JUDGMENT 1. This is a suit for the construction of the Will of the late Prasad Dass Mullick, for administration, partition and for other relief. The suit is brought by the Plaintiff who is the eldest son of the deceased and the Defendnts are the executors of the Will of the deceased and the youngest infant son of the deceased. The only facts which are necessary to be stated are that the testator died on the 26th August 1903 and made his Will in February 1900 and executed a codicil in July 1903. Probate was taken out of the Will by the executors on the 4th January 1904 and the present suit was instituted on the 18th April 1904. The testator by his Will appointed his wife Sreemati Sasi Mukhee Dassee and one Jogendra Nath Sreemany his executrix and executor and by the codicil he appointed Probodh Chunder Mullick and his son-in-law, Mutty Lall Coondoo, executors of the Will in addition to Sasi Mukhee Dassee and Jogendra Nath Sreemany. The Plaintiff has instituted this suit alleging certain misconduct against the executors and especially against Jogendra Nath Sreemany and charging that in the application for Probate they suppressed the mention of certain property belonging to the testator and further that certain of the properties had been undervalued for the purposes of the Probate and alleging that the entire management of the estate had been improperly left in the bands of the Defendant Jogendra Nath Sreemany. The Defendants, other than the infant Defendant, have filed written statements in which they deny the various charges and allege, on the other hand, that the Plaintiff had improperly taken possession of a great number of articles belonging to the estate and had otherwise interfered with the management of the estate. I do not think it is necessary to go into the question of these charges. The parties have not raised any issue or asked for any enquiry with reference thereto. 2. The questions with regard to the construction of the Will are as follows :-- The Plaintiff contends that there was an absolute gift of certain properties to himself and his brothers and that certain restrictions on the gift restraining the enjoyment of the property by the sons are bad in law. 2. The questions with regard to the construction of the Will are as follows :-- The Plaintiff contends that there was an absolute gift of certain properties to himself and his brothers and that certain restrictions on the gift restraining the enjoyment of the property by the sons are bad in law. The second question raised refers to the validity of certain endowments which the testator seeks to create by clauses 11 and 12 of his Will. The third question is whether there is an intestacy with regard to the residue of the moveable property of the testator and there is a subsidiary question as to whether the appointment of shebaits is valid. 3. First as regards the gifts to the sons. 4. The testator leaves to each of his sons specific properties in very much the same terms. 1 take as an illustration the gift to the Plaintiff in the second clause of the Will. He says:--"I give and bequeath the house and premises No. 212, Harrison Road, Calcutta, to my son Profulla Chunder Mullick absolutely, but subject to the limitation and provisions hereinafter mentioned as to the disposal of the income thereof for 13 years after my death." In the 9th clause of his Will he directs as follows :--" Notwithstanding the bequest herein made to my three sons of the properties thereinbefore mentioned my executors and trustees shall enter into, and during the period of 13 years from my death, remain in possession or receipt of the rents and profits of the said messuages and premises and manage the same with power to let the same for any term of years not exceeding 13 (thirteen) years in possession and shall apply the whole or such part as they shall think if the said rents and profit in keeping the said premises in proper repairs and in paying the rates and taxes and other dues and outgoings, and out of the surplus pay monthly and every month the following sums viz., the sum of the following sums, via., the sum of Rs. 100 (rupees one hundred) to my son Profulla Chunder Mullick, the sum of Its. 100 (rupees one hundred) to my son Probodh Chunder Mullick, the sum of Rs. 100 (rupees one hundred) to my son Profulla Chunder Mullick, the sum of Its. 100 (rupees one hundred) to my son Probodh Chunder Mullick, the sum of Rs. 100 (rupees one hundred) to my son Protul Chunder Mullick and also to make other payments for carrying out the directions hereinafter contained for the purpose of improving the properties which are hereinafter designated by me trust properties." In the 18th clause of the Will there is this further direction:--"That after 13 (thirteen) years from my death my executors and trustees shall make over to my sons the proration which I devised to them respectively and under this my Will but in the meantime my sons shall only be entitled to the monthly sums of Rs. 100 (rupees one hundred) each as hereinbefore directed to be paid to them and my executors and trustees shall have in their discretion absolute disposal over the balance of the income of the said properties so devised to my said sons for the purpose of carrying out the direction hereinbefore continued for causing new buildings to be erected on the premises Nos. 183 and 183/1, Cornwallis Street, and for otherwise improving the other trust properties and my sons shall not have any right to call upon them for payment of any sum or sums out of the said income except the said sum of Rs. 100 (rupees one hundred) per month during the said period of 13 (thirteen) years." 5. Now the plaintiff cotents that by this clause there is an absolute gift to him of the premises No. 212, Harrison Road, Calcutta, and that the direction regarding the dealing with the property during the 13 years by the trustees is in the nature of a restraint on the enjoyment by him of the property and that this restriction is bad in law and should be set aside. In my opinion, it is impossible to say that the testator intended to make an absolute gift of the entire present interest in the properties to his sons. This is not a case like that of Llyod v. Webb I.L.K.24 Cal. 47 (1896), where there was an absolute gift to the testator's son, which was to be to at a later period, but in which there was no disposition over the intermediate interest. This is not a case like that of Llyod v. Webb I.L.K.24 Cal. 47 (1896), where there was an absolute gift to the testator's son, which was to be to at a later period, but in which there was no disposition over the intermediate interest. By the Will in this case the testator directs that the intermediate interest is not to go to the sons but is to be dealt with by the trustees in carrying out certain specific trusts and it is clear that he intended that the sole interest of the sons in the specific properties for the 13 years after his death was to be confined to the monthly allowance of Rs. 100 payable to each. That being so, it seems to me that the gift to the sons during the period of 13 years was only a limited one which was to become an absolute gift of the entire interest on the expiration of the 13 years. The intermediate interest was to be dealt with by the trustees in carrying out the specific trusts of the Will which the testator created by the 11th and 12th clauses of his Will. In dealing, therefore, with the question as to whether or not there has been a valid gift of the intermediate interest in the 3 properties bequeathed to the sons it is necessary to consider the general provisions contained in clauses 11 and 12 of the Will: 6. Turning to the 11th clause of the Will, the testator first of all specifies certain properties, which he directs the trustees to hold possession of and to receive the rents and pay thereout the rates and taxes and other dues payable in respect thereof and keep the same in proper repair, and, in the next place, to apply the residue of the rents or so much as shall be necessary in carrying out certain religious rites and ceremonies and also certain charitable dispositions which the testator makes. It is not necessary to describe in detail what are the religious acts which the testator desires to be performed as they are all specifically set out in the 11th clause of the Will and then the testator proceeds to direct as follows :--" I also direct my executors and trustees to apply the surplus or balance of the rents and profits of the said trust properties in the following manner, viz., they shall spend half of such balance for the education of helpless boys of my caste and for the maintenance of widows and orphans of my caste and to assist the people of my caste who are in straitened circumstances towards the expenses of the marriage of their daughter and of the shradh ceremonies of their father or mother and they shall spend the other half of the balance for the same or like purposes in respect to the Hindu boys, widows, orphans, people of other castes." There is a further provision in clause 12 of the Will for the performance of certain acts of religious worship. He specifically dedicates certain properties for the worship of Sitaram Thacoor, the performance of Doorga and Lukshmi Poojahs and the shradh ceremony of his father and mother and he also specifically dedicates two houses for the worship or Poojah of Dabee Annapurna and goes on to say, "and I declare that my heirs shall have no beneficial interest in the said several premises or trust properties but my sons as shebaits performing the Poojahs or ceremonies shall be at liberty to reside in the said premises and my wife, daughters and mother shall also be at liberty to have access thereto and be present and live there for the purpose of the said Poojah and ceremonies. I also declare that my heirs shall have no beneficial interest in the trust properties hereinbefore dedicated or appointed as aforesaid." 7. Now it is clear from these provisions that the testator has completely set apart specific properties and for certain purposes and has described in great, detail in what manner the income of these properties is to be employed. The question arises whether these trusts are invalid by reason of the fact that, there is no express gift to any specific idols. It is further contended that as regards certain of the properties the gift, if any, is to idols which are not existent. The question arises whether these trusts are invalid by reason of the fact that, there is no express gift to any specific idols. It is further contended that as regards certain of the properties the gift, if any, is to idols which are not existent. It is evident that the testator has not made specific gifts to particular idols but what he desired to do was to dedicate certain of his properties to specific trusts which his executors and trustees were to carry out in the manner indicated by the Will and, so far as the particular trusts are concerned, I am unable to see anything in the principles of Hindu law to prevent effect being given to the purposes and intentions of the testator in the manner he proposed. In order to constitute a valid endowment all that is necessary is to set apart specific property for specific purposes and where these purposes are, as in the Will, clearly religious and charitable In their nature the trust is not invalid merely because it transgresses against the rule which forbids the creation of a perpetuity (Mayne's Hindu Law, 4th Ed., para. 395). I think therefore that the whole of the trusts mentioned in clauses 11 and 12 of the Will are valid trusts and such as ought to be carried out. 8. Though the object of the suit is to have it declared that those trusts are invalid, the Plaintiff asks that, in the event of the trusts or any of them being declared to be valid, a scheme should be framed by the Court to carry out such of the trusts as are declared to be valid. I do not think that the circumstances in this case are such that the Court is called upon to frame a scheme. A scheme is necessary where a testator, having expressed his clear intention to create a trust, has failed to indicate the means by which the trust is to be carried out. In the present case the testator by his Will has very fully and clearly indicated the methods and means by which the trusts which lie has created are to be carried out. There is at present, therefore, no necessity for the Court to be called upon to frame a scheme. 9. In the present case the testator by his Will has very fully and clearly indicated the methods and means by which the trusts which lie has created are to be carried out. There is at present, therefore, no necessity for the Court to be called upon to frame a scheme. 9. The next question I propose to deal with is the appointment of shebait That matter is dealt with by the 16th clause of the Will and it has been contended that, the declaration of the testator as regards what shall take place in certain events happening cannot be given effect to. That is a question that does not now arise. It is a purely hypothetical question which may never arise for determination. The Plaintiff's right to act as shebaits has not, as I understand, been denied and any other question regarding the nature or devolution of the appointment can only be dealt when the particular circumstances of the case require it to be considered. I propose, therefore, to say nothing further as regards the appointment of shebaits. 10. Then as regards the residue of the moveable property. The testator, after making specific gifts in favour of various members of his family and after dealing with the two shops belonging to his estate proceeds as follows :--" I also direct that all the moveable properties and articles which 1 shall leave my executors and trustees shall keep apart.such of them as they shall think necessary for the Thacoors for the service of the Thacoors and they shall after 13 years divide the remainder among my three sons in equal shares." Tin's is the last clause of the 13th para, of the Will. I am inclined to think that this clause only applies to those articles which are suitable for the purposes of worship of the Thacoor and that it was not intended to refer to monies in the hands of the executors or to other articles which were inappropriate for the worship of the Thacoor. I am inclined to think that this clause only applies to those articles which are suitable for the purposes of worship of the Thacoor and that it was not intended to refer to monies in the hands of the executors or to other articles which were inappropriate for the worship of the Thacoor. But there is a difficulty in considering the question as to whether the testator has disposed of the residue of his estate because when the suit was filed the executors had not filed their find and the time to do so had not then expired All that I am disposed to do is to indicate for the guidance of the executors that if after the due administration of the estate there should be any balance in their hands it should be dealt with as in the case of an intestacy and it should be divided amongst the sons of the testator as his heirs. 11. I think it is unnecessary to say any-thing as regards the residence of the parties. That question does not properly arise at the present moment and the only remaining matter is whether there should be a decree for administration or for an account of the estate. Now it seems to me that, at present there are strictly speaking no charges of waste or mis-management against the executors and the charges that have been made are such as are capable of explanation and which the executors have explained in their written statement. No issue is sought to be raised as regards these charges-- and until the accounts of the executors are tiled, it is unnecessary to consider whether the estate should be burdened with a decree for administration or for accounts. I think the decree should be limited to one making the necessary declarations as regards the question I have dealt with and also as regards the rights of the parties so far as they are involved in these questions and all other questions a suit should stand over with liberty to the parties to apply, if necessary, and as regards the question of costs I think that, though the case is somewhat near the line, yet, under all the circumstances, I ought to allow the Plaintiff to have his costs up to and including this hearing out of the estate as between party and party. The Defendants will be entitled to their costs out of the estate as between attorney and client. Costs of the suit to be taxed on scale No. 2.