1. The plaintiff in this suit seeks to have the Will of ore Ram Gopal Sen construed and the rights, shares and interests under the said Wilt of the parties to the suit ascertained and for administration of the estate of Ram Gopal Sen under the direction of the Court and for an account of the estate from the defendant Bidhumukhi Dasi from the testator's death and for partition. The plaintiff is a son of Ram Gopal Sen, the let defendant is his widow and the executrix of his Will, the defendant Sham Lal Sen is a son, the defendants Manick Lal Sen, Nitya Lal Sen and GourLal Sen are sons of a deceased son Heera Lal Sen who survived the testator and died after the institution of the suit the defendants Sankar Lal Sen, Rash Behary Sen and Gosto Behary Sen are sons of another son of the testator named Bolai Chand Sen who survived the testator and died in the year 1895, the defendant Champa Dassi is the widow of another son Adhar Lal Sen who survived the testator and died in 1885 without leaving a son but leaving four daughters, three of whom are dead, two of them having left male issue, the defendant Bepin Behary Sen is a son of Doyal Chand Sen, a son of the testator who predeceased him, and the defendant Srimati Barai Dassi is a daughter of another son of Doyal Chand named Amrito who is dead, Srimati Barai had a son born to her last April. Amrita bad a son Ganesh who died some time in or after the year 1905.
2. Ram Gopal Sen died on the 16th November 1880 a Hindu governed by the Bengal School of Hindu Law leaving a Will, dated the 9th October 1878, probate whereof was granted cut of this Court in the year 1882 to the defendant Srimati Bidhumukhi Dasi, the executrix therein named. The heirs of Ram Gopal Sen at the time of his death were his five sons Bolai Chand, Sham Lal, Ram Lal, Adhar Lal and Heera Lal, and his two grandsons Bepin Behari and Amrita Lal.
3. The testator by his said Will appointed his wife, the defendant Srimati Bidhumukhi Dasi, executrix and trustee thereof and directed her to pay his debts and funeral and testamentary expenses and to expend a certain sum therein named on his first Shrad and after giving certain legacies, including a sum of Rs. 20,000 in Government 4 p. c. securities, to his wife for her life, to the end that the might spend and enjoy the interest thereof during her life, gave, devised and bequeathed the rest and residue of his estate moveable and immoveable unto his wife and her assigns for life interest to collect the rents, issues and profits thereof and to pay the ground rents, taxes and assessments payable in respect of the immoveable property and to keep the same in repair, and in the second place to expend according to her discretion a turn of not more than Rs. 3,600 a year towards the maintenance and education of his family, consisting of his wife his five sons thereinafter named, and their wives and children and the! widow and children of his deceased son Doyal Chand Sen, and in defraying other family and customary expenses, and in the next place to accumulate the surplus income for the benefit of his said five sons, they all living in com-mentality in his dwelling house, and he directed that in case any of his said sons should live apart from the rest of his family he should be paid a monthly sum of Rs. 25 for his maintenance. The testator then upon the. death of his wife gave, devised and bequeathed his house No. 30, Sunker Haider Lane, and certain shares to his infant grandsons Amrita Lal and Bepin Behary in equal shares, subject to the charge of maintaining their mother, and provided that in the event of either of them dying without male issue his share would pass to the survivor, subject to the charge of maintaining his widow and female issue (if any) and marrying the latter, and he provided that in the event of both his grandsons dying without male ' issue the bequest, except the Railway shares which were to pass to the survivor's heirs, should revert to and become a part of his residue, to devolve on his said five sons and their heirs subject to the limitation thereunder provided. And he gave the rest and residue of his estate moveable and immoveable oh the death of his wife to his five sons, whom he name, in equal shares and proportions, but he provided that in the event of the death of any of them without male issue his share should pass to the survivors or survivor, subject to the charge of maintaining his widow and marrying the daughter of the son so dying, should be leave any, and paying to such widow or daughter Rs. 1,000 or more, at the same rate if more than one.
4. The plaintiff contends that the provision for accumulation is bad not on the ground of the length of the period of accumulation but as being repugnant, and he contends that if there is no gift until the wife dies there is an intestacy as to the amounts directed to be accumulated until her death. The widow contends that the accumulation is good and that the suit is premature and that nothing is divisible until her death; alternatively she contends that she take; a life estate in the whole income, the provision for accumulation being merely discretionary, and in the further alternative she contends that she gets a life estate by implication.
5. If the widow's main contention, namely, that the provision for accumulation is not invalid, prevails, then no question at present arises for decision and the suit is premature as no case for an account has been made out. Bat it seems to me that to decide if the provision for accumulation is valid, it is necessary first to see whether under the Will the sons took immediate vested interests under the Will or if vesting is postponed until the widow's death. If the sons took vested interests at the testator's death, then one of the arguments levelled against the provision for accumulation goes, namely, that the accumulations having no owner until the widow's death the provision for accumulation is bad. The argument is based on a passage in Trevelyan's Hindu Law, 2nd Edition page 41, where it is laid down that every part and interest in a property must have an owner, it cannot remain in suspense or abeyance without an owner, it must vest in some one.
6. Now the clause in the Will directing the accumulations contains no express gifts of the accumulations and I do not thick that any gift can be implied from the words 'for the benefit of my said, five sons.' The sons are entitled to be maintained but, of the sum of Rs. 3,600 or if they separate, they get Rs. 25 a month from the estate, and if the words 'for the benefit of my said five sons' were intended to confer an immediate gift of surplus income, it is at least unlikely that there would have been as well provision for their maintenance. Presumably, therefore, if the provision for accumulation is valid, the accumulations fall into residue and pass under the gift of the rest and residue of the estate to the five sons on the death of the widow. Did then this gift vest in the sons on the death of the testator or is vesting postponed until the widow's death? I think that the gift vested on the death of the testator Section 47 of the Hindu Wills Act, which is Section 106 of the Succession Act, provides that where by the terms of a bequest the legatee is not entitled to immediate possession of the thins bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the Will, become vested in the legatee on the testator's death and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such eases the legacy is, from the testator's death, paid to be vested in interest, and the explanation to the section states that an intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed or whereby a prior interest therein is bequeathed to some other persons or whereby the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives or from a provision that if a particular event shall happen the legacy shall go over to another person. I cannot see that in the Will before me any contrary intention appears, and the fact that there is a gift over to the surviving sons, in certain events, of a son's share (and the expression 'his' share certainly looks like a vested interest) is not in my opinion a contrary intention and in fact the section so states.
7. That such a gift is a valid gift see Section 59 of the Hindu Wills Act and it does not make the interest any less a vested interest but merely divests in certain events the estates or gift which has already vested, I think the five sons upon the death of the testator took immediate vested interests in the residue, which includes the accumulations, but I think that the estate of any son was liable to be divested upon his death without male issue during the life time of the widow. Counsel for Champa Dassee con-tended in reliance on Poultney, In re; Poultney v. Poultney (1912) 2 Ch. 541 : 81 L.J. Ch. 748 : 107 L.T. 1 : 56 S.J. 667 that 'dying without male issue' meant death in the testator's lifetime, but unfortunately for his argument he has failed to notice that, the decision of Joyce, J., in Poultney, In re: Poultney v. poultney (1912) 1 Ch. 245 was reversed on appeal see Poultney, In re: Poultney v. Poultney (1912) 2 Ch. 541 : 81 L.J. Ch. 748 : 107 L.T. 1 : 56 S.J. 667. I think that 'dying without male issue' upon the true construction of the clause means death in the widow's lifetime and that Adhar's vested interest was divested upon his death in the widow's lifetime, without male issue. but of course under the terms of the Will the share of Adhar passed to the surviving sons, subject to the charge imposed on the gift of residue of maintaining Champa Dassee when the residue falls into possession and of making the payments to the widow and daughters directed by the Will. It did occur to me that a possible solution of any difficulty with regard to the accumulations might be found in holding that as under the gift of residue the accumulations pass to the sons eventually, they might noon the principle of Saunders v. Vautier (1855) 1 Boulnois 223 : 3 Ind. Dec. (O.S.) 133 and like cases stop the accumulations at any time and claim the surolus income as it accrues. But two difficulties present themselves, (i) the gift over to the surviving sons in the event of a son dying without male issue in the lifetime of the tenant for life, (ii) the rights of Champa Dassee and her daughters respectively to maintenance and legacies out of Adhar's divested share of the residue, which includes the accumulations. The 1st point might be got over by the so as agreeing inter se to give up their rights of survivorship, but the 2nd point remains and could only be get over by Champa Dassee releasing her right of maintenance against the accumulations and by payment to her and her daughters of their legacies. But as matters stand I am of opinion that the principle of Saunders v. Vautier (1841) Cr. & Ph. 240 : 10 L.J. Ch. 354 : 54 R.R. 286 has no application.
8. It remains therefore, to consider under the circumstances of this case whether the provision for accumulation of surplus income during the lifetime of the widow is valid according to Hindu Law. bearing in mind the fact that according to the construction which I have put upon the residuary gift, the sons took immediate vested interests upon the testator's death. Now the question of the validity in a Will of a provision for accumulation of surplus income was recently discussed by the Appeal Court in Walking v. Administrator General of Bengal, suit No. 611 of 1907, Appeal No. 92 of 1913*. The case has escaped the vigilance of the reporters or perhaps I should rather say is unreported owing to their lack of vigilance. There Sir Lawrence Jenkins in delivering the judgment of the Court in unequivocal terms lays down, after discussing, the cases that 'A direction to accumulate with a gift of the accumulations is not fundamentally bad: it only fails if it offends some independent rule of Hindu Law. Thus it may infringe the rule against perpetuities, and so far as that goes it mutt be a question for consideration in each cafe whether there is such an infringement or not. Or the direction to accumulate may be repugnant and so void, as an attempt to deprive a person of the enjoyment of that which has become his property.' And later in the judgment he states 'What then is the period daring which an accumulation can be validly' directed On principle I think it must be for so long a time as the absolute vesting of the entire interest can be withheld' (and I take him to mean by absolute vesting vesting in possession), or, for so long a time as that daring which the corpus of the property can be rendered inalienable or its course or devolution can be directed and controlled by a. testator.' This decision of coarse is binding on me and 1 have not accordingly 'thought it necessary to refer to the authorities which are discussed and referred to in the judgment. It remains to apply this decision to the Will before me. Now accumulation is only directed during the lifetime of the widow, consequently there is no perpetuity as this is a period, namely, a life in being, during which the corpus can be rendered inalienable and its course and devolution directed and controlled by the testator. Nor in my opinion is the provision for accumulation repugnant having regard to the form of the residuary gift, and for the reasons which I have already stated. Consequently 1 hold upon the authority of the above case that the provision for accumulation of surplus income in the Will now before me is not invalid. This disposes of the suit and it is not necessary in the view 1 take for me to decide whether the widow took a life-estate in the whole income, as I understand that she only desired to press this in the event of the provision for accumulation being held bad. I have expressed my view with regard to Adhar Lal's share, as it was I think necessary for me to do so for the purposes of this judgment; but I do not propose to make any declaration with regard to this share as Adhar Dal's daughters and their representatives are not before the Court and accordingly no declaration which I made would be binding on them. The suit accordingly fails and must be dismissed.
* The following is the judgment in Appeal No. 92 of 1913, dated March 4, 1914, decided by Sir Lawrence Jenkins, Kt., Chief Justice, and Mr. Justice Woodroffe.
Once more the Will of Haridass Butt is before the Court.
The testator by this Will made provision, as he thought, for the adoption of a son or sons. He died in 1875, and in the following year an adoption ceremony was performed as contemplated by the Will. In 1881 the boy died and after the lapse of a month the testator's widow, Swarnamoyee Dassee, again purported to make an adoption, the boy this time being Amrita Lal Dutt. This boy was married in the family and throughout treated as a validly adopted son until he instituted a Suit No. 535 of 1894 against Swarnamoyee Dassee and her daughter and their sons, claiming the corpus of the estate and in any event the surplus income notwithstanding the provision for postponement of vesting and accumulation contained in the Will
By way of defence the validity of Amrita's adoption was denied and this plea was upheld by this Court on appeal and by the privy Council. Since then the Will has been the subject of two more appeals to the Privy Council, and if the forecast of Counsel is correct, there are probably as many more appeals to that tribunal in store.
The determination of this suit turns on the true construction of clause 9 of the Will which is in these terms:--
I direct my executors and executrix and trustees to pay out of the income and interest of my estate and effects monthly all necessary household expenses as well as for the worship of our family idol Sri Sri Radha Gobindji and to pay my wife monthly during her natural life for her sole and separate use the sum of Rupees two hundred and also the sum of Rupees fifty monthly to such adopted son, who shall live and attain his full age of 18 years, after his so attaining such age of 18 years during the lifetime of my said wife, provided he remains under her control and bears a good character, and if my said executrix and executors and trustees think fit and are satisfied with his conduct and behaviour, and for the purposes of such monthly expenditure my executrix, executors and trustees shall set apart and retain out of the interest and income of my estate a sum sufficient to meet such expenditure for six months and invest the rest and residue of such income and interest in Government securities in their joint names, but in no case shall such adopted son have or exercise any control, dominion over my estate and effects until the death of my wife, after which event I direct my said executors and trustees to make over the whole of my estate and effects both real and personal immoveable or moveable whatsoever and wheresoever and of what nature or quantity soever to such adopted son who shall survive my wife, if he shall have attained his age of 18 years during the lifetime of my wife or on his so attaining such age after her decease, to whom and his heirs I give, devise and bequeath the same. But in case none of such adopted sons survive my said wife or in case of either surviving my said wife and dying under the said age without leaving a son or sons, I desire and direct my executors after the death of my said wife or the death of such son after her but under such age of 18 years without leaving a son or sons to make over and divide the whole of my estate both real and personal unto and between my daughters in equal shares, to whom and their respective sons I give, devise and bequeath the same, but should either of my said daughters die without having any male issue surviving but leaving my other daughter her surviving, then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter or in case of the death of other daughter leaving sons the share of such daughter is to be paid to such her son or sons share and share alike.
As there was and could be no adopted son, it is necessary to see what the testator's family was at his death. Besides his widow Swarnamoyee, he left two daughters Ranimoni Dasi and Premmoni Dasi, and three grandsons Radha Prasad Mullick, Kassi Prasad Mullick and Jyoti Prasad Mullick. After the testator's death two other sons were born to Premmoni Dasi, Peary Lall Mullick and Behari Lal Mullick, while Ranimoni claims to have taken Jugal Kishore in adoption in l809.
The present suit was instituted on the 12th April 907 by Mr. Watkins, described as the administrator pendente lite of the property and credits of Haridass Dutt, against the Administrator-General of Bengal as executor of the last will of Swarnamoyee and Bal Mohan Dutt and Preolal Dutt as the executors of the Will of Dwarka Nath Dutt. With these Dutt defendants we now have no further concern, for the suit has been dismissed as against them Since the institution of the suit there have been several amendments On the 8th May 1909 Sreemati Premmoni Dasi and her son Radha Prasad Mullick were added as plaintiffs Both Mr. Watkins and Premmoni died before the hearing and thereby Radha Prasad Mullick became and continued up to decree to be the sole plaintiff.
Since the institution of the suit Ranimoni Dassi and Jugal Kishore Sen have been added as defendants as also the plaintiff's brothers Kassi Prosad Mullick, Peary Lal Mulickand Behari Lal Mullick.
The prayers to the plaint are numerous, but in effect what the plaintiff seeks to establish is that certain properties named or indicated in the plaint as well as the surplus income accrued during the widow's life form part of the trust estate: and that he and the added defendants are together entitled thereto to the widow's exclusion
This claim has been based on two alternative grounds. First, it is said that in the events which happened the daughters took vested interests in possession from (he death of the testator, so that the whole income was payable to them from that date; failing that it is urged that the trust. for accumulation was good, so that the daughters and their sons between them became entitled to the income and capital of the accumulated fund.
The Administrator-General on the other hand maintains that the daughters' interests did not vest in possession until the widow's death, that the trust for accumulation during her life was invalid, and that the income was not disposed of, and so went as on an intestacy to the widow as her husband's next heir.
The literal sense of the words in clause 9 of the Will make? the gift to the adopted son conditional on his surviving the widow and attaining the age of 18, and postpones the vesting of the daughters' interests until the death of the widow if there was no adopted son
This in effect is the interpretation placed on the Will by the Privy Council in Amrito Lal Dutt v. Surnomoye Dasi 27 C. 996 : 27 I.A. 128 : 4 C.W.N. 549 : 2 Bom. L.R. 446 : 7. Sar P.C.J. 633 : 14 Ind. Deo. N.S. 652, for it was there said by their Lordships 'By the ninth clause the testator provided an income for his wife and adopted son during the life of his wife and directed accumulation of the surplus income The adopted son is to take the property if he survives the widow and attains IP, otherwise it is given over to the daughters ' See page 100]. later their Lordships describe the testator as 'postponing enjoyment during the widow's life and making the boy's interest in the corpus contingent on his surviving the wife and attaining 18.' Had the authority to adopt been effective, any other construction would obviously have led to results that could not have been intended, seeing that successive adoptions were contemplated.
Though the possibility of an adopted son was out of the question from the first, still in form the gift to the daughters and their tons was on failure of the adopted son and after the death of the widow, and that this gift was good was decided by the Privy Council in Radha Prasad Mullick v. Ranee Mani Dasee 35 C. 896 : 12 C.W.N. 729 : P.C. 25 I.A. 118 : 4 M.L.T. 23 : 18 M.L.J. 287 : 5 A.L.J. 460 : 10 Bom. L.R. 604 : S.C.L.J. 48. It was there held that the daughters were entitled to the testator's estate in equal shares for life with a remainder over to their sons.
The decision makes no special mention of the accumulations. But whether they be claimed by the widow as heiress, or the daughters and their sons as universal legatees, they are claimed as part of the testator's estate. The gift in the Will is of the 'whole of my estate both real and personal,'' why then should not the accumulations pass to the universal legatees?
It is contended for the Administrator-General, first, that a direction to accumulate is absolutely bad, and secondly, that if not, still the direction here never had any effective operation as it was a part of a futile scheme for providing for the adopted son and nothing more.
The Will is governed by the Hindu Wills Act which makes applicable to the Wills of Hindus; certain portions of the Indian Succession Act, l865, that is to say, Sections 46, 48, 49, 50, 51,55 and 57 to 77 both inclusive), Sections 82, 83, 85, 88 to 103 (both inclusive., Sections 106 to 177 (both inclusive) and Sections 187.
It is noticeable that Sections 104 and 105 are not made applicable; Section 105 imposes a baron bequests to religious or charitable works; Section 104 is aimed against directions for accumulation, This omission was (in my opinion deliberate.
It is no doubt provided by sections that nothing contained in the Act shall authorise any Hindu to create in property any interest which he could not have created before the 1st day of September 1870, but it cannot be said that every direction to accumulate comes within this ban
No case goes this length, though there is a diversity of opinion as to the extent to which accumulations can be validly directed
As far back as 1851 no less an authority than Colville, C.J., delivering the judgment of the Supreme Court, expressed the opinion that it was competent to a Hindu testator expressly to provide for the accumulations of the surplus income of his estates within the limits allowed by law and to make those accumulations subject to a limitation order as there described: Sreemutty Soorjeemoney Dossee v. Denobundoo Mallick (1855) 1 Boulnois 223 : 3 Ind. Dec. (O.S.) 133, while in Bissonauth Chunder v. Sreemutty Bamassoondery Dossee 12 M.I.A. 41 : 2 Sar. P.C.J. 344 : 20 E.R. 256 Lord Romilly delivering the opinion of the Privy Council, refers to the absence from the Will of any direction to accumulate as a matter deserving of observation, a remark that would hardly have been made had it been their Lordships' opinion that the direction to accumulate was necessarily void.
In Rajendra Loll Agarwalla v. Raj Coomari Dabi 34 C. 5 : 11. C.W.N. 65 Harrington, J., held that there was nothing illegal in a direction to accumulate made by a Hindu and that, if such a direction was 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.
In Nafar Chandra v. Ratanmala Debi 7 Ind. Cas. 921 : 15 C.W.W. 66 : 13 C.L.J. 85 it was held that a direction to accumulate for the purpose of providing for the marriage expenses of the testator's son was good, while in Jamnabai v. Dharsey 4 Bom. L.R. 893, a direction to accumulate the income till a boy to be adopted attained the age of 16, was upheld.
In Benode Behari Bose T. Srimati Nistarini Dassi 32 I.A. 193 at p. 200 : 15 M.L.J. 331 : 7 Bom. L.R. 887 : 33 C. 180 : 2 C.L.J. 189 : 9 C.W.N. 961 the question of accumulation arose and their Lordships expressed the opinion, not that the direction was void, but that the widow, who in the circumstances was solely entitled to the fund directed to be accumulated, could release the directions for accumulation and enjoy the whole income.
It is true the direction to accumulate for 99 years which came under consideration in Kumara Asima Krishna Deb v. Kumara Kumara Krishna Deb 2 B.L.R. (O.C.) 11 was held to be bad, but it obviously offended the rule against perpetuities. And so a direction which aims at postponing the enjoyment of a presently vested interest created by the testator's Will fails for repugnancy, and to this may be referred the decisions in Srimati Bramamoyi Dasi v. Joges Chandra Dutt 8 B.L.R. 400 and Mokoondo Lall Shaw v. Gonesh Chunder Shaw 1 C. 104 : 1 Ind. Dec. (N.S.) 68.
So far the oases present no great difficulty, but Amrito Call Dutt v. Surnomoni Dasi 25 C. 662 : 2 C.W.N. 389 : 13 Ind. Dec. (N. S ) 435, Trevelyan, J., in reference to the direction now under consideration said: '' I cannot see how a direction to accumulate can be valid unless there be a present gift to support the direction to accumulate.'
I do not clearly understand what the learned Judge here intended to lay down. But though he evidently considered the direction to accumulate in Haridass Dutt's will void, even he conceded that there might in appropriate circumstances be a good direction to accumulate.
He no doubt remarks that the fact that where there is a minor accumulation can be allowed, and that an accumulation for the purpose of paying debts did not help. Lord Eldon, however, when delivering judgment in the House of Lords in The llusson v. Woodford (1805) 11 Ves. 112 : 8 R.R. 104 : 1 Bos & P.N.B. 357 : 32 E.R. 1030 evidently regarded the fact that there would be of necessity an accumulation during lunacy as pertinent to the question whether a direction to accumulate was good It is worthy of notice that the other members of the Bench declined to express agreement with the views of Trevelyan, J. How then does the matter stand on principle? Under the ruling of the Privy Council ' the intention of the testator was to create in favour of his daughters an estate for life with remainder over to their sons.' [Radha Prasad Mullick v. Ranee Mani Dassee 35 C. 896 : 12 C.W.N. 729 : P.C. 25 I.A. 118 : 4 M.L.T. 23 : 18 M.L.J. 287 : 5 A.L.J. 460 : 10 Bom. L.R. 604 : S.C.L.J. 48.]
This gift to the daughter was of the whole of the testator's estate after the death of their mother.
The gift has been held to be good so far as it relates to the property of the testator at the death why should it be bad so far as it relases to the income of that property up to the widow's death
A direction to accumulate with a gift of the accumulations is not fundamentally bad, it only fails if it offends some independent rule of Hindu law. This it may infringe the rule against perpetuities, and so far as that goes it must be a question for consideration in each case whether there is such an infringement or not Or the direction to accumulate may be repugnant and so void, as an attempt to deprive a person of the enjoyment of that which has become his property But if, as the decisions I have cited imply, it was within the power of a Hindu testator to direct the accumulations of property to be added to or made part of his own property, then there would seem to be no difficulty in the way of his making a gift of it to a person who under the same gift, may become entitled to the original corpus of the testator's property
What then is the period during which an accumulation can be validly directed
On principle, 1 think it must be for so long a time as the absolute vesting of the entire interest can be withheld, or for so long a time as that during which the corpus of the property can be rendered inalienable, or its course or its devolution can be directed and controlled by a testator.
I know of no other test, and if that be the true test, then the direction to accumulate in this Will is within its bounds and valid
Therefore, the accumulations passed under the gift to the testator and his sons as a part of the testator's estate.
I think there is no force in the argument that the direction to adopt was inoperative as it merely was an incident of the scheme to make provision for an adopted son. It may be that the expectation that there would be an adopted son was the leading motive for the direction, but it did not on that account cease to operate merely because there could not be an adopted son.
The testator's intention was that the intermediate surplus income should go first to his adopted son and failing that to his daughters and their sens, and that it should so go in the form of accumulations
The income according to the plaintiff's case has in fact been accumulated, and even if the accumulation had been unnecessary that could not deprive the donees of their right to it. But while I am so far in favour of the plaintiff, I do not think the decree in its present form can stand, for it delegates to the Official Referee the trial and determination of complicated questions of law and fact which should be tried and determined by a Judge of the Court.
It is specially necessary that the hearing should be before a Judge in few of the difficult points of limitation that may arise.
The suit was instituted on the 12th August 1907, two days within the period prescribed by Article 9s of the Limitation Act of 1877.
The sole plaintiff was Nowell Shaw Watkins. He died before the trial End no one was substituted in his place. Radha Prasad Mulick and Premmoni were not added as plaintiffs till the 5th May 1909.
Over and above this it is suggested that Mr. Watkins, was not a competent plaintiff These matters must be borne in mind when the defence of limitation comes to be considered
The parties before us have asked us not to deal decisively with the question of limitation at this stage, but to leave this matter to be decided when the case of both parties has been fully placed before the Court.
All, therefore, that we now do is to set aside the decree of Fletcher, J., except so far as it ordered that an entry of the death of Mr. Watkins be made in the register of this suit and that the cause title in the said register be amended by striking out therefrom the name of Mr. Watkins.
And we direct that the case be remanded to the Court of first instance to be tried according to law.