JUDGMENT
1. The two appeals Nos. 143 and 241 of 1916 are connected and arise out of a suit brought under Section 92 of the Code of Civil Procedure.
2. The principal appeal is No. 140 of 1916 and is by one of the defendants only. It appears that there were two brothers, called Kunj Behari Lal and Sital Prasad, who had a considerable joint business at Ecawah, Kunj Behari had no children. Sital Prasad had four sons, namely, Banka Behari Lal, Girwardhari Lal, Banarsi Das and Sheo Narayan. On the 6th of December 1900 there was a partition between the two brothers, Kunj Behari and Sital Prasad. On the 21st of December 1900, Kunj Bahari made a Will by which he gave his separated share to his nephew, Banke Behari Lal, and the eldest son of the latter, Jai Narayan, in the proportion of 7 annas and 9 annas respectively. Kunj Behari Lal died some time prior to 1902. ON the 18th of December 1962, Sheo Narayan and Girwardhari Lal brought a suit against their father and their brothers and nephews for partition of the property, ignoring the partition of 1900 and contesting at the same time the validity of the Will of Kunj Behari Lal in favour of Banke Behari and his son. The dispute between the parties was referred to arbitration. The arbitrators upheld the partition of 1900 as also the Will of Kunj Bahari Lal. They divided the separated share of Sital Prasad between him and his descendants. A decree was accordingly made in terras of the award on the 16th of April 1903, under which property of the value of about Rs. 52,000 was given to Sital Prasad, On the 24th of February 1904, Sital Prasad made a Will in respect of his separated share, by which it is alleged he erased a wakf directing the erection of a dharamshala and a bathing ghat at Etawah and appropriating the income to the upkeep of both. He died a few days after on the 5th of March 1994. On the 12th of September 1904, two applications were made by Banke Behari Lal to the Municipal Board of Etawah for permission to build a bathing ghat on the banks of the Jamna and a dharamshala on the land mentioned in the application in or near the town of Etawah. The two applications are printed at pages 16 and 17(R). With regard to his application relating to the building of the bathing ghat permission was granted by the Municipality. His application about the dharamthala was refused on the ground that the land upon which he proposed to build was nasul land and permission could not be granted to build upon it. Nothing further was done in the matter for some years. Banke Bahari Lal died on the 5th of March 1907. On the 14th of March 1907 Banarsi Das and Sheo Narayan, two of the sons of Sital Prasad, brought a suit against Jai Narayan, Girwardhari Lal and Gar Narayan for cancellation of the Will of the 24th of February 1904 and for the recovery of their share in the estate of Sital Prasad. In the alternative the plaintiffs prayed that if the Will of the 24th of February 1904 was held to be genuine, the directions contained therein should be carried out. The defence to the suit was that the Will was a valid Will and that it created a wakf. In May 1907 an application was made by the plaintiffs for the amendment of their plaint, praying that the allegation with regard to the validity of the Will be eliminated, and that their relief with regard to the maintenance and observance of the wakf be allowed. The amendment was opposed by the defendants unsuccessfully. The case was disposed of on the 29th of June 1907, and the only question before the Court was as to costs as the relief sought by the plaintiff after the amendment was practically admitted by the defendants. A few days prior to the decision of that case Jai Narayan and Rup Narayan brought a saint on the 13th of June 1907 against Banarsi Das for the recovery of Rs. 13,268, of which Rs. 11,934 was the principle and the balance interest, on the allegation that Banarsi Das had taken a loan from his father and the money was payable co the wakf fund. The claim was resisted on the ground that no loan was obtained by Banarsi Das but that the sum in question was a gift by his father to him in his lifetime. The case was fixed for hearing on the 5th of December 1907. On that date the first meeting of the committee constituted by the Will of the 24th of February 1904 was held and certain questions were put by Banarsi Das to the members of the committee for decision. Among the said questions three related to three sums alleged to have been paid to Banarsi Das, to the daughter of Jai Narayan and to the daughters-in-law of the family of Sital Prasad. The three sums were:
Rs. 10,000 to Banarsi Das, Rs. 5,000 to the daughter of Banke Behari Lal as kannyadan, and Rs. 4,000 to the daughters-in-law of the family.
3. The committee Came to the conclusion that the said three sums were gifts by Sital Prasad to the persons named above. Sheo Narayan, who was a member of the committee, entered his protest against the resolution of the committee. The proceedings of the committee of that date that have been pointed and are before us show that Sheo Narayan objected to one of the resolutions. He has, however, in his evidence deposed that he objected to all the resolutions passed at that meeting and that the word yih has been changed into ek, that is, in other words, the word "these" has been altered into one.
4. Another resolution of the same committee was passed to the effect that the claim against Banarsi Das should not be pressed.
5. Accordingly a telegram was sent to the Court at Mainpuri where the ease was pending, and the claim against Banarsi Das was withdrawn.
6. On the 27th of May 1907 a house was purchased in Etawah for Rs. 8,500 and a dharamthala was started. It is in evidence that charity was dispensed at the place from the 14th of August 1907 to the 3rd of June 1909, and that the expenses during that period amounted to Rs. 1,308-83. The building was sold on the 1st of March 1910, and we will refer to this transaction later on. On the 17tb of November 1913, an application was made by three persons, namely Gauri Shanker, Banke Lal and Ujagar Lal, to the Legal Remembrance for permission to bring a suit in respect of the alleged wakf under Section 92 of the Code of Civil Procedure and permission was granted to them on the 19th of March 1914. They instituted the suit out of which these two appeals have arisen on the 20th of May 1915 against the sons of Banke Behari Lal, of Girwardhari Lal, of Banarsi Das and against Sheo Narayan. The latter is the only surviving son of Sital Prasad, It was alleged in the plaint that Sital Prasad had created a waif by his Will dated the 24th of February 1904 and that the wakf property consisted of cash, houses, village and jewelry amounting in all to the value of Rs. 1 20,000 The trust was coated according to the plaintiffs for the construction and upkeep of the dharamshala, the two temples and a bathing ghat on the banks of the Jamna, both for the use of the Hindu public. Under the Will a committee was appointed, consisting of a President, a Secretary and four members. The committee had not only done nothing in the matter but had been guilty of misconduct. It was alleged in paragraph 6 of the plaint that the members of the committee had been misappropriating the half property and had been deriving undue advantage therefrom and had been be nesting their near relations. A specific instance of bad faith was given in paragraph 7 of the plaint, where it was stated that an irrecoverable debt due to the firm of Banke Behari Lal and Jai Narayan for the sum of Rs. 16,000 was transferred to the wakf account and a mortgage taken from the debtors. The plaintiffs described themselves as members of the family of Sital Prasad and of the religion that he belonged to. They said that they were entitled to worship at the temple that was to be built according to the Will of the 24th of February 1904, as also to bathe at the ghat on the banks of the Jamna if that had been built. They, therefore, said that they had a right of action against the defendants. They distinctly stated that the wakf created under the Will of the 24th of February 1904 was a charitable and religious public wakf. They prayed for the following reliefs:
(a) The present trustees may be removed and new ones may be appointed according to the discretion of the Court.
(b) The entire property of the wakf may be delivered over to the new trustees.
(c) Jai Narayan and Prag Narayan, the two adult sons of Banke Behari Lal, should be made to furnish an account of the wakf properties and to state what and where the wakf properties are. They should also be made to refund to the wakf fund any sum which may have been misappropriated by them or by their ancestor or may have been lost by misconduct or negligence of themselves or their ancestor.
(d) A scheme for management of the wakf property should be laid down.
(e) Any other relief which the circumstances of the case may require be granted to the plaintiffs.
(f) Costs of the suit be awarded against the defendant who is found to be at fault.
7. The chief contesting defendants in the case were Jai Narayan, and his brother, Prag Narayan, who filed a joint written statement. They pleaded that the trust in question was a private trust and not a public trust that full discretion was allowed by the testator to the members of the committee both as to the object of the trust and the management of the trust property; that the dharamshala and the ghat were not built because the funds left for their construction were found to be insufficient; that in place of the dharamshala and the ghat the members of the committee started a school and thereby carried out the wishes of the testator. The instance of the mortgage of Rs. 16,000 mentioned in paragraph 7 of the plaint was challenged. The defendants said that it was a goad investment. The list of wakf property given at the foot of the plaint was challenged. The last plea was that the suit by the plaintiffs was a counterblast to the suit brought by Prag Narayan against Gauri Shanket for the recovery of sums misappropriated by his father, Raghubir Dayal, who for a long time was the Manib of the firm of the defendants. Sheo Narayan, the surviving son of Sital Prasad, practically supported the claim of the plaintiffs. Both parties gave evidence in the case, but the account books of the defendants were not produced in Court in spite of repeated demands till a very late stage, when they could be of no use as the evidence in the case has closed. The learned Judge who tried the case, after a careful consideration of the evidence, came to the following conclusions. That the Will of the 24th of February 1904 created a charitable and religious public wakf; that the plaintiffs had a right to sue; that the committee had not carried out the objects of the wakf; that some of the members of the committee had been guilty of misconduct and that the instance given by the plaintiffs as well as the relinquishment of the claim of Rs. 10,000 against Banarai Das together with the payment of the sum of Rs. 5,000 to the daughter of Banke Behari Lal were some of the instances of bad faith; that the trust property was worth Rs. 53,000 and that Jai Narayan should render accounts to the new committee which the Judge appointed. We have already remarked above that there are two appeals in the ease. The principal appeal is by Jai Narayan and the connected appeal is by the plaintiffs. We shall dispose of both appeals by one judgment in the principal case of Jai Narayan.
8. The argument on behalf of Jai Narayan is somewhat different from that which was put forward in the Court below. We shall first give the heads of the arguments of the learned Counsel for him and then discuss them seriatim. It is contended on behalf of the appellant Jai Narayan that the Will of the 24th of February 1901 created no wakf at all; that if by straining of the language it be held that the Will did create a wahf, that wahf was a private one. In case the wakf is held to be a public one for charitable and religious purposes, then it is had for vagueness, Moreover, the members of the committee have from time to time dealt with the wakf property honestly and to the best of their judgment and ability and no misappropriation of any portion of the wakf property has been made, nor has any bad investment been deliberately made by any members of the committee of the wakf fund. A wakf in respect of the village of Kutabpur had been made sometime prior to 1904 and no new wakf could be created by the Will of 1904 and, therefore, the village should be left out of account. The sum found by the learned District Judge as wakf property is wrong and the real amount is Rs. 33,550-7-9. It is further contended that all the defendants should have been nude liable, if at all, for rendition of account and delivery of the trust property. The order of the learned District Judge With regard to the delivery of trust property is challenged on the ground that it is ultra vires, as no such order can he made under Section 92 of the Code of Civil Procedure. As to the constitution of the new committee objection is taken to the appointment of Brahma Narayan, who is not among the descendants of Sital Prasad.
9. Before discussing the merits of the first objection that the Will did not create a wakf at all, we would remark that this objection was not taken by the defendants in their written statement or in the argument before the lower Court or in the grounds of appeal before this Court. We have, however, allowed the learned Counsel to urge and argue the point. He contends that the language of the Will only expresses a pious wish of the testator and does not positively lay a command upon the members of the committee to do any of the things suggested in the Will. Therefore, the words are predatory and cannot be said to create a valid trust. After a careful perusal and examination of the language of the Will which, by the way we may remark here, we have seen and considered in the original, we are unable to agree with the learned Counsel. The words of the Will bearing on the point under discussion are as follows:
I, therefore, give it in writing as regards the said property that I shall remain in proprietary possession of the property during my lifetime, that as regards the moveable and immoveable properties that might remain in my possession at the time of my death I make a Will as follows. A committee should be formed to carry out the directions given below: The committee would have all sorts of powers regarding the management of the said properties. My eldest son, Banke Behari Lal, should be appointed as the president (of the committee), Banarsi Das, my third son, should be the the secretary, and Sheo Narayan, my fourth son, Jai Narain, son of Banke Behari Lal aforesaid, Gur Narain, ton of Girdhari Lal, and Gauri Shanker, son of Raghubir Dayal, should be appointed as the members of the said committee.
10. After giving certain directions about the constitution of the committee the testator goes on to say--
I consider it advisable to give some of the directions below. The committee, so far as possible, shall be bound to comply with them.
(a) Bisrant (ghat) Sri Jamnaji should be built in Etawah at a cost of about Rs. 2,500.
(b) A dharamshala containing two temples, one of Sri Mahadeoji Maharaj and the other of Sri Thaknrji Mharaj, should be buils in Etawah at a cost of about Rs. 5,000.
(c) In the said dharamshala each of the four sons of mine should cause 4 small rooms to be built at his own cost, under the management of the committee, with reference to the plan of the dharamshala. The amount that might be given in charity on the occasions of the marriages of my sons, grandsons or their male children should be given in this wakf fund to the extent of 1/4th. Should any one fail to do so, he and his sons should be debarred from holding any of the aforesaid offices so long as they do not comply with the above directions.
(d) The principal amount of cash or the property should not be utilised in defraying any expense other than those enumerated above. So far as possible about 3/4ths of the income yielded thereby, i.e., interest or profits should be spent on the following objects according to the discretion of the committee or on any other Act of charity.
11. The objects of charity are then specified. The rest of the Will relates to the powers of the president and the secretary and the mode in which the wakf property shall be managed. There is a distant direction that the income and the expenditure of the property shall be daily entered in the account book. It is clear from the language of the passages we have just quoted that the Will in question did create a wakf. The argument on behalf of the appellant is founded upon the discretion allowed to the committee, but that discretion relates only to the management of the properties and not to the objects for which the wakf was created. The words of the Will are: "The committee would have all sorts of powers regarding the management of the said properties." It is nowhere stated in the Will that the committee could, if they chose, divert the use of the property from the objects for which the trust was created It is true that where charities are mentioned the testator gives discretion to the committee to spend the income on the charities mentioned by him as WELL as any other that the committee might think proper, but the language would not bear the construction tried to be put upon it by the learned Counsel for the appellant, to the effect that the charities specified in the Will could entirely be ignored by the members of the committee. The descendants of Sital Prasad themselves understood the Will to create the trust This is not only apparent from the written statement in the present case but also from the written statement filed in the suit of 1907, already mentioned above as also from the applications of Banke Bihari Lal made to the Municipality on the 12th of September 1904. There were 12 meetings of the committee in all from 5th of December 1907 to the 29th of July 1915, and at all those meetings the trust was recognised. We are, therefore, of opinion that the Will does create a trust.
12. The contention for the appellant that it is a private trust has also no force. The object of the trust was the construction of a dharamshala and of a bathing ghat, at both of which not only the members of the family of the testator or the members of his religion but presumably the Hindu public would have access. There were to be two temples in the dharamshala to which the Hindu public worshipping the idols to be installed in those temples would have free access. The feeding and the clothing of the poor who visited or resided in the dharamshala and the free distribution of medicine would also go to show that the trust was a public trust. In fact Banke Behari Lal in his applications to the Municipality, when asking for permission to build a dharamshala and a bathing ghat, describes the trust to be a public treat. We will quote one or two sentences from his applications. In his application for building the ghat he says as follows: "According to the directions given in his Will by my deceased father I wish to construct two pakka built vishrants for the good of the public and the benefit of the soul in the next world. I pray that the Government may, for the benefit of the general public and the poor, be pleased, etc., etc."
13. In his application for permission to build a dharamshala he said:
At the time of his death my father made a Will for construction of a dharamshala as well. I also want to execute the Will aforesaid for the benefit in this world and in the next world as well as for public good. I file herewith two copied of maps and pray that for the purpose of doing good to the poor, for public and charitable purposes, the dharamshala may after local inspection be permitted to be constructed.
14. At the various meetings of the committee that took place from time to time it was prominently brought out in the proceedings that the trust was a public trust. The proceedings are printed from pages 28 to 42(A). We have no hesitation in holding that the trust created by the Will is a public trust for charitable and religious purposes.
15. The contention with regard to vagueness was, however, strongly pressed before us by learned Counsel for Jai Narayan. In respect of this contention also we have to remark that it was not urged in the Court below at any stage of the case, nor does it find a place in the grounds of appeal here. The argument is again urged on the basis of the power of discretion given to the committee by Sital Prasad. It is contended that when the committee had full discretion to do as they thought proper both with regard to the object of the wakf and the manner of managing of the wakf property, there obviously was vagueness in the creation of the trust, We do not find from the Will that full and unlimited power was given to the committee to do what they liked both with regard to the object of the wakf and the management of the property. On the contrary we find that the only discretion given to the committee was with regard to the management of the trust property, and that with the qualification that the corpus of the property could not be dealt with. The committee had also to a certain extent discretion as to the expenditure of a portion of the income on charity other than the charities specified by the testator. The learned Counsel for the appellant first assumes that the Will left everything to the members of the committee and then bases his argument on the plea of vagueness. As we have already remarked above, the Will distinctly and clearly lays down the direction that a dharamthala and a bathing ghat are to be built and that three-fourths of the income of the wakf property is to be spent in the upkeep of the two buildings and towards the support of the poor and the needy who visited the dharamthala and on the free distribution of medicine to the sick. There is no vagueness about these objects at all, nor is there any discretion left to the members of the committee about them. For the appellant several gases have been cited in support of the contention that the trust created by the Will is bad for vagueness. Gokool Nath Guha v. Issur Lochun Roy 14 C. 222 : 11 Ind. Jur. 334 : 7 Ind. Dec. (N.S.) 147, Mussoorie Bank Limited v. Albert Charles Raynor 4 A. 500 : 9 I.A. 70 : 4 Sar P.C.J. 346 : 2 Ind. Dec. (N.S.) 963; Kumarasami v. Subbaraya 9 M. 325 : 3 Ind. Dec. (N.S.) 622; Runchordas Vandravandas v. Parvatibai 23 B. 725 : 1 Bom. L.R. 607: 3 C.W.N. 621 : 26 I.A. 71 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485; Jugalkishore v. Lakshmandas 23 B. 659 : 1 Bom. L.R. 118 : 12 Ind. Dec. (N.S.) 440; Grimond v. Grimond (1905) A.C. 124 : 74 L.J.P.C. (sic) :92 L.T. 477 : 21 T.L.R. 323; Blair v. Duncan (1902) A.C. 37 : 71 L.J.P.C. 22: 50 W.R. 369 : 86 L.T. 157 : 18 T.L.R. 194.
16. In the Bombay case 23 B. 725 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 26 I.A. 71 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 the property was left by the testator to the trustees for making dharamshala. It was held that the word dharm dan had so many various meanings that it could not be decided for what purpose the testator left the property. The dedication was held to be void for uncertainty. The second Bombay case to be found at page 659(5) really against the contention of the appellant In that case it was held that because the dharamshala was attached to the temple and there was a direction for the maintenance of a sadabart, the intention of the founder was to devote the property to public, religious and charitable purposes.
17. In the Madras case 9 M. 325 : 3 Ind. Dec. (N.S.) 622 a Hindu by his Will, after appointing certain persons executors for the purpose of managing his estate after his death, gave them the following direction: "You should give my brothers, their wives and children according to your wishes." The contention for the beneficiaries was that a trust had been created in their favour. Their contention was disallowed, on the ground that the words of the testator mentioned above did not create a trust as they were not sufficiently imperative and too vague and general.
18. The case of Mussorie Bank Limitsd v. Albert Charles Raynor 4 A. 500 : 9 I.A. 70 : 4 Sar P.C.J. 346 : 2 Ind. Dec. (N.S.) 963 is also distinguishable from the present case. In that case property was left by the testator to his wife completely, with a wish that when no longer required by her he hoped that she would deal justly by her children. It was held that the Will created no trust and that the words were neither wall defined nor imperative.
19. In the case of Blair v. Duncan (1902) A.C. 37 : 71 L.J.P.C. 22 : 50 W.R. 369 : 86 L.T. 157 : 18 T.L.R. 194 a lady by a codicil in her own handwriting directed her trustee that in a certain event one half of the residue of her estate should be applied for such charitable or public purposes as the trustee might think proper. The words were found to be much too vague and uncertain to create a valid trust.
20. In the case of Grimond v. Grimond 9 M. 325 : 3 Ind. Dec. (N.S.) 622 property was left to the trustees for application to charitable or religious societies or to such institutions as the trustees might select.
21. In both the English cases the word "or" was taken to be disjunctive, and it was held that the language of the testator was much too vague and uncertain as to the object of the trust. We do not think that any of the cases relied upon by the learned Counsel for the appellant helps him. The correct principle to determine the validity of a trust, in the words of an eminent English Judge, is whether "the testator has pointed out the object, the property and the way in which it shall go." In the present case the objects of the trust are distinctly specified in the Will by Sital Prasad, namely, the building of the ghat and the dharmashala and their maintenance and certain charities. The properly is also specified in the Will, for he says that the property in respect of which he creates the trust is that in respect of which he obtained a decree on the 16th of April 1903, and, the way in which the property was to be applied is also definitely stated in the Will, namely, the upkeep of the ghat and the dharmashala and the support of the charities mentioned in the Will. We, therefore, hold that the trust created by Sital Prasad is not bad for vagueness.
22. The 4th objection relates to Kutubpur, It is said that no trust could have been created in respect of it by Sital Prasad, inasmuch as he himself admits by the Will that a former trust existed in respect of it. This plea was not taken in the Court below at any stage of the case. The decision of the question really depends upon evidence, which would disclose the fasts and circumstances under which the former trust with regard to Kutubpur was made. It is quite conceivable that Sital Prasad himself made a trust in respect of Kutubpur in language which left him the power in his own lifetime of creating another trust in respect of it. The defendants bad sufficient opportunity to meet the case of the plaintiffs and they could have shown by evidence circumstances under which the original trust in respect of Kutubpur was created. We, therefore, disallow the objection.
23. The objection of the appellant to that part of the decree of the lower Court which directs delivery of the trust property to the new trustees is also without foundation. It is contended that such a decree is not within the purview of Section 92 of the Code of Civil Procedure. We think that Clause (h) of Section 92, Civil Procedure Code, to the effect "granting such further or other relief as the nature of the case may require" empowers a Court to make such a decree as the lower Court has done. This view is not without authority. It has been adopted in one or two cases both here and in Calcutta.
24. A very strenuous objection is taken to the appointment of Dharam Narayan to the new committee, on the ground that the Will of Sital Prasad distinctly laid down that no one other than from among his descendants was to be a member of the committee. It is true that there is such a provision in the Will, but if by death or refusal or misconduct of the descendants of Sital Prasad it appears that none of them is available for service of the committee, or if a sufficient number of them cannot be obtained to serve on the committee, the Court has power to add even strangers to the committee. In any other view of the law a trust could be defeated by a trustee or trustees by refusing to act or by miscomputing themselves or by their death, if by the terms of the trust the appointment to the committee had to be made from the descendants of the testator only. Low in his book on "Trust" talking of a case like the present says:
"If trustees either die in the testator's life-time or decline the office or disagree among themselves as to the mode of execution or do not declare themselves before their death or if from any other circumstance the exercise of the power by the party who is entrusted with it becomes impossible, the Court will substitute itself in the place of the trustees and will exercise power by the most reasonable rule;" vide page 1050, We think that the learned Judge was right in appointing Dharam Narajan to the committee; the latter, though not a descendant of Sital Prasad, is a distant collateral.
25. Both the appeals, therefore, fail.
26. We modify the decree of the Court below by deleting from it the direction to Jai Narayan to render accounts to the new committee and instead we direct that the first three defendants should pay to the new committee Rs. 48,000 with interest at 4 per cent, per annum from the 5th of March 1904 to the date of payment less a sum of Rs. 1,318, and to deliver the houses and the share in the village of Kutubpur to the new committee. The rest of the decree is maintained.
27. The appeal of Jai Narain is dismissed with costs, including in this Court fees on, the higher scale.
28. The cross-objection of Sheo Narain about his costs is disallowed.