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PETITIONER: RAJES KANTA ROY

       Vs.

RESPONDENT: SANTI DEBI

DATE OF JUDGMENT: 19/11/1956

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER

CITATION:  1957 AIR  255            1957 SCR   77

ACT: Trust   deed-Construction-Vested  interest   or   contingent interest  -Transfer of Property Act, 1882 (IV of 1882),  SS. 19,  21-Attachable interest-Execution  of  decree-Compromise decree Providing for a personal remedy and a  charge-Whether personal remedy could be pursued in the first instance. 78

HEADNOTE: A  settlor  executed a deed of trust in respect of  all  his properties whereby he made arrangements for the discharge of his  ’debts  and for the devolution of the property  on  his sons.  The provisions of the deed showed that (1)  specified lots of property were allotted to each of his two sons, (  ) the  present income was to be applied for the  discharge  of the debts after payment of specified sums of money therefrom by  way of monthly payments to the settlor and his sons  and (3)  in  the  event  of any of the  sons  dying  before  the termination  of  the  trust, his  interest  in  the  monthly payments aforesaid was to devolve on his heirs.  It was also provided  that a house, L, included in the lots allotted  to the elder son (appellant) was to be subject to the right  of residence of the second son, and his heirs until a  suitable house  was purchased by the appellant or his heirs and  made over   to  him.   Finally  it  was  provided  that  on   the liquidation of the debts and after the death of the  settlor the  trust was to come to an end and the respective lots  of property  including  the  surplus  income  thereof  were  to devolve  on  the appellant and his brother or  their  heirs. Some time after the execution of the deed the settlor  died. It  was contended for the appellant that under the terms  of the deed of trust his interest in the properties allotted to him  was only contingent on the payment of the debts of  the settlor  and  the  discharge of the  obligation  to  provide alternative  accommodation to his brother  and  consequently his interest could not be attached in execution of a decree. Held,  that  the  appellant had a vested  interest  but  the enjoyment  of the properties was restricted so long  as  the debts  were  not discharged, and as regards  the  house,  L, enjoyment  was further restricted to the extent that it  was subject  to  the right of residence of his brother  and  his

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heirs   until   the  obligation   to   provide   alternative accommodation was discharged by the appellant or his heirs. Where  a  compromise  decree provides both  for  a  personal remedy and a charge, the question whether the  decree-holder can  pursue the personal remedy while reserving  the  remedy under  the  charge depends on the intention to  be  gathered from the terms of the decree.

JUDGMENT: CIVIL APPELLATE JUIRISDICTION: Civil Appeal No. 35 of 1955. Appeal  by special leave from the judgment and decree  dated March  10, 1952, of the Calcutta High Court in  appeal  from the Original Order No. 100 of 1950 arising out of the decree dated  July  18, 1950, of the Court  of  Subordinate  Judge, Alipore, 2nd Court, in Miscellaneous Case No. 76 of 1949. C.   K.   Daphtary,  Soliditor-General  for  India,  N.   C. Chatterji and Sukumar Ghose, fOr the appellant. 79 Atul Chandra Gupta, S. C. Jana, N. C. Sen, Arun Kumar  Dutta and R.R. Biswas, for respondent No. 1. 1956.  November 19.  The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by special leave  against the  judgment and decree of the High Court of  Calcutta  and arises out of an application filed by the appellant under s. 47 of the Code of Civil Procedure in the course of execution proceedings in the Second Court of the Subordinate Judge  at Alipore,  District 24-Parganas.  The facts  leading  thereto are as follows. 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 recognizing  the  right  of  Salnti  Debi  as  a  coshebait. 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 80 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

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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. 8,075 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 filecl an objection to the execution  under s.  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  over-ruling  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. 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, 81 (2)Under  the  terms  of  the deed of  trust  Rajes  has  no attachable interest in the properties sought to be proceeded against. The first of the above contentions is raised with  reference to  the  terms of the compromise decree  dated  December  3, 1946, and is set out in para. 14 of the p 1 etition under s. 47 of the Code of Civil.  Procedure as follows: "  That under the compromise decree in question the  decree- holder has relinquished all her right, title and interest in respect  of  all  the properties left by  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  defendant No. 1 would be debarred from claiming right or relief in the said decree. (b)That the plaintiffs abovenamed agree to pay to  defendant No.  1 for her natural life a monthly allowance of  Rs.  475 and  the said allowance is to be paid on and from the  month of November, 1946. (c)That the said monthly allowance of Rs. 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 schedule below  are hereby  charged  for  the due payment of  the  said  monthly

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allowance  and  the defendant No. 1 will be  at  liberty  to realise the amount in default against the properties charged by execution of this decree. 11 82 (e)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. (j)That  each of the terms stated above is  a  consideration for the other terms. The   charge   above-mentioned  is  over   property   called Bharatkhali  property  consisting of a number  of  items  in Rangpur Collectorate now in East Pakistan. Before  considering the objection raised under point No.  1, it is right to mention that a minor objection has been taken that,  as  a fact, there is no executable decree  which  can form  the  subject-matter of execution.  It is  pointed  out that  cl.  (c) of the compromise petition is to  the  effect that "defendant No. 1 (the present respondent 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" but that there is no formal  decree carrying this out and directing that the plaintiffs therein, Rajes  and Ramendra, do pay to the first defendant  therein, Santi  Debi, the sum of Rs. 475 per month.  What appears  to have  happened is as follows.  The petition  for  compromise was  filed on December 3, 1946, with the prayer that  the  " terms  of this petition of compromise be recorded  and  that the title suit mentioned above as between the plaintiffs and defendant No. 1 be disposed of in terms of this petition  of compromise  and the compromise be made a part of the  decree in  the  same."  Thereupon on the same  date  the  following formal order was passed. "  This  suit coming on this day for final  disposal  it  is ordered and decreed that the suit be and the same is  hereby decreed  on compromise as against defendant No. 1. That  the solenama do form part of this decree." It  is true that a formal direction in terms of the  various clauses of the compromise petition directing the  plaintiffs to pay the monthly allowance of Rs. 475                              83 to the first defendant has not, in terms, been drawn up. But there  can  be no doubt that this was what was meant  to  be conveyed by the above mentioned formal order in so far as it is  relevant for the 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. As  regards  the  first  of  the  main  points  raised  with reference  to the terms of the compromise decree, it is  not disputed  that cl. (c) does impose a personal obligation  on the plaintiffs therein to pay to the first defendant therein a  monthly  allowance of Rs. 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

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decree-holder   has  to  look  for  payment  first  to   the properties charged and that, it is only in the event of  not being  able  to  obtain satisfaction out  of  it,  that  the personal  obligation can be enforced.  A number of cases  of the  Bombay High Court have been cited before us in  support of  this  argument and it is urged that where  a  particular fund is indicated for-the payment of a debt and is  charged, the  courts should not construe an extra clause for  payment simpliciter  as giving a concurrent remedy but that in  such cases the charged fund is primarily to be looked to.  It  is also urged that in such cases it is inequitable to a low the personal remedy to be pursued in the first instance, or,  at any rate, unless the decree-holder gives up the charge.  Our attention  is  also  drawn to the fact  that  the  execution petition itself under the column "Mode 84 in   which  the  assistance  of  the  Court   is   required" specifically states as follows: " Be it noted that at present the execution is not proceeded against  certain  immovable properties in  Eastern  Pakistan which are under charge for the present amount on account  of arrear maintenance and also future maintenance due under the decree  without  prejudice  to her  rights  under  the  said decree.   Decreeholder  reserves to herself all  rights  and reliefs  as  are  not enforceable in Dominion  of  India  in respect of the decree." It is pointed out that the decree-holder in terms desires to pursue the personal remedy while reserving the remedy  under the  charge.   In  the present case we do  not  consider  it necessary  to deal with these Bombay decisions cited  before us  or with the above contention based thereon.  For, it  is not  disputed that where a compromise decree  provides  both for  a  personal  remedy and a charge,  the  whole  question depends  on  the intention to be gathered from  the  various terms  in  the  compromise  decree.   In  our  opinion,  the construction  of the two relevant clauses and the  intention to  be gathered therefrom in this case are quite clear.   It is true that in one sense, cls. (c), (d) and (e) of the com- promise  indicate  certain  specified  properties  as  being available  to the decree-holder for realisation of any  dues either  by  pursuing  the charge or by  getting  a  Receiver appointed  in  respect of the charged properties.   But  the wording  of the three clauses shows clearly that she is  not obliged  to  resort  to  these two  remedies  in  the  first instance.   Clause (e) says that " the defendant No. I  will be  entitled  to realise the amount in default by  means  of execution  of decree." Clause (d) says that " the  defendant No.  I will be at liberty to realise the amount  in  default against the properties charged." Clause (e) says that "  the defendant No. I 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 cl. (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 85 the  remedies specified therein.  There is nothing in  these two clauses to limit, in any way, the unqualified right that she was given under cl. (c).  Our attention is drawn to  the statement  in  cl. (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

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contention raised to the effect that the personal remedy  is not  available  in this case before exhausting  the  charged properties, is not sustainable. 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 (1).   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 s. 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 (1)  I.L.R. [1939] Bom. 36. 86 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  ,-,vents. 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. 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 cl. 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

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(c) hereof regarding premises No. 44/2, Lansdowne Road 87 (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 grand-son (son’s son) or grand-sons then on  such grand-son or grand-sons absolutely. 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 el. 3 of the trust deed imposes a specific obligation on the trustee that " he shall pay 88 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. 1,000- to the settlor, Rs.  300/- to Rajes and Rs. 200/- to Ramendra." In cl. 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. 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  authorizes 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

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to the 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 revolution 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.  1,500/- 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. The determination of the question as, to whether an interest created by such is deed is vested or contingent 89 has  to  be guided generally by  the  principles  recognised under,ss.  19 and 21 of the Transfer of Property Act,  1882, and ss. 119 and 120 of the Indian Succession Act, 1925.  The learned Judges of the High Court relied on illustration  (v) to  s. 119 of the Indian Succession Act and the decision  in Ranganatha Mudaliar v. A. Mohana Krishna Mudaliar (1).   The 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  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 s. 19  of  the Transfer of Property Act and s. 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(2)      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 Ed.), 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 Ed.), 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. (1)  (1926) A.I.R. 1926 Madras 645. (2)  [1816] 1 Mer. 422 ; 35 E.R. 729. 12 90 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. 11, 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

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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.  The 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. 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 91 the  sustenance  of  himself and his  sons  was  limited  to specified  amounts thereof, viz., Rs. 1,500/-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 the  income for the discharge of debts.  But Sch.  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 lacs 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  contem.  plate 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 el. 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 cl.  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

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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 92 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 cl. 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 Sch.  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. 93 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 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, para. 1010, and Jarman on Wills, 8th Ed., Vol. 11, 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

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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 doneees  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 nationally in the same proportion.  Thus, taking the substance of the entire 94 scheme  of this division between the two sons  the  position that  emerges  is as follows. (1) Specified  lots  are  ear- marked 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. 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 el. 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 95 would devolve would, in the normal course, be the very  heir (the  lineal  descendant  then surviving or  the  widow)  of

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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. 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. 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 in so far as the interest of Rajes is concerned in  lots I to IV under the trust deed, it is vested and  not contingent. 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 el. (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 96 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 contain.  agency, 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 cl. (c) as regards these premises, has been  specifically incorporated  in cl. 12(a).  Now, it is to be  noticed  that the  preliminary  portion  of  cl.  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

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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. 41/2, 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.   The  learned Solicitor-General,  presumably recognising this  difficulty, was  obliged to urge that the contingency arising  from  the provision imposing obligation on Rajes and his 97 dra should be read into the preliminary portion of el. 12 in so  far 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  cl.  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 cl. (c) hereof  regarding  premises No.  44/2, Lansdowne Road" which occurs in cl. (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 cls. 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. It appears to us reasonably clear that the intention of  the settlor,  taking  cls. 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. 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 13 98 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  undis- charged 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. This appeal is accordingly dismissed with costs. Appeal dismissed.

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