ORDER :

Subba Rao, J.

1. This appeal by certificate raises the question of construction of a will executed by one Pyare Mohan Bannerji.

2. The facts giving rise to this appeal lie in a small compass and they are as follows: Pyare Mohan Bannerji died in October 1874 leaving behind him considerable property. He executed a will dated February 12, 1874, making various bequests, including the payment of certain amounts to the first respondent, Uttarpara Hitakari Sabha. After his death, his widow held the property for life till her death on March 25, 1945. Thereafter, the property went into the possession of the appellants, who are the heirs at law of the testator. On March 17, 1950, the first respondent, Uttarpara Hitakari Sabha (hereinafter referred to as "the Sabha") filed an application in the High Court of Judicature at Allahabad under Section 10 of the Official Trustees Act (Act 2 of 1913) claiming that the late Pyare Mohan Bannerji had created a trust by his will and praying that an official trustee be appointed to be the trustee of the properties of the trust. This was registered as Testamentary Case No. 9 of 1950. The appellants contested the claim of the Sabha and contended, inter alia, that no trust had been created by the testator and that the appellants, being the legal heirs of the testator, were entitled to succeed to the entire property left by him. Mootham, J., as he then was, who heard the said case at the first instance, held that by his last will Pyare Mohan Bannerji created a trust in favour of the Sabha, and appointed the Official Trustee a trustee of all the properties left by Pyare Mohan Bannerji specified in Schedule B to the petition. On appeal, a Division Bench of the said High Court, consisting of Malik, C.J., and Agarwala, J., agreed with Mootham, C.J., that the will created a trust in favour of the Sabha; but the learned Judges held that the Sabha was entitled only to a half share in the cash and properties pertaining to the estate of the said testator, and appointed the Official Trustee as trustee only in regard to the said share: on that basis, suitable directions were given. The first respondent accepted that position, but the appellants i.e. the persons claiming to be the heirs at law, preferred the present appeal against the judgment of the High Court insofar as it went against them.

3. Learned counsel for the appellants contends that under the will not a trust but only a charge was created in favour of the first respondent and, therefore, the first respondent could not invoke in aid the provisions of Section 10 of the Act. Section 10 of the Act reads:

"(1) If any property is subject to a trust other than a trust which the Official Trustee is prohibited from accepting under the provisions of this Act, and there is no trustee within the local limits of the ordinary or extraordinary original civil jurisdiction of the High Court willing or capable to act in the trust, the High Court may on application make an order for the appointment of the Official Trustee by that name with his consent to be the trustee of such property."

It is common case that if the will created a trust, it would not fall under any one of the exceptions mentioned in the section. Therefore, the only question is whether the will created a trust or a charge in favour of the first respondent.

4. The concepts of trust and charge are well defined. A trust is "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner". Where property "of one person is made security for the payment of money to another, the latter person is said to have a charge on the property". The boundaries between the two concepts are well demarcated; but, more often than not, courts found considerable difficulty in construing a particular document to place it in one or other of the categories. The same difficulty was encoun