P RAJAGOPALA GRAMANI Vs. BAGGIAMMAL

JUDGEMENT

(1.) This is an appeal from the decree of our brother Stone, J., dated the 8 August, 1932, in Application No. 1879 of 1932 in C. S. No. 137 of 1932. The defendant is the appellant before us. The facts out of which this appeal arises may be briefly stated. One Raju Gramani executed a deed of trust on 1 September, 1919, under which he settled his properties upon trust appointing the defendant, who is his son-in-law by his second wife, as trustee. At the time of his death, he had three houses and had a fixed deposit for a sum of Rs. 50,000 in the Imperial Bank. He provided that one of the houses shall be utilised for the residence of the members of his family, that is, his wife and his daughters, until their marriage. The income of the other houses which is said to be Rs. 80 per month was to be utilised by the trustee for paying taxes in respect of the estate, for repairs and for the expenses of his first wife Baggiammal, who is the plaintiff in this suit. After her death, the net income was to be paid over to his son Gnanasundaram and after the death of Gnanasundaram, it was to be distributed equally between his children. But if he dies issueless, it was to be distributed equally between the daughters. The interest accruing on the Fixed Deposit in the Imperial Bank was to be spent similarly. Misunderstandings have arisen between the first wife Baggiammal and the trustee and this suit was filed by Baggiammal against the defendant for the purpose of removing him from trusteeship. A. judge's summons was taken in this suit by a notice of motion for the purpose of obtaining an interlocutory order from the Court directing the defendant to pay (1) Rs. 1,500 required for the nuptial ceremonies of the plaintiff's grand- daughter, that is, the daughter of Gnanasundaram, including the amount required for the earlier ceremony when she attained age; (2) a sum of Rs. 2,000 required for paying off certain creditors from whom she borrowed for the expenses of her suits 268 and 269 of 1931; (3) a sum of Rs. 1,000 required for paying off the decree-holder in S. C. S. No. 2480 of 1931, the plaintiff having borrowed that amount for the marriage expenses of her granddaughter from one Ratna Bai; and (4) certain miscellaneous items, such as maintenance, etc., amounting to Rs. 1,0.00. Altogether she applied for the payment of Rs. 6,500.

(2.) The duties of the trustee are defined in the deed of trust already mentioned. No provision was made by the settlor for expenses of suits between his wife and the trustee, nor has he provided for the expenses of the marriage and nuptials and other ceremonies connected with his grand-daughter. It is very difficult to say what exactly he intended. Perhaps he intended that the expenses of the marriage and other ceremonies of the grand-daughter were to be defrayed by the wife out of the net income which was to be paid to her, or perhaps it was an oversight on his part. The duties of the trustee are governed by Section 11 of the Trusts Act which runs as follows: The trustee is bound to fulfil the purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation, except as modified by the consent of all the beneficiaries being competent to contract. Where the beneficiary is incompetent to contract, his consent may, for the purposes of this section, be given by a Principal Civil Court of Original Jurisdiction.

(3.) In this case Gnanasundaram's children are both minors and other children may be born who are entitled to take under the trust deed, The Court's consent is therefore necessary. Section 11 is based on the well-recognised principles of English law. In In re Walker, Walker v. Duncombe (1901) 1 Ch. 879 at 885 Farwell, J., observed: The question that I have to consider is whether I can on the true construction of this will authorize the trustees to make any expenditure larger than the sum mentioned in the will. I decline to accept any suggestion that the Court has an inherent jurisdiction to alter a man's will because it thinks it beneficial. It seems to me that is quite impossible. But in considering what is the true construction of the will, it is open to the Court to ascertain if there be a paramount intention expressed in the will, and if so, to consider whether particular directions are properly to be read as subordinate to such paramount intention, or are to be treated as independent positive provisions.