Case: Rajes Kanta Roy Vs. Shanti Debi

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 settlors life time and so long as settlors 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 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 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 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 cl. 12 in so far as premises No. 44/2, Lansdowne Road, is concerned. This is to say, according to him, the trust is to be construed as not coming to an end as regard 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 the 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.16. 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.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 Read, 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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.6. 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 personalthe 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 compromise 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 (c) says that "the defendant No. 1 will be 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 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 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 contention raised to the effect that the personal remedy is not available in this case before exhausting the charged properties, is notobjection 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 relate 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 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 contigency 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 considerclearly, 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 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. 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 uncertainis, 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 intentioncan 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 cl. 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 surplus contemplated would not be unsubstantial. Under cl. 14 of the trust deed the settlor provides for the devolution of the trusteeship in case his sons, Rajes, died before the liquidation of the debts and says that on the death of Rajes, Rajess 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 and 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.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 notarrangements 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 hiseven 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 (lineal descendant then surviving or the widow) of Rajes. The actual devolution of the interest, therefore, would not be affected by the alleged contingency. This 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 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.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.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 Read, 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.