JUDGMENT Das, J. - The facts leading up to the present suit may shortly be stated as follows: Luckey Narain Dhur, a Hindu governed by the Dayabhaga, died on March 26, 1927, leaving him surviving a widow Kadambini, three sons Kartik, Ganesh and Ram, and six daughters. Prior to his death, Luckey Narain had made and published his last Will and testament bearing date November 18, 1923, whereby he appointed his sons Kartik and Ram as his executors and trustees. By clause 3 the testator gave and devised all his properties unto the executors and trustees upon the trusts and subject to the directions thereinafter mentioned. In clauses 4, 5 and 6 directions were given for the conversion of his movable properties into money and investment of the proceeds in government or other securities as therein mentioned and for payment of the testamentary expenses and his just debts and sradh expenses. The testator by clause 7 of the Will directed the executors and trustees to pay monthly and every month " out of the income " of his estate " the under-mentioned legacies to the under-mentioned persons for and during the term of their respective lives." The "under-mentioned persons" comprised his widow, two sons Kartik and Ram, and five daughters. The amount directed to be so paid to his widow Kadambini was Rs. 25 per month. By clause 8 of the Will the testator directed his executors and trustees to pay monthly and every month "out of the income" of the estate to Madan (being the son of his second son Ganesh) during his life for the maintenance of himself the sum of Rs. 30-he there out maintaining his mother during her life-time. A provision was made for payment of this sum to Madan's mother in case of Madan predeceasing her. 30-he there out maintaining his mother during her life-time. A provision was made for payment of this sum to Madan's mother in case of Madan predeceasing her. Clause 9 of the Will which is important for the purposes of this suit provided as follows: 'Subject to the payments aforesaid I give the rest and residue of my estate unto my executors and trustees upon trust to pay the balance of the income of my said estate to the shebaits for the time being of the Thacoors Netai Gour etc., established by me and located at my family dwelling house No. 23, Sankaritolla Lane, to be applied by the said shebaits for the time being for the expenses of daily sheba and periodical festivals and ceremonies of the said Thacoors as are uaually observed and performed in Hindu families of my caste and I direct that after the death of all the legatees under this my Will, my executors and trustees shall make over the whole of the corpus and undrawn income of my said estate unto the shebaits or shebait for the time being of my said Thacoors upon the trusts as aforesaid. By clause 10 provision was made for the location of the deities and residence of the shebaits at the premises No. 23. Sankaritola Lane and the power of disposition was taken away from the executors, trustees and shebaits in respect of the said premises and in case of acquisition of the said premises for any public purpose direction was given for the purchase of another house for the location of the deity and the residence of the shebaits. Finally by clause 11 the testator appointed two of his sons kartik and Ram and their male descendants as the shebaits of the deities to the exclusion of Ganesh and his descendants. 2. On May 24, 1927, i.e., about two months after the death of Luckey Narain, his eldest son Kartik died leaving a son Netye. On March 13. 1928, Ram, the surviving executor took out probate of Luckey Narain's Will. Ram, however, died, on October 17. 1928 leaving four sons Lalbehari, Bonbehari. Rashbehari and Bankubehari. On April 25. 1929, the Administrator-General of Bengal obtained letters of administration de bonis non and took possession of the estate. 3. The Administrator-General paid the annuities for some time. On March 13. 1928, Ram, the surviving executor took out probate of Luckey Narain's Will. Ram, however, died, on October 17. 1928 leaving four sons Lalbehari, Bonbehari. Rashbehari and Bankubehari. On April 25. 1929, the Administrator-General of Bengal obtained letters of administration de bonis non and took possession of the estate. 3. The Administrator-General paid the annuities for some time. An unfortunate dispute cropped up between Ganesh and the descendants of Kartik and Ram on the question of construction of clause 11 of the Will whereby Luckey Narain purported to exclude his son Ganesh from shebaitship and litigation followed and was carried from Court to Court right up to the Judicial Committee which decided that the purported appointment of shebaits by clause 11 was void being repugnant to Hindu Law and that all the heirs of Luckey Narain in eluding Ganesh were entitled to be shebaits. The costs of the protracted litigation were directed to be paid out of the estate". A considerable part of the estate had to be sold for meeting parts of these costs and I gather a sum of about Rs. 8,000 is still payable out of the estate as costs. The income of the estate, by reason of the sale of parts of the estate for payment of costs, came down and the amount which came into the hands of the Administrator-General was not sufficient to pay all the annuities and eventually the payment of the annuities had to be stopped. 4. On February 16. 1944, Kadambini, the widow of the testator, died leaving her only surviving son Ganesh. At the date of her death a sum of Rs. 1,451-4-8 remained due to Kadambini for arrears of annuity. Ganesh as her only heir claims this sum with interest thereon at 6 per cent, per annum from the respective due dates until payment. A sum of Rs. 1,815 is also said to have fallen due to Madan for arrears of his annuity up to April, 1944. He also claims interest on the arrears at 6 per cent, per annum. 5. A sum of Rs. 1,815 is also said to have fallen due to Madan for arrears of his annuity up to April, 1944. He also claims interest on the arrears at 6 per cent, per annum. 5. The present suit was filed by Ganesh and Madan on May 19, 1944, against the Administrator-General of Bengal alone for an account of the arrears of annuity payable to Ganesh as the heir of Kadambini and of the arrears of annuity payable to Madan, for a declaration that the claims of the Plaintiffs form a charge on the estate of the testator, for construction of the Will, for sale of the estate if necessary, and for administration of the estate. In the plaint a charge is made that the Administrator-General mal-administered the estate by not paying the annuities in terms of the Will and by making unauthorized payments inter alias, to the residuary legatees in preference to the annuitants. 6. The Administrator-General has filed his written statement stating that all annuities had been fully paid up to the month of May, 1938, and that thereafter owing to insufficiency of funds full payment of the annuities could not be made but part payments had been made from time to time and denying all charges of mal-administration. He makes no admission as to Ganesh's claim for the arrears of Kadambini's annuity and repudiates the claim for interest. He leaves the question of construction of clause 9 of the Will to the Court. 7. The suit came up for hearing before me some time ago. A summary of accounts was placed before me on behalf of the Administrator-General showing that the present income was quite insufficient to pay even the current annuities, not to speak of the balance of costs of the previous litigation or of the arrears of annuities. The prices of immovable properties having gone up abnormally a suggestion was made that if some of the immovable properties were sold, the sale proceeds, after meeting the balance of costs and the arrears of annuities, will, if invested, bring an income which together with the income of the remaining portion of the estate, be quite sufficient to meet the current annuities as well as the deb-sheba expenses. The sons of Kartik and Ram, who are also shebaits, asked for leave to appear at their own costs and make their submissions. The sons of Kartik and Ram, who are also shebaits, asked for leave to appear at their own costs and make their submissions. It appeared to me that although technically the Administrator-General represented all the beneficiaries under the Will the deities were vitally interested in the question of the sale of the corpus of the estate and accordingly I directed the shebaits of the deities to be added as parties on their agreeing not to claim any costs in any event. I adjourned the suit and asked the Administrator-General to formulate a scheme for payment of the balance of costs and arrears of annuities and the current annuities and place them before the other parties so as to enable them to consider and. if thought fit. to agree thereto. 8. The suit has again come up before me for disposal. The Administrator-General, I am told, has framed a scheme but learned Counsel for the added shebait Defendants submitted that the question of law, namely, whether, on a true construction of the Will, the corpus could at all be resorted to for payment of the annuities should be decided by the Court before any scheme could be framed. The main controversy has centred round the claim of Ganesh as heir of Kadambini to the amount that remained due to Kadambini as arrears of annuity up to the date of her death. If the annuities form a charge on the corpus or constitute a continuing charge on the income accruing in future then and there alone can Ganesh's claim be sustained and then alone can Madan ask for a sale of the corpus for satisfying his arrears. A number of cases were cited on both sides in support of their respective contentions. 9. The question whether an annuitant is entitled to have the arrears of annuity satisfied out of the corpus or future income of the estate is always one of the proper construction of the instrument creating the annuity. The proper construction of an instrument depends upon the precise language used therein. No one case, therefore, can be said to be precisely governed by another, unless the language is identical. Further on a question of construction the Judges will differ and it is difficult to reconcile the numerous decisions of the English Courts that have found their way into the law reports and text books. No one case, therefore, can be said to be precisely governed by another, unless the language is identical. Further on a question of construction the Judges will differ and it is difficult to reconcile the numerous decisions of the English Courts that have found their way into the law reports and text books. It is possible, however, to deduce from the authorities certain principles of construction which may be said to be more or less well established. I am not unmindful that in the construction of the Will of a Hindu the Courts in India have been warned by the Judicial Committee against blindly applying the technical rules of English law laid down in English cases but seeing that this Will disposes of properties situate in the Presidency town of Calcutta and is drawn up in the English language presumably by attorneys practicing on the Original Side of this Court where the principles of English law are more or less adopted and followed. I think it is permissible to take into account those decisions of English Courts which are based not exclusively on the technical rules of English law but on sound general principles of universal application. 10. The general principles referred to above, which may have a bearing on the proper construction of the Will before me, may now be enunciated as I apprehend them: (1) Where in a Will there is a bequest of an annuity simplicities and a residuary bequest, the residuary legatee can only take the residuary estate on terms of paying or providing for the payment of the annuity in full. The reason is that the residue can be ascertained only after the annuity, like any ordinary pecuniary legacy, is paid in full. In such a case the whole of the annuity is to be satisfied before any part of the residue is paid to the residuary legatee and if necessary the capital of the testator's estate shall be applied for that purpose. This principle is codified in sec. 176 of the Indian Succession Act. In such a case the whole of the annuity is to be satisfied before any part of the residue is paid to the residuary legatee and if necessary the capital of the testator's estate shall be applied for that purpose. This principle is codified in sec. 176 of the Indian Succession Act. (2) Where, however, the annuity arises out of a trust declared in a Will or deed then (a) if the trust be one to pay the annuity out of the capital of the trust fund, it must obviously and necessarily be paid out of the corpus; (b) if the trust be one to pay an annuity out of the income of the trust fund to a person (e.g., the widow) for life and from and immediately after the death of the annuitant to make over the estate of another person, the annuity constitutes a charge only on the income accruing during the life of the annuitant and not on the corpus. The reason is that on the death of the annuitant a new trust arises in respect of the corpus and the income and there is no available income out of which the arrears of annuity can be paid. This principle is deducible from the decision in Foster v. Smith [1845] 1 Phillips 629. (c) if the trust be one to pay an annuity out of the income of the trust fund to a person (e.g., the widow) for life and " subject to the payment of the annuity " or " subject thereto " to make over the estate to another person, the annuity is charged on the corpus, and the arrears are payable out of the corpus of the future income. The reason, as I apprehend it, is that the gift-over being "subject to" the payment of the annuity the trust in respect of the gift-over does not commence until the full payment of the annuity subject to which it is created. The words " subject to the aforesaid annuities" has been interpreted to mean not " subject to the payment of the annuities out of the income as aforesaid " but " subject to the payment and satisfaction of certain annual sums." This is established by the cases of Brich v. Sherratt [1876] L. R. 2 Ch. App. 644. In re: Howarth: Howarth v. Makinson [1909] L. R. 2 Ch. App. 644. In re: Howarth: Howarth v. Makinson [1909] L. R. 2 Ch. 19.and In re: Watkin's Settlement; Witts v. Spence [1911] L. R. 1 Ch. 1. It has been said by Cozens-Hardy, M. R., in In re: Howarth [1909] L. R. 2 Ch. 19.that there is nothing in In re: Baden [1907] L. R. 1 Ch. 132. (where the words were "subject to the aforesaid trusts " and where it was held that the annuity was a charge only on the income accruing during the life of the annuitant) which was inconsistent with the view taken in In re: Howarth [1909] L. R. 2 Ch. 19. (d) if the trust be one to pay an annuity out of the income and to pay the balance of the income to another person and to hold the residue in trust for or make over the" estate to the last mentioned person or a third person with no indication in the language of the instrument that the gift of the balance income or the gift of the residue was subject to the payment of the annuity, the annuity is not a charge on the corpus. The cases of Stclfox v. Sugden [1859] Johns. 234. Wormald v. Muzeem [1859] 50 L. J. 776. and In re: Coller's Deed Trusts: Coller v. Coller [1939] L. R. 1 Ch. 277 : 1937 3 A. E. R. 292. are authorities from which this principle may be drawn. The trust for payment over of the balance income without any qualification indicates that the author of the trust contemplated that there would be a surplus and it is permissible to infer that it never occurred to him that the corpus would be required and therefore the annuity is not to be regarded as a charge on the corpus. The direction for payment of the surplus income is inconsistent with the annuity being a charge on the corpus or a continuing charge on the future income; (e) if, however, the trust be one to" pay an annuity out of the income and " subject, thereto " to pay the balance income to another person and " subject thereto " to hold the residue in trust for or make over the estate to another the case comes within the decision in In re; Young Brown v. Hodgson [1912] L. R. 2 Ch. 479.. 479.. The subsequent trusts being " subject to " the annuity they do not commence until the annuity has been fully paid and consequently the annuity must be regarded as a charge on the corpus or a continuing charge on the income which ordinarily speaking comes to very much the same thing. 11. Keeping the above principles in mind I now proceed to examine the terms of the Will of Luckey Narain. 12. I have already mentioned that by clause 3 of the Will the testator gave and devised all his movable and immovable properties to his executors and trustees upon the trusts and subject to the directions thereinafter expressed. Clauses 4 and 5 gave directions for conversion of the movable properties into money and investment thereof and clause 6 provided for payment of debts testamentary and sradh expenses. By clause 7 the testator directed his executors and trustees to pay monthly and every month, reckoning the first month as commencing from the day of his death out of the income of his estate " the under-mentioned legacies to the under-mentioned persons for and during the term of their respective lives." The commencement of the month is from the day of the death of the testator when it is presumed the executors would be in possession of the estate as executors. The direction is given to executors as well as to trustees and the gift is described as " legacies." If, therefore, this clause be construed as a bequest of annuities to be paid by executors as such to annuitants as direct legatees then this case will fall within the principle set forth in clause (1) above and be governed by sec. 176 of the Indian Succession Act under which the annuitants will have a charge on the corpus. Seeing, however, that the testator had given and devised his properties to the executors and trustees upon trust I do not desire to base my decision on that section. I propose to deal with the matter on the footing that the anuuities given by clauses 7 and 8 arise out of a trust created by the Will. Clause 9 opens with the words "subject to the payments aforesaid" which clearly refer to the annuities under both clauses 7 and 8. By this clause he gave the rest and residue of his estate to his executors and trustees. Clause 9 opens with the words "subject to the payments aforesaid" which clearly refer to the annuities under both clauses 7 and 8. By this clause he gave the rest and residue of his estate to his executors and trustees. At first this seems redundant for by clause 3 the testator had already given all his movable and immovable properties to the executors and trustees. But on reflection it will be noticed that, while under clause 3 he gave all his properties, under clause 9 he is purporting to give " the rest and residue " of his estate. This de novo bequest of " rest and residue" clearly indicates that the testator by clause 9 was contemplating making provision for the disposal of what will remain of his estate after payment of the annuities given before. This clause must, therefore, be read as constituting a trust in respect of the residue. The residue was the surplus income left over after meeting the annuities and the corpus. The testator contemplated that there would be a surplus left after payment of the annuities and for all we know but for the disastrous litigation there would have been a surplus. In this view of the income the testator provided for his widow and children as well as for the deities established by him. But the language used by the testator indicates, according to the authorities, that the testator also contemplated the possibility of a deficiency and provided for it. Of the various persons entitled to his bounty, namely, the members of the family and the deities he preferred the former and therefore made the provisions for the deities " subject to the payments aforesaid." Those words, adapting the language of Buckley, L. J., in In re: Howarth [1909] L.. R, 2 Ch. 19. mean not "subject to the payment of the annuities out of the income as aforesaid " but " subject to the payment and satisfaction of the aforesaid annuities." By that clause "the rest and residue " which comprised the surplus income and the corpus, were given to the executors and trustees upon trust for the deities. R, 2 Ch. 19. mean not "subject to the payment of the annuities out of the income as aforesaid " but " subject to the payment and satisfaction of the aforesaid annuities." By that clause "the rest and residue " which comprised the surplus income and the corpus, were given to the executors and trustees upon trust for the deities. The bequest of the rest and residue was, however, " subject to the payments aforesaid " and, therefore, there is no escape from the conclusion that the trusts, both in respect of the surplus income and the corpus, which were imposed on or attached to the bequest of the rest and residue were also " subject to the payments aforesaid." In other words, inasmuch as the opening words " subject to the payments, aforesaid " limit or qualify the bequest of the rest and residue, they must limit or qualify the trusts or obligations attached to that bequest. In this view of the matter this case appears to me to be governed by the principles enunciated in clause 2 (e) above and the annuities form a charge on the corpus or, which is very much the same, a continuing charge on the future income. I his being the true effect of this will the arrears due to Kadambini at the time of her death did not lapse but continued as a charge on the corpus and on her death devolved on her heir, namely, her only surviving son Ganesh. Likewise Madan is entitled to a charge on the corpus for the arrears clue to him. I, therefore, hold that, on a true construction of the Will, the claims of both the Plaintiffs for arrears Of annuity as well as Madan's claim for current and further annuities form a charge on the estate of the testator and there will be a declaration accordingly. I gather that there is no dispute as to the amount due to the Plaintiffs. The Administrator General has prepared a scheme for payment of the balance of costs payable out of the estate and of the arrears of annuities by sale of a portion of the immovable properties. I, therefore, adjourn the further hearing for a fortnight to enable the parties to consider the scheme. The Administrator General has prepared a scheme for payment of the balance of costs payable out of the estate and of the arrears of annuities by sale of a portion of the immovable properties. I, therefore, adjourn the further hearing for a fortnight to enable the parties to consider the scheme. I direct that the suit be placed on the list a fortnight hence when suitable orders would be made fixing the amounts due to the Plaintiffs and directing a sale. The Plaintiffs and the Administrator-General shall get the costs out of the estate, the latter's costs being as between attorney and client. Mr. Sinha's clients must bear their own costs.