L.H. Jenkins, J.

1. As this action was originally framed, it was alleged thatvarious breaches of trust had been committed and consequent relief was claimed.When, however, the matter first came before me as a result of discussion thatthen took place, the charges of misconduct were withdrawn, and the claimresolved itself into one for construction of the will and administration.

2. The testator, whose will gives rise to these proceedings,is one Hari Das Dutt, a wealthy Hindu, of the Sudra caste, and a resident ofCalcutta, who died in October 1875, leaving a sole widow, the defendant,Sreemutty Surnomoyo Dassee, and two married daughters, the defendants,Sreemutty Premmoye Dassee and Sreemutty Banee Money Dassee. The first named ofthese daughters at the time of her fathers death had three sons, thedefendants. Radha Prosad Mullick and Kasi Prosad Mullick, and one sincedeceased; s(sic) also has had two sons born after her fathers death, the defendants,Pea(sic) Lal Mullick and Behari Lall Mullick. The other daughter, I am told,has (sic) no children.

2. On the 30th of October 1875, the day of his death, HariDas Dutt execute his last will, and its contents are set out at length in thesecond paragraph c the claim. By it he appointed his wife, his father, BabuMadhu Suda(sic) Dutt, and his uncle, Dwarka Nath Dutt, to be his executrix andexecutors, and of these the testators wife and uncle alone proved the will.The father apparently never performed any executorial duties or intermeddled inthe management of the estate, but at the same time he never expressly renouncedprobate. On the 9th of August the widow, with the consent of Dwarka Nath Dutt,purported to take a boy of five, named Jatipersaud Mullick, in adoption as theson of the testator in pursuance of a power in the will, to which it will benecessary later to refer at length, but this adopted son died on the 29th ofJanuary 1881 when he was only ten years old.

3. On the 1st of April 1877 the testators father died, andon the 9th of February 1881 the plaintiffs natural father purported to giveand the testator widow purported to take the plaintiff, then a boy of eight,in adoption as the son of the testator, the executor, Dwarka Nath Dutt, beingpresent on the occasion and consenting. This adoption, like the former, wasintended (sic) in execution of the power contained in the testators will, andit is adr(sic) that prior to this action the legality of the adoption had neverbeen called question: on the contrary the plaintiff has throughout beenbrough(sic) and treated as the duly adopted son of the testator. It will herebe conv(sic) to refer to those portions of the will which are especiallyrelevant to the points raised in this case. In Clause 2 the testator says:

I appoint my wife, Sreemutty Surnomoye Dassee, theexecutrix, and my father, Babu Madhu Sudan Dutt, of Mullicks street,aforesaid, and my uncle Babu Dwarkanath Dutt of Thuntonneah in Calcutta,aforesaid, the executors and trustees of this my will.

4. Clause 8 provides as follows:

Whereas having no son born to me of my body I am desirous ofadopting one in my lifetime, but in case I depart this life before carryingsuch my desire into effect I hereby authorise and empower my wife andexecutrix, Sreemutty Surnomoye Dassee, and my executors and trustees to whom Igive full permission and liberty to adopt after my decease a son, and in caseof his death during his minority or on attaining his full age and withoutleaving male issue to adopt a second son, and in case of his death duringminority or on attaining such age and without leaving male issue to adopt athird son and no more. In any of the above cases of adoption should the adoptedson die leaving a son or sons, the power of adoption shall cease or remain inabeyance during the life or lives time of such son or sons of such adopted son,but shall revive on the death of such son or sons during minority.

5. Clause 9 is as follows:

I direct my executors and executrix and trustees to pay outof the income and interest of my estate and effects monthly all necessaryhousehold expenses as well as for the worship of our family idol, Sree SreeRadhagovindjee, and to pay my wife monthly during her natural life for her soleand separate use the sum of rupees two hundred, and also the sum of rupeesfifty monthly to such adopted son, who shall live and attain his full age ofeighteen years, after his so attaining such age of eighteen years during thelifetime of my said wife, provided he remains under her control and bears agood character, and if my said executrix and executors and trustees think fitand are satisfied with his conduct and behaviour, and for the purposes of suchmonthly expenditure my executrix, executors and trustees shall set apart andretain out of the interest and income of my estate a sum sufficient to meetsuch expenditure for six months and invest the rest and residue of such incomeand interest in government Securities in their joint names, but in no caseshall such adopted son have or exercise any control, dominion over my estateand effects until the death of my wife, after co(sic)ch event I direct my saidexecutors and trustees to make over the whole of my estate (sic) effects, bothreal and personal, or Immovable or moveable whatsoever and wheresoever (sic) ofwhat nature or quality soever to such adopted son who shall survive my wife, ifhe (sic) have attained his age of eighteen years during the lifetime of my wifeor on his so attaining such age after her decease to whom and his heirs I givedevise and bequeath the same. But in case none of such adopted sons survive mysaid wife or in case of either surviving my said wife and dying under the saidage without leaving a son or sons I desire and direct my executors after thedeath of my said wife or the death of such son after her, but under such age ofeighteen years without leaving a son or sons to make over and divide the wholeof my estate, both (sic) and personal unto and between my daughters in equalshares to whom and their respective sons I give devise and bequeath the same,but should either of my said daughters die without leaving any male issuesurviving but leaving my other daughter her surviving then in such case thesurviving daughter and her sons shall be entitled to the share of the deceaseddaughter, or in case of the death of either daughter leaving sons the share ofsuch daughter is to be paid to such her son or sons share and share alike.

6. The 13th clause is in the following terms:

I authorise and empower my said executrix, executors andtrustees and the survivor of them and the trustee for the time being of this mywill to appoint any other person or persons to succeed them or him in theexecution of the trusts of this my will.

7. Clause 14a appears to have been added as anafter-thought, and by it the testator provides as follows:

In case of any accident arising to cause my wife to departher natural life before adoption of a male child my surviving executors areempowered to act with my full consi(sic) and direction to adopt a male issue.

8. It will be seen from these provisions that until thedeath of the widow the surplus income of the testators residue, afterproviding for certain month payments, is directed to be accumulated. In thisstate of things the plaint has contended before me that as the adoptive son,and consequently the heiress his father, he has an absolute interest in hisestate, subject only to be divesti(sic) in certain events, and that as a resulthe is now entitled to have the who (sic) estate transferred from the trusteesto him subject only to adequate provision being made for certain periodicalpayments and expenses authorized by the will and he next contends that in anycase he is entitled to the enjoyment of the surplus income of the estate untilthe widows death. This contention is oppose on the part of the defendants, andthe grounds of opposition are---first, that they has been no valid adoption ofthe plaintiff; secondly, that the provision for accumulation is valid; and,thirdly, that even if there is any interest in the estate which has not beendisposed of, then in the events which have happened it (sic) on the widow asheiress of the deceased son, and not on the plaintiff that (sic) has devolved.

9. For the purpose of disposing of these points thefollowing issue have been formulated:

1st.---Whether the power of adoption is valid at nil in law

2nd.---If so, was it validly exercised

3rd.---If so, is the plaintiff on the true construction ofthe will and as the adopted son of the testator entitled.

(a) to the surplus income of the property until the death ofhis adoptive mother

(b) to the absolute interest in the property subject only tothe payments mentioned in the will And I will deal with these issues in theorder in which they have been stated.

10. I. Whether the power of adoption is valid at all at law

11. The clauses of the will particularly bearing on thispoint are the 8th and the 14th, both of which I have already read, and theargument urged against the validity of the power is shortly this: It is saidthat though a husband can delegate to his widow a power to adopt, still he candelegate it to no one else; consequently it is argued the present power toadopt is bad, because though it is delegated to the widow, still it is not toher alone, but to her in association with others. Now, it is admitted on thepart of the defendants, indeed, it is a part of their argument, that though thewidows discretion under a delegated power is absolute in the sense that shecannot be compelled to act upon it, unless or until she so chooses, still anycondition or clog can be imposed upon the exercise by her of this delegatedpower, and it therefore appears tome that so far as the association of the twoexecutors was a fetter on the absolute discretion and choice which mightotherwise have existed it cannot have vitiated the power. It may be that thewidow alone is capable of performing the actual ceremony of adoption, that herhand alone can receive the child, but I do not find in the phraseology used bythe testator any direction requiring or even justifying the inference that hedesired or intended that the executors should take a part in the ceremony, from(sic) are incapacitated by the rules of Hindu law.

12. It is clear from the prefatory recital with which the8th clause of the will commences that the testator did desire the adoption of ason in accordance with the provisions of the Hindu law, and though it may beunprofitable to speculate as to his motive, I think that he had a purposebeyond the mere designation of a beneficiary to take under his will, and I mustdecline to put on the language of the will a construction that would render itsprovisions useless. In my opinion the testator associated the other executorswith his wife for the purpose of ensuring a wise exercise of her discretion inthe selection of a son for adoption and not with the intention of making it anessential condition of the adoption that they should take a part in theceremony from which they were precluded, and I therefore hold that the power ofadoption is valid.

13. II. The next issue I have to consider is whether thepower of adoption was validly exercised.

14. The contention of the defendants in this connection istwo-fold: for, first it is argued that the power could not be exercised,inasmuch as the father, one of the executors named by the will, was then dead,and the power is not one that passed to the survivors; and next it has beenargued by Sir Griffith Evans that it is evident from the terms of the deed ofadoption, and also from the evidence and admissions in the case, that thesurviving executor, Dwarka Nath Dutt, did not take such a part in the adoptionas was required of him by the power, so that even if there was a survival ofthe power still its terms were not observed.

15. Now, both these points appear to me to be points ofconstruction, so that it is in the first place necessary to determine what thelanguage of the will means, and in that investigation regard must be had to thecircumstances of the testator and to every fact, a knowledge of which mayconduce to the right application of the words used. Cases are of little useexcept so far as they express or illustrate a general rule of construction, forthe words and circumstances of one will are seldom the same as those ofanother.

16. There is, however, a principle to be drawn fromdecisions which is of importance in relation to the question in hand, and it isthis, that where a power is vested in executors (though it may not be onereposed in them by the law), if on the true construction of the will it appearsthat the power was coupled with the executorial office, it will survive to theholders for the time being of the office, as though it were a power attached tothe office by law.

17. It obviously, therefore, is necessary first to determinewhether or not as matter of construction the power of adoption contained in thewill was not given to the executors in their official capacity.

18. In my opinion the power of adoption is connected withthe office, and in confirmation of that view I may point to the fact thatexcepting the wife the executors are not named, but are described by referenceto their office; and again, though the wife is named, still she is described asexecutrix in a manner, which points to the conclusion, that the power even inher case was not dissociated from the idea of the office. That is notnecessarily decisive of the question whether the power was one that survived;for such inference to that effect that might be deduced from the association ofthe power with the office might be rebutted by a sufficient indication that thetestator desired the selection implied by the power to be entrusted to thethree persons named as his executors and to no less a number. But to effectsuch a result the indication must be one of reasonable clearness drawn from thetestators own words and not merely based on a speculation as to what a manmight be imagined to intend in the testators circumstances. It is suggestedthat this indication is to be found in the concluding clause of the will, butafter the best consideration that I have been able to give to that clause,together with the rest of the document, I am unable to arrive at thatconclusion. That clause appears to rue to indicate the testators strong desirethat a son should be adopted; he may be supposed (not merely as a rigidpresumption of law but as a matter of notoriety) to have known that a Hinduwidow of the Bengal school could, with her husbands assent, adopt; but fearingthe contingency of his wifes death he inserted the last clause for what itmight be worth.

19. I should also state that I am not led by this lastclause to the conclusion that the testator did not intend that the adoption tobe effected under Clause 8 should take effect as, and have the results of, anadoption according to Hindu law. In support of the view that the power inquestion could only be exercised by the three persons appointed as executrixand executors by the will, I have been referred by the learned Advocate-Generalto two cases. The first is the case of Surendro Keshub Roy v. DurgasoonderyDossee I.L.R. 19 Cal. 513: L. R. 19I. A. 108 which no doubt establishes thatthe authority delegated to the widow must be followed strictly, so that wherethe power only authorized the simultaneous adoption of two sons, it wasimpossible to exercise the power otherwise than in strict compliance with itsterms, though he result of an attempted adoption in accordance with the powerwould be in contravention of the Hindu law and so without any effective result.The second was a case of Beem Churn Sein v. Heeralall Seal 2 IJN. 25 in whichthe consent of another was required as a condition of the adoption, and it washeld that the absence of that consent, though due to death, was a bar to theadoption.

20. Now, the argument which would apply these cases to thepresent is open to the comment that I have held as matter of construction thatthe power contained in this will did in the circumstances of this case surviveto those by whom it was exercised, so that in my view of the case therequirements of the power have been observed.

21. It may, however, be said that the case of Beem ChurnSein v. Heeralall Seal 2 Ind. Jur. N. S. 225 so clearly resembles this, that Iought in this case to put a corresponding interpretation on this will. In thefirst place I could not assent to the proposition that there is any realsimilarity between the two cases, and next I must point out, as I have alreadydone in the course of the argument, that in that case an adoption according toHindu law could not have been contemplated, the delegation of the particularpower then under consideration having been made, not to a widow, but to a sonswidow; and on a careful perusal of the judgment it will be seen that SirBarn(sic)s Peacock expressly guards himself from expressing an opinion whatwould have been the result had the adoption intended been one that could havebeen effective according to Hindu law.

22. It still remains to notice the argument that the termsof the power have not been complied with, inasmuch as the widow alone, and notin conjunction with the surviving executor, actually took the son in adoption.I have already expressed my view of the meaning of the power, and if that viewbe right then it follows that this objection cannot prevail; the power does notin so many words say that the ceremony which the law only allows to beperformed by the widow must be performed by the others, and I, therefore, holdthat the mere fact of the surviving executor not having actually and physicallytaken in adoption is not a failure to comply with the terms of the power, and Iaccordingly hold that the power was validly exercised.

23. III. This brings me to the third issue which turns uponthe construction to be placed on Clause 9 of the will. The testator therebydirects his executors, executrix and trustees to make out of the income of hisestate certain payments, including a monthly payment of Rs. 200 to his wifeduring her life, and a sum of Rs. 50 monthly to such adopted son who shouldlive and attain the age of eighteen years during the life-time of his wife,provided he remained under her control and bore a good character, and then heproceeds as follows: My executrix, executors and trustees shall * * * * *invest the rest and residue of such income and interest in Governmentsecurities in their joint names, but in no case shall such adopted son have orexercise any control, dominion over my estate and effects until the death of mywife."

24. Now, it will be seen that there is here a direction toaccumulate, and the first point to be decided is whether, according to the lawapplicable to Hindu wills, this direction is in operation or whether effect canbe given to it.

25. Mr. Bonnerjee no doubt treated the point in his openingspeech as beyond the realm of argument, but the learned Advocate-Generaldeclined to accede to that view, and consequently must examine the point.

26. Now, accumulation is, with an exception immaterial forthe present purpose, absolutely forbidden by Section 104 of the IndianSuccession Act, but on turning to Section 2 of the Hindu Wills Act it will befound that Section 104 is one of the few sections not applicable to Hindu willssuch as the one under consideration, and consequently there is no statutoryprohibition which forbids accumulation directed in a will made by a Hindu.

27. It becomes, therefore, necessary to examine whether adirection to accumulate is contrary to the provisions of Hindu Law. Probably itwould be wrong to attribute much force to the fact that Section 104 is not madeapplicable to the will of a Hindu, but I certainly cannot accede to theargument that it is a recognition of the fact that accumulation was neverallowed in the case of Hindu wills; for a similar train of reasoning would haveexcluded the application of other clauses of the Succession Act, which dogovern Hindu wills. Now, it unquestionably is the case that a direction toaccumulate is from (sic) to time to be found in Hindu wills, and the practiceof inserting such a direction is of some standing.

28. In Soorjeemoney Dossee v. Denobundo Mullick 6 I. A. 526(536) the will of a Hindu testator who died in 1841 was under consideration,and the case was argued on demurrer before the Supreme Court of Calcutta, andin the course of their judgment the following remarks appear:

It was, we apprehend, competent to this testator, if he hadbeen so minded, expressly to provide for the accumulation of the surplus incomeof his estate within the limits allowed by law, and to make their accumulationssubject to the limitation over in the event of any son dying without leavingissue in the male line; but he does not appear to have done so either expresslyor by necessary implication.

29. Again in Bissonauth, Chunder v. Bamasoondery Dossee 12I. A. 41 (61) the following passage is contained in the judgment of the PrivyCouncil: "In the first place it is to be observed that the testator hasgiven no direction to accumulate; it remains, therefore, to be seen whether theCourt can find from the words of the will, as was argued, an irresistibleinference that such was the intention of the testator. This is the moreimportant because in the case of Sonatun Bysack v. Juggut Soondree Dossee 8 L.66 which is relied on as governing this case, there is an express direction toaccumulate. It was there directed that the surplus was to be added to capital.There is an absence of that in this case. It is admitted that the testatorcould not dispose of the property of his son, or prevent the heir of the sonfrom inheriting his property; therefore the only question here is whether thetestator has directed the accumulations of the property to be added to or madepart of his own property, because if be has not, it was the property of theson, and the testato had no power of disposing of it. In this view of the casetheir Lordship think that this will, on whichever construction it is taken,shows an absence of any direction to accumulate."

30. It is true these cases do not decide that a direction toaccumulate is good, but it is clear from them that the practice of directingaccumulation is of long standing, and that at the time it was considered thatsuch a direction would have effective operation. I asked Mr. Bonnerjee, whocontends that a direction to accumulate is bad, to refer me to the authoritieson which he relied, and I now propose to deal with them. The first case is thatof Kumara Asima Krishna Deb v. Kumar a Krishna Deb 2 B. L. R. O. C. 11 thepurport of which is set out in the headnote as follows:

31. "A Hindu, by will, attempted to create a trust forthe accumulation, for ninety-nine years, of the surplus income (after certainyearly payments) of his estate in the purchase of zemindaries, &c, fromtime to time; and empowered his trustees to continue such trust after theexpiration of the ninety-nine years term." The will contained nodisposition of the beneficial interest in the zemindaries so to be purchased.Held, that such trust was void.

32. Semble.---Perpetuity (save in the case of religious andcharitable endowments) is not sanctioned by Hindu law. Goberdhone Bysack v.Shamchand By sack Bourke 282 explained.

33. The contention in that case was that the trusts of thewill were invalid and void, not only on the ground of perpetuity, but becausethere was no disposition of the beneficial interest in the estate. The case inthe first instance came before Mr. Justice Norman, who said at page 24 of thereport: "I may add that there is not in the will any disposition whateverof the beneficial interest in the bulk of the testators property * * * * Evenat the end of ninety nine years there is no gift of the beneficial interest toany one. The manager for the time being may go on at his own will and pleasureindefinitely accumulating the estate; no right is given to the heirs of thetestator or the persons indicated as such in the will to use the property fortheir own benefit even at that remote time. The case goes a long way beyondthat of Mr. Tbellusons will" (9 Ves., 22).

34. Then later he says, page 29:

In the case now before me the trust for perpetualaccumulation would deprive the parties of all enjoyment of the profits of theestate. I think it clear that the trust for accumulation must be treated as acondition repugnant to the natural rights of every owner of property to the useand enjoyment of it, inconsistent with the nature of property itself andtherefore void.

35. From this decision there was an appeal which came beforethe Chief Justice, Sir Barnes Peacock and Mr. Justice Markey.

36. Sir Barnes Peacock says (page 32):

There is no doubt that this will, if construed according toEnglish law, would be void under the law relating to perpetuities. The questionis, is it valid under Hindu law

37. Further on lie proceeds (pages 35, 36):

The will in the present case gives the residue of theproperty, which is the subject of dispute, to the grandson and his successors,upon trust that the profits of the estate are not to be beneficially usedduring a period of ninety-nine years, but are to be laid out in the purchase offresh estates and the formation of a fund for the payment of Government revenueupon it, and this provision is to be extended, as I understand, in perpetuity,if the Hindu law allows. I am not aware of any rule of the Hindu law by whichgrants inter vivos or gifts by will in perpetuity are expressly prohibited, butit appears to me to be quite contrary to the whole scope and intention of Hindulaw.

38. In the result the decision of Mr. Justice NORMAN wasupheld; but it appears to me, looking at the facts of the case and thejudgments delivered, that the true ratio decidendi was, that the direction toaccumulate was an attempt to create a perpetuity; that thereby it was sought tosuspend the enjoyment for a longer period than the absolute vesting could becontrolled, and that it consequently was bad. The case did not call for adecision that an accumulation, which did not aim at that which for shortness Imay call a perpetuity, is void, and I therefore cannot regard the case as anauthority, which even purports to deal with the point before me.

39. I was next referred to a case of Bramamayi Dasi v. JogesChandra Datt 8 B.L.R. 400 but all that case decides, which can be regarded asmaterial to the present point is, that an attempt to defer the period ofpayment to or enjoyment by a beneficiary of a vested interest is inoperative.

40. Then reliance was placed on the case of Cally Nath NaughChowdhry v. Chunder Nath Naugh Chowdhry I.L.R. 8 Cal. 378 where the will beforethe Court contained a present gift of the testators property to his grandsonsfollowed by provisions postponing payment and directing accumulation, and itwas there held, in accordance with principles, which are beyond dispute, thatan absolute gift could not be qualified by a direction to postpone payment andaccumulate. The legality of a direction to accumulate was not in question inthe case.

41. (sic) Mr. Justice Pontifex says:

(sic) But his will containing, as in our opinion it does,sufficiently direct words (sic) gift, the clauses in it which attempt topostpone the enjoyment of (sic) and to direct accumulation must be rejected ordisregarded as consistent or repugnant.

42. The last case brought to my notice is that of MokoondoLall Shaw v. Gonesh Chunder Shaw I.L.R. 1 Cal. 104 [LQ/CalHC/1991/1] which decided, that where aHindu testator gave all his Immovable property to his sons but postponed theirenjoyment thereof by a clause, that they should not make any division fortwenty years, the restriction was void as repugnant to the gift.

43. Mr. Justice Phear, in the course of his judgment, says:"Now, without saying that a Hindu testator might not give the currentprofits or income of the property to the trustees and direct them to apply thisto the payment of debts throughout a specified period, as twenty years, I donot think it is competent to him to give the corpus of the property to an adultperson, and at the same time to forbid that person from enjoying the propertyin the way which the law allows. The prohibition against receiving and enjoyingthe income for twenty years appears to me simply to be a condition imposed onthe property which is repugnant to the gift. It is not merely the giving of oneportion of the property to one person or purpose and the remaining portion toanother person or purpose, but it is giving the entire property to one personand coupling this gift with a prohibition against his enjoyment." The keyto this and the two previous decisions is obvious, and it simply is therepugnancy and consequent invalidity of a condition which attempts to fetterthe enjoyment of an absolute gift---a principle which has no application here.

44. Mr. Bonnerjee, very fairly admits that beyond thesecases he is unable to refer to any decision, or even dictum, that a directionto accumulate is necessarily and under all circumstances void so as to entitlethe heirs to claim the interest commensurate with the period of directedaccumulation as though it were undisposed of, and I must therefore see whetherthere is any general policy or principle of law which calls for such aconclusion.

45. Is there then any principle of public policy which woulddiscountenance accumulation I take it that for this purpose regard must hehad to Hindu and not to English policy, and so far as I am aware such adirection is in accordance with the modes of Hindu life and thought, and agreesin its aims with what is matter of every-day practice and custom. Indeed, hadthe life estate been given to the widow, then the accumulation, which isdirected, would in its practical result be no greater a restraint on theexpenditure of income than would have been almost necessarily incident to thatsituation. Doss it then clash with any principle of law First, it is necessaryto see what the effect of the accumulation in this case is. The direction isduring the life of the testators widow to invest the balance of the income,and after her death the trustees are to hand it over to such adopted son whoshall survive the widow and shall answer the description given in the will.

46. It will, therefore, be noticed that apart from anyquestion of legality the accumulations are disposed of so as to vestbeneficially on the widows death. It is true that the object of the testatorsbounty is not ascertained at the testators death, but that in itself is not anecessary indication of illegal remoteness: it is only giving the accumulationto the person who is to take the fund itself, if it could be foreseen who thatperson is. That person may he the present plaintiff if he survives the widow,or it may be some one adopted in succession to him, hut it is clear in eithercase that the fund itself will be well given, and why not the accumulation Ifthe testator be permitted to give the fund itself at a future time, it wouldseem anomalous he should not be able to give intermediate rents and profits.

47. If the individual to take on the widows death were nowas certainly surely could not be doubted that his title to the intermediateincome (sic) prevail against that of the heir-at-law; and how has the heir abetter right by reason of that person being at present unascertained If it beurged that the effect is to create an absolute interest at a future datewithout limiting an intermediate beneficial interest corresponding andcommensurate with the interval, and that therefore the heir-at-law must takethe profits to arise during the interval, then this argument, as it appears tome, is met by Mr. Bonnerjees own concession that trustees might be directed toaccumulate a fund for the payment of debts, and by the further fact that thetrustees are in this case directed to hand over the intermediate income to theindividual who is to take the fund from which they spring. I may remarkincidentally that this is an objection to accumulation which was put forward inthe English Courts, hut without success, though the principle on which it isbased has as much force in English as in Hindu law. It cannot be said that theadopted son to whom the fund is given on the widows death is incapable ofbeing a recipient of the bequest, for by Section 99 of the Indian SuccessionAct it is provided, that, if property is bequeathed to a person described as standingin a particular degree of kindred to a specified individual, but his possessionof it is deferred until a time later than the death of the testator by reasonof a prior bequest or otherwise, and if a person answering the description isalive at the death of the testator, or comes into existence between that eventand such later time, the property shall at such later time go to that person.Seeing, therefore, the fact that the right to accumulate has been recognized ifnot actually affirmed both by the Supreme Court and the Privy Council, and thata direction to accumulate is no new expedient, and having regard to the variousconsiderations I have discussed, I hold that it is not incompetent for a Hinduwith proper limitations to direct an accumulation of the income of property,which under his will vests in his executors or trustees. That, however, is notnecessarily conclusive of the present case; for it still remains to consider,whether the particular direction in this case is bad, as being in excess ofwhat the law permits.

48. Now it appears to me, on principle, that ifaccumulations are permissible, then in the absence of special provision thelimit must be that which determines the period during which the course ordevolution of property can be directed and controlled by a testator, andapplying that test to the present case I am, of opinion that the accumulationdirected in the present case during the widows lifetime is not in excess ofthat permitted by law.

49. In the view therefore that I take of the case, I am ofopinion that the plaintiff is not presently entitled to the surplus income orprofits of the properties until the death of the testators widow; and that heis not entitled (even after provisions being made for the payments mentioned inthe will) to have the corpus of the estate made over to him. The plaintiff asksfor an account, and as the Advocate-General does not oppose I am willing toaccede to this, inasmuch as when the case first came before me certain chargesof breach of trust were waived on the understanding that the plaintiff shouldbe entitled to take such objection to the trustees conduct as might be open onthe taking of the ordinary accounts; but I will only direct accounts at theplaintiffs risk as to costs, and as it has been suggested that the accountswill probably not be required the decree for accounts will be conditional.

50. The decree, therefore, will contain a declaration thatthe plaintiff has been validly adopted, but that on the true construction ofthe will he is not entitled during the life of the widow to have the propertyleft by the testator handed over to him, or to receive the rest and residue ofthe income and interest of the testators estate by the will directed to beinvested; then the decree will direct accounts (at the plaintiffs risk as tocosts) of the estate and debts of the testator: but it will be provided that noproceedings are to be taken under this direction without the leave of the Judgein Chambers. There will be an inquiry what is proper to be allowed for allnecessary household expenses as well as for the worship of the testatorsfamily Thakoor, Sree Sree Radhagovindjee. Further consideration will beadjourned, and there will be liberty to apply. As it is so desired, the costs ofall parties up to and including the trial to be taxed on scale 2 as betweensolicitor and client will come out of the estate.

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Amrito Lall Dutt vs.Surnomoye Dassee (09.03.1897 - CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 10.05.1897

Appellants: G. Benbow

Vs.

Respondent: W. Benbow

Honble Judges/Coram:

S.C. Ghose and C.A. Wilkins, JJ.

Subject: Civil

Catch Words

Mentioned IN

Case Note:

Maintenance, order of Criminal Court as to - CriminalProcedure Code (Act X of 1882), Sections 488 and 177--Complaint by a wifeagainst her husband for maintenance--Issue of summons--Jurisdiction ofPresidency Magistrate.

JUDGMENT

Authored By : S.C. Ghose, C.A. Wilkins

S.C. Ghose and C.A. Wilkins, JJ.

1. We think that the Presidency Magistrate has taken a rightview in the matter. "It is the duty of the woman," as observed byWest, J., in In re the Petition of Fakrudin I.L.R. 9 Bom. 40 [LQ/BomHC/1884/16] "to residewith her husband, and it is her co-relative right to be maintained by him underhis roof." And when the husband fails in his duty, the proper Court totake cognizance of the complaint of the wife is the Court within thejurisdiction of which he may reside. The language of Section 488 of the Code ofCriminal Procedure itself favours this view; and it seems to us that, if theprinciple which underlies Section 177 of the Code may be applied to this case,the complaint should be enquired into by the Court within the local limits ofwhose jurisdiction the husband neglected or refused to maintain his wife. Letthe record be sent back with this expression of our opinion.

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G. Benbow vs. W.Benbow (10.05.1897 - CALHC)