EDWARD H M BOWER Vs. LT-COLAMVHESTERLOW

JUDGEMENT

(1.) This appeal arises out of a decision on an originating summons issued under Order 45 of the rules of the Original Side of this Court. The summons was taken out by the appellant, the sole remaining trustee of a trust known as the Richmond Educational Trust. The appellant sought an order of the Court permitting a deviation from the trust deed and asked for the appointment of two new trustees. The appellant regarded the trust as a private one and relied on the provisions of Section 34 of the Indian Trusts Act. The matter came before Gentle, J., who dismissed the summons so far as it related to the prayer for permission to deviate from the trust deed, but granted the prayer for the appointment of additional trustees. The appellant has appealed against the first part of the order as he contends that the learned Judge erred in not sanctioning the deviation. The main question however, is whether this trust is to be regarded as being of a public or private nature. If it is a public trust the application did not lie.

(2.) The trust was created by one Thomas Richmond, a member of the English and the Madras Bars, under a deed dated 11 April, 1918. The founder apparently regarded the trust as being of a private character. He was a member of the Anglo-Indian community and he formulated a scheme to help Anglo-Indian youths in their studies. He set aside Government securities of the face value of Rs. 30,000 as an endowment fund. The interest on the capital was to be devoted to making advances to Anglo-Indian youths who wished to qualify for professions or obtain higher education generally. The advances which were to be called "scholarships" were to be repaid by the recipients out of their earnings on completion of their education. The trust deed which was drawn up and executed provided that each recipient of an advance should take out a life insurance policy for a sum equivalent to double the advance and assign the policy as security to the trustees. The premium and other incidental expenses were to be met by the trustees and added to the amount of the loan. On repayment of the loan with interest at 4 per cent, the policy was to be re-assigned to the insured. In the event of the insured dying before the re-payment of the loan sufficient of the money due on the policy to discharge the debt was to be paid to the trustees and the balance paid to the person nominated by him "or otherwise according to the terms of the policy taken in the matter." There were to be certain restrictions and these are embodied in paragraphs 4 and 5 of the deed. These paragraphs read as follows: (4) The candidate shall not be less than the age of 18 years on the date of the execution of the instrument for re-payment and must have passed either the High School Examination, the School Final Examination or any other Examination or Test qualifying the candidate to appear for the University Examinations or for professional Examinations or Tests in India, Great Britain or elsewhere. (5) The candidate's father, mother, guardian or himself shall have been a bona fide member of the Anglo-Indian Association, Southern India, for a period of one year before the award of the scholarship or the candidate an orphan brought up in an Orphanage in Southern India for a period of more than two years and who had won a Government-Scholarship while in the Orphanage and has further been a recipient of a Scholarship from the Anglo-Indian Association, Government or other sources after his sixteenth year.

(3.) Mr. Richmond was one of the original trustees and acted as such until his death in 1930. Since the creation of the trust a large number of advances had been made to Anglo-Indian students. Unfortunately many of them have not fulfilled their obligations to the trust. In fact, we are told that only a very few of them have repaid their advances. The consequence has been that the trustees have had to keep up the payments under the policies in order to safeguard themselves. The payment of premia on the policies on the lives of those who have already benefited by the trust materially restrict the carrying out of the objects of the trust. There is at present outstanding about Rs. 44,000. The main object of the appellant in taking out the originating summons was to obtain an order from the Court permitting the trustees to change the form of security. It was proposed that a beneficiary should provide two sureties for the repayment of the loan made to him and the obligation to take out a life policy should be cancelled. If this were allowed it was anticipated that the trustees would be able to fulfil the objects winch the donor had in mind.