1. The substantial question of law which arises in this appeal relates to the right of succession to the office of shebait of a private religious endowment created by v the Will of one Ram Kamal Mukerjee executed on the. 4th February 1845. Ram Kamal died on the 1st August 1845, and left a widow Baroda Sunderi, a daughter Kamini, and three brothers Ham Kumar Madhusudun and Chundra Mohun. His Will, which was addressed to his wife and his three brothers, authorised his three wives to adopt a son in succession, provided for various legacies, and created a religious endowment of the residue for the maintenance of the idol Gopal Jew consecrated by his mother. The four persons to whim the Will was addressed were appointed shebaits, and so far as the devolution of the office of shebait is concerned, the instrument contained the following provision: 'On your death these responsibilities shall similarly devolve on your heirs in the order of seniority, if they adhere to the ancient religion.' The true meaning and legal effect of this provision is the subject of controversy between the parties to this litigation.
2. It appears that after the death of the testator, the endowment was managed by the trustees, till, upon the death of Ram Kumar and Chandra Mohan, the surviving trustees, Baroda Sunderi and Madhusudan, began to deal with the properties in contravention of the terms of the Will, and execution-creditors of the trustees attached part of the estate for the satisfaction of their personal debts. Under these circumstances, in 1863 Ashutosh Mritonjoy and Aghore Nath the sons of Madhusudan, commenced an action against, their father, who had wasted the debutter properties, as also against the purchasers of different portions of the estate and the daughters of Ram Kamal and Deno Nath (a fourth brother who had predeceased Ram Kamal) and the widow of Chandra Mohan, for construction of the Will and for declaration of the trust created (hereunder. The defendant Kamini,the daughter of the testator Ram Kamal, denied the genuineness of the Will, and further urged that it did not create any valid endowment all. On the 14th March 1864, the Subordinate Judge decreed the suit, declared the Will to be genuine, and held that as there was a valid religious endowment, the sale and attachment were null and void. On the 22nd November 1864. Kamini appealed to this Court against the decree of the Subordinate Judge, and a separate appeal was preferred by one of the purchasers. On the 25th May 1865, a Division Bench of this Court pronounced the Will to be genuine and untainted by fraud, and affirmed the decree of the Court of first instance on the ground that there was a valid religious trust and the alienation of any portion of the endowed properties was illegal. The estate, after this appears to have been managed in accordance with the terms of the Will till October 1879 when Madhusudan, the sole survivor of the original trustees, died. On the 6th May 1880, Kamini commenced an action for construction of the Will, for the determination of the nature and extent of the interest of the idol Gopal Jew in the estate of the testator, for appointment of a suitable person as shebait of the endowed properties, for1 the administration and efficient management thereof, and for incidental reliefs. She joined as defendants to the suit the representatives of the different branches of the family including Ashutosh, Mritonjoy and Aghore Nath, the sons of Madhusudan. On the 3rd September 1881, the Subordinate Judge made his decree, by which he found that the claim of the plaintiff for possession of the estate of her father by right of inheritance was unfounded. He declared that the entire property of flam Kamal had vested absolutely in the idol Copal Jew and appointed Ashutosh to act as shebait in terms of the Will, inasmuch as Damayanti, the widow of Chandra Mohan, though senior in age and entitled as the senior amongst the heirs of the original trustees to a preferential right to the office, had declined to act. Kamini appealed to this Court and on the 15th September 1883, her appeal was allowed. It was ruled by this Court that there was no valid debutter and that subject to the religious charge created by the Will there was a devise of the surplus proceeds for the benefit of the heirs of the testator himself and of his four brothers in equal shares. Kamini was dissatisfied with this decision and appealed to Her Majesty in Council. Ashntosh and the other defendants also obtained leave to cross-appeal with reference to the effect of the decision in the earlier suit of 1863. On the 3rd May 1888, the Judicial Committee dismissed the appeal of Kamini and allowed the cross-appeal. Kamini v. Ashutosh 16 C. 103 : 16 I.A. 159. Their Lordships held that the question of the effect of the Will and the nature of the disposition made thereby was res judicata. They further held that Ashutosh had a preferential title to the office of shebait on the ground that the effect of the Will was to constitute as shebait the senior in age among the heirs of the original shebaits and that as the actual senior had disclaimed, the next senior in age was the proper shebait. Shortly after this decision of the Judicial Committee, Ashutosh who had been declared the lawful shebait thereby, died on the J3rd August 1888. Damayanti now laid claim to the office of shebait though she had previously retired in favour of Ashutosh. She was resisted by Kamini and the other members of the family including Aghore Nath and his brothers: Consequently, she commenced an action in 1888 for construction of the Will, and for the appointment of herself as shebait, or if the Court should decide against her claim, for the appointment of such person as was entitled to that office under the Will. Kamini who was one of the defendants, laid claim to the office as also Aghore Nath. Upon this state of the pleadings, an issue was raised as to which of the parties was most qualified for the post. On the 15th August 1889, the Subordinate Judge held that as Damayanti had disclaimed the office of shebait in the previous litigation, she could not retract her renunciation, and as Kamini was the next senior in age among the other heirs of the original shebaits, she was entitled to the office in preference to Aghore Nath. Damayanti then appealed to the District Judge who held on the 16th April 1890 that neither she nor Kamini was entitled to the office--not the former, because though by reason of seniority in age she had the first claim, she was not a fit and proper person for the office--and not the latter, because though as the next senior in age she had the next best claim to the office, she was disqualified by the attitude of hostility she had taken up against the trust and the improper dealings she had made with the endowed properties. In this view, the District Judge appointed Aghore Nath as the next senior in age and qualified in every way to hold the office. Kamini and Damayanti were both dissatisfied with this decision and preferred separate appeals to this Court. On the 31st,August 1891, the appeal of Damayanti was allowed, and that of Kamini dismissed. It was declared that Pamayanti, as the eldest heir then living of any of the original shebiits, was entitled to the office, inspite of her previous disclaimer, which was not for all time but merely in favoar of Ashutosh personally. Damayanti, thus appointed shebait discharged the duties of her office for a period of fourteen years till her death on the 4th October 1905. Disputes then broke out between Katliini and Aghore Nath as to their respective rights to the office of shebiit, and on the 10th January 1903, Kamini commenced the present action against Aghore Nath for declaration of her preferential right to the shebait-ship. The defendant resisted the action on the ground that upon a true construction of the Will, the plaintiff had no title to the office, and that in any view she was disqualified by reason of her past conduct and present circumstances from holding the office of trustee. The plaintiff in reply urged that the question of the order of succession to the office of sebait was res judicata and could hot be re-opened in view of the decisions in the suits of 1.883 and 1888. The Courts below have concurrently held that the question is res judicita and that the plaintiff is qualified to hold the office of siiebvit. In this view, a decree has been made in favour of the plaintiff which declares her right to the office of shebait and entitles her to the possession of the debutter properties in that character. The defendant Aghore Nath has now appealed to this Court and he has been joined in the appeal by the other defendants, some of them members of the family, who have made common cause with him in contesting the claim of the plaintiff to the office of shebait. The decision of the learned District Judge has been assailed substantially on four grounds, namely, first, that the question of the title of the plaintiff to succeed to the office of shebait in preference to the first defendant is not res judicata; secondly, that upon a true construction of the Will, it ought to be held that the plaintiff has no title to the office of shebait, and that the only persons who are successively entitled to that office are the heirs of the three brothers of the testator according to seniority in age; thirdly, that, in any view, the plaintiff is not a fit and proper person to hold the office of trustees of this religious endowment; and, fourthly, that the appellants ought not to be made liable for the costs of the litigation which should be paid out of the estate.
3. In support of the first ground it has been urged, first, that the decision in the suit of 1889 is not res judicata because the question now raised was not directly and substantially in issue in that litigation; secondly, that the decision in the suit of 188S is not res dudicata because the question now raised was not directly and substantially in issue in that suit, and there was the additional circumstance that the parties now arrayed as plaintiff and defendant were then arrayed as co-defendants; and, thirdly, that the decision in neither of the two previous litigations can operate as res judicata, because it was an erroneous decision upon a question of law, and the cause of action which has given rise to the present litigation is different from the cause of action in the previous suits.
4. In support of the first branch of this argument, our attention has been drawn to the eleventh issue in the suit of 1880, which was to the effect, whether regard being had to the intentions of the testator, the plaintiff Kamini has a preferential right to hold the office of shebait to the first defendant Asutosh. It has been suggested that the question directly and substantially in issue in that suit was, whether Kamini or Asutosh was entitled to the office, that the decision of the actual question operates, as res judicata, but that as the reasons for the decision do not operate as res judicata, the question of preference between Kamini and Aghore Nath is still open for discussion, although the, reasons upon which the conclusion of the Court was then founded would render inevitable the inference that Aghore Nath was not entitled to preference over Kamini. Reliance has been placed in this connection upon the observations of Knight Bruce V.C. in Barrs v. Jackson (1842-45) 1 Y. & C.C.C. 401 : 57 R.R. 461 : 1 Phillips 582 : 65 R.R. 457 : 14 L.J. Ch. 433; 9 Jur. 609. It has further been suggested that Aghore Nath was not a necessary party to that litigation, and that as in any view of, the case, he was at the time not immediately entitled to the office of shebait, any decision which might, by implication, be adverse to his interest at a subsequent period, could not be treated as binding upon him. Now, as regards the frame of the issue upon which so much reliance has been placed, it may be remarked that it is by no means conclusive. As was observed by their Lordships of the Judicial Committee in Surjimoney Dei v. Salauund I.A. Sapp. Vol. 212 : 12 B.L.R. 304 : 20 W.R. 377, if both parties invoked the opinion of the Court upon the question, if it was raised by the pleadings and argued, the conclusion cannot be supported that the judgment upon it was ultra vires, merely because an issue was not framed which strictly construed embraced the whole of it; any other view would be scarcely consistent with the case of Mitna v. Fuzul Hub 13 M.I.A. 573 : 15 W.R. (P.C.) 15 : 6 B.L.R. 143. In the litigation of 1880 Aghore Nath was a party. He filed a written statement in which he denied the right of the plaintiff to the office of shebait, upon true construction of the Will of his uncle. No doubt, he did not lay claim to the office it. self at the time, but that was sp far the obvious reason that although, according to his view of the provision of the Will, the shebaitship had vested in his branch of the family to the exclusion, of Kamini, he could not himself actually claim it during the life-time of his elder brothers. The substantial question in controversy between the parties was, whether Kamini, the daughter of the founder, was entitled to the office of shebait or whether the eldest amongst all the heirs of the original trustees was so entitled. The Court was, therefore, called upon to construe the Will, and it held after an examination of various suggested interpretations, that its true effect was to vest the office, upon the death of the last survivor of the original trustees, in that one amongst all the heirs of the four shebaits who was for the time being the senior in age. This interpretation, given by the Court of first instance, was not challenged before the High Court, and was expressly adopted by the Judicial Committee. In our opinion, Aghore Nath cannot now successfully evade the result of that decision by the suggestion that the narrow question then in controversy was one of priority between Kamini and Asutosh. It is well-settled that an estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or ground-work: in. other words, a judgment operates by way of estoppel as regards all the findings which are essential to sustain the judgment. This principle is the basis of the decision of their Lordships of the Judicial Committee in Pahal wan Singh v. Maharaja Mnheskur Buksh 12 B.L.R. 391 (P.C.) : 18 W.R. 182, and was recognised by the Supreme Court of the United States in United States v. County Court (1886) 122 U.S. 306 30 Law Ed. 1152, which is referred to in Lilabati Misrani v. Bishun Chowbey 4 C.L.J. 621 at p. 630. The decision in Barrs v, Jackson (1842-45) 1 Y. & C.C.C. 401 : 57 R.R. 461 : 1 Phillips 582 : 65 R.R. 457 : 14 L.J. Ch. 433 : 9 Jur. 609, really goes against the contention of the appellant, b3cause as the learned Vice-Chancellor puts it, 'the rule against re-agitating matters adjudicated, is subject generally to this restriction--that however essential the establishment of particular facts may be to the soundness of a judicial decision, however, it may proceed on them as established, and however binding and conclusive the decision may, as to its immediate and direct object, be, those facts are not all necessarily established conclusively between the parties, and, that either may again litigate them for any other purpose as to which they may come in question, provided then, immediate subject of the decision be not attempted to be withdrawn from its operation so as to defeat its direct object.' The present case falls clearly within the exception formulated in the rule thus enunciated, because if the contention of the appellant prevailed, the result would be inconsistent with the essential ground-work of the previous decision and destructive of the position maintained by necessary implication in that litigation. It has been next suggested that Aghore Nath was not a necessary party to that litigation as he could not in any view of the case successfully lay claim to the office of shebait at the time, and that consequently no decision therein could prejudice his possible right to succeed to the office in future. We are not prepared to accept this contention as well-founded. In the first place, the suit was framed as one for construction of the Will, and the representatives of all the original trustees were rightly brought on the record. Srinibash Das v. Monmohini Dasi 3 C.L.J. 224 at p. 228. In the second place, Aghore Nath did not ask to be dismissed from the suit on the ground that as he disclaimed all present interest in the estate, he was not a necessary party. Ha raised the question of construction in that suit and is clearly bound by the decree. Collier v. Walters (1973) L.R. 17 Eq. 252 at p. 267 : 43 L.J. Ch. 216 the first contention of the appellant, therefore, completely fails.
5. In support of the second branch of the first contention of the appellants, it has been argued that the decision in the litigation of 1888, commenced by Damayanti after the death of Asutosh cannot operate as res judicata, because the question then directly and substantially in issue was merely whether Damayanti was entitled ,to he office of shebait in preference to Kamini, Aghore Nath, and other members of the family, and that there was at the time no conflict of interest between Kamini and Aghore Nath who were arrayed as co-defendants. There seems to be at first sight some force in this contention, bat upon closer examination of the proceedings in the suit of 1833, it tarns out to be unsustainable. The plaintiff Damiyanti asked not merely for appointment of herself to the office of shebait, bat raised the wider question, as to who amongst the parties to the suit was qualified to fill the post of shebait, and prayed that such person might be appointed. The fifth issue raised the broad question, which of the parties was most qualified for the post? The interests of Kamini and Aghore Nath were identical to this extent that they both supported the view that Damayanti by reason of her disclaimer in the previous suit in favour of Asutosh was debarred from laying any claim to the shebaitship. But the community of interest terminated here. There was clear conflict of interest between them in so far as each endeavoured to seize the office as soon as Damayanti could be placed out of the way. As we have already seen the Court of first instance did as a matter of fact uphold the claim of Kamini. The District Judge on appeal decided against both Kamini and Damayanti and appointed Aghore Nath. Damayanti and Kamini preferred separate appeals to this Court, and Aghore Nath was a party respondent in each appeal. Kamini in her petition of appeal questioned the right of Aghore Nath to the office of shebait. There was manifestly a triangular contest am on the parties, and the litigation, as we know, terminated in favour of Damayanti. The decision of this Court was based on the ground that, according to the true construction of the Will of Ramkumul, the senior in age amongst all the heirs of the four original trustees was entitled to the office of shebait. This clearly operates as res judicata between Kamini and Aghore Nath, because there was a conflict of interest amongst them, and the adjudication upon their respective claims was necessary to give relief to the plaintiff, and the final judgment did define the real rights of the defendants inter. Gurdeo Singh v. Chandrika Singh 5 C.L.J. 611 : 36 C. 193 : 1 Ind. Cas. 913 and Ghurphekni v. Purmeshar Dayal Dubey 5 C.L.J. 653. The second branch of the first contention cannot consequently be supported.
6. The third branch of the first contention of the appellants seeks to raise a question of some nicety. It is argued that the decision in the previous litigations of 1830 and 1888 were erroneous in law and, therefore, ought not to operate as res judicita. In support of this view, reference has been made to the decision of this Court in Alimunnessa Chowdhurani v. Shama Charan Roy 1 C.L.J. 176 : 32 C. 749 : 9 C.W.N. 466. The case relied upon, however, is clearly distinguishable, and is not an authority for the broad proposition that an erroneous decision upon a point of law can never constitute res judicata. There can be no question that so far as an issue of mixed law and fact, is concerned, it stands on the same footing as an issue of fact and a decision thereon operates as ret judicata. Bishnu Priya v. Bhaba Sundari 28 C. 318, Koyyana Chittemma v. Doosy Govaramma 29 M 225 : 16 M.L.J. 136. But so far as the decision upon a pure issue of law is concerned, there is apparently a divergence of judicial opinion as to whether it operates as res judicata. The cases of Gouri Koer v. Audh Koer 10 C. 1087, Phundo v. Jangi Nath 15 A. 327, Kaveri v. Sastri 26 M. 101 and Waman v. Hari 31. B. 128 : 8 Bom. L.R. 932, seem to recognise the doctrine that a decision on a pure issue of law operates as res judicata if the cause of action in the subsequent suit is the same as that in the former suit. See also Rai Churn v. Kumud Mohan 1 C.W.N. 687--Ed. On the other hand, in the cases of Alimunnessa v. Shama Charan 1 C.L.J. 176 : 32 C. 749 : 9 C.W.N. 466, Chamanlal v. Bapubhai 22 B. 669, Vishun v. Ramlinga 26 B. 25, Partha Saradi v. Chinna 5 M. 304; Venku v. Mahalinga 11 M. 393, Gopa Kolandavelu Chetty v. T. Sami Royer 28 M. 517 : 15 M.L.J. 466. Mangalathammal v. Narayan Swami Ayyar 30 M. 461 : 17 M.L.J. 250 and Aitamma v. Naraina Bhatta 30 M. 504 : 17 M.L.J. 402 the doctrine appears to have been recognised that an erroneous decision upon an issue of law cannot be res judicata if the cause of action in the subsequent suit, as in the ease of successive suits to enforce recurring liabilities like or maintenance, is different from the cause of action in the former suit. It is to be observed, however, that the effect of these decisions is to substitute in the Code the phrase 'cause of action' for 'the matter in issue,' in so far as they lay down that where the matter directly and substantially in issue is a matter of law, the decision may not be res judicata if the cause of action in the subsequent suit is different from that in the former suit. How far such a view may be reconciled with the language of the Code may be a matter of controversy. One aspect of the matter, however, is clearly beyond the possibility, of dispute both the propositions that a decision erroneous in law can never or must always operate as res judicata is too broadly stated. The true limits of the rule may be difficult to formulate accurately, but it may be stated generally that we have to distinguish between the application of the rule mainly to two well-marked classes of cases. In one class, parties may seek to litigate again the same cause of action as had been decided between them in a prior suit; in another class, the dispute may relate to matters which have been already in controversy and formed the subject of consideration in the previous suit, although the causes of action in the two suits may be distinct. In the former class of cases, the application of the rule of res judicata is obviously justifiable on principle; in the latter class of cases, the estoppel ought to be limited to matters distinctly put in issue and determined in the prior action, and it should further be restricted to questions of fact or mixed questions of fact and law, for if it was extended to pure questions of law, a Court might find itself in the position that in so far as certain parties are concerned, it is irrevocably bound to adhere to a proposition of law erroneously laid down in a previous suit. (Bigelow on Estoppel, 100). In the practical application of the rule, however, questions of considerable difficulty may arise as to whether a question is purely one of law or one of mixed fact and law, and there may be room for divergence of judicial opinion as to how far the matter in controversy in the subsequent suit is related to or distinct from the matter in dispute in the previous suit. As an illustration of this difficulty, reference may be made to the recent decision of the Supreme Court of the United States in Deposit Bank v. Frankfort (1903) 191 U.S. 499 : 48 Law Ed. 276, in which the question arose as to the binding character pf a judgment which it was admitted, had been erroneously made as based upon a view of law which had been subsequently disapproved. It was ruled by a majority of five Judges against four that a judgment did not cease to be res judicata because founded upon erroneous reasons. The view of the majority was based on the ground that the doctrine of estoppel by judgment is founded upon the proposition that all controversies and contentions involved are set at rest by a judgment or decree lawfully rendered, which in its terms embodies a settlement of the rights of the parties, and it would undermine the foundation of the principle upon which it is based, if the Court might enquire into and revise the reasons which led the Court to make the judgment so as in substance to set the whole matter at large again. In our opinion, this doctrine is unquestionably applicable to decisions upon mixed questions of fact and law, and cases of constructions of Wills like the one before us, fall within this description, inasmuch as the question of construction is dependent upon the provisions of the particular Will which regulates the rights of the parties. The third branch of the first contention consequently fails. The first contention of the appellants must, therefore, be entirely overruled.
7. As the question of the right of succession to the office of shebait raised in this litigation is concluded in our opinion by the decisions upon the question of the construction of the Will in the litigations of 1880 and 1888, it is unnecessary to examine the second ground upon which the decision of the District Judge is challenged. We are reluctant, however, to rest our decision solely upon the ground of res judicata, and as the question of the true effect of the will has been discussed at the Bar at considerable length, we shall now proceed to consider the second ground.
8. The Clause of the Will which we are invited to construe is as follows:* * * * * * This has been rendered as follows: 'Upon your death, these responsibilities shall similarly devolve on your heirs in the order of seniority if they adhere to the ancient religion.' It has been argued before us that although the testator intended that this provision should come into operation upon the death of all the four original trustees, he also intended that the office of shebait should vest in one of the heirs of his three brothers and that he never contemplated that the heir of his widow Baroda could ever hold the office; in other words, the contention is that in this Clause the word tomara when it first occurs refers to all the persons to whom the Will is addressed, but that immediately after when the testator mentions tomadiger, he limits the term to, three only of the four persons, namely, his three brothers. In support of this argument it has been suggested, first, that the word tomadiger or tomara is not uniformly used throughout the Will as referring to all the four trustees, and secondly, that a Hindu testator would never seriously contemplate the contingency that the worship of his family deity might possibly be entrusted to one person only and that person a female (even though his own daughter) married into a different family. After a careful consideration of the arguments which have been addressed to us, we are of opinion that the construction suggested is full of serious difficulties and is entirely inadmissible. In the first place, if we were to adopt the suggested interpretation, we would have to ignore the elementary rule that the same words in different parts of a Will should be given the same meaning. Edyven v. Archer (1903) App. Cas. 379 at p. 384 : 72 I.J. P.C. 85 : 89 L.T. 4 : 19 L.T.R. 561. In fact we are here invited to hold that in the course of the same short sentence, the testator has used the word 'your' in two different senses. It is not possible to adopt an interpretation like this unless there is some clear indication that the testator intended to use the word a second A time in a restricted sense. We may farther point out that the Will taken as a whole does not show that the word 'your' is employed in different senses in different parts of the instrument. As regards the second suggestion that a Hindu would not allow the worship of his family deity to pass into the hands of a female married into a different family, it may be remarked that the difficulty, if it is really a difficulty, is not avoided by the construction we are invited to adopt, for even if Kamini were excluded and the office of shebait were vested in the heirs of the brothers of the founder, one of these heirs might conceivably be a female married into a different family. But the true answer to, the contention of the appellants is that although the cardinal rule in the construction, of Wills is to give effect to the intention of the testator, the duty of the Court is, as Lord Wensleydale put it in Abbott v. Middleton (1858) 7 H.l.C. 63 at p. 114 : 11 E.R. 28 : 21 Beav. 14 : 28 L.J. Ch. 110 : 5 Jur. (N.S.) 717, to discover not what the testator meant but what is the meaning of his words. In the words of Lord Watson, we are not at liberty to speculate upon what the testator may have intended to do or may have thought that he had actually done; we cannot give effect to any intention which is not expressed or plainly implied in the language of the Will. Scale v. Rawlins (1892) App. Cas. 342 at p. 344 : 61 L.T. Ch. 421 : 66 L.J. 542. If the Clause of the Will is tested in the light of these principles, the plaintiff is inevitably put out of Court. We are not in a position to say whether the expression of intention of the testator has been different from what he really intended; it is sufficient to hold that those who claim under the instrument, are bound by his expressed intention. In our opinion, the construction put upon this Clause of the Will by the Court of first instance in the suit of 1880--a construction which was not challenged in the High Court, was subsequently adopted by the Judicial Committee and again made the foundation of the final decision in the litigation of 1888--is based upon a true interpretation of the Will. The second ground upon which the decision of the District Judge has been attacked must accordingly be overruled.
9. The third ground put forward by the appellants is to the effect that Kamini ought not to be allowed to hold the office of shebait as by Reason of her past conduct and present position she is completely disqualified. Our attention has been invited to the fact that in 1883 Kamini executed a mortgage of a portion of the endowed properties and dealt with it in derogation of the trust; it has also been suggested that if a suit is now brought by the mortgagee, Kamini as the mortgagor would, as laid down by the Court in Debendra Nath Sen v Abdul Samad 10 C.L.J. 150 : 1 Ind. Cas. 264, be debarred by the doctrine of estoppel from questioning the validity of the mortgage. Now it may be conceded that a trustee who deals with the trust property for his own personal advantage renders himself liable to be removed. Exparte Phelps (1742) 9 Mod. 357 : 88 E.R. 505. In the present case, however, Kamini executed the mortgage in perfect good faith; she did so at a time when the High Court had declared that there was no vaild endowment and that the property was secular, subject to a religious charge. The mortgage transaction cannot, therefore, be treated as a deliberate act of bad faith and does not by itself disqualify her for the office of shebait. The true rule on this subject was laid down by the Judicial Committee in Letterstedt v. Brois (1884) 9 App. Cas. 371 : 53 L.J.P.C. 44 : 51 L.T. 169, where Lord Blackburn quoted with approval the following passage from Story on Equity Jurisprudence, Section 1289: 'in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty or inaccuracy of conduct of trustees which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to show a want of honesty or a want of proper capacity to execute the duties or a want of reasonable fidelity.' To the same effect is the decision of the Supreme Court of the United States in May v. May (1896) 167 U.S. 310 : 42 Law Ed. 179, where Mr. Justice Gray pointed out that the power of a Court of Equity to remove a trustee and to substitute another in his place, is incidental to its paramount duty to see that trusts are properly executed. Judged by these principles, we are unable to say that the plaintiff is disqualified for the office of shebait. No details have been furnished in respect of the mortgage transaction except that it took place so far back as 1883. As we have already explained, want of good faith cannot be imputed to Kamini. No attempt has been made by the mortgagor to enforce his security up to the present time and, it is not improbable that the claim has been barred by limitation. The suggested; embarrassment to Kamini, if such a suit should now be brought, is consequently somewhat hypothetical. As regards her present position, stress is laid upon two circumstances, first, that she is a Hindu lady advanced in years and not likely to be capable of effective supervision of the endowment, and secondly, that the financial condition is considerably embarrassed. Neither of these circumstances is, in our opinion, sufficient to justify the exclusion of Kamini. So far as the first point is concerned, it is not disputed that Damayanti who was an elderly lady properly managed the endowment for many years from 1891 to 1905. There is no reason to suppose that Kamini will be in a worse position. As regards the second point, it is perfectly true that the Court ought to be careful to see, as Sir George Jessel observed in In re Barker's Trust (1875) 1 Ch. D. 43 : 52 L.J. Ch. 565 : 48 L.T. 573, that a man should not be appointed a trustee who is likely to misappropriate the trust-money. See also In re Adams' Trust (1879) 12 Ch. D. 661 : 57 L.T. 337 : 35 W.R. 770. But although a necessitous man is more likely to be tempted to misappropriate than one who is wealthy, the rule is by no means inflexible that poverty alone is a sufficient ground for exclusion from the office of trustee. Reference may be made to the case of In re Bridgeman where a trustee who had become bankrupt was not removed because he had been honourably unfortunate and there was no imputation on his moral character. In re Roche (1842) 1 Com. and Law 306; 2 Dr. and War. 289, Commissioner v. Archbold (1847) 11 Irish Eq. Rep. 187. The circumstances, disclosed in the evidence in the present case, do not, on the whole, afford sufficient ground for the exclusion of Kamini. The third ground urged in support of the appeal consequently fails.
10. The fourth ground urged by the appellants relates to the costs of the litigation. It has been contended that in a case of this description the costs of all the parties ought to be paid out of the estate. No doubt, as observed by Lord Cairns L.C. in Charter v. Charier (1874) L.R. 7 H.L. 364 and by this Court in Srinibash v. Monmohini 3 C.L.J. 224 at p. 228, where the difficulty has been created and litigation has been in a manner rendered necessary by the act of the testator, for instance, by reason of the ambiguity or inconsistency in the provisions of his Will, it is proper to direct that the costs of all parties should come out of the estate. The present case, however, does not, in our opinion, fall within this rule. The substantial question raised here had been settled by judicial decisions of the highest authority, and this litigation has been forced upon the plaintiff by reason of the endeavour of the defendant to impair the effect of such decisions. We must further remember that if the costs were to be thrown upon the properties of the endowment, a considerable portion of the income, if not of the corpus also, might be absorbed for purposes never contemplated by the pious founder. We are consequently unable to accede to the last prayer of the appellants that the debutter estate may be burdened with the costs of the contesting claimants for the office of trustee.
11. The result, therefore, is that the decree made by the Court below must be affirmed and this appeal dismissed with costs.