PESTONJI JALBHOY CHICHGAR Vs. JALBHOY JEHANGIR CHICHGAR

JUDGEMENT

(1.) This summons raises a question as to the construction of Section 8 of the Indian Trusts Act, a question on which there appears to be very little authority. The summons was taken out by the husband of one Gulbai against the executors of her will and her children, and the question raised is whether a trust declared by her will is a trust of a mere beneficial interest, and as such rendered invalid by Section 8 of the Indian Trusts Act.

(2.) The title to the alleged beneficial interest of Gulbai arose under a will dated March 27, 1899, of Ardeshir Maneckji Kaka who died on June 18, 1899. By Clause 6 of his will he gave eighty-five shares of the Bank of Bombay upon trust to his trustees with directions that they should either retain the shares or sell them and invest the proceeds and stand possessed of the shares or the proceeds of sale upon certain trusts during the lifetime of a daughter named Aimai and after her death or the marriage of certain other daughters he directed that his trustees should appropriate and set apart seventeen shares out of the said shares of the Bank of Bombay or the investments representing the proceeds to each of his five children, one of whom was named Baiai, and should pay the income of the share to the child to whom the same should have been appropriated during his or her life and after the decease of such child should hold the share appropriated to him or her in trust to equally divide the same among the issue of such child.

(3.) Now, Gulbai the testatrix in this case was a child of the testator's daughter Baiai. No question is raised as to the meaning of issue in the ultimate gift to which I have referred, or as to the date on which the class of issue is to be ascertained. But whatever the exact meaning of issue may be, and whatever the composition of the class, it is clear that Gulbai as one of the children of Baiai became entitled to a share in the seventeen shares set aside for Baiai for life, since Gulbai, in my opinion, had a vested reversion in a portion of the shares set aside for Baiai. Gulbai died on March 14, 1929, in the lifetime of her mother Baiai, who died on September 6, 1931. Therefore at the death of Gulbai she was entitled to a vested reversion under the will of Kaka expectant on the death of Baiai, and before I read the will of Gulbai I will refer to the terms of the Indian Trusts Act. Section 8 provides that the subject matter of a trust must be property transferable to the beneficiary. So far there is no difficulty because a vested reversion is property transferable. Then the section goes on :-"It must not be a merely beneficial interest under a subsisting trust. "The learned Judge in this case held that the interest created under Gulbai's will, to which I will refer in a moment, amounted to the declaration of a trust of a merely beneficial interest under a subsisting trust, and was therefore void. "Beneficial, interest" in the Indian Trusts Act is defined by Section 3 as the right of the beneficiary against the trustee as owner of the trust property; so that where property is vested in a trustee upon trust for A or upon trust for "A" for life with remainder to B, it would seem that the beneficiary under Indian law has only a right to proceed against the trustee, and by virtue of Section 8 a trust of the beneficial interest, whether it be a life interest, or a reversion, or an absolute interest, cannot be created. What the section forbids is a trust upon a trust-a trust of a mere right of the beneficiary to proceed against the trustee, and if the will of Gulbai amounts to a declaration of a trust of her beneficial interest, that is, of her right to go against the trustees of Kaka's will, then the trust offends against Section 8. But, if on the other hand, her will amounts to a direction to her executors to receive the property which may become transferable to her under the will of Kaka on the death of her mother, and having reduced that property into possession to deal with it as part of her estate, then it would seem to me that that is not a trust of a merely beneficial interest; it is a trust which is only to operate when the beneficial interest has been converted into property-when the testatrix's estate has not merely the right to proceed against the trustees of the prior will, but has actually recovered the property from them. Therefore I read the will of Gulbai, or the relevant parts of it, in order to see into which of those two categories the material disposition fairly falls.