1. There can be no direction for me to take the accounts on the ground of wilful neglect and default. If there is no evidence given to establish misconduct against the executors, there will be no misconduct. Those charges must be either pressed or abandoned.

2. All that we are asking for is an ordinary account of their dealings. I contend that, inasmuch as the testator did not establish a thakoor in his lifetime, the directions to establish it, the provisions made for its worship, and the gift of the residuary estate to the thakoor, are void in Hindu law, except as to the annuities and legacies given by the Will. The testator's estate has descended to the widow; in other words there has been an intestacy with regard to these.

3. With regard to paragraph 4 of the Will, under Hindu Law, as laid down by the Privy Council in Tagore v. Tagore (1872) 9 B. L. R. 399. you cannot give property to a person who is not in existence at the time the gift takes effect, and an idol is a juridical person. Doorga Proshad Dass V. Sheo Proshad Pandah (1881) 7 C. L. R. 278. and Upendra Lal Boral v. Hem Chunder Boral (1898) I. L. R. 25 Calc. 405. See Maine, page 486, 6th edition.

4. Mr. O'Kinealy (with him Mr. S. Chaudhuri) for Troylnckhe Mohinoy Dassee: I do not dispute this contention.

5. Mr. Chakravarti for Nitta Lall Dey: I leave it to the Court.

6. Mr. W. C. Bennerjee: I ask the Court to construe the Will and codicil. Catty Nath Naugh Chowdhry v. Chunder Nath Naugh Chowdhry (1882) I. L. R. 8 Calc. 378.

7. Mr. O'Kinealy: Administration in suit No. 725 of 1894 has boon carried out to a certain extent: let the administration be ordered to proceed from that point.

8. Mr. W. C. Bennerjee: I have no objection to that.

9. Mr. O'Kinealy: If there is a gift to a class, the Court of its own motion outs down that gift, and gives it to persons alive at the death of the testator. See Khimji Jairam v. Morarji Jairam (1897) I. L. R. 22 Bom. 533.

10. Mr. J. G. Woodroffe for Kanye Lall Dey: An administration decree is binding on those parties who were consenting parties to it.

Stanley, J.

11. There is no declaration that there is a valid trust.

12. That is implied by the decree. This is a preliminary administration decree. Has the plaintiff any locus standi to come in and got the declaration, that she claims. The whole of her claim is bad. Her interest is a mere expectancy, you cannot say that she has got any interest which will support a claim of this kind. See Maine, sixth edition, p. 639, and Walker on Executors (3rd edition) p. 260.

13. The plaintiff is only interested to the extent she takes under the will.

14. The question is whether a trust to establish a thakoor is a good and valid trust. There is no evidence to that effect, neither is there any evidence to show that the executors intend to build a thakoor. I submit that the trust to establish a thakoor is separable from the gift of a thakoor, and is a perfectly valid trust. The decree in the former suit is binding on the executors, and the plaintiff is not entitled to a decree for administration accounts, and has no interest to maintain the present suit.

15. Mr. W. C. Bennerjee in reply: I am entitled to ask for administration of the estate. The other suit is not properly constituted. See Civil Procedure Code, Section 12. That decree is no bar to the interest of parties, who were not made parties to that suit. See specific belief act section 42.

Stanley, J.

16. The action in this case is brought for administration of the estate of the late Bhoyrub Chunder Dey, who died on the 29th May 1893, for construction of his Will, and for the ascertainment of the rights of all the parties thereunder, and also for a declaration that the dedication of the residuary estate of the. deceased to the worship of the thakoor directed by the Will to he established and the direction to apply the surplus income of, the estate to religious festivals and purposes are void and inoperative. Also for a declaration that the executors of the Will have no power to erect a new thakoorbaree for the location of the thakoor so directed to be established. The defendants are the executors and executrix of the Will, and also the Bona of the plaintiff, who is the only child of the testator, and also Kanai Lall Dey, who was the nephew of the testator.

17. By his will, which is dated the 23rd November 1892, the testator, after mentioning his various properties, directed his executor and executrix to sell and convert into cash the stock-in-trade and outstandings of his business which was carried on at 70, Old China Bazar Street, and certain tenanted land, as well as to sell such moveable property belonging to him as they may think advisable.

18. After a recital that it was his intention to establish a thakoor named Sree Sree Radha Shamjee, the testator directed that, if he did not do so, his executrix and executors should establish such thakoor at such place as they might think proper, and carry on his worship in such manner as he thereby should direct. From the rent, issues and profits of the immoveable properties, he directs his executors to pay rates and taxes and keep a sufficient sum to the extent of Us. 200 per year for the periodical or other repairs of the properties, and from the surplus to spend a sum of Rs. 12 for the daily worship of the thakoor. He appointed his wife shebait as long as she lived, and gave directions for the appointment of a shebait after her death-or in her place. He then, directed his executrix and executors to pay certain legacies and annuities, and empowered certain members of his family to live in the thakoorbaree, in which the deity should be located., and directed that they should be supplied with food and clothing suitable to them during their respective lives. He allowed Rs. 1,000 to be expended for his shrad, and after other directions, the Will ran as follows:

Subject to the aforesaid bequests and payment of the aforesaid legacies and annuities, I dedicate the whole of my estate moveable and immoveable to the Sheva of the said thakoor. The surplus income of the said estate shall be expended by the shebait of the said thakoor for such festivals and other religious purposes as to the said shebait shall seem proper and as are enjoined by the shastras.

19. By a codicil, dated the 21st day of March 1893, after reciting that by his "Will he gave and bequeathed the undivided one-fourth share of the house and premises No. 108, Ahiritollah Street, in Calcutta, to his wife for her life, and after her death to his daughter Sreemutty Rajamoney Dasse for her life, and after the death of the latter, to her sons in equal shares, the testator by this codioil directed that neither his wife nor daughter nor grandsons were to have power to alienate by sale, mortgage, gift or otherwise the undivided one-fourth share of this property. By a second codioil, dated the 2nd day of May 1893, he appointed Nittya Lall Dey as executor in place and stead of Kanai Lall Dey. The present suit was instituted on the 4th September 1894, and subsequently, on the 11th September 1894, the defendant Troylukho Mohiney Dassee, as executrix and shebait under the Will, instituted a suit against her co-executors for the administration of the estate, seeking substantially the same relief as is sought in this action.

20. A Written statement was filed by the defendant Gopal Chunder Dey, one of the executors, on the 7th December 1894, and in the eighth paragraph of this written statement he says that Sreemutty Rajamoney Dassee, the daughter of the testator, and the plaintiff in the present suit, who is also the testator's next reversionary heir, entitled in reversion after the death of his widow, has also instituted a suit, that is the present suit, and by her plaint alleges that the attempted dedication of the residue of the testator's property to the worship of the thakoor was not valid, and that the direction in the Will to apply the surplus income of the estate to such festivals and other religious purposes as to the shebait of the said thakoor should seem proper, is also not valid. Notwithstanding the institution of this present suit by the present plaintiff, I find that a decree was obtained by consent in the action last mentioned, which decree is dated the 4th March 1896. This decree, after reciting that the defendant Nittya Lall Dey did not appear either in person or by counsel, directed that the usual enquiries and accounts be made and taken, and directed that a scheme should be prepared for carrying out the religious trusts and for the establishment of the Thakoor Sree Radha Shamjee, and for the erection of a suitable thakoorbaree as in the Will mentioned. It does not appear to have been brought to the notice of the learned Judge, who passed the decree, that the validity of the religious trust was disputed by the reversionary heir; for, if this had been brought to the notice of the Court, it is unlikely that a scheme for carrying out these trusts would have been directed in the absence of the reversionary heiress and in the absence of any beneficiary under the Will other than the executrix being a party to the suit.

21. It is to be observed that the only parties to this suit are the executrix and executors.

22. On the 17th January 1898 a Receiver was appointed of the estate.

23. In the present suit the plaintiff is desirous of having the opinion of the Court upon the validity of the bequests to which I have referred.

24. It has been contended on behalf of Kanai Lall Dey that the plaintiff, as reversionary heiress, notwithstanding that she does take certain other benefits under the Will, such as small annuities, is not entitled to have the estate administered. Counsel on his behalf has quoted a passage from Walker on Executors, in which it is stated that a person who has a mere expectancy is not entitled to obtain a decree for administration.

25. The paragraph to which I refer is based on the authority of the case of Clowes v. Hilliard (1876) L. R. 4 Ch. D. 413. where Sir George Jessel, Master of the Rolls, held that an administration suit could not be maintained by possible designated next-of-kin. In that case the testator directed that, in the event of his daughter dying without issue, certain property should pass to the persons, who would be entitled under the statute, if the testator had then died intestate. An action for administration was brought during the life time of the daughter by the persons who were the next-of-kin, if the daughter died without issue.

26. It appears to me that this is an entirely different case from the present, in which the plaintiff is reversionary heiress, and will, if she survives her mother, independent of any other event, become entitled to the estate. In Clowes v. Hittiard (1876) L. R. 4 Ch. D. 413. the plaintiffs had no interest at all either vested or contingent, and it is a rule of Court that in order to maintain an action for administration, a plaintiff must have one or the other. The Master of the Rolls says, as follows:

How can the plaintiff affirm that on the failure of the daughters and their issues, if the event ever happens, they or any of them will be then alive ? They may all be dead; they have in fact neither a present interest nor anything beyond the expectation of a future interest. They have no interest at all either vested or contingent, and it is a rule of this court that to enable them to sue they must have either the one or the other.

28. Here the plaintiff has more than the expectancy of a future interest. If not a vested, she has a contingent interest. The question, moreover, whether the dedication of part of the rests and profits of the estate, as also the dedication of the residue to the idol is valid in law is one which concerns her. If these bequests be not valid in law, then the executors by their conduct in obtaining from the Court an order, that a scheme should be provided for the purpose of this dedication, was such as to justify her in my opinion in instituting and prosecuting a suit for the preservation of the property and to prevent waste by allowing the decree to be carried into effect.

29. Mr. Woodroffe admitted in the case of waste the reversionary heir is entitled to apply to the Court for relief, but he contends that waste is not alleged by the plaintiff.

30. It appears to me that, if the dedication of the property to which the reversionary heir would become entitled is contrary to law, the proposal to carry out the dedication is such, an act as would justify the reversionary heir in seeking the assistance of the Court and having the estate properly administered. If the plaintiff in this case is not entitled to come to Court, no other person is equally interested in seeking that the estate is not wasted.

31. Mr. Mayne in his work on Hindu Law says it is settled that the next reversioner has such an interest in the estate as will justify a suit when that interest is in danger, and this rule is followed in several cases in this Court. One of the latest is that of Hem Chunder Sanyal vs. Sarnamoyi Debi (1895) I. L. R. 22 Calc. 354.

32. I am therefore of opinion that the plaintiff is entitled to maintain the suit. Then it is argued that already a decree for administration has been made in suit No. 725 of 1894, and that it would be improper to grant another decree for administration. The rule which has been adopted in England in cases where there are two suits instituted t for the same or nearly for the same purpose, is stated by Lord Romilly, Master of the Bolls, in the case of Zambaco v. Cassavetti (1871) L. R. 11 Eq. 439. He says in his judgment at page 443:

33. Now the two suits are either the same or they are not. In the first place, assume that they are the same. Then the invariable practice of this Court has been to do this--to say, "one decree shall be made in both suits;" or, if a decree has been already obtained, "we will stop the first suit if you have got the decree in the second suit first; and we will give the conduct of that decree to the person, who first filed the bill." That is the practice that, in the absence of special circumstances, I have invariably followed, and it is usual for the person who has obtained the decree in the second suit to apply by motion (informing the plaintiffs in the first suit that a decree has been obtained) for the purpose of stopping further proceedings in the suit which was first instituted. Now not only is that the practice, but it is of frequent occurrence.

34. Now suppose the suits are not for exactly the same purpose. Then, when the application is made for the purpose of stopping the proceedings in the first suit, the plaintiffs in that suit say:

"The decree that you have obtained will not do; our suit must come to a hearing because it is for a different purpose and it is a purpose which must be accomplished."

Thereupon the Court, if it is of that opinion, allows the cause to proceed, and it comes on to be hoard. Then, if the two suits are in a great measure connected together, what the Court does is to direct that the second decree, which is made in the suit so allowed to proceed to a hearing, and which is in truth the first suit instituted, shall be prosecuted before 1 the same Judge and in the same chambers and before the same chief clerk in which the former decree is prosecuted, in order to avoid all expenses that might possibly be incurred by having two suits. That is the regular practice. This rule was adopted in the later case of Mellore vs. Swire ( 1882) L. R. 21 Ch. D. 647.

35. It appears to me that this is a convenient rule to follow. The plaintiff in the present suit was the first to institute an action for the administration of the estate, and it appears to me that having regard to the fact that this suit was pending, when a second suit was instituted, and that the executors had notice that the validity of some of the provisions of the Will were disputed, for this fact is disclosed in the written statement of the defendant Gopal Chunder Dey filed in suit No. 925 of 1894, the executors ought not to have obtained the consent decree of the 4th March 1896.

36. I shall adopt therefore the rule thus laid down with the same modifications rendered necessary by the circumstances which' I shall mention presently.

37. I come now to deal with the questions raised upon the construction of the will. It is said that the direction to establish a thakoor is invalid and the direction out of the rents and profits of the estate to spend a sum of Rs. 12 for the daily worship of the thakoor as also the dedication of the whole of the residuary estate to the sheva of the thakoor are invalid.

38. The argument of learned Counsel is, that according to Hindu Law, a testator cannot give property to a person who is not in fact or in contemplation of law in existence at the date of the testator's death. That the thakoor in this case not having been established in the lifetime of the testator, was not a juridical person, and that the rule of Hindu Law, which applies to individuals, applies to an idol. Whether a gift be in "presenti" or in "futuro," it is settled that the donce must be a person in existence and capable of accepting the gift at the time it takes effect. Tagore vs. Tagore (1872) 9 B. L. R. 399. That which cannot be don directly by-gift cannot be done by the intervention of a trustee. Krishna-ramini Dasi v. Ananda Krishna Bose (1870) 4 B. L. R. (old cases) 231. Rajender Butt v. Sham Chund Mitter (1881) I. L. R. 6 Calc. 106. An idol cannot be said to have juridical existence, unless it has been consecrated by the appropriate ceremonies and so has become spiritualized.

39. Before this the deity of which the idol is the visible image does not reside in the idol.

40. Doorga Proshad Bass v. Sheo Proshad Pandah (1881) 7 C. L. R. 278.

41. The deity no doubt is in existence, but there is no personification of the deity to whom a gift can be made. This was so decided in the case of Upendra Lal Boral v. Hem Chundra Borat (1898) I. L. R. 25 Calc. 405. in which it was held that no valid gift can be made to an idol not in existence at the time of the testator's death. The Will in this case is not stated verbatim, but in the judgment of the Court the following statement of it is made:

Behari Laul Borral, who was the former owner of the property, made a Will on the 17th Bysack 1280. In it he expressed his intention to establish the service of an idol, to construct a temple, and to appoint his wife Atermani to be the shebait. In the event of his being unable to effect this, he provided that she shall, by virtue of his will and in the exercise of powers equal to his own, establish the service of an idol, and by making a will in favour of it manage the properties, construct a temple and perform the sheba. Then there are certain provisions relating to the management and restricting alienation and authorising her to appoint another person to be the shebait. She will conclude by providing that, if Atarmoni died before doing those acts, the heirs of his spiritual preceptor and his family priest and his heirs should maintain the sheba and manage the properties.

42. The learned Judges decided that, if there was a gift to the idol, it was bad because the thakoor was not in existence at the date of the death of the testator.

43. At page 407 they say: "We agree with the learned Subordinate Judge that Behary Laul made no devise of his property to his widow or to the idol, and that his widow succeeded as his heiress. Beading together the will and the anumalipatro, it could at the most be said, lie gave a life estate to his widow with power to make a gift to an idol to be established by her, or that he appointed her executrix with a similar power. It does not seem to us to matter much which view is taken. If there was a gift to the idol it was bad because there was no idol in existence at the time of his death; if there was a power to make such a gift, the power was ineffective, because on the authority of Bai Motivahoo v. Bai Mamoobai (1897) 1 C. W. N. 366. we think that the power must be to convey to a person who was in existence either actually or in contemplation of law at the death of the testator, and the idol, to which the dedication is said to have been made, was not then in existence.

44.

"We are unable to agree with the learned Vakil for the appellant that the idol was in existence in contemplation of law. The deity no doubt is always in existence, but there could be no gift to the deity as such, and there was no personification of the deity, to whom the gift could have been made or who was capable of taking it. We must hold therefore that there was no valid gift or dedication to this idol either by Behary Laul directly or by his widow under the powers conferred upon her by the will."

45. This is a decision which I am not disposed to dissent from.

46. I do not see any reason why the rule laid down in the Tagore case as regards gifts to persons who are not in existence at the time when the gift is made should not be followed in the case of a juridical person such as an idol. The property proposed to be dedicated to the idol would apparently in a case like the present be without an owner, until the idol has been spiritualized, if this rule did not prevail.

47. It appears to me therefore that the gift of Rs. 12 for the daily worship of the Thakoor is invalid and void, and I shall so declare; also that the proposed dedication of the residuary estate to the sheva of the thakoor is bad in law. Mr. Woodroffe contends that the direction in the will to establish a thakoor at such place as the executors may think proper is a valid direction and I am unable to disagree with him.

48. There is no rule of law which prevents a Hindu from directing his executor to establish a thakoor, and it does not come within the rule to which I have referred which prohibits a gift being made to a person not in existence in fact or in contemplation of law at the date of the death of the testator. I shall accordingly declare that this portion of the will is capable of being carried into effect and ought to be carried into effect.

49. Another question has been raised upon the construction of the Will in regard to the bequest of Rs. 40 monthly to the grandson of the testator. It is said that this bequest is invalid, because it does not appear that the objects of the gift are limited to the sons of the testator's daughter living at the date of the death of the testator and so capable of taking effect. The same argument is applied to the gift of the one-fourth share of the house, which was given after the death of the testator's daughters to her sons in equal shares. It is argued that the gifts to the sons are invalid, inasmuch as the plaintiff may have sons living at her death, who were not in existence at the date of the death of the testator, and who therefore would be incapable of taking any gift under the Will, and that, as the testator clearly intended that all his daughter's sons should take equally, this gift fails. In England it is well settled that where a gift is made to a class of persons, some of whom are incapable of taking, the disposition fails as to all.

50. Leake v. Robinson (1817) 2 Mer. 363. Pearks v. Moseley (1880) L. R. 5 App. Cas. 714.

51. This rule rests upon the ground that the intention of the testator was to benefit all the members of the class equally, and that it is impossible to know what shape his wishes would have taken, if he had known that they could not be carried out as he intended.

52. This rule has been applied in this country to the Wills of Hindus, and it seems to me consonant to Hindu law and a convenient rule to follow.

53. The rule applies even though all the members of the class are born before the gift takes effect, if it was antecedently possible that they might have not been so born, and the fact that the gift might have included objects too remote is fatal to its validity-irrespective of the event.

54. In the case of in re Dawson (1888) L. R. 39 Ch. D. 155., where the invalidity of the disposition turned on the probability that a particular person might have children, it was held that evidence was not admissible to show that from advanced age the birth of future children was impossible. I therefore hold that the gifts, which I have referred to, to the testator's grandsons are invalid.

55. The only other question which is brought to my attention is as to the right of the testator to restrain the beneficiaries under the Will from alienating the property given to them by the Will.

56. This restraint is clearly bad. It requires no authority for the proposition that a restraint upon alienation of property is void, according to the rules of Hindu law as well as according to the law of England.

57. I shall therefore make a decree for the administration of the estate, and I shall direct an account of the testator's debts, funeral and testamentary expenses and legacies, and an enquiry as to what part of the estate is outstanding and undisposed of.

58. I shall direct that the accounts and enquiries already had in the pending suit No. 725 of 1894 shall be adopted in the suit so far as applicable. This will save expense and is the proper course to adopt, in my opinion, under the circumstances of this case. I shall direct that a scheme be framed for carrying out the directions of the testators for the establishment of a thakoor named Sree Sree Radha Shamjee in accordance with the provisions of the Will at such places as may be proper. I shall reserve the costs of this suit.

Bennerjee, J.

59. I ask for a declaration that any thakoor to be established by the executor cannot take any of the testator's property.

Stanley, J.

60. I can only construe the Will.

Mitter, J.

61. I ask for costs on behalf of Gopal Chunder. I am bound to appear on account of the various charges.

Stanley, J.

62. I do not know if you are entitled to costs. At the present time I am not in a position to give the costs.

Cotton, J.

63. I ask for an order with regard to the costs of the infant grandson.

Bennerjee, J.

64. I submit that the plaintiff's costs should come out of the estate.

Stanley, J.

65. I reserve all costs.

Chakravarti, J.

66. The estate is in the hands of the widow, and she is the Receiver.

Stanley, J.

67. I do not know that there has been any mismanagement.

Bennerjee, J.

68. Troylukho Mohiney Dasi was appointed Receiver in the last suit.

Stanley, J.

69. I shall appoint Troylukho Mohiney to be Receiver in this suit, as no one objects to this lady, who was appointed Receiver in the other suits, being appointed Receiver in this suit.