S.G. Sale, J.

1. The first objective which has been urged against thesuit, is that it is not maintainable as (sic). The objection is thus stated inthe 1st paragraph of the written statement of Gooroo Prosonno Sen:

This defendant submits that the suit as framed cannot bemaintained, inasmuch as it is not competent to the plaintiff to sue for theconstruction in part only (and not as a whole) of the will of the testatorGunga Prosad Sen, nor for the administration or execution of part only (and notof the whole) of the trusts of the said will, nor for the relief claimed,otherwise than in a suit for general administration oil the estate of the saidtestator.

2. The argument is that the course which this Court ought toadopt as regards the present suit is the course which the Court of Chancerywould have followed in a like case before the practice was introduced ofdetermining on an originating summons isolated questions arising in the courseof administration of an estate without taking the accounts of the estate ormaking a general order for administration. The old and new practice as regardsthe question of the necessity of making an administration order before dealingwith any point arising in the course of the administration of the estate arecontrasted by Pearson, J., in In re Wilson (1885) L.R., 28 Ch. D., 457 (460).In showing how the practice as to administration actions was changed by therules of the Supreme Court, 1883, the learned Judge makes the followingobservations:

There were formerly in the Court of Chancery numbers andnumbers of cases in which an administration suit was necessarily instituted,not because the parties desired the administration of the estate generally, butbecause there were certain questions---they may have been minute, they may havebeen limited, they may have been very important-over which the Court would havehad no control, without the existence of an administration action. There wereno means according to the old practice of bringing isolated questions under awill before the Court for its determination except by an administration suit.It was felt that that very often involved parties in an amount of expense whichwas unnecessary and which they ought to be relieved from.

3. Accordingly, in order to avoid this expense, power isexpressly given to the Court by the rules of 1883 to determine any questionwithout making a judgment or order for the administration of a trust or of theestate of a deceased person, if the question between the parties can beproperly determined without such judgment or order. This power is not confinedto cases which can, under Order LV, rules 3 and 4, be raised by originatingsummons, but under Order LV., Rule 10, the Court has this power, whether thequestion arise on summons "or otherwise," and it extends toadministration actions commenced before, but tried after, the rule came intooperation. Williams on Executors, 9th Edition, Vol. II, 1810-1811.

4. The question then is whether the Court of Chancery inEngland would have declined to grant the relief sought in this suit, except ina suit framed for the general administration of the estate of the testator onthe ground that it involved the partial construction of the testators will.This is a question which it is admitted does not affect the jurisdiction ofthis Court. It is a question of the practice of the Court; and that only. It isundoubtedly the fact that before the Court can determine whether the plaintiffis entitled to the main relief which he seeks, the testators will must beconstrued; for upon the construction of the will of the testator must dependthe question whether the trust in fact exists, the breach of which is chargedagainst the defendant Gooroo Prosonno Sen. There is therefore a question of theconstruction of the testators will, which arises necessarily, thoughincidentally in form; in this case. But then this question has- riot beanraised as an aid to the administration of the testators estate, nor is theCourt being asked to take upon itself the execution of the trusts or theadministration of the estate.

5. The plaintiff claims to be a trustee, who is entitled toask the Courts assistance in preventing a breach of trust. Is there any reasonwhy in a suit of this character, where all the parties interested in thequestion of construction are before the Court, the Court should refuse toconstrue the will of the testator simply because this is not an administrationsuit

6. I have not been referred to any authority, nor am I awarethat any such authority exists which establishes the proposition that thisCourt ought not under any circumstances to consider any question involving theconstruction of a will or deed of trust, except in a suit for theadministration of the trust or for the administration of the estate of thetestator. Circumstances might, no doubt, exist which would render itundesirable or improper that the Court should make a mere declaratory orderbased on a partial construction of a will, or that it should declare the rightsof parties at all except in an administration suit. But I am unable to say thatany such circumstances exist in the present case.

7. In the first place it is no mere declaratory decree ororder that is sought. The plaintiff seeks consequential relief of a veryspecial kind, and he bases his claim on a cause of action which exists only asagainst the defendant Gooroo Proaonuo Sen, although it indirectly affects theinfant defendants as heirs of the testator and beneficiaries under his will.

8. In the next place there seems lobe no reason why thequestion, whether there has been a valid declaration in perpetuity of thefamily dwelling house for religious purposes, should not be dealt with in thiscase separately and apart from any other questions which may arise in thecourse of the administration of the testators estate. Assuming, although thisis not admitted, that the estate is still unadministered in full, it is saidthat the infant defendants are interested in the question of the dedication ofthe house, and that it is inconvenient that this matter in which they areconcerned should be disposed of without at the same time disposing of otherquestions as to their rights under the will of the testator which remain fordetermination. They complain that the plaintiff has deprived them of certainaccommodation in the family dwelling house to which they are entitled under thewill. It is difficult to see how the question of the amount of accommodation, towhich the infants may be entitled to in the family dwelling house, depends inany sense on the question whether there has been a valid dedication of thehouse for religious purposes, or on the question whether the defendant GoorooProsonno Sen should be restrained from exercising his profession on thepremises. The causes of action in the two cases are distinct and exist, if theyexist at all, against different individuals, and no good or convenient purposewould be served by insisting on both being joined together and dealt with inone suit.

9. Moreover, assuming that the old practice of the ChanceryCourt as regards administration suits is binding on or ought to be rigidlyfollowed by this Court, it is not clear to my mind that in accordance with thatpractice the Court of Chancery would have declined to entertain this suit.Having regard to the consequential relief sought it seems impossible that itcould be said that the question of construction, which is raised in this case,is a question over which (to use the words of Pearson, J.) the Court"would have no control without the existence of an administrationsuit."

10. On the contrary, questions between trustees andbeneficiaries, and between trustees and strangers, necessitating often, it maybe presumed, the construction of certain provisions of the trust deed have beenentertained and determined by both Courts of Law and Equity, without the Courtbeing asked to undertake the entire administration of the trust. The case of ReWeall (1889) L.R., 42 Ch. D., 674, may be cited as an illustration. See alsoLewin on Trusts, 9th Ed. p. 246, and also at p. 290, where there occurs thispassage: "A trustee is called upon, if a breach of trust be threatened, toprevent it by obtaining an injunction, and if a breach of trust has beenalready committed, to bring an action for the restoration of the trust fund toits proper condition, or at least to take such other active measures as with adue regard to all the circumstances of the case may be considered the most prudential."

11. In view of all these considerations, it appears to methat the objection that the present suit cannot be maintained is notsustainable.

12. The next objection is that the plaint discloses no causeof action. The argument on this point is put in this way. The plaint, it issaid, discloses no facts or circumstances which would justify the Courtsinterference to prevent the defendant Gooroo Prosonno Sen from carrying on hisdispensary business and otherwise following and practising his profession askabiraj at the premises Nos. 16 and 17, Kumertolli Street. Admittedly thedefendant Gooroo Prosonno Sen has a right under the will to live in thepremises, and, if he has a right to live there, he has a right, it is argued,to carry on his profession there as a means of livelihood, so long at least ashe does not interfere with the rights of the other beneficiaries.

13. This contention involves, it is obvious, the question ofthe construction of the will of the testator.

14. What is included in the right of living in the premiseswhich the testator has reserved to his sons and grandsons and their familiesOr to put the question in another way, is the carrying on the business orprofession of a kabiraj on the premises in question inconsistent with thedisposition which the testator has made of the property, so as to constitutethe action of the defendant Gooroo Prosonno Sen, a breach of a valid trustcreated by the testator

15. A great deal has been said as to what is the properdefinition of the word "living," and as to what are the rights whichare comprised within the right of living in any given place. It seems to meimpossible to lay down a strict hard-and-fast definition of the word, whichshall be applicable under all circumstances. The meaning must vary according tothe circumstances under which the word is used, or the purpose or object forwhich it is employed. It may have a very extended meaning from the point ofview of International Law as indicating the country where a son is entitled toexercise all the privileges of a subject or citizen. On the other hand, it hasa much restricted meaning when used in Statutes for the purpose of defining thepersonal jurisdiction of a particular Court. The cases which have been decidedin this country under Clause 12 of the Charter, or under Section 16 of theCivil Procedure Code, or under the Insolvent Debtors Act, and also in Englandunder the County Courts Acts, show in what different senses the words"living," "residing" or "dwelling" and similar expressionsmay be used, and that sometimes a very narrow and artificial meaning is appliedto them. The question to my mind to be asked in this case is---What is themeaning which the testator intended the word should bear

16. Now, when the testators meaning has to be discovered,the well-known ruling of the Privy Council in Soorjeemoney Dossee v. DenobundooMullick (1857) 6 M. I. A. 535 lays it down that primarily the words of the willare to be considered, and next the surrounding circumstances, when thetestators meaning may be affected by them. I turn first to the will itself.

17. The first question which suggests itself is what was thetestators veal object and purpose in dealing with the family residence Did hereally mean to make an absolute dedication of the property to religiouspurposes, or was this purpose colourable only, and did he really intend tosecure to his family a permanent beneficial interest of the nature of aperpetuity

18. The right of living, which the testator reserved to themembers of his family, must, as the one or the other was the true purpose ofthe testator, receive a wide or a restricted interpretation. Was there then avalid dedication of the premises for religious purposes If there was thisintention on the part of the testator, the dedication will not he invalidmerely by reason of its transgressing against the rule, which forbids thecreation of a perpetuity. Maynes Hindu Law, 4th Edition, paragraph 395.

19. By paragraph 1 of the will the testator declares that heendows (or as the defendants suggest assigns) his house Nos. 16 and 17,Kumertolli Street, for certain specific purposes. These purposes are asfollows: For the residence and worship for ever of the Thakurs established byhim. Next, for the celebration in the house annually of the Sri Sri Issur DurgaPujah and the Dolejatra festival. Thirdly, for the performance of the annualshradh of the testators father, and for the feeding on such occasion ofBrahmins and people of other castes.

20. After describing these religious purposes for which hedesired to dedicate the house, the testator proceeds: "Besides these mysons and grandsons (sons sons) with their respective families shall live inthe house. In case of disagreement among them, the person who would be thecause of disagreement shall leave the house with his family. I endow (or makeover or assign) this house for all these purposes. With regard thereto no rightof my heirs shall exist or accrue. They shall simply live (therein) asmentioned above. My furniture, etc., which exist in the said house shall beused for the worship, Ac., of the said idols. My heirs shall get nothingwhatever of the same. The said house and the said furniture shall never bepartitioned amongst any persons." By this clause of the will the testatorprescribes the particular uses to which the house is to be put, and except inthe manner expressly provided the testator declares that his heirs shall haveno beneficial interest in, or enjoyment of, the property.

21. Moreover, the testator makes express pecuniary provisionfor the permanent maintenance of the endowment which he has created. He doesnot contemplate that the property shall ever be rent-producing, for he providesby paragraph 5 of the will that "tax revenue and cost of repairs" ofthe house Nos. 16 and 17 are to be paid out of the rents realized by hisexecutors of the testators house and lands in Harrison Road. The testator thenproceeds:

My executors shall spend Rs. 16 per month for the worship ofthe Thakurs established in my aforesaid house, Nos. 16 and 17, KumertolliStreet, and for daily recitation of Chandiput in my aforesaid house.Afterwards, out of the said rent (i.e., the rent of the property in HarrisonRoad) the executors shall every month lay aside Rs. 250 per month, and thussecure every year three thousand rupees in a lump and (with the said moneysecured in a lump) Durgatsub and Dolejatra shall every year be celebrated in myaforesaid house Nos. 16 and 17, Kumertolli Street. Out of the same Rs. 2,500 shallbe spent in Durgatsub and Rs. 500 in Dolejatra. Afterwards out of the said rentRs. 500 shall be annually spent for the annual shrad of my Ishur Pita Thakur(deceased father) and for feeding Brahmins and persons of other castes on theoccasion of the shrads. The balance left after paying the expenses specified inthis paragraph out of the rent of these houses (i.e., the Harrison Roadproperty) shall be divided in the mode stated below.

22. By paragraph 7 the testator provides that the residue ofhis property, including the balance of the rent of the Harrison Roadproperties, shall be divided into three parts, and given to his two sons andthe sons of his predeceased son. The testator having thus provided for thepermanent dedication of his family residence for certain particular purposes,and having created a charge on the Harrison Road properties for the maintenanceof this endowment, proceeds to say that the person who shall collect the rentsof the Harrison Road properties and carry out the trusts created for religiousworship, and the celebration of the festivals in the house dedicated for thispurpose, shall be the senior in age among his lineal descendants and persons,following the Hindu religion.

23. It is said that there are no express words of gift infavour of the idol, and that failing such words of gift there is nothing morethan a trust for worship created by the will, and that subject to such trustthe beneficial interest in the property passes to the heirs of the testator orfalls into the residue. But no express words of gift to the idol eitherdirectly or indirectly in the shape of a trust are required to create a validdedication; see the remarks of West, J., in Manohar Ganesh Tambekar v.Lakhmiram Govindram (1887) I.L.R. 12 Bom. 263.

24. Under the Hindu law an idol as symbolical of certainreligious purposes is capable of being endowed or vested with property. But itis not an essential condition of a valid endowment that it should take the formof an express gift to an idol. All that is necessary is that the religiouspurposes or objects of the testator should be clearly specified, and that theproperty intended for the endowment should be set apart for or dedicated tothese purposes.

25. In the present case the language of the will shows thatthe testator intended that the dedication or endowment that he was makingshould operate so as to cover the whole of the beneficial interest he had inthis property. There is no reservation of any proprietary or pecuniary right orinterest in the property in favour of his family which could be attached inexecution in satisfaction of their debts. His heirs as such are excluded inexpress terms from all rights to the property. The right of living, which isreserved in favour of his sons and grandsons and their families, is rather ofthe nature of a personal privilege which the testator intended to continue tocertain persons who were in the enjoyment of it, by his permission, during hislife-time. It is noteworthy that the language employed by the testator inmaking this reservation seems to exclude the idea that he intended to create aheritable right. The words used for sons and grandsons in the vernacular do notconvey the idea of a line of succession of heirs, and in this respect thisclause of the will differs from the subsequent clauses which deal with thespecific gifts to his sons and grandsons. Moreover, the testator himself by hiswill has drawn a marked distinction between the dedication or endowment of aproperty and a charge or trust to provide for the expenses of religiousworship. Paragraph 1 deals with the case of a dedication of property andparagraph 5 with a charge or trust for religious purposes.

26. In these respects the case, seems distinguishable fromthe cases of Sonatun By sack v. Juggutsoonderee Dossee (1859) 8 M. I. A. 66 andof Ashutosh Dutt v. Doorga Churn Chatterjee (1879) I. L.R. 5 Cal. 438: L. R. 6I. R. 182. I hold therefore that there has been a valid perpetual endowment ordedication effected by the testator of the premises Nos. 16 and 17, KumerfcolliStreet, for the religious purposes mentioned in paragraph 1 of the will.

27. The question still remains whether the testator, inreserving to his sons and grandsons and their families the right of living inthe premises dedicated by him for religious purposes, intended to exclude hissons or grandsons from carrying on or practising therein the business orprofession for which they had been or were being trained.

28. There are certain indications of the testators mind derivablefrom the will itself, which are not without a bearing on this question. It isto be remembered the testator himself had kept his place of business separatefrom his family residence, at all events ever since the premises Nos. 16 and17, Kumertolli Street, became the family residence. The testator then providesfor his family continuing to reside in the same place and proceeds to devise toeach of his sons and to his grandsons a separate house suitable (so far as onecan judge) for business purposes, and in so doing it seems not improbable thatthe testator contemplated that his sons and grandsons would carry on theirseparate businesses in these different houses. Moreover, it is clear that thetestator insisted that those of his descendants who chose to live together inthe residence he had provided for them should do so amicably and peaceably. If,therefore, the testator was anxious so to arrange that his descendants shouldlive together harmoniously, it seems inconsistent to suppose that heat the sametime contemplated the possibility of different members of the family carryingon rival businesses in the common residence, because it is difficult to imaginea state of things which would be more likely to introduce friction and discord.It is reasonable on the other hand to suppose that the testator would bespecially anxious to exclude all such disturbing elements as might be likely toinduce disputes amongst his heirs in connection with a property he desiredshould be maintained as a perpetual religious endowment.

29. Apart from the expressions contained in the will itself,I think the case is one where the surrounding facts and circumstances may befairly looked to, for the purpose of obtaining an indication as to thetestators meaning in respect of the clause in question. I think it may be saidthat the testator intended that the privilege of living in the family dwellinghouse should be interpreted with regard to his sons and grandsons after hisdeath in the same way as he interpreted it during his life-time; that, in otherwords, his sons and grandsons should use the premises in the same manner andfor the same purposes as he used them, or permitted them to be used, in hislife-time. If then this is a test which may be fairly applied for ascertainingthe testators meaning, it is necessary to inquire as to what the mode ofliving was which the testator adopted during his life-time for himself and themembers of his family at the premises Nos. 16 and 17, Kumertolli Street, fromthe time it became the family residence.

30. [The learned Judge then considered all the evidence onthis point and continued---]

31. All these facts taken together indicate I think veryclearly that while the testator did not object to his youngest son using hisbaitakhana at No. 17 in a certain limited way for the purposes of hisprofession as a physician, he did object to the regular business of a medicaldispensary being started and carried on in the house in which he and the othermembers of his family were living.

32. Another circumstance which may, I think, have affectedthe testators meaning is the effect which the carrying on of the business of amedical dispensary at the family dwelling house might be expected to have onthe state of comfort and enjoyment which the various members of the family hadbeen previously accustomed to in living together. A large body of evidence hasbeen adduced on the question as to the actual inconvenience occasioned to thefemale residents of the family dwelling house by the carrying on of thedispensary business by the defendant Gooroo Prosonno. I do not think it isnecessary to examine this evidence in detail, because I am not prepared to saythat the plaintiff has succeeded in showing that the effect of the defendantsaction amounts to a nuisance or such an interference of the rights of theplaintiff or his family which, apart from the prohibition to be implied fromthe testators will, would justify the issue of an injunction. But on the otherhand I think there is sufficient evidence to show that the natural and ordinaryincidents connected with the carrying on of a medical dispensary business inaccordance with the Ayurvedic system at the family dwelling house, such as thesupply of gratuitous medical relief to poor and needy patients, thepreparation, storing and sale or other distribution of drugs, and the conditionof publicity which must result from all these things cannot but interferesensibly and appreciably with that condition and state of comfort and enjoymentand privacy of family life in which the testator maintained the members of hisfamily during his life, and which, it may reasonably be supposed, the testatorwould, as an orthodox Hindu of wealth and position, be anxious to secure tothem so long as they chose to live together in the residence which he providedfor them.

33. All these considerations lead me to the conclusion thatthe defendant Gooroo Prosonnos action in opening and carrying on the businessof a medical dispensary at the premises, Nos. 16 and 17, Kumertolli Street, iscontrary to the wishes and intentions of the testator, and is opposed to thedisposition which the testator has made in respect of these premises, andamounts to a breach of the trusts created by his will, and that the plaintiffis entitled to have the defendant restrained by the injunction of this Courtfrom continuing so to act in breach of these trusts.

34. The claim for the relief sought in clause (c) of theprayer of the plaint has not been pressed, and as regards clause (d) the resultof the evidence as to the structural alterations in the premises alleged tohave been effected by the defendant Gooroo Prosonno Sen since the testatorsdeath is not sufficiently clear to warrant the issue of the mandatory orderwhich the plaintiff seeks.

35. The result is there will be a decree in terms of the 1stand 2nd paragraphs of the prayer in the plaint, but I think the declaration andinjunction therein prayed for should be limited to the dispensary business nowcarried on in the premises, Nos. 16 and 17, Kumertolli Street, by the defendantGooroo Prosonno Sen.

36. The defendant Gooroo Prosonno Sen must pay theplaintiffs costs of this suit, including the costs of the commission, to betaxed on scale 2. The other defendants must bear their own costs.

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Bhuggobutty Prosonno Senvs. Gooroo Prosonno Sen and Ors.(09.07.1897 - CALHC)