1. This is an appeal from a judgment of Mr. Justice Mirza arising in certain execution proceedings. The appellant-plaintiff is a creditor of a deceased gentleman named Hormasji Bhabha who was employed in the Times of India newspaper office and the defendants in the suit are his executors. On November 6, 1929, the plaintiff obtained a decree for a money payment against the defendants as executors of Hormasji Bhabha. On September 24, 1930, the plaintiff applied for attachment, on September 26 a warrant for attachment was issued, and on October 6 a garnishee notice was issued to the Treasurer and Secretary of the Times of India Employees Death Benefit Fund.
2. Now the whole question is whether the interest of the deceased Hormasji Bhabha in the Times of India Employees Death Benefit Fund is an interest which can be attached by his creditors. In order to answer that question one has to look at the rules governing that fund which have been marked as Ex. A to an affidavit made by Mr. H.W. Smith on behalf of the Times of India Company. The rules provide in Clause 2 that the object of the fund is to secure some provision for the family of a member after his death. Clause 4 provides that the fund shall be managed by a committee composed as therein mentioned. Clause 5 provides that it shall be compulsory for all persons entering the service of the firm, which means the Times of India, to join the Death Benefit Fund as soon as their names appear in the pay abstract. Clause 7 provides for contributions to the fund being made by the employees in certain proportions. Clause 8 provides that any gratuities or presents of money by visitors and others to the press shall be paid into the fund. This clause and other later clauses clearly contemplate the addition to the fund of moneys coming from outside sources, but there is no actual provision for any contribution to the fund except by the employees. Then Clause 9 provides that all amounts from whatever source shall be banked immediately and invested as soon as a sufficient amount has accumulated in Indian Government Securities in the name of the President or Vice-President of the Committee and the Secretary and the Treasurer as Trustees of the Fund. Clause 10 provides that on the death of a member in class A and class B (which classes are defined, though the definitions are not material for the purposes of this appeal) the family or nominee of the member shall receive certain amounts calculated on the period of service. Clause 11 provides that no one shall be entitled to the full benefit of the fund who shall not have contributed to it for at least twenty-four months and in the event of any member dying before that period his family or nominee shall be paid double the sum he has contributed to the fund. Then Clause 13 is, I think, intended to provide who the beneficiaries are to be, and it is in these terms-
By the word 'family' is intended widow, children, parents, brothers and sisters. If the deceased person leaves BO widow the payment shall be made in the following order: viz., children, in their absence, parents and in their absence brothers and sisters, afterwards any other relatives: no creditor whatever shall have any claim upon the fund. A member shall be allowed to appoint a nominee from the members of his family or should he have no member of the family living as specified above, any other relative or person on payment of a fee of Rs. 2. If the deceased fails to appoint a nominee as above specified the claim shall revert to the fund, but the committee may sanction the payment of an amount to defray his funeral expenses.
Pausing here, you have got a fund which is vested in the trustees under Clause 9, you have got the proportion of the fund which the member, his family or nominee is to receive under Clause 10, and you have got Clause 13 which provides in certain events how the family is to take. I may point out in passing that Clause 13 seems to leave a good deal to the imagination. In the operative part the only event which is in terms provided for is the event of the deceased leaving no widow. If the deceased dies leaving a widow there is no provision as to what is to happen to the fund. Fortunately in this case we are not confronted with any difficulty under Clause 13, because the deceased did not leave a widow and he did leave two sons, so that under Clause 13 the sons are the beneficiaries. The deceased had a power of nomination amongst the family defined as widow, children, parents, brothers and sisters but that power he did not exercise, and as the deceased left two sons, the power to nominate amongst other persons did not arise. Then continuing with the rules, Clause 15 provides (hat on widow's re-marrying the benefit of the fund will revert to the other members of the family as mentioned before. This clause also is rather a strange one because the only provision mentioned before for the fund going to the family is, as I have pointed out, on the contingency of there being no widow. If there is no widow she cannot remarry, so that in terms Clause 15 can never come into operation. Then we come to three clauses on which the learned Advocate General for the appellant relies as showing that they confer upon the deceased some power of disposition over the fund which would make his interest attachable under Section 60 of the Civil Procedure Code, Clause 17 provides that any member leaving the service of the firm will be refunded the amount which he has contributed on condition that such refund is applied for within three years from the date of leaving service. It is to be noticed, first, that this clause only comes into operation in the particular event of the member leaving the service of the firm, which event did not occur, because the deceased was in the service of the firm when he died; and, secondly, the amount which the employee is to get on leaving the service of the firm is not his proportion of the fund but merely the contributions which he has made to the fund. Clause 18 provides that any member who has served twenty-five years or more leaving service owing to reduction of staff or is forced to leave service for some cause with the consent of the firm can leave his fund as it stands, and his family will get the benefit of the fund after his death, provided he makes an application as therein mentioned; but he is at liberty to receive his own contribution plus half the amount contributed and forfeit all further claims to the benefit of the fund. Clause 19 provides that any member who has served fifteen to twenty-four years will be refunded his actual contribution plus half of the total amount contributed, and members with less than fifteen years' service will be refunded only their actual contribution. I am disposed to think that this clause is only intended to operate on a member leaving the firm as specified in Clause 18. It seems to me that all these provisions in Clause 17, 18 and 19 only confer upon the employee a right to receive a portion of the fund in certain contingencies, none of which has happened, and, I think, therefore, that these clauses can be disregarded. The position under the rules, therefore, is that you have a fund vested in trustees and payable to the two children of the deceased and that the deceased himself never had in the events which have happened any interest in the fund or any disposing power over it. If that is the position, then I think there is a valid trust under Section 5 of the Indian Trusts Act of 1882 which provides:-
No trust in relation to immoveable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
No trust in relation to moveable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee.
3. I think here the ownership of the whole fund and therefore of the interest of the deceased which is sought to be attached had been transferred to the trustees of the fund and that therefore there was a valid trust under that section.
4. The learned Advocate General relies on the English cases of Cleaver v. Mutual Reserve Fund Life Association  1 Q.B. 147 and of Engelbach's Estate, In re, Tibbetts v. Engelbach  2 Ch. 348 and the decision of this Court in Shankar Vishvanath v. Umabai ILR (1913) 37 Bom. 471. These cases, I think, establish this, that where you have a policy of insurance effected by A which provides that either on the death of A. or at the expiration of a particular period, the insurance company will pay the sum assured to B, that does not confer any contractual right upon B nor does the taking of the policy in that form operate as a trust in favour of B. Consequently, on the death of A, or on the expiration of the specified period, the executors of A or A himself, as the case may be, are the only persons who can recover the fund from the insurance company, and B has no claim to it. It seems to me that the distinction between those cases and the present case is that in this case you have got an actual fund vested in trustees whereas those cases are cases of contract pure and simple. In my opinion, therefore, those cases do not apply, and, I think, that the judgment of Mr. Justice Mirza was right, the fund is not attachable, and the appeal must, therefore, be dismissed with costs.
N.W. Kemp, J.
5. I agree and have nothing to add.