Henry Thoby Princep, J.

1. These three appeals arise out of a suit which was broughtby the plaintiff Issur Lochun Roy, in respect of the proper construction of theWill of his elder brother Rai Rajib Lochun, Rai Bahadur, of which Will probatewas taken out in 1881 by defendants Nos. 1 and 2, the executors. The plaintiffwho instituted his suit on the 19th March, 1884, alleged that certain provisionsof the Will were void for uncertainty, and that he as heir-at-law was entitledto the whole residue of the estate of the testator which, upon a properconstruction of the Will, might be found co have been undisposed of. DefendantNo. 3 is the son of a sister of the testator, and was made a defendant afterthe institution of the suit.

2. In answer to this suit, the defendants alleged that theplaintiff by becoming a purnvishikta lingi in the testators lifetime hadrendered himself incapable of succeeding as heir, and that the preferentialheir was defendant No. 3. They further maintained that the provisions of theWill were good and effectual.

3. On the question of heirship, the lower Court found thatit was not proved that the plaintiff had become a pumavishikta lingi, and thateven assuming that he had become a purnavishikta, he was not therebydisqualified 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 atissue are the 17th, 18th and 19th, which run as follows:

17. After performing all the acts above mentioned, the saidexecutors shall get a Shivas temple erected at a reasonable cost in a suitableplace within the compound of the brick-built baitakhana house, inclusive of thebuilding and garden attached thereto, in which I have been continuously livingas my fixed place of residence, and which is situated in Saidabad, DivisionSujagunge, within this district of Moorshedabad and east of the Bhagirati, westof the public road, south of the lane and north of another lane and of RamtonuMistrys Ghat, and they shall get the god Shiva consecrated therein. And thesaid executors shall keep in deposit Government Promissory Notes of Rs. 9,500(nine and half thousand rupees) for the preservation and suitable repairs ofthat house in proper time, and for the daily and periodical worship of the saidgod Shiva, for his sheba (worship), and for the repairs of the temple, and theacts specified in these paragraphs will be continued to be performed with theamount of interest derived therefrom.

18. The said executors or any of my heirs andrepresentatives shall not be able to make any kind of gift, sale or alienation,or create any encumbrance on the baitakhana house situated in Saidabad andwithin the boundaries described above in paragraph 17, and none of my heirsshall be able to claim it in his own right. But the executors shall becompetent to allow my brother Issur Lochun Roy and my sisters son Sham Das Royto use the said baitakhana and rooms, &c.

19. If after the performance of all the above acts thereremains any money or moveable property as surplus, then the executors shall beable to-spend the same in proper and just acts for my benefit.

5. In respect of these clauses the findings of the lowerCourt are to the effect that the provision for the erection of a Shivas templein the compound of the baitakhana was good and valid, and that such a templeshould be erected by defendants Nos. 1 and 2 at a cost not exceeding 3 percent, 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 repairsof the temple ; that the baitakhana house was undisposed of by the terms of theWill, and that therefore the plaintiff succeeded to it as upon an intestacy aswell as to the other moiety of the sum of Rs. 9,500; that the residuary bequestsought to be created by the 19th clause was void for uncertainty, and that theplaintiff succeeded to the residue as heir. The lower Court further held thatthe interest which had accrued at the time of the testators death on theGovernment Promissory notes which were to be distributed by the executors inpayment 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 anddefendants Nos. 1 and 2 being payable out of the estate. None of the otherfindings of the lower Court are material for the purposes of these appeals.

6. Appeal No. 9 of 1885 is preferred by the executors whoquestion the correctness of the lower Courts construction of Clauses 17--19 ofthe Will.

7. Appeal No. 303 of 1885 is preferred by the plaintiffagainst those portions of the lower Courts decree which have reference to theShivaloy, to the accrued interest on the Government Securities, and to thecosts of defendants Nos. 1 and 2.

8. Appeal No. 311 of 1885 is preferred by defendant No. 3and has reference to his right to use the baitakhana house under Clause 18 ofthe Will, and to the question of his costs.

9. It will be convenient to dispose of the three appealstogether. The first question relates to the provision for the erection by theexecutors of a Shivas temple at a reasonable cost in a suitable place withinthe compound of the baitakhana.

10. For the executors it was contended that Clause 17, readwith Clause 13 of the Will, conferred on them an absolute discretion as to thereasonableness of the cost, and that the lower Court was not justified inlimiting the amount to 3 per cent, of the personal estate. Clause 13 providesthat the executors "shall perform all the acts properly and bona fide tothe best of their respective information and judgment, and according to theprovisions of this Will."

11. For the plaintiff it was contended that the entireprovision regarding the erection of this temple was void for uncertainty.

12. In the course of the argument, it transpired that thestone for the temple in question had been brought from Benares, and that,before the institution of this suit, the executors had already spenta sum whichdoes not fall far short of that allowed by the lower Court for the purpose oferecting the temple. The plaintiff, it is to be observed, did not bring hissuit till two years and a half after the death of the testator. It wasaccordingly very properly intimated by his counsel that, in the event of ourreversing the decree of the lower Court on this point, he would not press for arefund of the money already laid out upon the work.

13. We are not disposed, however, to interfere with thefinding of the lower Court on this point. We think that the testatorsintention was sufficiently indicated in the Will, He directed that a Shivaloyshould be erected at a reasonable cost on a suitable site, within the compoundof the baitakhana. The locality and nature of the building were described, andwe think that the Court has fixed a very reasonable and proper scale ofexpenditure for the erection of the temple in question. The next questionrelates to the baitakhana house ; and on this question we also agree with thefinding of the lower Court that Clause 18 of the Will neither operates todedicate the house to the idol Shiva nor to vest it in the executors. All thatthe clause in question says is that neither the executors nor any of thetestators heirs and representatives shall be at liberty to alienate orencumber it. But it remains undisposed of under the Will, and therefore goes tothe heir-at-law, and the provision that none of the testators heirs shall beable to claim it in his own right" is inoperative. So also is the furtherprovision enabling the executors to allow defendant No. 3 to use the house. Thehouse being undisposed of under the Will, the plaintiff as heir-at-law becameentitle to it on the testators death, and the executors have no power orauthority to allow defendant No. 3 to occupy it.

14. As regards the fund of Rs. 9,500 which the testator setapart for be preservation and repair of the baitakhana house, for the worshipof the idol and for the repair of the temple, the lower Court held that thefund in question should be divided into moieties, one of which was to beapplied 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 objectsin view, that is to say : (1) the repair of the baitakhana ; (2) the worship ofthe idol; and (3) the repair of the temple; and that the bequest being good asto the two latter, two-thirds of the fund should have been appropriated forthose purposes.

15. The plaintiff, on the other hand, contends that thewhole bequest is bad, and that the Court was not justified in holding it to begood as regards one portion and bad as regards another. We have already heldthat the provision as to the erection of a Shivaloy is sufficiently definite toconstitute valid bequest, and we think it clear that the testator intended tomake 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 ofthe idol; and (2), the preservation of the baitakhana. The question is whetherthe entire sum can be apportioned between these two objects, and if so, in whatproportion the sum should be divided. We are of opinion that the sum ought tobe divided in order that the testators intention may be carried out and a fundprovided for the support of the idol. But a difficulty arises when we come toconsider in what proportion the sum should be divided. The Will affords noindication of the sum which the testator wished to set apart for each of theobjects he had in view. The lower Court has adopted the rough and readysolution of dividing the sum equally between the two objects above named, andwe are not prepared to say that that solution was wrong. We think it may fairlybe said that, when a fund is provided for two objects, and there is noindication to show how much is intended for each, it may be presumed that, inthe absence of anything to the contrary, the intention was that they shouldbenefit equally, i.e., that half the fund was intended for one object and halffor the other. As regards the contention that the Shivaloy should benefit tothe extent of two-thirds of the fund, we are unable to recognize any cleardistinction between the worship of the idol and the repair of the temple so asto be able to say that a separate sum should be set apart and appropriated toeither object. We consider that "the preservation and suitable repairs ofthe house" was one thing and the "daily and periodical worship of thesaid 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 onthis point. We think he exercised a very proper discretion in the matter, andthat neither the plaintiff nor the defendants have any cause to be aggrieved atthe manner in which the fund has been allotted.

16. We now come to Clause 19 of the Will, which deals withthe residue of the moveable estate.

17. It is contended on behalf of the executors that thatclause creates a good and valid trust reposed in them to expend the residue ofthe personality on "proper and just acts" for the benefit; of thetestator. We are of opinion, however, that the lower Court was right in holdingthat the be- quest contained in this clause fails on account of vagueness anduncertainty.

18. It is true that the Courts in this country do recogniseand will enforce charitable and religious trusts, and that in doing so they arenot necessarily fettered by the same considerations which influence the Courtof 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 positionto form some definite idea of the object which the testator had in his mind. Inthe present case we think that there is no sufficient indication of the testatorswishes, and that the bequest must fail in consequence of the impossibility ofascertaining his intention. The words of the clause in question run as follows: "If after the performance of all the above acts there remains any moneyor moveable property as surplus, then the executors shall be competent to spendthe same in proper and just acts for my benefit." Now what did thetestator mean by his "benefit" Did he mean his spiritual benefit,or his posthumous fame, or what This, in the first place, is whollyuncertain. But even supposing that there were no vagueness in this part of theclause, and that the spiritual benefit of the testator was intended, what arethe "just and proper acts" which the testator considered would be forhis spiritual benefit, and which he intended should be performed. There isabsolutely nothing to indicate the nature of these acts--whether acts ofbenevolence were intended, or acts of charity or religious service. Theexpression is wide enough to cover anything from digging a tank or founding ascholarship, to performing a shradh or feeding Brahmans. We think then that, onthe ground of vagueness and uncertainty, this bequest must be held to fail, andthat the lower Court has rightly held that the plaintiff is entitled to takethe residue.

19. We are of opinion that the bequest contained in thisclause must also fail on another ground, as being in the nature of a precatorytrust; and such trusts, it has been frequently held, must be definite both asto the subject and as to the object of the gift. In the case of Mussoorie Bankv. 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 findsthem to be imperative on the first taker of the property, and that the subjectof the gift over must be well defined and certain." We are not prepared tohold in this case that words giving the executors authority to dispose of an indefinitesurplus in an indefinite manner are words sufficiently imperative to constitutea precatory trust.

20. As regards the accrued interest on the GovernmentSecurities, the learned Counsel for the executors is unable to support thefinding of the lower Court. The Sub-judge has relied on Section 82 of theIndian Succession Act, but it appears to us that he has not only misinterpretedthat section, but overlooked Section 309 et seq which deal with the matters inquestion. Whether or not the legatees are entitled to the interest on theGovernment securities from the date of the testators death, it is settled lawthat 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. Thetestator died leaving several pieces of Government Promissory Notes, and hisWill directed his executors to give certain persons such notes in variousspecified amounts. He did not give legacies of special notes, so that to adoptany rule, such as that allowed by the lower Court, would enable the executorsto favour some of the legatees so as to give them notes with the largest outstandings of unrealized interest. On general principles, therefore, the Judgeshould have been induced to refuse such a claim.

21. On the subject of costs, it is pressed upon us that noneof the defendants are entitled to have their costs paid out of the estate inconsequence of the nature of the defence set up as regards the plaintiffsstatus. We are unable to see that defendant No. 3 is entitled to any costs atall. 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 ofthe excessive issue of commissions, but there is nothing before us showing thecosts incurred on this account. We therefore see no sufficient reason tointerfere with the order of the lower Court as to costs. Bach party will payhis own costs in this Court.

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Issur Lochun Roy vs. Gokool Nath Guha and Ors. (08.09.1886 -CALHC)