Lord Buckmaster:-

Their Lordships think it is unnecessary to hear the Respondents upon this appeal. The question raised depend entirely upon the true construction of the Will of one Srinath Das, who died on the 13th September, 1907. The appellants say that that Will has been incorrectly construed by the High Court in three particulars. In the first place they assert that there is no valid dedication for religious purposes of two houses, 10, Srinath Das Lane and a house in Benares; secondly, that there is no proper dedication for religious purposes of the accumulations of income of properties that were validly dedicated; and, finally, that there is no disposition of the residuary estate, and that consequently it must pass as on an intestacy. These points are separate and can be separately considered.

The first depends upon the contention that although it is admitted there is a good bequest of the income of the houses that are specified in the first clause of the testator's Will for religious purposes, and included in those houses are 10, Srinath Das Lane, and a house at Benares, yet the conditions affecting the use of the two specified houses take them outside the ambit of the charity. The trusts imposed upon these two houses are different. With regard to the Benares house it is provided that it shall be available for all members of the testator's family, both male and female, for temporary residence and use. If the phrase "members of my family" be treated in this Will as meaning the members of the testator's family who were existing at the date of his death, it must be conceded that there is nothing that can be urged against the validity of the bequest. The word "family" is elastic and capable of different interpretations, but in the present Will their Lordships see no reason why it should be extended to include people other than those existing when the testator died. So far, therefore, as the Benares house is concerned nothing further need be said. With regard to the house, 10, Srinath Das Lane, the true construction of the gift depends on a kindred, but a slightly different, consideration. In that case it is provided that the Shebait for the time being shall be entitled to reside with his family in the said dwelling-house, but the dwelling-house itself is the place specially set apart for the family idols to which specific reference is made in the Will, and in their Lordships' opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling-place. Upon the questions, therefore that relate to 10, Srinath Das Lane and the Benares house their Lordships think that the appellants must fail. They cannot, however, part with this contention without expressing regret that a point of such importance, associated as it is and must be with Indian religious ceremonies and dedication for religious purposes well known and understood in India, does not appear to have been properly urged before the High Court, and certainly finds no part whatever in the judgments of the learned Judges.

The next question was undoubtedly argued in the High Court, and is very fully dealt with indeed in the judgments; its solution depends upon whether or no, when the Will clearly stated that the revenues and rents of named properties are to be applied in a certain manner, with a direction for accumulation of surplus income, and then continues with a provision that "out of the income of such fund" the Shebait shall have power to celebrate religious ceremonies, the words "such fund" include the added accumulations or are only applicable to the original debutter fund. The former is in their Lordships' opinion the correct interpretation. "Such fund" means the whole property, so that the accumulations which are added become part of the corpus, and are equally with it subject to the charitable trust created by the