Madhavan Nair, J.
1. The plaintiff is the appellant. The question for determination in this appeal is whether the suit out of which this appeal arises was properly instituted by the plaintiff.
2. The plaintiff is a widow. In 1906 her husband insured his life for the benefit of his wife for a sum of Rs. 2,000 with the New York Life Insurance Company whose office was situate in Calcutta. The business of the New York Life Insurance Company in India has since been taken over by the defendants, the Sun Life Assurance Company of Canada. The plaintiff's husband obtained a loan of Rs. 600 from the defendants and in 1926' he surrendered his policy receiving a sum of Rs. 700 and odd exercising an option reserved in his favour in the policy. In 1929 the plaintiff's husband died. She now claims to recover the money under the Indian Married Women's Property Act (Act III of 1874) on the ground that under Section 6 of the Act a trust has been created in her favour. In the present suit she asks for a declaration that a trust was created by her deceased husband and that she is the beneficiary thereunder and that the Official Trustee of Madras or such other fit and proper person be appointed to execute the trust and that a direction be given, to him to pay her the sum of Rs. 3,210.
3. After the death of her husband the plaintiff approached the defendants for the recovery of the amount alleged to be due to her under the insurance policy effected by her husband. She was referred by them to the Official Trustee of Bengal. Having regard to the decisions of the Calcutta High Court the view of which I may say is different to the view of our own Court he felt a doubt whether since the policy was effected in the year 1906, the Married Women's Property Act would apply and wrote to her saying that he was prepared to proceed with the matter of recovering the money from the company only if he was supplied with funds by her. She then applied to the Official Trustee of Madras. He also gave her a similar reply. Being thus defeated in her endeavours to get the money under the policy, she sued the defendant company as a pauper. Various issues were settled in the case. The learned Chief Justice dismissed the suit on the ground that assuming that she has a cause of action, which was not decided, she was not the proper person to institute the suit.
4. In appeal it is argued before us that that decision is wrong and that in the circumstances of the case she is the proper person to institute the suit. The contention of the plaintiff is that a trust has been created in her favour by force of Section 6 of the Married Women's Property Act. The second paragraph of that section says:
When the sum secured by the policy becomes payable, it shall, unless special trustees are duly appointed to receive and hold the same, be paid to the Official Trustee of the Presidency in which the office at which the insurance was effected is situate, and shall be received and held by him upon the trusts expressed in the policy, or such of them as are then existing.
5. This section lays down the machinery for recovering, if a trust is created in favour of the wife, the money covered by the trust, and having regard to the words of the section it seems that the Official Trustee of the Presidency in which the office at which the insurance was effected is situate is the proper person to enforce the trust. In Balamba v. Krishnayya I.L.R. (1913) Mad. 483 : (1913) 25 M.L.J. 65 (F.B.) it was pointed out, though the question did not directly arise for decision in that case, by Sir Arnold White, C.J. that under Section 6 'the person entitled to enforce the rights of the beneficiary is the trustee, if a trustee has been appointed, and if no special trustee has been appointed the Official Trustee, to whom the money is payable'. Having regard to the fact that in this case the contract was entered into by the plaintiff's husband with the New York Life Insurance Company at Calcutta, it would appear that the proper person to institute the suit would be the Official Trustee of Bengal. Reliance is placed upon Section 59 of the Indian Trusts Act, II of 1882, in support of the contention that in the special circumstances of this case the plaintiff is entitled to institute a suit even though ordinarily it may be the Official Trustee of the Presidency in which the office at which the insurance was effected is situate, who would be the proper person to institute the suit. Section 59 runs as follows:
When no trustees are appointed or all the trustees die, disclaim, or are discharged,, or where for any other reason the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the trust, and the trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustees.
6. It is not said in this case that the Official Trustee of Bengal has declined to act though he asks the plaintiff to provide him with funds before taking the necessary proceedings; nor has the Official Trustee of Madras declined to take proceedings if it is the case of the plaintiff that the cause of action arose in Madras. We have not been shown that the execution of the trust has become impracticable. In these circumstances the plaintiff is not entitled to rely on Section 59 of the Indian Trusts Act to institute a suit in her name for the enforcement of the trust. This was the view of the learned Chief Justice and it seems to me that that view is correct. The case as pointed out by the learned Chief justice is an unfortunate one for the plaintiff but as she is not the proper person to institute the suit the only order that can be passed by this Court is that the suit should be dismissed.
7. If the plaintiff could institute the suit and if the cause of action can be said to have arisen in Madras, then according to the decisions of the Madras High Court she would succeed in getting a decision in her favour that a trust has come into existence by force of Section 6 of the Married Women's Property Act; but in the present case we are not called upon to consider the merits of the case, as the suit has to be dismissed as the plaintiff is not the proper person to institute it.
8. The appeal is dismissed with costs.
9. In my opinion also we cannot differ from the learned Chief justice's view that, if the policy in question is, as the Plaintiff maintains, one to which Section 6 of the Married Women's Property Act applies, the person to sue on it on behalf of the Plaintiff is the Official Trustee of Bengal, unless he has disclaimed trusteeship in the matter.
10. In my opinion there is another reason also why the Plaintiff's suit in this Court must be dismissed. She sues for a declaration that a trust was created by her husband, Gopala-swami Nayudu, in respect of the policy on his life and that she is the sole beneficiary thereunder. The contract under that policy was that the insurance company should pay the amount of the insurance at their office in Calcutta. The policy was taken out in 1906. We are aware that it is the view of the Calcutta High Court, contrary to the view of this Court, that Section 6 of the Married Women's Property Act does not apply to a policy taken out by a Hindu husband before 1923, and knowing that, I think, it would be clearly improper for this Court to make such a declaration as the Plaintiff asks for in respect of this particular policy merely because she chooses to bring her suit, in Madras instead of Calcutta.
11. I agree that this appeal should be dismissed with costs.