1. This is a suit for the construction of the will of Kananbala Debi, who was sister of the plaintiff, and who died on 5th November 1918, for a declaration that the plaintiff is entitled to the whole of the estate of his deceased sister subject to the pecuniary legacies mentioned in the said will, for recovery of possession of premises No. 12, Maniktola Lane, Calcutta, and 157-A (157), Masjidbarhi Street, Calcutta, and for an account of the said estate on the basis of wilful neglect and default.
2. On the question of the construction of the will, the real contention on behalf of the plaintiff is that Clause 5 of the will is void and inoperative, as there is no valid bequest for charitable purposes. The defendants contend, on the other hand, that, on the construction of the will, it should be held that there is a valid gift to charity.
3. The suit came on for hearing before my learned brother Buckland, J., on 6th May 1930, but my learned brother adjourned the hearing of the matter sine die, with liberty to the parties to have the matter heard before a Judge acquainted with the Bengali language. The matter has come before me. The reasons of Buckland, J., for adjourning the case have been placed before me, counsel on both sides not objecting to their being read.
4. Kananbala executed a will on 31st October 1918. She died on 5th November 1918, leaving behind her a mother and brother (plaintiff). On 31st March 1922, probate of the will was taken by her paramour, Hazarilal Khanna, and Krishnapada Bhattacharya, two of the three executors named in the will. Her brother, Satkarhi, was also appointed executor and trustee, but he did not apply for probate.
5. Various questions were raised by the pleadings, but the controversy has centred round the construction to be placed on para. 5 of the will. If, on a proper construction of Clause 5 of the will, it is held that the clause is void, then it was conceded before Buckland, J., by the learned Advocate-General, who appeared for the defendants both before Buckland, J., and before me, that there would be an intestacy with regard to the only clause which has to be construed and plaintiff will get the property. The controversy being narrowed to a single point, I proceed to determine what is the true construction of Clause 5 of the will. The will, in the first part, before the numbered clauses, recites (I am quoting so much as is material):
It is my desire * * * to make a will, which I. hereby do, while in possession of my senses, for the purpose of spending the whole of the income of the said property on pious acts * * *.
6. Then, after making provision for certain legacies, the testatrix makes the following disposition in Clause 5:
Deducting the aforesaid expenses, all the trustees, being unanimous, will be competent to spend the entire balance of income on pious acts according to their own wishes.
7. The Bengali words, which, according to one translation, mean 'pious acts and, according to another, 'pious and religious acts' are punyakarya, The learned Advocate-General, for the defendant, stated, at the outset, that he would argue that the words mean 'religious acts or acts which involve some kind of religious merit.'
8. Mr. S.C. Bose, who appears for the plaintiff, has referred to Wilson's Glossary, p. 428, where the word 'punya' is said to mean ''virtue, moral, merit, holiness, pure, holy.' He has also referred to Monier-Williams' Sanskrit-English Dictionary, p. 580, where the word punya' where-used as an adjective, is said to be equivalent to variety of things 'virtuous, pure, righteous, pleasing.' The noun is translated as 'virtue, moral or religious merit, a good action.' It is argued that the word dharam is said to signify 'law, virtue, legal or moral duty' and, in the Anglo Sanskrit Dictionary, p. 449, the word 'dharma' is given the same signification as 'punya'. And it is argued that the word 'dharam' can be construed more favourably for making a gift to dharam a charitable trust than gift for 'punya karya.' It is argued that when the Privy Council has finally determined that a gift to dharam is void for uncertainty, it follows that gifts for punya-karya would be void for the same reason, and reference is made to a decision of their Lordships of the Judicial Committee in Ranchordas Vandravandas v. Parvatibai  23 Bom. 725. I shall advert to this decision of their Lordships later,
9. Reference has also been made to a very early case, in support of the contention that, where the gift was for pious acts to procure the testator future bliss, the gift was held to be void: see Sibchunder Mullick v. Sreemutty Treepoorah Soondry Dossee  Ful. Rep. 98. In that ease, Sir E. Peel, C. J. held that the Court could not carry on an undefined trust of this character. It is argued that this decision will govern whether the gift be for pious or religions acts. This decision in Pulton's Report was referred to by counsel in argument before their Lordships of the Judicial Committee: [sea the argument of Jardine, Q. C] and their Lordships say this with reference to this case:
It is not necessary for their Lordships to refer particularly to the cases in the Indian Courts, where it has been held that a devise or bequest for dharam is void for vagueness and uncertainty. They begin at an early period both in Bombay and Calcutta.
10. Then their Lordships say:
The reasons for the decisions of the English Courts upon devises or bequests of a similar nature are stated by Lord Eldon in his judgment in the leading case of Morice v. Bishop of Durham [1804-5] 9 Ves.399.
11. He says  10 Ves. 522:
As it is a maxim, that the execution of a trust shall be under the control of the Court, it must be of such a nature, that it can be under that control, so that the administration of it can be reviewed by the Court; or, if the trustee dies, the Court itself can execute the trust: a trust therefore which, in case of maladministration could be reformed; and a due administration directed; and then, unless the subject and objects can be ascertained, upon principles, familiar in other cases, it must be decided, that the Court can neither reform maladministration, nor direct a due administration.
12. Lindley, L.J., refers to this judgment and says [In re Macduff  2 Ch. 451]:
That is the principle of that case and has been enunciated or repeated from time to time. In the latter case the words of the bequest were 'purposes charitable or philanthropic.' In Wilson's Dictionary dharam is defined to be law, virtue, legal or moral duty, and the language of Lord Eldon applies as strongly, if not more so, to 'dharam' as to the words used in the English cases. The objects which can be considered to be meant by that word are too vague and uncertain for the administration of them to be under any control.
13. I am not unmindful of the fact that the actual decision of their Lordships in Runchordas' case  23 Bom. 725 has been thought by some Hindu Judges in India not to be quite in harmony with the true doctrine of Hindu jurisprudence: see the observation of Sir Subramanya Ayer, J., in Parthasarathy Pillai v. Thiruvengada Pillai  30 Mad. 310 and of Sir Asutosh Mookerjee, J. in Bhupati Nath v. Bam Lal Maitra  37 Cal. 128. But I am bound to follow the decision of their Lordship3 of the Judicial Committee and their Lordships had adhered to the view in a subsequent case where however the gift was validated on the ground that the act of dharam was defined an was not to charity generally but to the choultry: see Vaidyanatha Ayyar v. Swaminatha Ayyar A.I.R. 1924 P.C. 221.
14. In Sarat Chandra Ghose v. Pratap Chandra Ghose  10 Cal. 232 Chaudhuri, J., sitting on this side of the Court, held that the gift for 'religious purposes ' (dharma kamarthe) was void.
15. A number of English authorities were cited for the plaintiff to show that the gift was invalid, as the bequest was for such pious or pious and religious acts as the trustees being unanimous may in their discretion select. It is difficult to construe Clause 5 in that way. The discretion is not given to select the pious or religious act. To my mind, the words nijeder ichchamata (according to their wish) do not qualify punyakarya (pious acts or pious and religious acts). The true meaning seems to be that the trustees may be able to spend the residue of the income after payment of the legacies in pious acts if they so desire. They may spend something less if they do not so desire. The cases of the type of Grimond v. Grimond  A.C.124 cited at the Bar do not govern the construction of the present will.
16. After considering the authorities, 1 now give my conclusion regarding the meaning of the word 'punyakarya,' In Sabdakalpadrurna, a work of great authority, the word ' punyakarma ' has been hold to mean works which result in good luck (subhadristam) and it is said to be synonymous with ' dharmam.'
17. The author of the Dayabhaga, which is the binding authority in the Bengal School, says that the maintenance of the family is an indispensable obligation and quotes the following text of Manu which may be translated as follows:
18. The support of persons who should to be Maintained is the approved means of attaining heaven. But hell is the man's portion if the suffer. Therefore lot a master of the family carefully maintain them: see Dayabhaga, Chap. 2, para. 23.
19. From this it appears clear that the maintenance of dependant members of the family is an act of religious merit and will be rewarded by a place in heaven, whereas those that do not maintain these that are dependant on them suffer hell or commit an act of sin. The maintenances of dependant members of the family is a moral duty, but need not necessarily be a charitable act in the large sense of the term. This shows at any rate the comprehensive sense in which the word 'punya' is used. It includes not only acts of charity, acts of religious merit but also a moral or legal duty or obligation. It is difficult to say such a scheme can be under the control of the Court. In Hindu law, religious, moral and legal injunctions are blended together and in the word 'dharam' or 'punya' might be included not only charitable or religious acts but acts which merely enjoin a moral duty and enjoin the performance of acts which is neither religious nor charitable.
20. The word 'punyakarya' therefore includes such a variety of things, viz., religious duty, acts of charity and moral duty or obligation, that a gift to punyakarya would be void on the ground of uncertainty and it would be difficult for the Court to administer such a trust. The observations of the Judicial Committee approving Morice v. Bishop of Durham [1804-5] 9 Ves. 399 in the case of Runchordas Vandravandas v. Parvatibai  23 Bom.725 apply to the gift in the present case.
21. In the case of Venkatanarasimha Rao v. Subba Rao A.I.R. 1923 Mad. 376 which was cited at the Bar, it has been held that a gift for spread of Sanskrit language or for spread of Hindu religion was void on the ground of uncertainty.
22. The result is that the gift in Clause 5 of the will must be declared inoperative. The plaintiff's suit is decreed. He will recover possession of the premises and accounts will be taken from the date of suit up to the date of delivery of possession by the Assistant Referee and if any sum is due to the plaintiff, ha will recover the same from the defendants.
23. It remains to notice the arguments oil Mr. Majumdar who was appearing with the Advocate-General for the defendants that there is no other pious act in this age except gifts to whomsoever made and therefore the bequest was a bequest to charity and should be upheld. With re-?.>;;.u'f> to the word 'punya,' he has relied on a decision of the Allahabad High Court in the case of Gordhan Das v. Chunni Lal  30 All. 111. Even a superficial examination of the case would show that the gift was to punya to be performed at the dharamshala, which was established exclusively for charitable purposes. An examination of the judgment of Stanley, C. J., will show that a. chanty was being already carried on at the dharamshala at a coat of Rs. 500 a month at the date of the gift and therefore it was said that the gift was for charitable purposes alone. Perhaps the actual decision in the case could be supported on the ground that the object was defined in view of this that the sum was being spent for charitable purposes and charitable purposes alone. I have already shown that gift to punyakarya alone is void and if the Allahabad decision meant to lay down generally that a gift to punya would be valid, I would respectfully dissent from that decision.
24. There has been some controversy regarding the question of costs. Mr. Ma-jumdar contends that the costs should coma out of the surplus income of the estate and relies on the case of Srinibash Das v. Monmohini Dasi  3 C.L.J. 224. It appears however that the plaintiff has abandoned his claims to mesne profits before the date of suit. In these circumstances, I think costs should follow the event. Plaintiff will have costs against the defendant Khanna on Scale No. 2.