1. These three appeals arise out of a suit which was brought by the plaintiff Issur Lochun Roy, in respect of the proper construction of the Will of his elder brother Rai Rajib Lochun, Rai Bahadur, of which Will probate was taken out in 1881 by defendants Nos. 1 and 2, the executors. The plaintiff who instituted his suit on the 19th March, 1884, alleged that certain provisions of the Will were void for uncertainty, and that ha as heir-at-law was entitled to the whole residue of the estate of the testator which, upon a proper construction of the Will, might be found co have been undisposed of. Defendant No. 3 is the son of a sister of the testator, and was made a defendant after the institution of the suit.
2. In answer to this suit, the defendants alleged that the plaintiff by becoming a purnvishikta lingi in the testator's lifetime had rendered himself incapable of succeeding as heir, and that the preferential heir was defendant No. 3. They further maintained that the provisions of the Will were good and effectual.
3. On the question of heirship, the lower Court found that it was not proved that the plaintiff had become a pumavishikta lingi, and that even assuming that he had become a purnavishikta, he was not thereby disqualified to succeed as heir. On this point the appeal has not been pressed, and it is therefore unnecessary to say more in this place.
4. The clauses of the Will as to which the parties are at issue are the 17th, 18th and 19th, which run as follows:
17. After performing all the acts above mentioned, the said executors shall get a Shiva's temple erected at a reasonable cost in a suitable place within the compound of the brick-built baitakhana house, inclusive of the building and garden attached thereto, in which I have been continuously living as my fixed place of residence, and which is situated in Saidabad, Division Sujagunge, within this district of Moorshedabad and east of the Bhagirati, west of the public road, south of the lane and north of another lane and of Ramtonu Mistry's Ghat, and they shall get the god Shiva consecrated therein. And the said executors shall keep in deposit Government Promissory Notes of Rs. 9,500 (nine and half thousand rupees) for the preservation and suitable repairs of that house in proper time, and for the daily and periodical worship of the said god Shiva, for his sheba (worship), and for the repairs of the temple, and the acts specified in these paragraphs will be continued to be performed with the amount of interest derived therefrom.
18. The said executors or any of my heirs and representatives shall not be able to make any kind of gift, sale or alienation, or create any encumbrance on the baitakhana house situated in Saidabad and within the boundaries described above in paragraph 17, and none of my heirs shall be able to claim it in his own right. But the executors shall be competent to allow my brother Issur Lochun Roy and my sister's son Sham Das Roy to use the said baitakhana and rooms, &c.
19. If after the performance of all the above acts there remains any money or moveable property as surplus, then the executors shall be able to-spend the same in proper and just acts for my benefit.
5. In respect of these clauses the findings of the lower Court are to the effect that the provision for the erection of a Shiva's temple in the compound of the baitakhana was good and valid, and that such a temple should be erected by defendants Nos. 1 and 2 at a cost not exceeding 3 per cent, of the personal estate of the testator; that a moiety of the sum of Rs. 9,500 should be set apart for the daily worship of the idol and for the repairs of the temple ; that the baitakhana house was undisposed of by the terms of the Will, and that therefore the plaintiff succeeded to it as upon an intestacy as well as to the other moiety of the sum of Rs. 9,500; that the residuary bequest sought to be created by the 19th clause was void for uncertainty, and that the plaintiff succeeded to the residue as heir. The lower Court further held that the interest which had accrued at the time of the testator's death on the Government Promissory notes which were to be distributed by the executors in payment of various legacies went to the legatees and not to the residue. Defendant No. 3 was made to bear his own costs, the costs of the plaintiff and defendants Nos. 1 and 2 being payable out of the estate. None of the other findings of the lower Court are material for the purposes of these appeals.
6. Appeal No. 9 of 1885 is preferred by the executors who question the correctness of the lower Court's construction of Clauses 17--19 of the Will.
7. Appeal No. 303 of 1885 is preferred by the plaintiff against those portions of the lower Court's decree which have reference to the Shivaloy, to the accrued interest on the Government Securities, and to the costs of defendants Nos. 1 and 2.
8. Appeal No. 311 of 1885 is preferred by defendant No. 3 and has reference to his right to use the baitakhana house under Clause 18 of the Will, and to the question of his costs.
9. It will be convenient to dispose of the three appeals together. The first question relates to the provision for the erection by the executors of a Shiva's temple at a reasonable cost in a suitable place within the compound of the baitakhana.
10. For the executors it was contended that Clause 17, read with Clause 13 of the Will, conferred on them an absolute discretion as to the reasonableness of the cost, and that the lower Court was not justified in limiting the amount to 3 per cent, of the personal estate. Clause 13 provides that the executors "shall perform all the acts properly and bona fide to the best of their respective information and judgment, and according to the provisions of this Will."
11. For the plaintiff it was contended that the entire provision regarding the erection of this temple was void for uncertainty.
12. In the course of the argument, it transpired that the stone for the temple in question had been brought from Benares, and that, before the institution of this suit, the executors had already spenta sum which does not fall far short of that allowed by the lower Court for the purpose of erecting the temple. The plaintiff, it is to be observed, did not bring his suit till two years and a half after the death of the testator. It was accordingly very properly intimated by his counsel that, in the event of our reversing the decree of the lower Court on this point, he would not press for a refund of the money already laid out upon the work.
13. We are not disposed, however, to interfere with the finding of the lower Court on this point. We think that the testator's intention was sufficiently indicated in the Will, He directed that a Shivaloy should be erected at a reasonable cost on a suitable site, within the compound of the baitakhana. The locality and nature of the building were described, and we think that the Court has fixed a very reasonable and proper scale of expenditure for the erection of the temple in question. The next question relates to the baitakhana house ; and on this question we also agree with the finding of the lower Court that Clause 18 of the Will neither operates to dedicate the house to the idol Shiva nor to vest it in the executors. All that the clause in question says is that neither the executors nor any of the testator's heirs and representatives shall be at liberty to alienate or encumber it. But it remains undisposed of under the Will, and therefore goes to the heir-at-law, and the provision that none of the testator's heirs shall be able to claim it in his own right" is inoperative. So also is the further provision enabling the executors to allow defendant No. 3 to use the house. The house being undisposed of under the Will, the plaintiff as heir-at-law became entitle to it on the testator's death, and the executors have no power or authority to allow defendant No. 3 to occupy it.
14. As regards the fund of Rs. 9,500 which the testator set apart for be preservation and repair of the baitakhana house, for the worship of the idol and for the repair of the temple, the lower Court held that the fund in question should be divided into moieties, one of which was to be applied to the worship of the idol and the repair of the temple, and the other, which was intended for the repair of the baitakhana, to fall into the residue. It is contended on behalf of the executors that the testator had three objects in view, that is to say : (1) the repair of the baitakhana ; (2) the worship of the idol; and (3) the repair of the temple; and that the bequest being good as to the two latter, two-thirds of the fund should have been appropriated for those purposes.
15. The plaintiff, on the other hand, contends that the whole bequest is bad, and that the Court was not justified in holding it to be good as regards one portion and bad as regards another. We have already held that the provision as to the erection of a Shivaloy is sufficiently definite to constitute valid bequest, and we think it clear that the testator intended to make provision for its preservation and repair and for the worship of the idol, And we think that these objects are distinct from the repair of the baitakhana, which we have held was undisposed of by the Will. It is quite clear, we think, that the testator had two things in his mind in setting apart this sum of Rs. 9,500 from the rest of his estate. These two things were : (1), the support of the idol; and (2), the preservation of the baitakhana. The question is whether the entire sum can be apportioned between these two objects, and if so, in what proportion the sum should be divided. We are of opinion that the sum ought to be divided in order that the testator's intention may be carried out and a fund provided for the support of the idol. But a difficulty arises when we come to consider in what proportion the sum should be divided. The Will affords no indication of the sum which the testator wished to set apart for each of the objects he had in view. The lower Court has adopted the rough and ready solution of dividing the sum equally between the two objects above named, and we are not prepared to say that that solution was wrong. We think it may fairly be said that, when a fund is provided for two objects, and there is no indication to show how much is intended for each, it may be presumed that, in the absence of anything to the contrary, the intention was that they should benefit equally, i.e., that half the fund was intended for one object and half for the other. As regards the contention that the Shivaloy should benefit to the extent of two-thirds of the fund, we are unable to recognize any clear distinction between the worship of the idol and the repair of the temple so as to be able to say that a separate sum should be set apart and appropriated to either object. We consider that "the preservation and suitable repairs of the house" was one thing and the "daily and periodical worship of the said god Shiva, his sheba and the repairs of the temple" another thing. And we are not prepared, therefore, to disturb the decree of the Sub-Judge on this point. We think he exercised a very proper discretion in the matter, and that neither the plaintiff nor the defendants have any cause to be aggrieved at the manner in which the fund has been allotted.
16. We now come to Clause 19 of the Will, which deals with the residue of the moveable estate.
17. It is contended on behalf of the executors that that clause creates a good and valid trust reposed in them to expend the residue of the personality on "proper and just acts" for the benefit; of the testator. We are of opinion, however, that the lower Court was right in holding that the be- quest contained in this clause fails on account of vagueness and uncertainty.
18. It is true that the Courts in this country do recognise and will enforce charitable and religious trusts, and that in doing so they are not necessarily fettered by the same considerations which influence the Court of Chancery in England in dealing with such bequests. But it is obvious that, before any Court can deal with a trust of this kind, it must be in a position to form some definite idea of the object which the testator had in his mind. In the present case we think that there is no sufficient indication of the testator's wishes, and that the bequest must fail in consequence of the impossibility of ascertaining his intention. The words of the clause in question run as follows : "If after the performance of all the above acts there remains any money or moveable property as surplus, then the executors shall be competent to spend the same in proper and just acts for my benefit." Now what did the testator mean by his "benefit" ? Did he mean his spiritual benefit, or his posthumous fame, or what ? This, in the first place, is wholly uncertain. But even supposing that there were no vagueness in this part of the clause, and that the spiritual benefit of the testator was intended, what are the "just and proper acts" which the testator considered would be for his spiritual benefit, and which he intended should be performed. There is absolutely nothing to indicate the nature of these acts--whether acts of benevolence were intended, or acts of charity or religious service. The expression is wide enough to cover anything from digging a tank or founding a scholarship, to performing a shradh or feeding Brahmans. We think then that, on the ground of vagueness and uncertainty, this bequest must be held to fail, and that the lower Court has rightly held that the plaintiff is entitled to take the residue.
19. We are of opinion that the bequest contained in this clause must also fail on another ground, as being in the nature of a precatory trust; and such trusts, it has been frequently held, must be definite both as to the subject and as to the object of the gift. In the case of Mussoorie Bank v. Raynor 9 I. A 79 : 4 A. 500 their Lordships of the Privy Council said : "These rules are clear with respect to the doctrine of precatory trusts, that the words of gift used by the testator must be such that the Court finds them to be imperative on the first taker of the property, and that the subject of the gift over must be well defined and certain." We are not prepared to hold in this case that words giving the executors authority to dispose of an indefinite surplus in an indefinite manner are words sufficiently imperative to constitute a precatory trust.
20. As regards the accrued interest on the Government Securities, the learned Counsel for the executors is unable to support the finding of the lower Court. The Sub-judge has relied on Section 82 of the Indian Succession Act, but it appears to us that he has not only misinterpreted that section, but overlooked Section 309 et seq which deal with the matters in question. Whether or not the legatees are entitled to the interest on the Government securities from the date of the testator's death, it is settled law that they are not entitled to any interest which accrued due before his death, and the finding of the Sub-Judge on this point must therefore be set aside. The testator died leaving several pieces of Government Promissory Notes, and his Will directed his executors to give certain persons such notes in various specified amounts. He did not give legacies of special notes, so that to adopt any rule, such as that allowed by the lower Court, would enable the executors to favour some of the legatees so as to give them notes with the largest out standings of unrealized interest. On general principles, therefore, the Judge should have been induced to refuse such a claim.
21. On the subject of costs, it is pressed upon us that none of the defendants are entitled to have their costs paid out of the estate in consequence of the nature of the defence set up as regards the plaintiff's status. We are unable to see that defendant No. 3 is entitled to any costs at all. As regards the executors, we observe that certain costs amounting to Rs. 478 were disallowed in the lower Court, and as regards them there is no appeal. It is said that the estate was unnecessarily put to great expense on account of the excessive issue of commissions, but there is nothing before us showing the costs incurred on this account. We therefore see no sufficient reason to interfere with the order of the lower Court as to costs. Bach party will pay his own costs in this Court.