Case Summary
| Citation | Rajesh Kanta Roy v. Shanti Debi AIR 1957 SC 255 : 1957 SCR 77 |
| Keywords | Sec 19,21 of TPA |
| Facts | Ramani Kanta Roy, who owned substantial properties, had three sons: Rajesh Kanta Roy, Rabindra Kanta Roy, and Ramendra Kanta Roy.Rabindra Kanta Roy passed away childless in 1938, leaving behind his widow, Santi Debi.In 1934, Ramani created an endowment for some of his properties in favor of the family deity, appointing his three sons as shebaits.After Rabindra’s death, Santi Debi initiated a suit in 1941 claiming her right as a coshebait, which was later settled by a compromise.In 1944, Ramani and his sons filed a suit against Santi Debi, challenging the previous compromise decree because her marriage with Rabindra was void.During this lawsuit, Ramani executed a trust deed in 1945, appointing Rajesh as the sole trustee of his entire properties.Ramani passed away at an unspecified date after executing the trust deed. Ramani put two conditions for the transfer of the property, (i) after payment of total debts of settler, and (ii) after the death of settler The lawsuit against Santi Debi was compromised in 1946, where she agreed to receive a monthly allowance for life, which was defaulted on after February 1948.Santi Debi filed for execution of the decree in 1949 to recover arrears of her monthly allowance from March 1948 to July 1949.Rajesh objected to the execution, claiming that Santi Debi could not proceed against the attached properties as per the terms of the compromise decree and that his interest in the attached property was only that of a trustee, not liable for attachment. |
| Issues | Whether the terms of the compromise decree allow Santi Debi to execute against the attached properties while retaining her right to the monthly allowance? Whether the appellant’s interest in the attached property is contingent interest or vested interest, and if contingent, whether it is subject to attachment in execution proceedings? |
| Contentions | |
| Law Points | Court looked at Explanation of Section 19 TPA and observed that where the enjoyment of the property is postponed and the present income is applied for the benefit of donee the gift is vested not contingent. This rule operates where entire income is applied for the benefit of donee. However in the present case only a portion of income is specified for the use of donee. Therefore court looked at the intention of settler. The two sons are themselves persons who, if the settler dies interstate would be under an obligation todischarge his debts out of the properties which devolve upon them. The provision in the trust deed that onlyspecified properties are to be devolved on both brothers and that the surplus income of each of these lots after discharge of the debts is also to devolve in the same way, operates as nothing more than the present allotment of these properties themselves to the donees subject to the discharge of the debts. The settler also did not attached considerable importance to the liquidation ofdebts, there is nothing to show that he was apprehensive that the debts wouldremain undischarged out of his properties and that he contemplated the ultimate discharge of his debts to be an certain event. From the trust deed it is reasonable that the settler did contemplate that on theproper management of the property and with a scheme for the discharge ofdebts, there would emerge surplus income by the date of the termination of trust. |
| Judgement | Therefore, looking at the intention of the settler court said that only theenjoyment of property is postponed till the discharge of debts and death ofsettler. Therefore court held that it is vested interest. Hence the appeal is dismissed. |
| Ratio Decidendi & Case Authority |
Full Case Details
JAGANNADHADAS, J.- 2. One Ramani Kanta Roy was possessed of considerable properties. He
had three sons, Rajes Kanta Roy, Rabindra Kanta Roy and Ramendra Kanta Roy. Rabindra died
childless in the year 1938 leaving a widow, Santi Debi. ln 1934 Ramani created an endowment in
respect of some of his properties in favour of his family deity and appointed his three sons as shebaits.
After the death of Rabindra his widow Santi Debi, instituted a suit against the other members of the
family in 1941 for a declaration that she, as the heir of her deceased husband, was entitled to function
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 as 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 the
previous compromise decree of 1941 and agreed to receive for her natural life a monthly allowance of
Rs 475 payable from the month of November 1946. It was one of the terms of the compromise that on
default of payment Santi Debi will be entitled to realise the same by means of execution of the decree.
It appears that the monthly allowance as aforesaid was regularly paid up to the end of February 1948,
and that thereafter payment was defaulted. Consequently Santi Debi filed an application for execution
on July 8, 1949, to realise the arrears of her monthly allowance from March 1948, to July 1949,
amounting to Rs 8075 against both the brothers, Rajes and Ramendra. Execution was asked for by
way of attachment and sale of immovable properties viz. Premises No. 44/2, Lansdowne Road,
Ballygunge P.S., 24- Parganas. Rajes filed an objection to the execution under Section 47 of the Code
of Civil Procedure on various grounds. Ramendra has not filed, or joined in, any such application and
has apparently not contested the execution. The present contest in both the courts below and here is
only between Rajes and Santi Debi. An order was passed by the Subordinate Judge overruling the
objections raised by Rajes. An appeal was taken therefrom to the High Court at Calcutta which was
dismissed by its judgment under appeal. Hence the present appeal in which Rajes is the appellant,
while Santi Debi is the first respondent and Ramendra is the second respondent.
3. The two main objections to the execution proceedings which have been urged before us are that
–
(1) Under the compromise decree which is now sought to be put in execution, charge was
created over certain properties for the due payment of the monthly allowance and hence as a
matter of construction of the decree, the personal remedy can be pursued only after the
remedy by way of charge is exhausted,
(2) Under the terms of the deed of trust Rajes has no attachable interest in the properties
sought to be proceeded against.
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7. Now, coming to the second point, the contentions raised are that, on a true construction of
the terms of the trust deed the interest of the judgment-debtor, Rajes, (1) in the properties covered by
the trust deed, and (2) in particular, in Property No. 44/2, Lansdowne Road sought to be attached, is
only a contingent one and hence not attachable. That a mere contingent interest though transferable
inter vivos is not attachable is well-settled since the Privy Council decision in Pestonjee Bhicajee v.
P.H. Anderson [AIR 1939 PC 6]. The question as to whether the interest of the judgment-debtor,
Rajes, in this case is vested or contingent, is one not altogether free from difficulty. But it is well to
notice at the outset that this point has not been raised in the petition filed by the judgment-debtor,
Rajes, under Section 47 of the Code of Civil Procedure. What is stated therein is merely the
following:
“Under the said deed of trust, the judgment-debtor has no interest in the property except
that of a trustee and as such the decree-holder cannot proceed for realisation of her alleged
dues against the said property.”
The objection in this form is obviously untenable and has not been urged in any of the courts
below. Indeed, if under the trust deed the judgment-debtor has a beneficial interest, it is not disputed
that such beneficial interest would be attachable provided it is a vested interest and not a contingent
interest. The judgment of the executing court, however, shows that what was dealt with there is the
contention that the interest under the trust deed was a mere expectancy as opposed to a vested interest.
The court held that the interest which the judgment-debtors had in the property by virtue of the deed
of trust was not a mere expectancy. On appeal to the High Court, none of the grounds set out in the
appeal memorandum thereto relates to this question. The High Court, however, dealt with the matter
on the footing that the question is whether the interest of the judgment-debtor under the deed of trust
is a vested as opposed to a contingent interest. It does not appear to us that question in this form
should have been allowed to be raised. Its determination may well depend upon the question whether
as a fact the contingency suggested has disappeared by virtue 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.
8. The main provision under which the two brothers, Rajes and Ramendra, get any interest under
the trust deed is that contained in sub-clauses (a) and (b) of clause 12, which are as follows:
“12. On the liquidation of all the debts of the settlor (including the debt, if any, that may
be incurred by the trustee for payment of the settlor’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 said Schedule ‘A’ hereunder written
including the surplus income thereof shall be enjoyed by the said Ramendra Kanta Roy
during his lifetime or if he be then dead then the said properties shall devolve on his son or
sons if any absolutely but if there be no son living at that time and if there be a grandson
(son’s son) or grandsons then on such grandson or grandsons absolutely….”
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They show that Lots I to IV in Schedule A ultimately go to Rajes and Lot V alone goes to
Ramendra. But the interest which either of these is to get in the properties allotted to each is expressed
to be one which each will get after the trust comes to an end. Now, it is only after the happening of the
two events viz. (1) the discharge of all the debts specified in the schedules (including the debts, if any,
that may be incurred by the trustee for payment of the settlor’s debts), and (2) the death of the settlor
himself, that the trust comes to an end and it is on the trust coming to an end that the sons get the
properties allotted to them. It was recognised in arguments before us that the death of the settlor is not
by any means an uncertain event and that, therefore, this involves no element of contingency. But
what was urged is that the discharge of the debts is an uncertain event in the sense that neither the
factum nor the time of such discharge is one that can be predicated with any certainty and that since
the interest which the two brothers take is to be only after such discharge their respective interests
therein are contingent. It is pointed out that the settlor was very particular about the property not
going into the hands of the two sons for their enjoyment as owners until after the debts are liquidated
and that this is emphasised in various clauses of the trust deed. It is urged that this clearly shows the
intention of the settlor to be that the discharge of the debts should be a condition precedent for the
vesting in them of any interest in the properties. Thus clause 3 of the trust deed imposes a specific
obligation on the trustee that “he shall pay the present existing just debts of the settlor”. Clause 5 says
that during the lifetime of the settlor and so long as all the debts of the settlor be not paid off the
trustee shall pay monthly and every month Rs 1000 to the settlor, Rs 300 to Rajes and Rs 200 to
Ramendra. 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 Rs 800 and Rs 700 to Ramendra per month. By virtue of these two clauses a
sum of only Rs 1500 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 until the debts are completely discharged. There is no doubt that
these terms show that the settlor attached great importance to the discharge of the debts becoming an
accomplished fact before the two sons take the full benefit by way of devolution of the property and
that in order to facilitate the same he restricted his own enjoyment and that of his two sons to an
aggregate limited sum of Rs 1500 per month out of the income (apart from a few other minor monthly
payments). But can it be said that their interest in the property was made to depend on the event of the
total discharge of the debts and that the discharge of the debts was contemplated as an uncertain
event.
9. The determination of the question as to whether an interest created by such a deed is vested or
contingent has to be guided generally by the principles recognised under Sections 19 and 21 of the
Transfer of Property Act, 1882, and Sections 119 and 120 of the Indian Succession Act, 1925. The
learned Judges of the High Court relied on Illustration (v) to Section 119 of the Indian Succession Act
and the decision in Ranganatha Mudaliar v.A. Mohana Krishna Mudaliar [AIR 1926 Mad 645].
Learned Solicitor-General appearing for the appellant before us has urged that there is no such
inflexible rule of law as is assumed by the High Court viz. that “in spite of a clause requiring payment
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of debts before the property reaches the hands of the donee, the gift is a vested one”. He drew our
attention to the fact that both Section 19 of the Transfer of Property Act and Section 119 of the Indian
Succession Act clearly indicate that if “a contrary intention appears” from the document that will
prevail. He has also drawn our attention to the case in Bernard v. Mountague [ (1816) 1 Mer 422 : 35
ER 729 (C) ] in which it was held, on a construction of the terms of the trust, that the payment of the
debts was a condition precedent to the vesting of the interest devised therein. How, such a matter, as
the one before us, is treated in English law when it arises, appears from the following passages in the
recognised textbooks. Williams on Executors and Administrators 13th Edn.), in Vol. 2, at p. 658,
states one of the two rules of construction to be that where the bequest is in terms immediate, and the
payment alone postponed, the legacy is vested. He states a number of exceptions to that rule and says
the rule itself is always subservient to the intentions of the testator, and that the exception may be
found in operation in cases where the testator has 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 Edn.), Vol. II, at p. 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 Edn.), Vol. II, 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.”
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
gathered from a comprehensive view of all the terms of a document. Learned Solicitor-General
frankly admitted this, and also that a court has to approach the task of construction in such cases with
a bias in favour of a vested interest unless the intention to the contrary is definite and clear. It is,
therefore, necessary to consider the entire scheme of the deed of trust in the present case, having
regard to the terms therein, and to gather the intention therefrom.
10. By the date the settlor executed the deed of trust he had his two sons, Rajes and Ramendra and
the widowed daughter-in-law, Santi Debi, the validity of whose marriage he was disputing. One of the
main purposes of the trust deed, as appears from its preamble is to give the property to his two
surviving sons, Rajes and Ramendra, after excluding his widowed daughter-in-law, Santi Debi,
against whom he had developed prejudice on account of hers being a sagotra marriage. An equally
important purpose of the trust was the discharge of his debts. For that purpose he made the following
arrangements (1) The entire property was constituted a trust for the discharge of the debts and thereby
he divested himself entirely of any interest therein or management thereof; (2) The properties were to
be in the management of his eldest son, Rajes, as the trustee thereof with powers of alienation for
payment of debts; and (3) The use of the income for the sustenance of himself and his sons was
limited to specified amounts thereof viz. Rs 1500 per mensem in order that the debts may be
methodically and speedily discharged. There is no evidence before us as to what the total income of
the property at the time was and whether there would have been any substantial surplus available from
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the income for the discharge of debts. But Schedule A of the trust deed shows that the properties
were fairly considerable and Schedule B shows that the debts at the time were to the tune of Rs
2,62,169-8-0. Clause 17 of the trust deed values the properties at rupees five lakhs for the purposes of
stamp duty and it may reasonably be assumed that the value would have been substantially higher.
There can be no reasonable doubt that the settlor did contemplate that, on a proper management of the
property and with a scheme for the discharge of debts, there would emerge surplus income by the date
of termination of trust. This 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 he was apprehensive that the debts would remain undischarged out of his properties and its
income and that he contemplated the ultimate discharge of his debts to be such an uncertain event as
to drive him to make the accrual of the interest to his sons under the deed to depend upon the event of
the actual discharge of his debts. In this context there are also other provisions in the trust deed which
are of great significance.
1. The two sons, Rajes and Ramendra, are not completely excluded from any benefit
out of the settlor’s estate until the debts are discharged and the trust comes to an end. It is
provided that each of them has to be paid a specific amount per month out of the properties
i.e. Rs 300 and Rs 200 during the settlor’s lifetime and Rs 800 and Rs 700 after the settlor’s
death.
2. It is further provided that on the death of either of these two sons before the debts are
discharged and the trust comes to an end, the above amounts are to go to their respective legal
heirs (subject to some minor variations so far as it relates to Ramendra’s heirs). The provision
in this behalf, so far as Rajes (with whose interest alone we are now concerned) shows that on
his death during the continuance of the trust the amount payable to him monthly was to be
paid to his widow and on her death to his legal heirs.
3. The most significant provision in this context is that under clause 12(a) which, while
allotting Lots I to IV to Rajes and Lot V to Ramendra, specifically provides also that surplus
income thereof i.e. such income as is referable to those lots, should devolve on the two sons
in the same way. A reference to Schedule A shows that these lots are unequal and hence in
the normal course, if there had been no such specific provision, the surplus income, would
have been equally divisible. The fact that the surplus incomes of the specified lots is also to
devolve along with those specified lots themselves, is a clear indication that the corpus of
these lots was earmarked for the two sons with the present income thereof but with a
restriction on the enjoyment of the present income to specified sums, so as to facilitate
orderly discharge of the debts.
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11. Now, there can be no doubt about the rule that where the enjoyment of the property is
postponed but the present income thereof is to be applied for the benefit of the donee the gift is vested
and not contingent. (See Explanation to Section 19 of the Transfer of Property Act, Explanation to
Section 119 of the Indian Succession Act. See also Williams on Executors and Administrators, 13th
Edn., Vol. 2, p. 663, para 1010, and Jarman on Wills, 8th Edn., Vol. 2, p. 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 discharge his debts out of the properties
which devolve upon them. It is only the surplus which would be legally available for division between
them. In such a case, the balance of the income which is meant to be applied for the discharge of the
debts is also an application of the income for the benefit of the donees. It follows that the entire
income is to be applied for the benefit of the donees and only the surplus, if any, is available to the
donees. Hence the provision in the trust deed that Lots I to IV are to devolve on Rajes and Lot V on
Ramendra and that the surplus income of each of these lots after the discharge of the debts is also to
devolve in the same way, clearly operates as nothing more than the present allotment of these
properties themselves to the donees subject to the discharge of debts notionally in the same
proportion. Thus taking the substance of the entire scheme of this division between the two sons the
position that emerges is as follows: (1) Specified lots are earmarked for each of the two sons. (2) The
present income out of those lots is to be applied for the discharge of the debts after payment of
specified sums therefrom by way of monthly payments to the two sons and presumably such
application is to be notionally pro rata. (3) Any surpluses which remain from out of the income of
each of the lots are to go to the very person to whom the corpus of the lot itself is to belong on the
termination of the trust. (4) In the event of any of the two sons dying before the termination of the
trust, his interest in the monthly payments out of the income is to devolve on his heirs. These
arrangements taken together clearly indicate that what is postponed is not the very vesting of the
property in the lots themselves but that the enjoyment of the income thereof is burdened with certain
monthly payments and with the obligation to discharge debts therefrom notionally pro rata, all of
which taken together constitute application of the income for his benefit.
12. It may be noticed at this stage that one of the features of a contingent interest is that if a
person dies before the contingency disappears and before the vesting occurs, the heirs of such a
person do not get the benefit of the gift. But the trust deed in question specifically provides in the case
of Rajes – with whose interest alone we are concerned – that even in the event of his death 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
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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.
13. This view is confirmed by the fact that under the compromise decree which is now sought to
be executed both the judgment-debtors, Rajes and Ramendra, created a charge for the monthly
payment to Santi Debi and agreed to such charge being presently executable. This shows clearly that
they themselves understood the interest available to them under the trust as a vested interest.
14. In the course of the discussions before us a number of other possibilities which may arise with
reference to the actual terms of the deed were closely examined with a view to test how far they fit in
with one view or the other of the nature of interest in question. But even such an elaborate
consideration of the possibilities did not throw any further light on the question at issue. We are,
therefore, of the opinion that insofar as the interest of Rajes is concerned in Lots I to IV under the
trust deed, it is vested and not contingent.
15. The further question that arises is whether in view of the terms to be noticed, his interest in
No. 44/2, Lansdowne Road against which execution is sought is in any way different. The scope for
any possible difference arises in view of the fact that the devolution of Lots I to IV on Rajes or his
heirs (then living) is specifically expressed to be “subject to the provisions contained in clause (c)
hereof regarding Premises No. 44/2, Lansdowne Road”. The relevant provisions relating to this
property are as follows: Clause 10 provides that the settlor as well as Rajes and Ramendra with their
respective families should be entitled to reside in the premises during the settlor’s lifetime and so long
as settlor’s debts are not fully paid off. clause 12(c) provides that after the death of the settlor and after
all debts have been fully paid off and on the said Rajes or his legal heirs purchasing in the town of
Calcutta or its suburbs a suitable house at a value not less than Rs 40,000 and making over the same to
Ramendra absolutely, Rajes or his legal heirs shall be the absolute owner of the Premises No. 44/2,
Lansdowne Road but that so long as such house be not purchased and made over to Ramendra, Rajes
and Ramendra should both be entitled to reside in the said premises with their respective families. It is
urged that, since it is thus specifically provided that until the discharge, by Rajes or his heirs, of the
obligation to purchase another suitable house and to make over the same to Ramendra or his heirs,
Rajes is not to 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 insofar 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, after the termination of
the trust. It follows that this item of property would not be owned by anybody until that contingency
disappears. This would result in this item of property remaining without any legal ownership for the
intervening period which is opposed to law. Learned Solicitor-General, presumably recognising this
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difficulty, was obliged to urge that the contingency arising from the provision imposing obligation
on Rajes and his heirs to provide alternative accommodation to Ramendra should be read into the
preliminary portion of clause 12 insofar as Premises No. 44/2, Lansdowne Road, is concerned. That is
to say, according to him, the trust is to be construed as not coming to an end as regards this item of
property alone until the obligation to provide alternative accommodation is discharged. This
construction would be doing great violence to the language of clause 12 which specifically shows in
peremptory terms that the trust “shall come to an end on the liquidation of all the debts of the settlor
and after his death”. The construction contended for is not justified by the phrase “subject to the
provisions contained in clause (c) hereof regarding Premises No. 44/2, Lansdowne Road” which
occurs in clause (a) thereof. The limitation by way of subjection has reference only to “devolution” of
the properties in Lots I to IV “absolutely”. Neither the use of word “devolution” nor of the word
“absolutely” in clauses 12(a) and (c) can be understood, in the context, as having any bearing on the
vesting of the interest as opposed to the interest being contingent, but only as indicating a full and
unrestricted devolution of the property subject to no limitations as regards the enjoyment thereof, as
opposed to a vesting and devolution subject to restricted enjoyment.
16. It appears to us reasonably clear that the intention of the settlor, taking clauses 12(a) and (c)
together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the properties
comprised therein, including Premises No. 44/2, Lansdowne Road, is vested in title but restricted in
enjoyment so long as, the settlor is alive and the debts are not discharged, and that as regards Premises
No. 44/2, Lansdowne Road, his enjoyment is further restricted inasmuch as it is subject to the right of
residence of Ramendra and his heirs in the said premises until the obligation to provide alternative
accommodation is discharged by Rajes or his heirs.
17. We are clearly of the opinion that the objection raised to the execution (1) on the ground that
the properties charged are to be proceeded against, in the first instance, and (2) on the ground that the
interest which Rajes gets under the trust deed either as regards the general properties covered by the
deed or as regards Premises No. 44/2, Lansdowne Road, is contingent, are untenable. If, as a fact,
either the debts remain undischarged or the alternative accommodation has not so far been provided,
how the rights of persons affected thereby are to be safeguarded is not a matter that arises for
consideration before us and we express no opinion thereupon.
18. This appeal is accordingly dismissed with costs.
