1. This suit is brought for the construction of the Will of Bachoo Lall Agarwalla, who died on January 5th 1903, leaving a will dated September 19th, 1902.
2. There survived the 'testator his widow Luckhimony (the executrix of his will), a son Rajendra (the present plaintiff), a daughter Raj Coomari Dabi (the defendant No. 1), and her son Narain Das (defendant No. 2).
3. The questions, which have been argued, arise on the 12th, 13th and 14th paragraphs of the Will only.
4. The 12th paragraph provides for the residence of the Testator's wife and sister in the family dwelling--house and directs that the plaintiff shall forfeit his right of residence therein 'if he in any manner throws any obstacle in the way of this my will being proved in Court or in any way objects to any of the provisions of this my will being carried out.'
5. It was argued that by bringing the present suit the plaintiff had forfeited his right of residence. I disagree With this contention--the plaintiff is not throwing any obstacle in the way of the will: but is only asking the Court to declare what the will means.
6. The 13th paragraph gives the residue to the executors to collect the income and to pay (1) Rs. 160 a month to the senior member of the family for the support of Sreemutty Luckhimony Dabi the widow, the testator's sister Grolapmoni Dabi, the daughter to Raj Coomari Dabi and his daughter--in--law Sreemutty Sham Sunderi Dabi. (2) Rs. 35 a month to the plaintiff in lieu of raiment, if he so wishes. (3) Rs. 10 a month to Luckhimony for life and after her death to Sreemutty Sham Sunderi Dabi. (4) Rs. 8 to his sister Choonimoney Dabi. (5) Rs. 2 to his sister Golapmoni. (6) Rs. 5 to the plaintiff.
7. Then follows a clause in these terms:'I further direct that, until the complete, determination of the trusts aforesaid, the income arising out of the said trust property shall be devoted for the purposes of the said trusts and for the benefit of the said trust property and any balance thereof to be ascertained after providing for all the expenses aforesaid shall be deposited (and to do which my executors shall be jointly and severally responsible) in the Bank of Bengal till it amounts to Rs. 10,000 to be dealt with as provided in the succeeding paragraph hereof and further balance (if any) there after be applied from time to time for such other purposes as my executor and trustee shall consider best.'
8. Paragraph 14 of the will provides that, when the trusts of the will have been fully carried out, that is when the last survivor of the beneficiaries dies the property dealt with is to go to any son of the plaintiff by his wife Sundari or adopted by her. In default of such son 22 Mall Road is to go to the children of his daughter and 49, 50 and 51 Ram Mohan Ghose's Lane with certain moveable property is to go to whoever may be the testator's heir--at--law after the trusts have been carried out.
9. The rest of the property dealt with in paragraph 13 and the general residuary estate is to be sold and the proceeds together with all monies in the bank, is to be invested to form a fund called Bachoo Lall Fund to feed indigent Hindus. Luckhimony obtained probate of the will and died before the trusts had been carried out, whereupon Raj Coomari came in and obtained the grant to which she was entitled under the will on the death of Luckhimony and also obtained Letters of Administration to the estate of her deceased mother.
10. Sham Sunderi Dabee died childless, the gift therefore to her children fails and the gift over must take effect.
11. For Narain, the son of Raj Coomari, it is contended that he is entitled to 22 Mall Road as soon as provision has been made for the carrying out of the trusts of the will.
12. But this is not the intention expressed by the testator. He has provided that the bequest to Narain shall not take effect, until the last survivor of certain persons mentioned by name in the will dies. Some of those persons are yet alive, the gift to Narain therefore cannot take effect at present. For the same reason the gift of 49, 50 and 51 Ram Mohan Ghose's Lane cannot take effect at present.
13. The substantial question arises on the trusts for the Bachoo Lai's Funds.
14. It is contended that the direction to accumulate is void and that subject to paragraph 13 the heirs take all the surplus.
15. Now it has been pointed out after a careful examination of all the cases by Jenkins J. in the case of Amrito Lall Butt v. Surnomoni Dasi(1898) I.L.R. 25 Calc. 662 that it is not incompetent for a Hindu to direct accumulations and in the judgment of the Court of Appeal in that case (1) Trevelyan J. while differing from Jenkins J. as to the validity of the particular devise under consideration observed that there were cases in which accumulations could be directed, as for example where there was a minor beneficiary or where the accumulations were directed for the purpose of paying debts.
16. No hard and fast rule therefore can be laid down; in each case the particular direction must be examined to see whether the object the testator desired to effect was illegal or whether the effect of carrying out the direction would be to bring about a state of things inconsistent with the Hindu law or whether the direction to accumulate is so unreasonable in its nature as to be void as against the public policy of the realm.
17. For example, if the object of the direction to accumulate were to create a perpetuity, it would be void; if the effect were to make a gift in favour of a donee in futuro with no gift in presenti, the direction to accumulate would be illegal, being inconsistent with the Hindu law of gifts. It is easy to imagine a direction to accumulate which because of the length of time for which the monies were to be accumulated or the excessive sum to which the accumulations were to amount or other reasons--might be held to be void as against public policy.
18. In my opinion the inference to be drawn from the judgments in the case of Amrito Lall Dutt v. Surnomoni Dassi(1898) I.L.R. 25 Calc. 662 and the cases discussed in Jenkins J.'s judgment in the Court of first instance is that there is nothing per se illegal in a direction to accumulate made by a Hindu and that, if such a direction is neither so unreasonable in its conditions as to be void as against public policy nor given for the purpose of carrying out an illegal object nor in its effect inconsistent with Hindu law, it should be given effect to.
19. In the present case there is nothing that I can see unreasonable in a direction to accumulate the surplus to the sum of Rs. 10,000. There exists no ground for saying that there is anything which is void as against public policy in this direction. The sum set apart is not a gift to a specific donee or to a specific class of donees; it is set apart for a charitable object. The direction to spend the income in feeding poor indigent Hindus resembles the direction 'to spend suitable sums for the annual shrads or anniversaries of my father, mother and grandfather as well as of myself, after my demise for the performance of the ceremonies and the feeding of the Brahmins and the poor,' which was held in the case of Dwarkanath Bysack v. Burroda Persaud Bysack (1878) I.L.R. 4 Calc. 443 to be a valid bequest. There is nothing therefore illegal in creating a fund of which the income is to be expended by trustees for a charitable purpose.
20. There is a distinction between the gift of a fund to a donee and the creation of a fund for a charitable purpose. In the former there is a person or a class of persons, who can claim immediate possession of the gift, the donor has divested himself of the fund, the donee can deal with it as he thinks proper; in the other case there is no gift of a fund to a donee--the persons who benefit by it are not entitled to claim it as their own. All they can do is to accept the charity, which the testator has thought proper to direct his trustees to give them, whether it be in the shape of clothes, or food or money.
21. For this reason I think that the direction to accumulate the surplus until it amounts to Rs. 10,000 and then spend the proceeds in feeding the poor does not infringe any rule of Hindu law relating to gifts.
22. Next, is the direction void as creating a perpetuity? The answer must be in the negative as the fund is set aside for a charitable purpose, which would not be avoided on this ground.
23. The result is that I hold that the direction to the trustees to accumulate the balance after providing for the expenses until it amounts to Rs. 10,000 and to invest it and devote the income to feeding the poor is a valid charitable bequest and must be given effect to.
24. The other question argued, that is the time when the gift to Narain takes effect, must be answered by a declaration that the gift takes effect after the decease of the last surviving beneficiary, as provided by Clause 14.
25. The costs of all parties must come out of the estate.