JUDGMENT Mookerjee, J. - This is an appeal by the plaintiff in a suit for construction of a Will executed by his step brother Natobar Ghose. The substantial controversy between the parties relates to the construction of Cl. (5) of the Will which is in the following terms: That I have some texartati karbar in my own name and in the benami of my son Girish Chandra Ghose. After my death my said stepbrother Sriman Rajendra Lal Ghose and his sons etc. in succession shall realise either amicably or by suits the amounts that may remain due from my debtors and with the said money and with the Government Promissory Notes that may be left by me, they shall re-excavate in my name the tank known as Panja tank belonging to us in village khorda Cawnpore and remove thereby the water difficulty of the public. Whatever will remain surplus, after defraying the said expenses shall be obtained by my said brother and his sons etc. If he does not re-excavate the said tank in my name, then my three married daughters Srimati Mrinalini Dasi, Srirmati Bibhabati Dasi and Srimati Rashmant Dasi, and after them my daughters' sons, shall realise the money of the tesarati karbar and with the said money and with the Government Promissory notes that may be left by me, they shall re-excavate the said tank in my name; and if any surplus be left it will be obtained by the married daughters and widowed daughter, Srimati Nikunja Dasi and daughter-in-law, Srimati Subhasini Dasi in equal shares. 2. It appears that after the execution of the Will and before his death the testator re-excavated the tank. Consequently it is no longer possible for the legatee to fulfil the condition imposed in the Will. There can be no question that according to the true construction of this clause this is a condition precedent, that is to say, there is no gift intended at all unless and until the condition is fulfilled. 3. At the time when the Will was executed the condition was not impossible of performance but by reason of event subsequent, the condition has now become impossible ; for, the testator himself re-excavated the tank after he had executed the Will and before his death. Consequently at the time of his death, when the testamentary disposition came into operation, the legatee could not re excavate the tank. Consequently at the time of his death, when the testamentary disposition came into operation, the legatee could not re excavate the tank. 4. The contention of the legatee is that the condition has been discharged by the act of the testator himself and he can accordingly claim the legacy as if the condition had never been imposed. He invokes in substance the aid of the doctrine that the donee may not be bound by a condition imposed by the Will, where on account of the acts of the testator or other events subsequent to the date of the Will the effect is that substantially the condition is performed or nullified in the testator's lifetime or that substantially the testator has dispensed with the condition or has put performance out of the power of the donee. As an illustration of the application of this principle, reference has been made to the decision of the House of Lords in Darley v. Longworthy (1774) 3 Brown P.C. 359 = 1 E.R. 1369, where there was a bequest of chattels at a mansion house conditional on residence there. The testator afterwards suffered recovery of the estate ; it was ruled that the wife was entitled to the use of the furniture discharged of the condition which the recovery had put out of her power to perform. 5. Reference has also been made to other cases of the same type such as Gath v. Burton (1839) 1 Beav. 478 = 48 E.R. 1023 = 3 Jur. 817, (condition requiring payment of debt held satisfied by testator accepting composition), Wedgwood v. Denton (1871) 12 Eq. 390 = 25 L.T. 379 = 40 L.J.Ch. 326 (surrender of term followed by acceptance of new term), Walker v. Walker (1860) 2 De G. F. & J. 255 = 129 R.R. 92 = 29 L.J. Ch. 856 (condition requiting conveyance by donee fulfilled by purchase by testator of donee's interest) and Re Path (1910) 2 Ch. 322 = 79 L.J. Ch. 502 = 54 S.J. 563, (marriage with testator's consent). There are remarks in some of these cases suggesting that the true principle is not that of considering that the condition has been fulfilled but that the donees are exempt from the condition altogether so that the Will must be read as if there were no condition. 502 = 54 S.J. 563, (marriage with testator's consent). There are remarks in some of these cases suggesting that the true principle is not that of considering that the condition has been fulfilled but that the donees are exempt from the condition altogether so that the Will must be read as if there were no condition. But this view may militate against the principle that the ascertainment of the testator's intention shown by the Will cannot be varied by events which occur afterwards: seethe observations of Wood V.C. in Re Clarke's Trusts (1863)32 L.J.Ch. 325 = 11 W.R. 871 = 2 N.R. 386. That intention must be determined from the terms of the bequest and where the performance of the condition appears to be the motive of the bequest the impracticability of the performance will be a bar to the claim of the legatee. In such a case the bequest does not take effect, discharged of the condition. 6. Reference may in this connection be made to Lowthey v. Cavendesh (1758) 1 Eden 99 = 28 E.R. 621 and Priestly v. Holgate (1857) 3 K. and J. 286 = 4 W.R. 445 = 26 L.J. Ch. 448 = 69 E.R. 1116, which afford illustrations of the principle that where a condition precedent becomes impossible to be performed even though there be no fault or laches on the part of the devisee himself, the devise fails. The case, clearly before us is of this description. The motive of the testator was that the water difficulty felt by the people of the locality should be removed and that this should be effected by the re-excavation of the tank in his name, to be accomplished by means of the funds placed by him at the disposal of the legatee. 7. The essence of the intention consequently was that the legacy should be applied in the re-excavation of the tank, and as an inducement to the legatee to carry out this injunction, the testator provided that the surplus should belong to the legatee or his representative-in-interest. By reason of events over which the legatee had no control, the re-excavation of the tank has become impossible and unnecessary, in other words, the motive of the bequest bad ceased to exist at the date of the death of the testator, whence the Will takes effect. By reason of events over which the legatee had no control, the re-excavation of the tank has become impossible and unnecessary, in other words, the motive of the bequest bad ceased to exist at the date of the death of the testator, whence the Will takes effect. If we test the matter from a plain common sense point of view, we may put the question whether, if the Will had been made at the time of the death of the testator, he would have inserted this particular provision therein. The answer must obviously be in the negative. As the tank had already been re excavated by him, he could not very well impose the obligation either upon the plaintiff or upon his daughters to re-excavate it. The substance of the matter is that the purpose which he had in view was not then in existence, it is consequently impossible for us to hold that the Will intended that even in such circumstances the bequest should take effect. We are of opinion accordingly that the clause has been correctly construed by the Court below and that this appeal must be dismissed with costs. Buckland J. 8. I agree.