TMI Blog1956 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as a shebait in the place of her husband. The suit terminated in a compromise recognising the right of Santi Debi as a co-shebait. Shortly thereafter, however, i.e., in the year 1944, Ramani and his two sons, Rajes and Ramendra, filed a suit against Santi Debi, for a declaration that the above mentioned compromise decree was null and void. One of the grounds on which the suit was based was that the marriage of Santi Debi with Rabindra was a nullity inasmuch is the said marriage was one between persons within prohibited degrees. During the pendency of that suit Ramani, the father, executed a registered trust deed in respect of his entire properties on July 26, 1945. The terms of that trust-deed will be referred to presently. The eldest of the sons, Rajes, was appointed thereunder as the sole trustee to hold the properties under trust subject to certain powers and obligations. After the execution of this trust deed the father died. The exact date of his death does not appear on the record. Some time thereafter the suit was compromised on December 3, 1946. The material terms of this compromise will be set out presently. By the said compromise Santi Debi gave up her rights under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramani Kanta Roy deceased and she having agreed to realise her dues, if any, out of a particular property is not entitled to proceed against the properties sought to be attached simultaneously, keeping the said security alive. The material portion of the compromise decree dated December 3, 1946, is as follows : (a) That the compromise decree in Suit No. 92 of 1941 of the Hon'ble High Court of Calcutta, Original Side, is declared to be inoperative and set aside and the is defendant No. 1 would be debarred from claiming right or relief in the said decree. (b) That the plaintiffs above named agree to pay to defendant No. 1 for her natural life a monthly allowance of ₹ 475 and the said allowance is to be paid on and from the month of November, 1946. (c) That the said monthly allowance of ₹ 475 is to be paid on or before the 10th day of each succeeding month and in case of failure to pay the said monthly allowance of four consecutive months, the defendant No. 1 will be entitled to realise the amount in default by means of execution of the decree to be passed in terms of this petition of compromise. (d) That the properties mentioned in the schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present purposes. We understand that the actual decree in this case merely showing that the solenama do form part of the decree is according to the usual practice of courts in Bengal in all such cases and that it is generally understood to amount to such a direction though it is not so expressly set out. We do not consider it necessary to express opinion as to whether that is a correct practice. But we do not think that in this case the execution is to be defeated on this ground. There is no indication in the judgment either of the Subordinate Judge or of the High Court that any such point has been raised before them. We accordingly overrule this objection. 8. As regards the first of the main points raised with reference to the terms of the compromise decree, it is not disputed that clause (c) does impose a personal obligation on the plaintiffs therein to pay to the first defendant therein a monthly allowance of ₹ 475 and that, therefore, the decree-holder is entitled to a personal remedy. What is urged, however, is that taking cls. (c) and (d) together, the clear intention is that when any default occurs, the decree-holder has to look for payment first to the properti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to realise the amount in default by means of execution of decree. Clause (d) says that the defendant No. 1 will be at liberty to realise the amount in default against the properties charged. Clause (e) says that the defendant No. 1 will, at her option, be further entitled to realise the amount in default by appointment of Receiver for execution of this decree over the charged properties. It is quite clear that clause (c) gives her an unqualified right to obtain payment of the monthly allowance from the plaintiffs. Clauses (d) and (e) give her a liberty or option to pursue the remedies specified therein. There is nothing in these two clauses to limit, in any way, the unqualified right that she was given under clause (c). Our attention is drawn to the statement in clause (j) which says that each of the terms stated is a consideration for the other terms. What exactly is meant thereby is somewhat obscure. But we are unable to see how that clause affects the intention which, in our view, has to be gathered by reading cls. (c), (d) and (e) together. We are, therefore, of the opinion that the contention raised to the effect that the personal remedy is not available in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of subsequent events. However, since the point has been allowed to be raised and the decision of the High Court is given on the footing of the matter being solely one of construction of the document, we proceed to consider it. 12. The main provision under which the two brothers, Rajes and Ramendra, get any interest under the trust deed is that contained in sub-cls. (a) and (b) of clause 12, which are as follows : 12. On the liquidation of all the debts of the settler (including the debt, if any, that may be incurred by the trustee for payment of the settler's debts) and after his death this trust shall come to an end and the properties described in Schedule 'A' shall devolve as follows :- (a) The properties being Lot I, Lot II, Lot III, and Lot IV described in the said Schedule 'A' hereunder written including the surplus income thereof shall devolve on the said Rajes Kanta Roy absolutely or if he be then dead then the said properties shall devolve on his heirs then living absolutely but subject to the provisions contained in clause (c) hereof regarding premises No. 44/2, Lansdowne Road * * *. (b) The properties being Lot V described in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra. In clause 6 it is stated that on the death of the settlor before the liquidation of his debts the trustee shall pay to Rajes ₹ 800/- and ₹ 700/- to Ramendra per month. By virtue of these two clauses a sum of only ₹ 1,500/- out of the income is set aside for the benefit of the members of the family and hence by implication the rest of the income is to be applied towards discharge of the debts. Clauses 8 and 9 provide for payments out of the income in the event of death either of Rajes or of Ramendra before the liquidation of debts. Clause 10 provides for residence of the family as long as debts are not fully paid off. Clause 11 authorises the trustee to sell, mortgage, or give a long lease of any of the properties for payment of the debts. Clauses 12(a) and (b) proceed on the assumption that the surplus income (after payments therefrom as provided) is to be accumulated so long as the trust continues, i.e., debts are not discharged. Quite clearly, therefore, during the subsistence of the trust both the sons get only a portion of the income as specified above and do not get for themselves the full benefit out of the properties respectively allotted to them unt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the intentions of the testator, and that the exception may be found in operation in cases where the testator had shown a clear intention that the legacies shall not vest till his debts are satisfied. The learned Solicitor-General relies also on a similar passage from Jarman on Wills (8th Ed.), Vol.2 1390, which states as follows : So, where a testator clearly expressed his intention that the benefits given by his will should not vest till his debts were paid, * * * the intention was carried into execution, and the vesting as well as payment was held to be postponed. But it is to be noticed that at p. 1373 in Jarman on Wills (8th Ed.), Vol. 2, it is also stated as follows : It was at one period doubted whether a devise to a person after payment of debts was not contingent until the debts were paid; but it is now well-established that such a devise confers an immediately vested interest, the words of apparent postponement being considered only as creating a charge. 15. Apart from any seemingly technical rules which may be gathered from English decisions and text-books on this subject, there can be no doubt that the question is really one of intention to be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears from clause 12(a) of the trust deed which specifically provides for the disposal of the surplus income of each lot which might accumulate during the continuance of the trust. It is, permissible, therefore, to think that the surpluses contemplated would not be unsubstantial. Under clause 14 of the trust deed the settlor provides for the devolution of the trusteeship in case his son, Rajes, died before the liquidation of the debts and says that on the death of Rajes, Rajes's wife and Ramendra are to become joint trustees and that on the death of either of them the surviving trustee shall be the sole trustee. There is no provision for any further devolution of trusteeship in the contingency of such sole trustee also dying before the liquidation of the debts. The absence of any such provision may well be taken to indicate that, in the contemplation of the settlor, the debts would be discharged and the trust would come to an end, in any case, before the expiry of the three lives mentioned therein, i.e., Rajes, his wife and Ramendra. While, therefore, the settlor does appear to have attached considerable importance to the liquidation of debts, there is nothing to show that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the donee the gift is vested and not contingent. (See Explanation to s. 19 of the Transfer of Property Act, Explanation to s. 119 of the Indian Succession Act. See also Williams on Executors and Administrators, 13th Ed., Vol. 2, p 663, and Jarman on Wills, 8th Ed., Vol.2, . 1397. This rule operates normally where the entire income is applied for the benefit of the donee. The distinguishing feature in this case is that it is not the entire income that is available to the donees for their actual use but only a portion thereof. But it is to be observed that according to the scheme of the trust deed, the reason for limiting the enjoyment of the income to a specified sum thereof, is obviously in order to facilitate and bring about the discharge of the debts. As already explained the underlying scheme of the trust deed is that the enjoyment is to be restricted until the debts are discharged. Whatever may be said of such a provision where a donee is not himself a person who is under any legal obligation aliunde to discharge such debts, the position in this case is different. The two sons are themselves persons who, if the settlor died intestate, would be under an obligation to discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it is his heirs (then surviving) that would take the interest. It has been urged that the provision in clause 12(a) in favour of the heirs then surviving is in the nature of a direct gift in favour of the heir or heirs who may be alive at the date when the contingency disappears. But even so, this would make no practical difference. It is to be remembered that in this case the parties belong to the Dayabhaga school of Hindu Law - and this is admitted before us. It is also to be remembered that up to the third degree in the male line the principle of representation under the Hindu Law operates. The net result of the provision, therefore, is that whenever the alleged contingency of discharge of debts may disappear the person on whom the interest would devolve would, in the normal course, be the very heir (the lineal descendant then surviving or the widow) of Rajes. The actual devolution of the interest, therefore, would not be affected by the alleged contingency. That being so, it is more reasonable to hold that the interest of Rajes under the deed is vested and not contingent. 19. This view is confirmed by the fact that under the compromise decree which is now sought to be exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be the absolute owner, this is a factor which imports a further element of contingency, in the interest given to Rajes under this deed of trust in so far as it relates to premises No. 44/2, Lansdowne Road. It is contended that in order to emphasise the additional contingency as regards this item, subjection to clause (c) as regards these premises, has been specifically incorporated in clause 12(a). Now, it is to be noticed that the preliminary portion of clause 12 shows that on the liquidation of the debts and after the death of the settlor, the trust shall come to an end and the properties in Lots I to IV are to devolve on Rajes. Clause 12(c), therefore, would prima facie show that the contingency, if any, which arises by virtue of the obligation to provide alternative accommodation to Ramendra or his heirs is to arise only after the death of the settlor and the discharge of the debts, which taken together means the termination of the trust. So understood and assuming for the sake of argument that the obligation to provide alternative accommodation is by itself a contingency, this would bring about a contingent interest in premises No. 44/2, Lansdowne Road, in favour of Rajes, a ..... 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