Case: Rajes Kanta Roy Vs. Shanti Debi

The facts leading thereto are as follows.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 widow, Santi Debi. In 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 Shanti 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 Shanti 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 Shanti 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,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 dcree of 1941 and agreed to receive for her natural life a monthly allowance of Rs. 475 payable from the month of November,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, Landsdowne Road, Ballygunge P. S., 24 Parganas. Rajes filed 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 Shanti 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 Shanti Debi is the first respondent and Ramendra is the second respondent.

Reasoning: 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.