Mookerjee, Acting C.J.
1. This appeal is directed against the decree in a suit on an Originating Summons which was taken out for the determination of questions arising under a deed of settlement. On the 14th March 1913, the deed was executed by one Suprasanna Ray who, along with his brother, Upendranarayan Ray, jointly held and possessed extensive estates in different districts of Bengal. Disputes had arisen between the two brothers and a suit for partition of the joint properties had resulted in a decree on the 2nd February 1911. Suprasanna, however, failed to obtain possession of the properties awarded to him, and instituted a second suit for recovery of his allotment or for a fresh partition of the entire estate. The result was that Suprasanna became heavily indebted, and the affairs of his estate were in a state of great mismanagement. In these circumstances, he executed the trust deed under consideration, with a view to pay off his debts, and to make arrangements for the proper management of his properties, for the support and maintenance of himself and his family, and for the payment of charities which had been observed and paid by him and his father. Two trustees, who were to receive a remuneration of Rs. 100 a month each, were appointed, and the estate allotted to him in the first partition suit, or what might be allotted on the second partition, was vested in them. The trustees were empowered amongst other things to take possession, to recover all dues, and, from time to time, if and when they thought fit, 'to borrow money and to sell, exchange, surrender, give up, mortgage, charge, pledge or dispose of the properties' conveyed to them or any of them or any portion thereof. These are inaccurately described as 'trusts,' but are really 'powers' conferred on the trustees to enable them to carry out the trusts effectively. In the seventh clause, the trusts which were to be performed out of the rents, issues, profits and income of the properties ' were enumerated in the following order:
(1) To pay the litigation expenses;
(2) To pay the management charges:
(3) To pay the interest on secured debts;
(4) To pay the interest on unsecured debts;
(5) To pay Rs. 200 a month to the settlor for personal expenses and Rs. 350 a month to his wife for household expenses--these sums to be raised to Rs. 250 and Rs. 500 respectively, after half the debts had been discharged;
(6) To apply the balance, if any, to the liquidation of debts specified in one of the schedules or proved to the satisfaction of the trustees:
(7) (a) To expend, after the liquidation of all the debts, 'the sum of Rs. 500 per month for such medical and educational charities within the Zemindari of the settlor as shall, with the approval of the settlor, appear just to the trustees. '
(b) To pay Rs. 500 per month to the wife of the settlor for household expenses; and
(c) To pay the balance to the settlor.
2. The seventh Clause further contained a provision that, on the death of the wife of the settlor during his lifetime, the amount made payable to her would become payable to the settlor himself until he remarried, when it would become payable to the newly married wife.
3. The eighth Clause laid down that, after the liquidation of the debts, properties yielding an income of Rs. 1,000 a month would be transferred to the settlor absolutely subject to the condition that if any of the properties were sold, the income of the properties to be so conveyed would be reduced proportionately.
4. The ninth Clause provided that, after liquidation of debts, or, after the death of the settlor, whichever event might happen last, the trustees would transfer the residue of the properties to the wife absolutely, 'subject nevertheless to the payment of Rs. 500 per month for the charities here in before mentioned and also subject to the transfer to the settlor and his heirs contemplated in Clause 8.'
5. On the 1st April 1915 the trustees, by a deed to which the settlor and his wife were parties, sold the whole of the settled properties to his brother and co-parcener for a consideration of five and-a-half lacs of rupees. The debts were discharged and the net value of the balance left was about two and-a-half lacs of rupees. The settlor died on the 10th August 1918, leaving his widow, one son and two daughters. On the 25th November 1918 the widow instituted the present proceedings against the trustees, with a view to obtain the directions of the Court upon six matters, The two trustees as also the children (who were infants) and the Advocate General of Bengal were joined as parties defendants. The chief question in controversy was, whether the provision for payment of Rs. 500 a month to charities was operative, and the Advocate-General was made a party with a view to enable him to support the validity of the charity. Mr. Justice Rankin has pronounced in favour of the charity, though 'not without considerable hesitation.' The plaintiff has appealed to this Court, and the only person joined as respondent is the Advocate-General, inasmuch as the only question raised by her in the appeal relates to the validity of the charitable trust. The trustees have not been joined as respondents, apparently for the reason that with their concurrence and at the request of the plaintiff, they have been relieved of their duties. The children also were not joined as parties to the appeal, but, at the hearing, Counsel appeared for their guardian ad litem, and supported the attack on the charitable trust made by their mother. In our opinion, the trustees as also the infants should have been joined as parties to the appeal; but in the view we take, it is possible for us to decide the question in issue, though the trustees are not represented before us.
6. To determine the true construction of the deed of settlement, it is useful to remember that regard must be had to the object and whole scope of the instrument, judged, if necessary, by reference to the surrounding circumstances. As was remarked by Page Wood, V.C. in Attorney-General v. Powis (Earl of) (1853) Kay 186 : 101 R.R. 571 : 2 Eq. R. 566 : 2 W.R. 140 : 69 E.R. 72, in construing a deed, the Court has a right to look to all the circumstances which the donor had before him at the time, such circumstances to be proved not by extrinsic evidence but by evidence afforded by the instrument itself. Again, as Lord Chelmsford, L.C. observed in Monypenny v. Monypenny (1859) 3 De G. & J. 572 : 121 R.R. 238 : 44 E.R. 1389, referring to Sheppard's Touchstone, in the construction of all parts of all kinds of deeds, amongst the rules to be universally observed, is one 'that the construction be made upon the entire deed and that one part of it doth help to expound another, and that every word, if it may be, may take effect and none be rejected.' Lord Watson indicated the same view when be said that the deed must be read as a whole in order to ascertain the true meaning of its several clauses per Lord Davey, in North Eastern Ry. Co. v. Hastings (1900) App. Cas. 260 at p. 267 : 60 L.J. Ch. 516 : 82 L.T. 429 : 16 T.L.R. 325. If we bear these principles in mind, we cannot hold in favour of the alleged charitable trust, merely upon the contents of the ninth Clause which contemplates a transfer of the residue, after the liquidation of the debts, to the wife of the settlor subject to the payment of Rs. 500 per month for the charities, indeed, the clause refers to the charities as 'hereinbefore mentioned.' Consequently we must refer back to the seventh clause, where provision is first made for the charitable trust in these terms :
After the liquidation and payment of the said debts, to spend the sum of Rs. 500 per month for such medical and educational charities within the Zemindaries of the settlor as shall, with the approval of the settlor, appear just to the trustees.
7. This clause leaves no room for doubt that the settlor intended that his debts should be discharged out of the income, and, after they had been liquidated in that manner, the charitable trust would come into operation, the expenditure in that behalf to be incurred from the income of the estate. The trust was further subject to two conditions, namely, first, that the charities were to be carried out within the Zemindaries of the settlor, and, secondly, that the charities were to be selected by the trustees and approved by the settlor himself. The events which have happened have rendered impossible the fulfilment of each and every one of these conditions. The Zemindaries have all been sold by the trustees with the concurrence of the settlor; the debts have not been discharged out of 'the rents, issues, profits and income' of the Zemindaries as intended by the settlor. On this account, the charities cannot be carried out 'within the Zemindaries of the settlor,' and possibly for this very reason, the charities were not selected by the trustees and approved by the settlor. In these circumstances, the case, in our opinion, falls within the principle that where a charitable gift is made upon a condition precedent, the gift fails if the condition is not satisfied--a principle of fundamental importance which has been repeatedly recognised by the Courts: Emson In re Grain v. Grain (1905) 74 L.J. Ch. 565 : 21 T.L.R. 623 : 93 L.T. 105; De Themmines v. De Bonneval (1828) 5 Russ. 288 at p. 289 : 7 L.J. Ch. 36 : 29 R.R. 17 : 38 E.R. 1035; Attorney-General v. Craven (1856) 21 Beav. 392 : 25 L.J. Ch. 291 : 2 Jur. (N.S.) 296 : 4 W.R. 340 : 111 R.R. 133 : 52 E.R. 910; Cherry v. Mott (1836) 1 My. & Cr. 123 at p. 132 : 5 L.J. (N.S.) Ch. 65 : 43 R.R. 156 : 40 E.R. 323; Chamber' layne v. Brochett (1872) 8 Ch. App. 206 : 42 L.J. Ch. 368 : 28 L.T. 248 : 21 W.R. 299. A strenuous endeavour, however, has been made to validate the charity by invoking the aid of the cypres doctrine, namely, that when a general intention of charity is manifest, but the particular object of the bounty of the founder cannot be carried out literally, it must' be carried into effect as nearly as possible,--a doctrine which has been not only applied to protect charitable trusts at their birth but also to save them from an untimely end. Reference has been made in this connection to the judgment of Lord Eldon in Mills v. Farmer (1815) 1 Mer. 55 : 19 Ves. 483 : 13 R.R. 247 : 35 E.R. 597, where he followed his earlier decision in Moggridge v. Thackwell (1792) 1 Ves. Jr. 464 : 3 Br. C.C. 517 : 2 R.R. 140 : 30 E.R. 410 which had been meanwhile approved by the House of Lords Moggridge v. Thackwell (1807) 13 Ves. Jr. 416 : 6 R.R. 76 : 33 E.R. 350. In that case, Lord Eldon formulated three principles, namely, first that the Court has not the power to make a Will for the testator, but only to carry into execution that which he has made himself of. Hunter v. Attorney-General (1899) A.C. 309 at p. 315 : 68 L.J. Ch. 449 : 80 L.T. 732 : 47 W.R. 673 : 15 T.L.R. 384; secondly, to give effect to a bequest in favour of charity, the Court will, if no executor has been appointed or if the executor named has died in the lifetime of the testator, supply the place of an executor and carry into effect that which, in the ease of individuals, must have failed altogether of. Lyons Corportion v. Advocate General of Bengal (1875) 1 App. Cas. 91 at p. 112 : 45 L.J.P.C. 17 : 34 L.T. 77 : 24 W.R. 679 and, thirdly, in all cases in which the testator has expressed an intention to give to charitable purposes, if that intention is decland absolutely, and nothing is left uncertain but the mode in which it is to be carried into effect, the intention will be carried into execution by the Court, which will then supply the mode which alone was left deficient. The true position, then, is that to attract the application of the cypres doctrine, an absolute declaration of intention to give to charity must be established. The case before us fails to satisfy this essential test; we do not find, within the four corners of the deed taken in its entirety, what is called a general charitable intent overlying the particular charitable bequest' or 'an overriding charitable intention ' White's Trusts, In re (1886) 33 Ch. D. 449 : 55 L.J. Ch. 701 : 55 L.T. 162 : 24 W.R. 771 : 50 J.P. 695, Biscce v. Jackson (1887) 36 Ch. D. 460 : 66 L.J. Ch. 540 : 66 L.T. 753 : 35 W.R. 554; the settlor has not manifested a desire to devote in any event a fund to charity, so as to entitle the Court to bold that though his charitable intention cannot be literally carried out, it will be carried into effect as nearly as possible. Here, we have, in substance, a case not of breakdown of the machinery required to carry out a validly created charitable trust, but, rather, of initial failure of the conditions essential to bring the trust into existence. This distinction is well illustrated by the decision of the House of Lords in Yates v. University College London (1875) 7 H.L. 438 : 45 L.J. Ch. 137 : 32 L.T. 49 : 23 W.R. 408 where there was a bequest to the College to found a Professorship of Archaeology, with a statement of intention on the part of the testator, which he did not carry out, to make rules for the regulation of the Professorship. Lord Selborne, L.C, in the Court of Appeal Yotes v. University College London (1873) 8 Ch. App. 454 at p 460 : 42 L.J. Ch. 661 : 28 L.T. 461 : 21 W.R. 533, observed that 'regulation, in the case of a charity, is one thing, foundation is another,' and held that the words of immediate gift could not be narrowed by declaration of intention to do something in future. Lord Cairns, L. C, adopted the same view in the House of Lords, and held that if it could be found in the original bequest that there was something which required to be supplemented, so that one could not predicate of it that it was a complete bequest without the supplement, and if that supplement had not been applied or added, the bequest would have remained incomplete and consequently inoperative of. Grimond v. Grimond (1905) A.C. 124 : 74 L.J.P.C. 35 : 92 L.T. 477 : 21 T.L.R. 328; Houston v. Burns (1918) A.C. 337 : 87 L.J.P.C. 99 : 118 L.T. 482 : 34 T.L.R. 219. We hold, accordingly, that, in the events which have happened in this case, the gift of Rs. 500 a month for medical and educational charities has not taken effect, as the conditions precedent have not been satisfied and have now become impassible, This conclusion renders unnecessary a detailed examination of the interesting question, whether or not the charitable gift, if otherwise valid, is vitiated by the rule against perpetuities; we need only say that there is considerable force in the contention that as the trust in favour of the charity did not vest immediately, but was subject to a condition, namely, liquidation of the debts from the income, which might not be fulfilled within the period prescribed by the law, the gift, though charitable, would be affected by the rule against remoteness: Chamber layne v. Brockett (1872) 8 Ch. App. 206 : 42 L.J. Ch. 368 : 28 L.T. 248 : 21 W.R. 299; White's Trusts In re (1886) 33 Ch. D. 449 : 55 L.J. Ch. 701 : 55 L.T. 162 : 24 W.R. 771 : 50 J.P. 695; Bowen In re Lloyd Phillips v. Davis (1893) 2 Ch. 491 : 62 L.J. Ch. 981 : 68 L.T. 781 : 41 W.R. 535 : 8 R. 629.
8. We desire in conclusion to refer to an important aspect of the question in controversy, which does not appear to have been noticed up to this stage of the litigation, The case was argued in the Court below, as also in this Court, on the assumption that the doctrine of cypres was applicable. There is, however, weighty authority for the proposition that the doctrine of cypres is applied only in Wills and not in deeds, in Brudenell v. Elwes (1801) 1 East 442 at p. 451 : 6 R.R. 310 : 102 E.R. 171 Lord Kenyon, C.J., who as Master of the Rolla had carried the doctrine of cypres to its farthest limits in Pitt v. Jackson (1736) 2 Brown C.C. 51 : 29 E.R. 27, observed as follows:
The doctrine of cypres goes to the utmost verge of the law, even in the construction of Wills; and we must take care that it does not run wild. But it has never been applied to the construction of deeds. The cases cited were questions upon Wills.
9. In the Same case, when before Lord Eldon Bruderiell v. Elwes (1802) 7 Ves. Jr. 382 : 32 E.R. 155 : 6 R.R. 310, the Lord Chancellor said:
This case does not come near Pitt v. Jackson (1736) 2 Brown C.C. 51 : 29 E.R. 27 and the other oases upon Wills: first, as they are oases upon Wills, not deeds, to which this doctrine has not been applied; secondly, those oases have at least gone, as Lord Kenyon observes, to the utmost verge of the law.
10. The same view had been adopted by Lord Mansfield, by implication at least, in the case of Adams v. Adams (1777) 2 Cowper 651 : 98 E.R. 1289. There under a power to appoint to children, the parent appointed by deed to the children for life, remainder to their sons in tail, remainder to their daughers in tail; the grand-children were not objects of the power; but as the appointment was by deed, the doctrine, of cypres was not discussed (3 Property Lawyer 249, where opinions of Sir John Scott, Sir John Mitford and Sir Samuel Romilly on this case are set out). In a case before Sir Edward Sugden, when Lord Chancellor of Ireland [Stackpoole v. Stackpoole (1813) 4 Dr. & War. 320 at p. 318 : 3 C. & L. 489 : 6 Ir. Eq. R. 18 : 65 R.R. 706], it was conceded that the doctrine of cypres could not be applied to deeds, and in bis Treatise on Powers (1861, page 502), he adopted the view that the doctrine of cypres is confined to Wills, and does not extend, to limitations by deed only, of either real or personal estate. Lewis in his Treatise on Perpetuity (1843, page 440) enunciates the same principle and points out that Preston (Essay on Abstracts of Title, 1824, Volume 2, 166, 167) seemed inclined to the opinion that the doctrine of cypres was admissible in the construction of limitations by way of trust, in deeds, although not of similar limitations of legal estates; but no authority was adduced for this opinion, which was hesitatingly expressed and was not confirmed by that of any other author or by any decided case. Lewis observes that the doctrine of cypres is in fact an offshoot of that general system of indulgence and laxity of construction as respects Wills, which has long obtained in our Courts both of law and equity, but which has not been suffered to have place, in regard to the interpretation of and giving effect to instruments inter vivos.' The preponderence of authority is thus in favour of the view that the doctrine of cypres is applicable only in Wills and not in deeds. If this distinction between the construction of deeds and of Wills is maintained, there can be no doubt that the charitable gift in the present instance must fail.
11. The result is that this appeal is allowed and the decree of the Court below set aside with regard to the trust in favour of medical and educational charities, which will be declared invalid and inoperative in the events that have happened. We further? direct that all questions which involve a conflict of interest between the widow of the settlor and their childern be left open, as there is no dispute amongst them at the present moment.
12. The costs of all the parties to this appeal, including the costs of the Advocate-General will be paid out of the estate. If we apply to this case the language of Lord Halsbury, L.C., in Hunter v. Attorney-General (1899) A.C. 309 at p. 315 : 68 L.J. Ch. 449 : 80 L.T. 732 : 47 W.R. 673 : 15 T.L.R. 384 we may say that considering the fact that the Advocate-General was made a defendant, in a public capacity, as the guardian of a charitable fund, as this was supposed to be, and that he had the judgment of the primary Court which asserted that it was a charity, it would have been contrary to his duty as Advocate. General if he bad not appeared in support of the judgment of the Trial Court which pronounced this to be a charity. In such circumstances, he ought to have bis costs paid out of the estate. The costs of all the parties will be as between party and party with liberty to them to apply, if necessary.
13. I agree.