by the testator. And when the testator gave his widow power to consecrate a Shivaloy and Shiva for her own salvation out of his estate, he was merely authorising her to use a sufficient portion of the trust fund for that purpose. By the words 'out of my estate,' he meant out of that portion, of his estate which he was devoting to charity.
14. Before us, the decision of their Lordships in Har Narayan v. Surja Kunwari A.I.R. 1921 P.C. 20, has been cited and it has been suggested that the expenditure which the testator contemplated would not, by any means, exhaust the whole of the profits of an estate so large as that which the testator is said to have left. Unfortunately this point does not appear to have been raised in the plaint or at the trial; no issue on the subject was framed and there is no evidence on the record either as to the value of the property left by the testator or as to the amount required for the charities ordained.
15. My conclusion, therefore, on this part of the case is in accord with that of the learned Judge and the contention, with which I have been dealing fails.
16. A question of some difficulty remains in regard to the seventh clause of the will. In pursuance of that clause the testator's widow, Rama Sundari Debi, as executrix, carried out his instructions and during her life time acted as the first shebait of the endowment. By her will she appointed the testator's great-nephew, the first defendant, to be her successor. As I have said, the first defendant was not in existence at the testator's death. It is accordingly contended that this appointment contravenes the well known rule in the Jotendro Mohan Tagore v. Ganendro Mohan Tagore (1872) I.A. Sup. Vol. 47 and is a bad appointment. There can be no question that in a case to which that rule applies, a gift which cannot be made directly cannot be made indirectly by means of a power conferred by the testator on his executor. Authority for that proposition is to be found in the case to which reference was made on behalf of the appellant : Bai Motibahoo v. Bai Mamoobai (1897) 21 Bom. 709. In that case a Hindu testator by his will gave his daughter, in the event of her having no children, power to direct by will to whom his immovable property should go after her death. As the head note states, their Lordships held upon the construction of the will that the gift of the absolute estate was not to the daughter in the event which happened of her having no children, but to such persons as she should appoint by will. As to the power of appointment it was. further held that it could be validly exercised only in favour of persons who were actually or in contemplation of law in existence at the death of the testator. In. other words, their Lordships followed the rule in the Tagore case (1872) I.A. Sup. 47. But both in the Tagore case (1872) I.A. Sup. 47 and in the case of Bai Motibahoo v. Bai Mamoobai (1897) 21 Bom. 709 the property in question was ordinary private property, the beneficial interest in which was to pass to the recipient. It may be conceded that the managership of such an endowment as the testator here created is 'property'. But it is property of a special kind; the manager has in theory no beneficial interest in the endowment. The question therefore arises whether such an appointment as that made by the widow is within the rule in the Tagore case (1872) I.A. Sup. 47.
17. The reasons on which the rule is based will be found at pages 64 and 65 of the report. Their Lordships said this : 'Inheritance does not depend upon that, will of the individual owner; transfer does. Inheritance is a rule laid down (or in the case of custom recognized) by the State not merely for the benefit of individuals, but for reasons of public policy. It, follows directly from this that a private individual, who attempts by gift or will to make property inheritable otherwise than, the law directs, is assuming to legislate, and that the gift must fail, and the inheritance takes place as the law directs. This was well expressed by Lord Justice Turner in Soorjomonee Dasee v. Denobundoo Mullick (1854-54) 6 M.I.A. 555 : 'A man cannot create a new form of estate or alter the line of succession allowed by law for the purpose of carrying out his own wishes or views of policy.
18. Their Lordships went on to illustrate this general principle and to deal with the Hindu Law of Gifts. The conclusion is stated at page 70 of the Report, where the rule is enunciated that according to Hindu Law a person capable of taking under a will must be such a person as could take a gift inter vivos, and must, therefore, either in fact or in contemplation of law, be in existence at the death of the testator.' But this express reservation is added : 'Their Lordships adopting and acting upon the clear general principle of Hindu Law that a donee must be in existence, desire not to express any opinion as to certain exceptional cases of provisions by way of contract or of conditional gift on marriage or other family provisions, for which authority may be found in Hindu Law or usage.'
19. It appears, therefore, that the rule in the Tagare case (1872) I.A. Sup. 47 is a general rule to which there may be exceptions. Property cannot be made inheritable otherwise than the law allows, but there may be exceptional cases in which Hindu Law sanctions a departure from the rule that the donee must be in existence.
20 Now, if the Hindu Law allows the founder of a religious trust or institution it may be within limits which it is not now necessary to determine to lay down a general rule of succession to the managership, it seems difficult to say that the power given to the widow in the present case was badly exercised when she appointed the testator's grand nephew to succeed her as shebait, though he was not in existence at the testator's death. The testator has not said that the office of manager is to be heritable and to descend in his family according to some new rule of succession. His direction was that the office should be held first by his widow and afterwards by such person as she might appoint. He might have said that the first and every succeeding manager should be appointed by a Civil Court. Again, as the learned Judge has observed, a trusteeship with power to appoint a successor is well known to and recognized by Hindu Law. The testator, therefore, might have created such an office, in which ease no one would have suggested that the rule in the Tagore case (1872) I.A. Sup. 47 was applicable. The testator did not go so far but he did give his widow power to appoint her successor and it seems inconsistent with the larger direction which the testator might have given, that every succeeding holder should have power to appoint a successor, to say that the widow's choice she did not die till 1918 was limited to some person who was in existence at the testator's death in 1878. It might be far from advantageous to the testator's descendants or to the interests of the endowment that her choice should be so limited. In my opinion, the appointment made by the widow may be supported by way of exception to the rule in the Tagore case (1872) I.A. Sup. 47, or it may be said that the power given to her is outside the scope of that rule. The appointment does not appear to be inconsistent with the Hindu Law and usage.
21. The case Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1899) 23 Mad. 271 was much relied on for the appellant, but there their Lordships were dealing with an hereditary endowment or office, descendible according to the ordinary rules of inheritance. In connection with the question of limitation which was before them, their Lordships observed that the successive holders of the office could not be treated as having successive life estates in the endowment, because Hindu Law did not permit the creation of such estates. The observation has little or no bearing on the question with which we have to deal. We are not dealing with the nature of the estate which a shebait takes in his office but with the question whether the widow could lawfully appoint the first defendant to be her successor.
22. The result is that on this part of the case also I agree with the learned Judge, and the appeal fails. I may add that it is not necessary for us now to determine who will succeed the first defendant upon his death or in the event of his vacating the shebaitship.
23. As to costs, the learned Judge has made the usual order that they should be paid by the losing party, namely, the plaintiff. In view, however, of the nature of the case and the difficulty of at least one of the questions which arise upon the will, we are of opinion that there is reasonable ground for modifying the learned Judge's decree in respect of costs. We direct that the costs both of the trial Court and of this appeal do come out of the estate. The executor's costs should be as between attorney and client. Apart from this modification the appeal will be dismissed.
24. I agree. I desire to add a few words as regards the contention of the appellant, which was based upon the 7th paragraph of the will, namely, that inasmuch as the first defendant, Lakhi Narain Ganguly, was not born at the time of the testator's death his appointment by the testator's widow was invalid. In my judgment, the two cases, which were relied upon, namely, Gnanasambanda v. Velu Pandaram (1899) 23 Mad. 271, and Gopal Chunder Bose v. Kartick Chunder Bose are not decisive of the present case. It was no dbubt decided that the ruling in Tagore's case (1872) I.A. Sup. 47 is applicable to an hereditary office and endowment as well as to other immovable property. In this case, however, in my judgment, having regard to its terms, the will did not create an hereditary office or endowment. Consequently, in my judgment, the fact that the first defendant was not alive at the time of the death of the testator does not make the appointment of the first defendant as shebait it invalid.