N P R M V R M ALAGAPPA CHETTIAR; ALAGAPPA CHETTIAR Vs. NPRMLSTLAKSHMANAN CHETTIAR; THE OFFICIAL RECEIVER

JUDGEMENT

(1.) The common question in all these appeals relates to the interpretation of Exhibit I, which is described as a deed of trust. The contest is between the Official Receiver appointed in the insolvency of Pachaperuma Chetty, and some of his creditors who are said to have been appointed trustees of the property of the insolvent for the benefit of all the creditors. The lower Court has held that the Official Receiver is entitled to possession of the assets of the insolvent as they had vested in him, and not the person described as trustees in Exhibit I. Exhibit I was executed on the 25th October 1913, and Pachaperamal Chetty was adjudicated an insolvent on his own application in April 1915. So, if there was a valid trust for the benefit of his creditors created by Exhibit I, the claim of the trustees will prevail against that of the Official Receiver.

(2.) It is necessary for the creation of a trust that the property should be transferred to the trustee. But reading Exhibit I, it is quite dear that there are no words of transfer to be found in it, either with respect to the immoveable property or the outstandings or movables. What Exhibit I does is to give power to the person named therein to sell all the properties belonging to the insolvent and to recover the outstandings, and to distribute the assets rateably among the creditors. The document, as already mentioned, is described as a trust deed and it was duly registered. But the appellant has not been able to point out any expression in the document which could possibly be construed as creating a transfer or assignment of the properties words or acts (a) an intention on his part to creat thereby a trust, (b) the purpose of the trust, (c) the beneficiary and, (d) the trust property, and (unless the trust is declared by Will or the author of the trust is himself to be the trustee) transfers the trust property to the trustee." Mr. Ananthakrishna Aiyar has argued that if we can possibly hold that the executant of the deed intended to create a trust, then that would be sufficient although words of transfer were wanting. But the question of intention is dealt with in the section with reference to whether a trust was intended to be created, and not as doing away with the necessity for a transfer of the properties to the trustees. If the intention to create a trust is existent, then the Act requires that there must be a transfer of the property to give effect to it, bat merely an intention to create a trust is not sufficient except in (he two cases mentioned. It would be going against wall established law regarding transfer of property to say that mere intention to transfer is sufficient without compliance with the requirements for a valid transfer. I think, therefore, it is perfectly clear that we cannot regard Exhibit I as validly creating a deed of trust in favour of the creditors.

(3.) Mr. Ananthakrishna Aiyar sought to distingnish the case of outstanding and moveable property. But the document deals with both properties and the same language is used with respect to all the properties; and there is nothing, as already pointed out, in that language which could possibly be construed as transferring the rights of the insolvent in his properties, either moveable or immoveable, to the persons mentioned in the deed.