OFFICIAL ASSIGNEE OF MADRAS Vs. BKRISHNASWAMI NAIDU

JUDGEMENT

(1.) This is an appeal by the Official Assignee from an order of the learned Chief justice, sitting as Commissioner in Insolvency.

(2.) On the 2 June, 1892, the Rajah of Venkatagiri executed a deed of trust with a view to making provisions for his daughters. The trustees appointed were the five persons who were at the time carrying on business under the style or firm of Arbuthnot and Co.

(3.) The deed provided that the terms, trustees or trustee, should be taken to include not only the then members of the firm of Arbuthnot & Co. but also the members or the members for the time being constituting the firm of Arbuthnot & Co. The deed, however, went on to say that if a trustee died, or left British India permanently, or ceased to be a member of the firm of Arbuthnot & Co. or desired to be discharged, or refused or became incapable to act, then the settlor or, after his death, the surviving trustees, or continuing trustees, in which class retiring trustees are included, might appoint a new trustee in place of the trustee who had died etc. It is thus clear that although the settlor was desirous that trustees should, if possible, be the persons who were for the time being the members of the firm of Arbuthnot & Co. it was recognised that it might not always be possible to secure this; and that eventually all the trustees might be persons in no way connected with Arbuthnot & Co. The deed further recited that the settlor had paid to the five persons named as trustees the sum of Rs. 62,957-8-6 to be held by them in trust for certain purposes, and directed that the trustees should invest the amount in their names in deposit with the firm of Arbuthnot & Co. leaving interest at the rate of 5 per cent, per annum and in no other manner.