1.The first objective which has been urged against the suit, is that it is not maintainable as (sic). The objection is thus stated in the 1st paragraph of the written statement of Gooroo Prosonno Sen:
This defendant submits that the suit as framed cannot be maintained, inasmuch as it is not competent to the plaintiff to sue for the construction in part only (and not as a whole) of the will of the testator Gunga Prosad Sen, nor for the administration or execution of part only (and not of the whole) of the trusts of the said will, nor for the relief claimed, otherwise than in a suit for general administration oil the estate of the said testator.
2. The argument is that the course which this Court ought to adopt as regards the present suit is the course which the Court of Chancery would have followed in a like case before the practice was introduced of determining on an originating summons isolated questions arising in the course of administration of an estate without taking the accounts of the estate or making a general order for administration. The old and new practice as regards the question of the necessity of making an administration order before dealing with any point arising in the course of the administration of the estate arc contrasted by Pearson, J., in In re Wilson, (1885) L.R., 28 Ch. D., 457 (460). In showing how the practice as to administration actions was changed by the rules of the Supreme Court, 1883, the learned Judge makes the following observations:
There were formerly in the Court of Chancery numbers and numbers of cases in which an administration suit was necessarily instituted, not because the parties desired the administration of the estate generally, but because there were certain questions---they may have been minute, they may have been limited, they may have been very important-over which the Court would have had no control, without the existence of an administration action. There were no means according to the old practice of bringing isolated questions under a will before the Court for its determination except by an administration suit. It was felt that that very often involved parties in an amount of expense which was unnecessary and which they ought to be relieved from.
3. Accordingly, in order to avoid this expense, power is expressly given to the Court by the rules of 1883 to determine any question without making a judgment or order for the administration of a trust or of the estate of a deceased person, if the question between the parties can be properly determined without such judgment or order. This power is not confined to cases which can, under Order LV, rules 3 and 4, be raised by originating summons, but under Order LV., Rule 10, the Court has this power, whether the question arise on summons 'or otherwise,' and it extends to administration actions commenced before, but tried after, the rule came into operation. Williams on Executors, 9th Edition, Vol. II, 1810-1811.
4. The question then is whether the Court of Chancery in England would have declined to grant the relief sought in this suit, except in a suit framed for the general administration of the estate of the testator on the ground that it involved the partial construction of the testator's will. This is a question which it is admitted does 'not affect the jurisdiction of this Court. It is a question of the practice of the Court; and that only. It is undoubtedly the fact that before the Court can determine whether the plaintiff is entitled to the main relief which he seeks, the testator's will must be construed; for upon the construction of the will of the testator must depend the question whether the trust in fact exists, the breach of which is charged against the defendant Gooroo Prosonno Sen. There is therefore a question of the construction of the testator's will, which arises necessarily, though incidentally in form; in this case. But then this question has- riot bean raised as an aid to the administration of the testator's estate, nor is the Court being asked to take upon itself the execution of the trusts or the administration of the estate.
5. The plaintiff claims to be a trustee, who is entitled to ask the Court's assistance in preventing a breach of trust. Is there any reason why in a suit of this character, where all the parties interested in the question of construction are before the Court, the Court should refuse to construe the will of the testator simply because this is not an administration suit?
6. I have not been referred to any authority, nor am I aware that any such authority exists which establishes the proposition that this Court ought not under any circumstances to consider any question involving the construction of a will or deed of trust, except in a suit for the administration of the trust or for the administration of the estate of the testator. Circumstances might, no doubt, exist which would render it undesirable or improper that the Court should make a mere declaratory order based on a partial construction of a will, or that it should declare the rights of parties at all except in an administration suit. But I am unable to say that any such circumstances exist in the present case.
7. In the first place it is no mere declaratory decree or order that is sought. The plaintiff seeks consequential relief of a very special kind, and he bases his claim on a cause of action which exists only as against the defendant Gooroo Proaonuo Sen, although it indirectly affects the infant defendants as heirs of the testator and beneficiaries under his will.
8. In the next place there seems lobe no reason why the question, whether there has been a valid declaration in perpetuity of the family dwelling house for religious purposes, should not be dealt with in this case separately and apart from any other questions which may arise in the course of the administration of the testator's estate. Assuming, although this is not admitted, that the estate is still unadministered in full, it is said that the infant defendants are interested in the question of the dedication of the house, and that it is inconvenient that this matter in which they are concerned should be disposed of without at the same time disposing of other questions as to their rights under the will of the testator which remain for determination. They complain that the plaintiff has deprived them of certain accommodation in the family dwelling house to which they are entitled under the will. It is difficult to see how the question of the amount of accommodation, to which the infants may be entitled to in the family dwelling house, depends in any sense on the question whether there has been a valid dedication of the house for religious purposes, or on the question whether the defendant Gooroo Prosonno Sen should be restrained from exercising his profession on the premises. The causes of action in the two cases are distinct and exist, if they exist at all, against different individuals, and no good or convenient purpose would be served by insisting on both being joined together and dealt with in one suit.
9. Moreover, assuming that the old practice of the Chancery Court as regards administration suits is binding on or ought to be rigidly followed by this Court, it is not clear to my mind that in accordance with that practice the Court of Chancery would have declined to entertain this suit. Having regard to the consequential relief sought it seems impossible that it could be said that the question of construction, which is raised in this case, is a question over which (to use the words of Pearson, J.) the Court 'would have no control without the existence of an administration suit.'
10. On the contrary, questions between trustees and beneficiaries, and between trustees and strangers, necessitating often, it may be presumed, the construction of certain provisions of the trustdeed have been entertained and determined by both Courts of Law and Equity, without the Court being asked to undertake the entire administration of the trust. The case of Re Weall, (1889) L.R., 42 Ch. D., 674, may be cited as an illustration. See also Lewin on Trusts, 9th Ed. p. 246, and also at p. 290, where there occurs this passage: 'A trustee is called upon, if a breach of trust be threatened, to prevent it by obtaining an injunction, and if a breach of trust has been already committed, to bring an action for the restoration of the trust fund to its proper condition, or at least to take such other active measures as with a due regard to all the circumstances of the case may be considered the most prudential.'
11. In view of all these considerations, it appears to me that the objection that the present suit cannot be maintained is not sustainable.
12. The next objection is that the plaint discloses no cause of action. The argument on this point is put in this way. The plaint, it is said, discloses no facts or circumstances which would justify the Court's interference to prevent the defendant Gooroo Prosonno Sen from carrying on his dispensary business and otherwise following and practising his profession as kabiraj at the premises Nos. 16 and 17, Kumertolli Street. Admittedly the defendant Gooroo Prosonno Sen has a right under the will to live in the premises, and, if he has a right to live there, he has a right, it is argued, to carry on his profession there as a means of livelihood, so long at least as he does not interfere with the rights of the other beneficiaries.
13. This contention involves, it is obvious, the question of the construction of the will of the testator.
14. What is included in the right of living in the premises which the testator has reserved to his sons and grandsons and their families? Or to put the question in another way, is the carrying on the business or profession of a kabiraj on the premises in question inconsistent with the disposition which the testator has made of the property, so as to constitute the action of the defendant Gooroo Prosonno Sen, a breach of a valid trust created by the testator
15. A great deal has been said as to what is the proper definition of the word 'living,' and as to what are the rights which are comprised within the right of living in any given place. It seems to me impossible to lay down a strict hard-and-fast definition of the word, which shall be applicable under all circumstances. The meaning must vary according to the circumstances under which the word is used, or the purpose or object for which it is employed. It may have a very extended meaning from the point of view of International Law as indicating the country where a son is entitled to exercise all the privileges of a subject or citizen. On the other hand, it has a much restricted meaning when used in Statutes for the purpose of defining the personal jurisdiction of a particular Court. The cases which have been decided in this country under Clause 12 of the Charter, or under Section 16 of the Civil Procedure Code, or under the Insolvent Debtors' Act, and also in England under the County Courts' Acts, show in what different senses the words 'living,' 'residing' or 'dwelling' and similar expressions may be used, and that sometimes a very narrow and artificial meaning is applied to them. The question to my mind to be asked in this case is---What is the meaning which the testator intended the word should bear
16. Now, when the testator's meaning has to be discovered, the well-known ruling of the Privy Council in Soorjeemoney Dossee v. Denobundoo Mullick (1857) 6 Moo. I. A. 535 lays it down that primarily the words of the will are to be considered, and next the surrounding circumstances, when the testator's meaning may be affected by them. I turn first to the will itself.
17. The first question which suggests itself is what was the testator's veal object and purpose in dealing with the family residence? Did he really mean to make an absolute dedication of the property to religious purposes, or was this purpose colourable only, and did he really intend to secure to his family a permanent beneficial interest of the nature of a perpetuity
18. The right of living, which the testator reserved to the members of his family, must, as the one or the other was the true purpose of the testator, receive a wide or a restricted interpretation. Was there then a valid dedication of the premises for religious purposes? If there was this intention on the part of the testator, the dedication will not he invalid merely by reason of its transgressing against the rule, which forbids the creation of a perpetuity. Mayne's Hindu Law, 4th Edition, paragraph 395.
19. By paragraph 1 of the will the testator declares that he endows (or as the defendants suggest assigns) his house Nos. 16 and 17, Kumertolli Street, for certain specific purposes. These purposes are as follows: For the residence and worship for ever of the Thakurs established by him. Next, for the celebration in the house annually of the Sri Sri Issur Durga Pujah and the Dolejatra festival. Thirdly, for the performance of the annual shradh of the testator's father, and for the feeding on such occasion of Brahmins and people of other castes.
20. After describing these religious purposes for which he desired to dedicate the house, the testator proceeds: 'Besides these my sons and grandsons (son's sons) with their respective families shall live in the house. In case of disagreement among them, the person who would be the cause of disagreement shall leave the house with his family. I endow (or make over or assign) this house for all these purposes. With regard thereto no right of my heirs shall exist or accrue. They shall simply live (therein) as mentioned above. My furniture, etc., which exist in the said house shall be used for the worship, Ac., of the said idols. My heirs shall get nothing whatever of the same. The said house and the said furniture shall never be partitioned amongst any persons.' By this clause of the will the testator prescribes the particular uses to which the house is to be put, and except in the manner expressly provided the testator declares that his heirs shall have no beneficial interest in, or enjoyment of, the property.
21. Moreover, the testator makes express pecuniary provision for the permanent maintenance of the endowment which he has created. He does not contemplate that the property shall ever be rent-producing, for he provides by paragraph 5 of the will that 'tax revenue and cost of repairs' of the house Nos. 16 and 17 are to be paid out of the rents realized by his executors of the testator's house and lands in Harrison Road. The testator then proceeds:
My executors shall spend Rs. 16 per month for the worship of the Thakurs established in my aforesaid house, Nos. 16 and 17, Kumertolli Street, and for daily recitation of Chandiput in my aforesaid house. Afterwards, out of the said rent (i.e., the rent of the property in Harrison Road) the executors shall every month lay aside Rs. 250 per month, and thus secure every year three thousand rupees in a lump and (with the said money secured in a lump) Durgatsub and Dolejatra shall every year be celebrated in my aforesaid house Nos. 16 and 17, Kumertolli Street. Out of the same Rs. 2,500 shall be spent in Durgatsub and Rs. 500 in Dolejatra. Afterwards out of the said rent Rs. 500 shall be annually spent for the annual shrad of my Ishur Pita Thakur (deceased father) and for feeding Brahmins and persons of other castes on the occasion of the shrads. The balance left after paying the expenses specified in this paragraph out of the rent of these houses (i.e., the Harrison Road property) shall be divided in the mode stated below.
22. By paragraph 7 the testator provides that the residue of his property, including the balance of the rent of the Harrison Road properties, shall be divided into three parts, and given to his two sons and the sons of his predeceased son. The testator having thus provided for the permanent dedication of his family residence for certain particular purposes, and having created a charge on the Harrison Road properties for the maintenance of this endowment, proceeds to say that the person who shall collect the rents of the Harrison Road properties and carry out the trusts created for religious worship, and the celebration of the festivals in the house dedicated for this purpose, shall be the senior in age among his lineal descendants and persons, following the Hindu religion.
23. It is said that there are no express words of gift in favour of the idol, and that failing such words of gift there is nothing more than a trust for worship created by the will, and that subject to such trust the beneficial interest in the property passes to the heirs of the testator or falls into the residue. But no express words of gift to the idol either directly or indirectly in the shape of a trust are required to create a valid dedication; see the remarks of West, J., in Manohar Ganesh Tambekar v. Lakhmiram Govindram (1887) I.L.R. 12 Bom. 263.
24. Under the Hindu law an idol as symbolical of certain religious purposes is capable of being endowed or vested with property. But it is not an essential condition of a valid endowment that it should take the form of an express gift to an idol. All that is necessary is that the religious purposes or objects of the testator should be clearly specified, and that the property intended for the endowment should be set apart for or dedicated to these purposes.
25. In the present case the language of the will shews that the testator intended that the dedication or endowment that he was making should operate so as to cover the whole of the beneficial interest he had in this property. There is no reservation of any proprietary or pecuniary right or interest in the property in favour of his family which could be attached in execution in satisfaction of their debts. His heirs as such are excluded in express terms from all rights to the property. The right of living, which is reserved in favour of his sons and grandsons and their families, is rather of the nature of a personal privilege which the testator intended to continue to certain persons who were in the enjoyment of it, by his permission, during his life-time. It is noteworthy that the language employed by the testator in making this reservation seems to exclude the idea that he intended to create a heritable right. The words used for sons and grandsons in the vernacular do not convey the idea of a line of succession of heirs, and in this respect this clause of the will differs from the subsequent clauses which deal with the specific gifts to his sons and grandsons. Moreover, the testator himself by his will has drawn a marked distinction between the dedication or endowment of a property and a charge or trust to provide for the expenses of religious worship. Paragraph 1 deals with the case of a dedication of property and paragraph 5 with a charge or trust for religious purposes.
26. In these respects the case, seems distinguishable from the cases of Sonatun By sack v. Juggutsoonderee Dossee (1859) 8 Moo. I. A. 66 and of Ashutosh Dutt v. Doorga Churn Chatterjee (1879) I. L.R. 5 Cal. 438: L. R. 6 I. R. 182. I hold therefore that there has been a valid perpetual endowment or dedication effected by the testator of the premises Nos. 16 and 17, Kumerfcolli Street, for the religious purposes mentioned in paragraph 1 of the will.
27. The question still remains whether the testator, in reserving to his sons and grandsons and their families the right of living in the premises dedicated by him for religious purposes, intended to exclude his sons or grandsons from carrying on or practising therein the business or profession for which they had been or were being trained.
28. There are certain indications of the testator's mind derivable from the will itself, which are not without a bearing on this question. It is to be remembered the testator himself had kept his place of business separate from his family residence, at all events ever since the premises Nos. 16 and 17, Kumertolli Street, became the family residence. The testator then provides for his family continuing to reside in the same place and proceeds to devise to each of his sons and to his grandsons a separate house suitable (so far as one can judge) for business purposes, and in so doing it seems not improbable that the testator contemplated that his sons and grandsons would carry on their separate businesses in these different houses. Moreover, it is clear that the testator insisted that those of his descendants who chose to live together in the residence he had provided for them should do so amicably and peaceably. If, therefore, the testator was anxious so to arrange that his descendants should live together harmoniously, it seems inconsistent to suppose that heat the same time contemplated the possibility of different members of the family carrying on rival businesses in the common residence, because it is difficult to imagine a state of things which would be more likely to introduce friction and discord. It is reasonable on the other hand to suppose that the testator would be specially anxious to exclude all such disturbing elements as might be likely to induce disputes amongst his heirs in connection with a property he desired should be maintained as a perpetual religious endowment.
29. Apart from the expressions contained in the will itself, I think the case is one where the surrounding facts and circumstances may be fairly looked to, for the purpose of obtaining an indication as to the testator's meaning in respect of the clause in question. I think it may be said that the testator intended that the privilege of living in the family dwelling house should be interpreted with regard to his sons and grandsons after his death in the same way as he interpreted it during his life-time; that, in other words, his sons and grandsons should use the premises in the same manner and for the same purposes as he used them, or permitted them to be used, in his life-time. If then this is a test which may be fairly applied for ascertaining the testator's meaning, it is necessary to inquire as to what the mode of living was which the testator adopted during his life-time for himself and the members of his family at the premises Nos. 16 and 17, Kumertolli Street, from the time it became the family residence.
30. [The learned Judge then considered all the evidence on this point and continued---]
31. All these facts taken together indicate I think very clearly that while the testator did not object to his youngest son using his baitakhana at No. 17 in a certain limited way for the purposes of his profession as a physician, he did object to the regular business of a medical dispensary being started and carried on in the house in which he and the other members of his family were living.
32. Another circumstance which may, I think, have affected the testator's meaning is the effect which the carrying on of the business of a medical dispensary at the family dwelling house might be expected to have on the state of comfort and enjoyment which the various members of the family had been previously accustomed to in living together. A large body of evidence has been adduced on the question as to the actual inconvenience occasioned to the female residents of the family dwelling house by the carrying on of the dispensary business by the defendant Gooroo Prosonno. I do not think it is necessary to examine this evidence in detail, because I am not prepared to say that the plaintiff has succeeded in showing that the effect of the defendant's action amounts to a nuisance or such an interference of the rights of the plaintiff or his family which, apart from the prohibition to be implied from the testator's will, would justify the issue of an injunction. But on the other hand I think there is sufficient evidence to show that the natural and ordinary incidents connected with the carrying on of a medical dispensary business in accordance with the Ayurvedic system at the family dwelling house, such as the supply of gratuitous medical relief to poor and needy patients, the preparation, storing and sale or other distribution of drugs, and the condition of publicity which must result from all these things cannot but interfere sensibly and appreciably with that condition and state of comfort and enjoyment and privacy of family life in which the testator maintained the members of his family during his life, and which, it may reasonably be supposed, the testator would, as an orthodox Hindu of wealth and position, be anxious to secure to them so long as they chose to live together in the residence which he provided for them.
33. All these considerations lead me to the conclusion that the defendant Gooroo Prosonno's action in opening and carrying on the business of a medical dispensary at the premises, Nos. 16 and 17, Kumertolli Street, is contrary to the wishes and intentions of the testator, and is opposed to the disposition which the testator has made in respect of these premises, and amounts to a breach of the trusts created by his will, and that the plaintiff is entitled to have the defendant restrained by the injunction of this Court from continuing so to act in breach of these trusts.
34. The claim for the relief sought in clause (c) of the prayer of the plaint has not been pressed, and as regards clause (d) the result of the evidence as to the structural alterations in the premises alleged to have been effected by the defendant Gooroo Prosonno Sen since the testator's death is not sufficiently clear to warrant the issue of the mandatory order which the plaintiff seeks.
35. The result is there will be a decree in terms of the 1st and 2nd paragraphs of the prayer in the plaint, but I think the declaration and injunction therein prayed for should be limited to the dispensary business now carried on in the premises, Nos. 16 and 17, Kumertolli Street, by the defendant Gooroo Prosonno Sen.
36. The defendant Gooroo Prosonno Sen must pay the plaintiff's costs of this suit, including the costs of the commission, to be taxed on scale 2. The other defendants must bear their own costs.