Malik, C.J.@mdashThis an appeal against a judgment of a learned single Judge passed u/s 10 of the Official Trustees Act, 1913, appointing the Official Trustee as the Trustee of the property specified in Schedule B to be held by him upon the trusts declared in the will of the late Pyare Mohan Banerji dated the 12th February, 1874.
2. The property in Schedule B (Annexure B) attached to the application consists of cash and Government promissory notes deposited in the Court of the District Judge, Allahabad, valued at Rs. 61,700/, three houses, one in Allahabad valued at Rs. 500/- and two in Banaras valued at Rs. 8,500/- . Besides these properties there were certain zamindari shares detailed in the said Annexure and a bungalow situate in Shahpur, district Gorakhpur, valued at Rs. 500/- . As regards the zamindari property, the whole of it has now been acquired by the State and compensation for the said property is payable to the owners thereof. The properties, therefore, that have to be considered are cash, Rs. 61,700/- , four houses valued at Rs. 9,500/- and compensation money realisable from the Government, and four groves.
3. Pyare Mohan Banerji was a lawer and also a Judicial Officer. His original home was Uttarpara in Bengal. He made a will on the 12th February, 1874, the terms of which are important. He gave his entire property to his wife Ushangini Debi and his nephew Sital Prasad Chatterjee for their lifetime, subject to the payment of all his debts and certain annuities and charges mentioned in the said document. The annuities and charges total up to Rs. 141/- and include and allowance of Rs. 15/- per month to the Uttarpara Hitkari Sabha. The Sabha was a charitable institution in which the testator was interested and the will mentions that the amount had to be spent in schooling fees of indigent boys whose parents or guardians might rot be able to educate them. These boys were to be either residents of Uttarpara or if there was no such boy available, then residents of Bengal. The testator then considered the various possibilities of his dying leaving a son and his newhew Sital Prasad dying without leaving son or vice versa or both leaving sons. In fact neither of them left any male children and none of these contingencies, therefore, arose and we need not examine the provisions relating to them. The will provided that if the testator died without leaving any children and his nephew Sital Prasad Chatterjee also died without leaving any son surviving him, whole of the property should devolve on his legal heirs subject to the payment of annuities to such of the annuitants as might be alive at that time and a sum of Rs. 30/- to the daughter or daughters, if any, of his nephew Sital Prasad Chatterjee and to the payment of the half of the remaining profits to the Uttarpara Hitkari Sabha or any other institution which may take its place to be spent thus:
Rupees fifty per month in payment of the Schooling fees of indigent boys of Uttarpara residing in the Uttarpara School and the balance, if any, as scholarship to persons resident of Uttarpara or failing such of Bengal who after passing the Entrance Examination of the Calcutta University may wish to learn Practical Agriculture or Chemistry or Mechanics.
4. The question has arisen whether by the provisions made above, the testator intended to create a trust and, if so, of what part of his property. According to the view taken by the learned single Judge the entire property was made a trust of and he therefore directed that the Official Trustee should take charge as trustee of the entire property.
5. On behalf of the Appellants, Mr. Jagdish Swarup has argued that there was no trust of any part of the property and that a mere charge was created in favour of the various annuitants and the charge in favour of the Uttarpara Hilkari Sabha in the clause quoted above fails, inasmuch as the legal heirs take the property in their own right and not subject to any charge.
6. On behalf of the Respondents Mr. Ambika Prasad Pandey has, however, urged that the intention of the testator was that the entire property should be made a trust of and the income should be distributed among the various beneficiaries. The legal heirs, according to Learned Counsel, should be deemed to be beneficiaries to the extent of the income left after payment to the various annuitants.
7. Learned Counsel for the Appellants has drawn our attention to the fact that the will was attested by a very eminent member of the Bar, the late Shri Jogendra Nath Chowdhury, an Advocate, and has urged that if the testator had any intention of creating a trust, he would have used clearer language and would not have throughout the will directed that his property should go to the persons named by him or to his legal heirs as owners thereof.
8. Certain English cases were cited before the learned single Judge and some of them have been cited before us. One case which was not cited before the learned single Judge but was cited before us was Duke of Norfolk''s will Trusts Public Trustee v. Inland Revenue Commissioners 1950 All ELR. 664 at p. 675 dealing with an annuity charged on property. Jenkins, L.J. said:
An annuity charged on property is not, nor is it in any way equivalent to, an interest in a proportion of the capital of the property charged sufficient to produce its yearly amount. It is nothing more nor less than a right to receive the stipulated yearly sum out of the income of the whole of the property charged (and in many cases out of the capital in the event of a deficiency of income). It confers no interest in any particular part of the property charged, but simply a security extending over the whole.
9. Reliance has been placed by the other side on the decision in the Commissioners of Charitable Donstigns and Bequests v. Wybrants 69 Revised Rept. 278 at p. 285. In the first part of the judgment learned Judges dealt with the question that arose out of the facts of the case. In that case the testator had given certain properties on Trust to certain Trustees who had to transfer the properties to certain persons who were to hold it subject to certain annuities. The trustees did not transfer the property and the question was whether obligations imposed on them to pay certain annuities was in the nature of a trust. After having dealt with that matter the learned Judges dealt with the alternative case that if the trustee had devised the property as directed in the will, whether the charges created in favour of certain annuitants could be deemed to be in the nature of a trust. The Lord Chancellor said:
The testator gives the estate to one, subject to this charge. Who is to pay the annuities but the person who is liable to the burden; and this, in the case of a charity, impresses him with the character of a trustee for the charity. By the ancient rule of equity, on one could acquire an estate, with notice of a charitable use, without being liable to it.
10. He has, however, clarified this statement by the observation made by him that he did not intend to lay down that every charge creates a trust although it imposes a burden, but a charge may create a trust depending on the nature of the trust. In the other cases cited by Mr. Jagdish Swarup, viz., the Mayor of Southmolton v. The Attorney-General 5 H.L. Cases 1. Dean and Canon of Windsor 8 H.L. Cas. 452 and The Attorney-General v. The Waster Wardens etc. of the Wax Chandlers'' Company H.L. Cas. 1 19, the decision turned on the facts of each case and the learned Judges have discussed the question whether it was a gift upon condition or it was a gift upon trust. It cannot be doubted that in interpreting a will a decision based on the language of another will cannot be of much assistance. The Judge has in such circumstances to place himself in the arm-chair of the deceased testator and has to gather his intentions from the language used by him and as far as possible to give effect to those intentions.
11. The will in this case might have been witnessed by an eminent lawyer, but it was a will of a gentleman who was not a practising member of the Bar. Reading the will as a whole, there can be no doubt that though the testator might have intended that during the life-time of his widow and of his nephew and any son of his loins or the loins of his nephew, a nominal annuity had to be paid to the Uttarpara Hitkari Sabha, but on his wife and nephew dying without leaving any male children the Uttarpara Hitkari Sabha was to be one of the major beneficiaries, and half of the income was to be handed over to it for certain charitable purposes. In the case of annuities in favour of certain individuals, the annuities must come to an end with the death of the particular individual, and it is, therefore, not possible to hold that there was any trust in their favour. But in the case of Uttarpara Hitkari Sabha, the portion quoted above makes it quite clear that in the event of his dying without male issue or his nephew dying without male issue, the income of half of the property was to go to his legal heirs and the other half for all time to come was to go to the Uttarpara Hitkari Sabha or any other institution which might take its place.
12. A trust is nothing but an obligation attached to the ownership of the property, subject to some other technical rules which need not be mentioned here. From the portion of the will quoted above, we have no doubt that the testator intended that in case he of his nephew left no male, descendants, half of the income of the property must, for all time, be used for charitable purposes. The half of the income being reserved for charitable purposes for all time, it must be held that the intention was that half of the property should be held in trust while the other half would be the property belonging to his legal heirs after the death of his wife and his nephew.
13. Pyare Mohan Banerji died in October, 1874. His widow Ushangini Debi died on the 25th March, 1945, i.e., she survived her husband by 71 years. It is the common case of the parties that all the annuitants other than the Uttarpara Hitkari Sabha are now dead. In the view that we take of this will, the intention being that half of the property should be held in trust for the Uttarpara Hitkari Sabha, we do not propose to interfere with the order of the learned single Judge as regards half of the property. Defendants 1 to 11 will, therefore, be entitled to get half of the sum of Rs. 61,700/- that was in deposit in the Court of the District Judge of Allahabad in Miscellaneous Case No. 64 of 1912, which we understand is now with the Administrator General and Official Trustee. The Official Trustee will retain half of this amount as trustee for the Uttarpara Hitakari Sabha and re deposit the other half in the Court of the District Judge, Allahabad in Miscellaneous Case No. 64 of 1912, and the learned District judge may hand over the amount to the Defendants 1 to 11 if no claimants come forward to contest their claim.
14. The compensation for the zamindari property will be payable half to the Official Trustee as trustee for the Uttarpara Hitakari Sabha and the other half, which is not subject to any trust, will be payable to Defendants 1 to 11, unless any other person or persons are able to satisfy the Compensation Officer of their claim to the money. It is pointed out that there are four groves mentioned in Annexure B. If these groves have not vested in the State, then the Uttarpara Hitakari Sabha will be entitled to a half share in them which will be held by the Official Trustee as trustee on behalf of the Sabha, and the other half will vest in the Defendants 1 to 11.
15. As regards the house property situate in Allahabad, Banaras and Gorakhpur, only a half share will be deemed to be trust property for the benefit of Uttarpara Hitkari Sabha.
16. On behalf of Defendants Nos. 1 to 11, Mr. Jagdish Swarup informs us that there is no dispute as regards his clients'' title as heirs to the deceased Pyare Mohan Banerji Mr. Pandey has, however, stated that there is some litigation pending in the lower court and that he does not admit that Defendants 1 to 11 are the legal representatives of the late Pyare Mohan Banerji. It is not possible for us in this case to determine who are the legal heirs of the deceased. If there is any dispute, that will be decided by the proper court. But it must be clearly understood that the Official Trustee is entitled only to a half share in the property and he must not, therefore, interfere with the other half.
17. It would be better if the parties could enter into a compromise and divide the house property and the groves half and half. If they cannot do this, they will have to get the property partitioned through court. The Official Trustee will be entitled to half the income from these houses. The Official Trustee, we are informed, has been able to get possession of the house in Allahabad and Defendants 1 to 11 have remained in possession of the house in Gorakhpur and the two houses in Banaras are in the possession of others. We find that the valuation of the house in Allahabad and the valuation of the house in Gorakhpur are exactly the same. The parties are agreed that the Official Trustee will continue to remain in possession of the house in Allahabad and the Defendants 1 to 11 of the house in Gorakhpur. The Official Trustee is appointed trustee of the half share in the two houses in Banaras and the other half share will belong to Defendants 1 to 11, or any other claimants who may be able to establish their claim to the same.
18. As the appeal has been allowed in part we direct the parties to bear their own costs throughout.
