Judgement Consolidated Appeals (Nos. 169 and 170 of 1919) from a judgment and decree (January 10, X908) of the High Court in its ordinary civil jurisdiction, the suit having been heard by a special Division Bench of two judges in order to obviate the necessity of an appeal to the appellate jurisdiction of the Court. One Gobind Chandra Basak, a Hindu governed by the Bengal school of Hindu law, died on February 7, 1810. He had two wives, Kanakmoni Dasi and Bhaggobati Dasi, of whom the latter alone survived him. Bhaggobati Dasi died on May 29, 1841, having on that date executed a will the construction of which was the subject of the present litigation. The will commenced with the words "To the fortunate Srijut Udoy Chand Basak, chief among the prosperous, I, Srimati Bhaggobati Dasi, endite this hukumnana"; it then proceeded to make the provisions stated in the judgment of the Judicial Committee. The present suit was brought in 1904 by the first respond ent, a descendant of Gobind Chandra Basak and his wife Kanakmoni Dasi, who predeceased him, against numerous defendants for the construction of the will, and for a declaration that he was entitled to the shebaitship of the idols. The facts relative to the present decision of the Judicial Committee sufficiently appear from the judgment; the view taken by their Lordships made immaterial other questions to which the arguments at the hearing were directed. The Division Bench (Brett and Mookerjee JJ.) by its judgment delivered on January 10, 1908, held that the plaintiff, and the defendants who were descended from Kanakmoni Dasi, were not heirs of Bhaggobati Dasi, and had no right to the shebaitship or the estate. The learned judges also held that the question as to those rights had not been determined by the previous litigation and the decree therein made on December 14, 1857, referred to in the judgment of the Judicial Committee. The learned judges also held that the question as to those rights had not been determined by the previous litigation and the decree therein made on December 14, 1857, referred to in the judgment of the Judicial Committee. They further held (inter alia) that under the will Udoy Chand Basak was sole shebait, but that no heritable right of shebaitship was conferred on him; that the testatrix dedicated the whole of her stridhan properties to the idols named ; that the bequest of the surplus income of the two houses to Monmohini Dasi, Radha Kanta Sett, and Golapmoni was limited to their lifetime ; that the succession to the shebaitship opened on the death of Udoy Chand Basak, and that at that time Radha Kanta Sett was, according to the Dayabhaga, the heir of Bhaggobati Dasi, and entitled to the shebaitship and the properties ; that accordingly Behari Lal Sett and others were entitled, and not the present appellant Gopal Lal Sett and his brother. They further held that Joy Krishna Basak was at the date of Bhaggobatis death a lunatic, and therefore was permanently excluded from succession, The learned judges made a decree accordingly, and directed that certain accounts should be taken, and that a scheme should be submitted for the approval of the Court by the persons declared to be shebaits for carrying out the religious trusts of the will. 1921. Nov. 11, 14, 15, De Gruyther K.C., Dunne K.C., Ramsay, and K.C., Chaudhuri for the representatives of Gopal Lal Sett, appellant deceased. Sir George Lowndes K.C., E. B. Raikes, and Dube for the representatives of Puma Chandra Basak, deceased respondent, and other respondents descended from Kanakmoni Dasi. Upjohn K.C. and Kenworthy Brown for respondents descended from Bhaggobati Dasi through her grandson Radha Kanta Sett. Parikh for Khoka, a minor respondent through his guardian ad litem. Dec. 20. The judgment of their Lordships was delivered by LORD BUCKMASTER. The history of the litigation of which these appeals form part, extending over a period of sixty-five years, has been carefully and minutely examined in the judgment of the learned judges of the High Court of Judicature at Fort William in Bengal, from which Court these appeals have been brought. The judgment of their Lordships was delivered by LORD BUCKMASTER. The history of the litigation of which these appeals form part, extending over a period of sixty-five years, has been carefully and minutely examined in the judgment of the learned judges of the High Court of Judicature at Fort William in Bengal, from which Court these appeals have been brought. Their Lordships therefore do not propose to attempt a repetition of the facts, except so far only as may be necessary to explain the reasons for the opinion they have formed. Several questions of interest and of importance have indeed been raised and argued upon these appeals, but the true construction of the will of the testatrix, Bhaggobati Dasi, lies at the threshold of the dispute, and on the view taken by their Lordships of the true meaning of this document these larger questions do not arise. The testatrix, who died on May 29, 1841, was the second wife, and at her death had been for thirty years the widow, of one Gobind Chandra Basak, a Hindu governed by the Bengal school of Hindu law. By him she had had three sons and two daughters. The eldest of these sons was Pran Krishna Basak, who predeceased his mother and left two children, Monmohini Dasi and Udoy Chand Basak. The second son, Joy Krishna, was found to be a person of unsound mind in 1838, but he was not a congenital lunatic. The third son, Raj Krishna, died in 1821, leaving no children. The eldest daughter, Tripura Sundari Dasi, died before her mother, leaving a son, Radha Kanta, and the second, Golap Dasi, or, as she is sometimes called, Golapmoni, survived. By the first marriage of Gobind Chandra Basak there had been two sons, Radha Krishna Basak and Sri Krishna Basak, both of whom survived the widow, from them there have been numerous descendants, who will be referred to merely by way of description as the Basak branch of the family. In truth the real quarrel in the present case lies between the two branches of the same family descending from the two wives. Bhaggobatis will was executed on the day of her death. Some question has arisen as to the true translation of the will. The differences do not seem vital, but in any case their Lordships accept the official translation ex A in the suit No. 711, of 1907. Bhaggobatis will was executed on the day of her death. Some question has arisen as to the true translation of the will. The differences do not seem vital, but in any case their Lordships accept the official translation ex A in the suit No. 711, of 1907. It is addressed to Udoy Chand Basak, her grandson, and contains on the lace of it the following statement— "Reliance on the feet of Sri Sri Hariji Joy Gopal. Shiba Thakurs. Anandamoyi Thakuranis. Gopal Lal Ji’s." This fact that it is addressed to Udoy Chand is important to bear in mind in construing the provisions of the will, for the duties that it imposes are clearly placed on him. It relates first to certain property which is referred to as the companys paper standing in the name of the testatrix, and directs that out of the income " you " (that is Udoy Chand) " shall perform the sheba (worship, &c.) of Sri Sri Iswar and the sheba of the ancestral Sri Sri Iswar, you shall perform the sheba of the said Iswarjew out of the income of the ancestral garden called Iswar Gopal Lal Jis garden, purchased in his name. You shall be the person in charge of the sheba of all the deities." There is then introduced a separate and definite gift with regard to two houses, namely a house at Chowringhee and a house at Pathuriaghata, out of which was directed there should be performed the sheba of Sri Sri Iswarjew " as it is at present," and that the remainder of the income should be divided between three people— namely, Monmohini, Rada Kanta, the son of Tripura, and Golapmoni thus making provision for each one of the surviving branches of her own family except Joy Krishna, who was insane. The testatrix then refers again to the balance of the interest accruing from the Companys paper, and directs how that is to be dealt with in connection with religious services. There is no definite gift of the residue. The first question that arises is whether the gift is a gift to the idols, or whether there was a gift to any other person or persons charged with the maintenance of the idols. There is no definite gift of the residue. The first question that arises is whether the gift is a gift to the idols, or whether there was a gift to any other person or persons charged with the maintenance of the idols. The will is most obscure, but their Lordships think that there is certainly no direct gift of the whole property to the idols, nor in the circumstances ought one to be implied. It is consequently necessary to see in what capacity and by virtue of what right the worship of the idols is to be carried out. The person on whom the duty was cast was undoubtedly Udoy Chand, and the conclusion which their Lordships have reached is, that if, as they think, there is no gift to the idols, it is only possible to give effect to the provisions of the will by treating it as conferring the property upon Udoy Chand. The will is addressed to him; upon him throughout all the burdens of performing different duties are cast, and this necessarily involves the ownership of the property. Their Lordships agree with the High Court in thinking that no heritable shebaitship was established by the will, Udoy Chand was to be shebait during his lifetime, and so far as the sheba of Iswar Thakurani was concerned, he was directed to perform the ceremonies "according to the existing arrangements of the sheba" in concert with his stepmother, Shiba Sundari ; but after his death no express provision was made for the worship, and the necessary duties will have to be performed by persons properly appointed for that purpose. Although this has never been declared the true interpretation of the will, it is the construction that has in effect been acted upon for a considerable period of time, for Udoy Chand died on July 8, 1842, and upon his death administration proceedings were instituted by Golap Dasi asking for the usual administration relief. It is unnecessary to pursue the whole course of this suit. It is unnecessary to pursue the whole course of this suit. Shiba Sundari was, on December 14, 1857, appointed, jointly with the executors of Udoy Chand, to take charge of the idols, and on her death on August 14, 1858, members of the branch of the family known as the Basak Branch were introduced into the suit, and from that time down to now some of them have been associated with the performance of the duties. The result of litigation and other expenses, however, has, as the Board is informed, completely exhausted the greater part of the monies derived from the Companys paper set apart for the worship of the idols, and the claim has consequently been put forward for the balance of the rents from the two houses, on the ground that the whole of the property was dedicated for the worship of the gods. It is unnecessary for their Lordships to determine whether the effect of the gift in the will which gave the income of this specially appropriated property to the three named beneficiaries without any limitation of time would be sufficient to create an absolute gift, for on December 14, 1857, by an order made in the administration proceedings, the Court declared that out of the produce of the houses belonging to the estate of the testatrix, situate at Chowringhee and Pathuriaghata, the worship of Sri Joy Gopal should be performed, and that the surplus of the said produce should be paid as follows—namely, to the representatives of Radha Kanta Sett, deceased, one equal third part; to the representatives of Srimati Gopal Dasi, deceased, one equal third part; and to Srimati Monmohini during her lifetime and to her representatives after her death the remaining one equal third part or share. This order, although it contains no express words to that effect, amounts to a clear and effective declaration by the Court as to the absolute interests taken by each of the three named beneficiaries in the will, for the payment to the representatives of the named beneficiaries admits of no other explanation, hut to this order the Basak Branch of the family were not parties. They were, however, parties to a suit instituted in 1881, upon which an order was made on March 15, 1888, when it was directed that the sum of Us.6849 should be regarded as the surplus income derived from the property set apart for Sri Joy Gopal, and it was ordered that the trustees should divide and pay the same between the parties entitled in the proportions mentioned in the decree of December 14, 1857, that is to the representatives of the three named beneficiaries in equal shares. There has consequently been an order binding all parties, based upon the view that the property in which the three beneficiaries mentioned were interested was segregated from the rest of the estate and set apart for the upkeep of the named idol (Sri Joy Gopal Jee), the surplus belonging to them absolutely in equal shares. This disposes of the whole matter in dispute upon appeal. The learned judges of the High Court who carefully examined all these proceedings, thought that the question as to the absolute interests of the three named beneficiaries had never been definitely raised and decided, and that the directions already mentioned were only made pending the administration suit. But there is no such limitation in the terms of the order, and such a direction given in an administration suit has the effect of an order binding all parties and determines the construction to which it gives effect, so that after the lapse of time necessary for appeal it becomes final and conclusive see Peareth v. Marriott. (( 1882) 22 Ch. B. 182, 191.) The questions raised as to whether Joy Krishna was prevented from inheriting by virtue of his lunacy, and the point decided by the High Court, as to the true reading of the Dayabhaga do not arise, and their Lordships make no pronouncement upon these points. It is only necessary to add that both from the terms of the will of Bhaggobati herself and from the information afforded by the documents, it would appear that one at least of the idols mentioned in the will was ancestral, but even if that were the case their Lordships agree with the High Court in thinking that there is not sufficient evidence to prove any endowment prior to her death. Their Lordships see no reason to doubt that the Court executing the duty of appointing trustees would pay due regard to the claims of that branch of the family with whom the worship was established and by whom the services performed, but they regard the gift as in effect a private trust to which the provisions of s. 539 of the Code of Civil Procedure, 1882, would not apply, and consequently the establishment of a scheme for its administration, as provided by the decree of the High Court, is inappropriate. [After dealing with the costs of the various parties, the judgment proceeded] Their Lordships will therefore humbly advise His Majesty (1.) that the appeal No. 169 of 1919 should be allowed in part and the cross-appeal No. 170 of 1919 dismissed ; (2.) that the decree of the High Court of Judicature at Fort William in Bengal dated January 10, 1908, should be varied by (a) discharging so much thereof as directs a scheme to be submitted for carrying out the trusts created by the will of Srimati Bhaggobati Dasi deceased, (b) by declaring that according to the true construction of the said will the whole of the property of the testatrix, with the exception of the houses at Chowringhee and Pathuriaghata, was given absolutely to her grandson Udoy Chand Basak, charged with the performance of the worship of the deities mentioned in the said will except the deity Sri Sri Iswarjew, and (c) by further declaring that it appearing that by virtue of two decrees dated December 14, 1857, and March 15, 1888, the residue of the income arising from the said houses has been directed to be paid in pro portions to the three named beneficiaries, Monmohini, Rada Kanta, and Golapmoni and their respective representatives, the question as to the absolute interests taken by the said beneficiaries under the said will is res judicata between the parties to these appeals ; and (3.) that there should be no order as to the costs of these appeals.