DEVLAKSHMI HARISUKH VAHALIA Vs. VISHWAKANTH P BHATT

JUDGEMENT

(1.) THIS is an Origanating Summons taken out by the plaintiffs who, along with the defendant, are the trustees under an Indenture of Trust dated the 18th of January 1927 exeduted by one Pranjivan Tuljaram, for the determination of certain questions propounded therein. The facts necessary for the purpose of disposing of this Originating Summons are very few. One Pranjivan Tuljaram executed an Indenture of Trust dated 18-1-1927 and the plaintiffs and the defendant are the present trustees of that trust. The relevant clause of the said Indenture of Trust which has been quoted in para 3 of the plaint is as follows:-

(2.) THOUGH, in the Originating Summons, the opinion of the court is sought on several questions, in effect, the question that arises is only one, and that is whether by reason of the release or disclaimer or surrender of his life interest under the Indenture of Trust by the defendant, by the said Indenture of Release dated 25th October 1962, the subsequent absolute interest granted by the said Deed of Trust to the heirs of the defendant as on an intestacy is accelerated or whether there is a resulting trust in respect of the income that was payable to the defendant during his life-time under the said Indenture of Trust. That is a question which has often arisen in England and has been the subject-matter of several judicial decisions in that country, but I have not been referred to a single reported decision on this point in India which could be said to be an authority in regard to it. In view, however, of the characteristic lucidity with which the ratio of judicial decisions on this point has been culled in the standard English works on the subject, it is not really necessary for me to consider all those decisions in this judgment; In Lewin on Trusts (16th Edn) at p. 121, the law on the point is formulated as follows:-

(3.) THE learned counsel for the plaintiffs cited before me the decisions in the English cases of Midland Bank Executor and Trustee of Midland Bank Executor and Trustee Co. v. Morrison, (1943 Ch 300) and Davies v. Mackintosh, ( (1957) 3 All ER 52) which were both cases in which the doctrine of acceleration was applied to testamentary dispositions. In the Midland Bank's case the principle of acceleration was applied to annuities given subject to a life interest in the residuary income. In doing so, Simonds J. enunciated the principle of acceleration in the following terms (at pp. 301 - 302):-