1. This is a suit brought by the Advocate-General for the purpose of having a scheme framed with reference to certain charitable bequests contained in the Will of Kanai Lall Seal, who died on the 25th November 1884. He appears to have been a man of considerable wealth.
2. By his Will which is dated the 10th August 1883, after appointing his sister's husband, his wife, brother-in-law and his manager, James Meak and his dewan executors and executrix, the testator makes provision for the charitable bequests in question.
3. The terms of Clause 3 of his Will are as follows:
I give in charity twelve to sixteen thousand rupees for building a lower roomed house and premises for the establishment of a Charitable Dispensary, and fifty thousand rupees for carrying on the said Dispensary. The executors shall demarcate one portion of the joint garden house we have at Ramkristoporegram as my separate share, and erect the buildings thereon, and after purchasing Company's papers for fifty thousand rupees, shall, out of the interest thereof, continue to carry on the work of the Charitable Dispensary. On to the said Dispensary (they) shall put up a signboard (slab) of stone with my name written on it, and (they) shall likewise have the power of paying over the said amount, and making over the charge of carrying on the work of the said Charitable Dispensary into the hands of Government.
4. After the death of Kanai Lall Seal an administration suit was started by Gopal Lall Seal, his only son, for the purpose of administering the estate, and in course of that administration suit, a reference was made to the Registrar to enquire and report upon certain matters including the public charitable bequest contained in the third paragraph of his Will.
5. On the 26th April 1887, the Registrar reports: A sum of Rs. 66,000 should be deposited in Court to the credit of a separate account to be opened in this suit and entitled Charitable Dispensary.'
6. In accordance with the terms of that report, which was confirmed by an order of this Court on the 5th May 1887, a sum of Rs. 66,000 was lodged in Court to the credit of a separate account, which was opened in Suit No. 481 of 1886 and entitled 'Charitable Dispensary Account' and these funds by the accumulation of interest are now represented by G.P. Notes of the nominal value of Rs. 1,02,100 and Rs. 20,411-l-6, in cash. Mr. Knight on behalf of the defendants, other than the defendant Belchambers, has argued, that Clause 3 of the Will does not show any general charitable intention, and that the only object the testator had in view was, that his trustee should have a license to erect a building on a part of the garden house and there carry on the business of a dispensary. To that argument I am unable to assent. The testator begins Clause 3 of his Will by giving in charity. Mr. Knight next argued that the bequest, even if the testator had manifested a general charitable intention, must fail, because the discretion the testator gave to his executors was a personal one to erect a dispensary on a particular piece of ground, and that by reason of the death of all the executors and also by reason of certain partition proceedings, the testator's estate has ceased to have any interest in the land in question, and the testator's intention must wholly fail.
7. But according to the doctrine of Cy-pres, it is quite clear that the testator has manifested a general charitable intention, this should not fail to be carried out merely because the executors are all dead and the particular land, on which the testator desired the dispensary to be erected, is not available for the purpose.
8. The next point Mr. Knight raises is that his clients are blood relations and are entitled to have the administration of the charity. On that point 1 am unable to accept the learned Counsel's argument; the testator meant the charities to be established by his executors and they were to carry out the charity, when established. The testator must have contemplated that some day his executors would die, and it cannot be said he meant the charity to come to an end on their death; moreover, the testator by his Will provides that the executors should have power to make over the charities to Government. There are no words in his 'Will nor is there any intention that this particular charity is to remain under the administration of any of the testator's relatives.
9. The last point is with regard to accumulation of interest on the fund in Court. These funds stand in Court to the credit of a separate account. It is well established that when monies have been lodged in Court to the credit of a separate account, they become separated from the general estate. The interest, therefore, accruing on a fund standing to a separate account does not form part of the residue, but goes so as to increase the fund in Court. Simply because the charity has not been established earlier does not render the interest, which has accrued on the fund in Court, applicable as a portion of the residue of the estate. The accumulations of interest, therefore, form part of the capital for the purpose of carrying out the charity. There must, therefore, be a reference to Chambers to frame a scheme for giving effect to the charity designated by the testator in Clause 3 of the Will.
10. Mr. Knight's clients may appear on the reference.