Malik, C.J. - (1.) THIS an appeal against a judgment of a learned single Judge passed under Section 10 of the Official Trustees Act, 1913, appointing the Official Trustee as the Trustee of the property specified in Schedule B to be held by him upon the trusts declared in the will of the late Pyare Mohan Banerji dated the 12th February, 1874.
(2.) THE property in Schedule B (Annexure B) attached to the application consists of cash and Government promissory notes deposited in the Court of the District Judge, Allahabad, valued at Rs. 61,700/, three houses, one in Allahabad valued at Rs. 500/ - and two in Banaras valued at Rs. 8,500/ - . Besides these properties there were certain zamindari shares detailed in the said Annexure and a bungalow situate in Shahpur, district Gorakhpur, valued at Rs. 500/ - . As regards the zamindari property, the whole of it has now been acquired by the State and compensation for the said property is payable to the owners thereof. The properties, therefore, that have to be considered are cash, Rs. 61,700/ - , four houses valued at Rs. 9,500/ - and compensation money realisable from the Government, and four groves. Pyare Mohan Banerji was a lawyer and also a Judicial Officer. His original home was Uttarpara in Bengal. He made a will on the 12th February, 1874, the terms of which are important. He gave his entire property to his wife Ushangini Debi and his nephew Sital Prasad Chatterjee for their lifetime, subject to the payment of all his debts and certain annuities and charges mentioned in the said document. The annuities and charges total up to Rs. 141/ - and include and allowance of Rs. 15/ - per month to the Uttarpara Hitkari Sabha. The Sabha was a charitable institution in which the testator was interested and the will mentions that the amount had to be spent in schooling fees of indigent boys whose parents or guardians might not be able to educate them. These boys were to be either residents of Uttarpara or if there was no such boy available, then residents of Bengal. The testator then considered the various possibilities of his dying leaving a son and his nephew Sital Prasad dying without leaving son or vice versa or both leaving sons. In fact neither of them left any male children and none of these contingencies, therefore, arose and we need not examine the provisions relating to them. The will provided that if the testator died without leaving any children and his nephew Sital Prasad Chatterjee also died without leaving any son surviving him, whole of the property should devolve on his legal heirs subject to the payment of annuities to such of the annuitants as might be alive at that time and a sum of Rs. 30/ - to the daughter or daughters, if any, of his nephew Sital Prasad Chatterjee and to the payment of the half of the remaining profits to the Uttarpara Hitkari Sabha or any other institution which may take its place to be spent thus: Rupees fifty per month in payment of the Schooling fees of indigent boys of Uttarpara residing in the Uttarpara School and the balance, if any, as scholarship to persons resident of Uttarpara or failing such of Bengal who after passing the Entrance Examination of the Calcutta University may wish to learn Practical Agriculture or Chemistry or Mechanics.
(3.) THE question has arisen whether by the provisions made above, the testator intended to create a trust and, if so, of what part of his property. According to the view taken by the learned single Judge the entire property was made a trust of and he therefore directed that the Official Trustee should take charge as trustee of the entire property.;