Judgement

Appeal (No. 25 of 1919) from a judgment and decree (January 4, 191,7) of the High Court reversing a decree of the Additional District Judge of Garakhpur.

The suit was instituted by the appellants under s. 14 of the Religious Endowments Act (XX. of 1863), by leave of the Court, to eject the respondents from certain property and for an account of the profits.

The question for determination in the appeal depended upon the true construction of the will of a Hindu, Sukh Mangal Singh, who died in 1912, leaving two widows, the respondents. On the death of the testator the respondents had entered into possession of his property, and after performing thereout the religious purposes mentioned in the will had enjoyed the surplus income.

The material terms of the will are stated in the judgment of the Judicial Committee.

The trial judge held that by the will the testator created an endowment of his whole property in .favour of the idol named therein, subject to a charge for the maintenance of his widows, the respondents.

The High Court, upon an appeal, reversed the decision holding that the will created only a charge upon the estate for the religious purposes named, and that subject to that charge the legal heirs of the testator were entitled to appropriate the income. The learned judges (the Chief Justice and Banerji J.) said " The will no doubt states that a wakf was created, but, from the clauses contained in it, it is manifest that what was intended by the testator was that the idols should be maintained out of the income." After submitting the provisions of the will to a detailed examination they said " All this is inconsistent with the dedication of the property to the idols. On the contrary the inference to be drawn from the will read as a whole is that it created a charge on his property for the expenses of the idols, subject to that charge the property was to go to his legal heirs who were fully entitled to appropriate all the income of the property."

1921. Feb. 11. De Gruyther K.C. and Narasimham for the appellants.

Dunne K.C. and Kenworthy Brown for the respondents.

The arguments were as to the construction of the will, reference being made to the cases mentioned in the judgment of their Lordships, also to Maynes Hindu Law, 8th ed., para. 438.

1921. March 1. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal against a decree of the High Court of Judicature for the North-Western Provinces at Allahabad dated January 4, 1917, which reversed a decree of the Additional District Judge of Gorakhpur dated February 11, 1915.

As their Lordships have come to be of opinion that the judgment of the High Court is correct, they also agree that it is unnecessary to deal "with another question opened on this appeal—namely, whether the plaintiffs have a title to sue as interested persons within the meaning of s. 14 of the Religious Endowments Act, 1863.

The question on the merits concerns the construction of the will of Babu Sukh Mangal Singh, who died on August 2, 1912, leaving two widows, who were chief defendants in the action and of whom the present respondent is the sole survivor.

The will is dated October 29, 1903. The point in issue is not unfamiliar. It is whether the property conveyed by the will was an absolute gift to a certain idol—namely, Sri Thakurji— or whether the property is truly destined to the testators own heirs under the will, subject to a charge of maintaining Sri Thakurji and meeting all the suitable expenses of the Thakurdwara, the cost of its repairs and the pay of the servants connected with it, as these are set out in the will itself.

In such cases no fixed and absolute rule can be set up, derived alone from the use of particular terms in one portion of the will. The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand,