TMI Blog1943 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ntil his death in 1939, he lived entirely with Miss Mackintosh. He died intestate on 12th June 1935, at. the age of 74. His death took place at Miss Mackintosh's house, and all the children of his two marriages survived him. The settlor made no provision for the. maintenance of Miss Mackintosh and her children; although he had maintained them entirely during the period of his association with this lady. Some time, before his death he told Miss Mackintosh that he intended to make, or he had made, a deed by which he would leave her with provision for the future. He kept his documents in a despatch box, and upon his death and when the box was opened, a typed copy of the deed was found, amongst other papers, upon which he had written in pencil On my death body to be cremated. 2. The settlor was over 50 years in the employment of the India General Navigation Railway Co., Ltd., hereinafter called the company. This Company has a Provident Fund Institution (which I will conveniently call the Fund ) of which the members are the servants of the company. The settlor was a member, and had been a member, for more than 19 years prior to the year 1928. Upon his retirement from ser v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared, namely: (1) The trustees should collect and receive the said Provident Fund money and any additions or accretions thereto; (2) the trustees should pay the interest or income thereof to the settlor and should allow him the undisturbed free use of the furniture during his life; (3) after his death and after payment of his funeral expenses and debts, pay out of the capital and income of the trust monies ₹ 18,000 to Miss Mackintosh absolutely, and the balance of the capital and income to the setalor's daughter, Miss Phyllis Anne Sansoni and make over the furniture to her absolutely. The deed also provided that it should be lawful for the settlor at all times by any deed to alter or revoke all or any of the trusts declared by those presents and to declare any new or other trusts. 4. In the written statement the factum of execution of the deed was either not admitted or denied. The two executants are the settlor and Mr. Vaughan, the two attesting witnesses being Mr. McNair, a solicitor, and Mr. P. B. Das, his clerk. The two executants and one attesting witness, Mr. McNair, are dead, and the whereabouts of the other attesting witness are unknown. 1 am satisfied from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the settlor did not divest himself of any property by the deed; (4) the deed was never acted upon, and the trust was never perfected; (5) the deed is not registered, and therefore cannot be enforced. Reference to the relevant rules of the Provident Fund can now conveniently be made: 5 (1) Every member shall subscribe a sum of 5 per centum per mensem on the amount of his salary. 5 (2) Any member may subscribe a further sum not exceeding 7 1/2 per centum per mensem on the amount of his salary, which voluntary contribution can be reduced or can cease upon notice given to the Managers; 7. The subscriptions of any member absent on sick leave or furlough shall be assessed on the salary allowed during such absence if desired by the member. 8. In respect of each year in which the profits of the company exceed the sum required to pay interest at the rate of 5 per centum upon the issued Share Capital there shall he contributed by the company to the Provident Fund out of the excess net profits, but not otherwise a sum equal to the aggregate amount of compulsory and voluntary subscriptions of members for such year, such contribution shall not exceed an amount equivalent to 5 per centum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Before proceeding further it is desirable to set out the provisions of Sections 6 and 5, Trusts Act. Section 6 is as follows: Subject to the provisions of Section 5 a trust is created when the author of the trust indicates with reasonable certainty by any words or acts: (a) an intention on his part to create thereby a trust; (b) the purpose of the trust; (c) the beneficiary, and (d) the trust property; and (unless the trust is declared by will or the author of the trust is himself to be the trustee transfers the trust property to the trustee. Section 5: No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered or by the will of the author of the trust or of the trustee. No trust in relation to moveable property is valid unless declared as aforesaid or unless the ownership of the property is transferred to the trustee. 7. Considerable argument was addressed to me on several aspects arising in the course of this suit. It was contended on behalf of the defendant that the money standing to the credit of the settlor in the Fund was not a debt, either pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 690 states that both present and future debts are existing debts and are actionable claims. The monies standing to the credit of the settlor were monies which were payable to him, not immediately or each year whilst the credit was running, but upon the happenings of the events provided in the Rules. The credits were obtained by payments made to the fund by the settlor himself as a member and by him being given the benefit of some of the contributions made by his employers, and profits and interest upon the monies. For the purpose of analogy, reference can be made to a customer of a bank who places a sum upon a fixed deposit account repayable by the bank after the elapse of a specified period. Throughout the time the money is deposited there is a debt due to the customer by the bank, but it is not enforceable and the debt becomes payable only after the agreed period of the deposit. In the same way payment of the amount of a member's credit in Provident Fund could only be demanded, as Rule 12 provides, upon retirement, which is the only event with which we are concerned. Between the making of each deposit and retirement, the debt is accruing and payment is at least conditional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t property, its origin, its nature and so on. The only point upon which uncertainty was alleged was the quantum. It is to be noticed that Section 6, Trusts Act, does not use the words exact or precise, or language to that effect. It requires the property to be indicated with reasonable certainty. In Vol. 33 of Halsbury's Laws of England, 2nd Edn., p. 100, para. 164, it is stated as follows: In Order to raise a trust, the property to be affected by it must be either expressly designated or so defined that it is capable of being ascertained. Otherwise the trust is void for uncertainty. A trust of the residue of a fund after a gift thereout of an undefined amount tor an object which for any cause fails will be an effectual trust of the whole fund. 15. Then para. 165: A trust may be declared of a fund contingently on the fund subsequently coming into existence. Reference is made to Woods v. Woods (1836) 1 My. and Cr. 401, Again in In re Turcan (1889) 40 Ch. D.5: A marriage settlement contained a covenant by the settlor to settle his estate and interest in any property or estate of or to which he should become possessed or entitled during the marriage by devise, beque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But the policy coatains another condition, showing that the insurance office recognised, the right of the insured to part with his interest, for it provided that the company should not be bound by notice of liens and charges on the policy. Would a Court of equity in the lifetime of the covenantor have enforced the covenant to settle this policy notwithstanding the condition against assignment? I think it would. 19. Whether the provisions of Rule 20 of the fund, make an assignment of a credit invalid as against, the assignee, does not require to be examined or decided. The deed is not an assignment which this Rule contemplates and therefore is not voided by the rule. 20. Another argument, on behalf of the defendant,. was that the trust was never acted upon and that it was never perfected. It is correct that upon his retirement the settlor himself received, the moneys payable to him from the fund and it does not appear that the co-trustee, Mr. Vau-ghan, in any way participated or attempted to participate in the management of the trust property or of the investments or the spending of the moneys received from the fund. When a person creates a trust, which trust can be enforced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Act, which actionable claims are transferable under Section 130, T. P. Act, and which is effected by the execution of an instrument in writing signed by the transferor. The deed of 11th June 1928, is an instrument within the above section. There was, therefore, in my view a transfer of trust property by this deed, from the settlor to himself and to Mr. Vaughan as trustees. 22. In my opinion, the provisions of the Trusts Act have been fully complied with, and the deed created a trust on the terms and for the benefit of the cestui que trusts mentioned in it and it is an operative and enforceable trust. Having come to the conclusion that the property in the trust was transferred, it is not necessary for me to express any opinion regarding the necessity or otherwise for the trust deed to have been registered or whether Section 5, Trusts Act, makes it obligatory for a non-testamentary instrument declaring a trust of moveable property to be registered. 23. The result of the above is that there will be a decree for the plaintiff that the defendant will deliver to the plaintiff within two weeks the securities set out in annexure (b) to the plaint and also any moneys coming into her ..... X X X X Extracts X X X X X X X X Extracts X X X X
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