1. In this suit, as originally instituted Sm. Haridasi Debi, a Hindu widow, was the plaintiff and the Manufacturers Life Assurance Co., incorporated in Canada, a limited liability company, carrying on its business in India were the defendants. The plaintiff claimed a sum of money under a policy of insurance effected by her husband upon his own life and expressed to be for the benefit of his wife, the plaintiff; that is to say it was a policy issued under the provisions of Section 6, Married Women's Property Act (Act 3 of 1874).
2. After the institution of the suit the defendants raised the point that even if the policy money were payable, it could not be paid to the plaintiff, because Section 6 provides that any such money shall be deemed to be a trust for the benefit of the wife. Consequently an application was made to Panckridge, J. to appoint a special trustee within the meaning of the section. This application was granted and a special trustee was appointed by the Court and added as a co-plaintiff. The application was made ex parte. That order stands, but the defendants have raised another point, namely that the learned Judge had no power to make such an order under the terms of the section, and that the Official Trustee is the only person to whom the defendants are under any obligation to pay the money, if indeed the money has become payable to anybody. Thereupon an application was made on behalf of the plaintiff to the Official Trustee asking him to undertake this trust and prosecute the suit on behalf of the plaintiff, the only beneficiary under the trust. The Official Trustee pointed out that he had no funds available to meet any decree for costs which might be given against him or to instruct attorney and counsel on behalf of the plaintiff beneficiary, and that he was unwilling to undertake the trust unless the plaintiff beneficiary secured him to the extent of Rs. 10,000 which the plaintiff beneficiary was unable to provide.
3. At first sight I was under the impression that the Official Trustee could not refuse a trust apparently imposed by Section 6 upon him, but after further consideration it seems to me obvious that there are inconsistencies between the provisions of Section 6, Married Women's Property Act and the Official Trustees Act of 1913. Under Section 7 of the latter Act, the consent of the Official Trustee is required before any trust which can be imposed upon him. He may act as trustee only if he thinks fit, and under Sub-section (iii) he may decline any trust either absolutely or except on such conditions as he may impose. Sub-s. (vii) provides that he shall be the sole trustee. These provisions obviously are inconsistent with the provisions of Section 6, Married Women's Property Act, because those provisions are mandatory, and with reference to any such sum as is the subject of the present suit, it is provided that he shall stand in the same position as if he had been duly appointed trustee thereto by the High Court under Act 17 of 1864, Section 10; that is to say, his consent is to be assumed, because it is to be assumed that he has been duly appointed trustee.
4. Now the rule of interpretation with regard to inconsistent statutes is that where two Acts are inconsistent the later will be read as having impliedly repealed the earlier (Craies on Statute Law, Edn. 4, p. 310). Therefore, applying this principle, the provisions of the Official Trustees Act override in this respect Section 6, Married Women's Property Act. But in my opinion the real explanation of this apparent inconsistency is that Section 6, Married Women's Property Act (Act 3 of 1874) does not apply to the corporation sole which has been created under the provisions of the Official Trustees Act of 1913; that is to say the Official Trustee mentioned in Section 6, Married Women's Property Act is not the legal person referred to in the Official Trustees Act of 1913, which is a corporation sole. The Official Trustee referred to in Section 6, who was appointed under the provisions of Section 10 of Act 17 of 1864, has altogether disappeared. That office no longer exists and to that extent the provisions of Section 6, Married Women's Property Act, cannot be put into operation.
5. The result is that to enforce the provisions of that section with regard to any policy which is issued under it, trustees must be appointed either by deed executed by the husband in his lifetime, or by the Court under the powers which it has to appoint trustees under the Indian Trustees Act.
6. At first sight it looks as if the meaning of Section 6 is that the expression 'special trustees' refers only to trustees appointed by the husband in his lifetime. If however that had been intended, in my opinion the words would have been 'have been duly appointed' instead of 'are duly appointed'. The latter expression would cover an appointment made after the death of the husband, and such an appointment can only be made by the Court. The section refers to special trustees in the plural. In the present case only one trustee has been appointed by the Court, but there is nothing in the Act providing that any number of trustees must be appointed, and Section 13, General Clauses Act, provides that unless there is anything repugnant in the subject or context, words in the singular shall include the plural and vice versa.
7. I hold therefore that a trustee has been properly appointed within the meaning of the section, and that it is not necessary to appoint the Official Trustee, that is to say, the holder of the office created under the provisions of the Official Trustees Act of 1913.
8. I doubt whether it was necessary to appoint any trustee or to add him as a party, for the purpose of this suit. The plaintiff Sm. Haridasi Debi, obviously is the sole beneficiary under the trust, if any trust exists, and therefore is the person who has the chief interest in prosecuting this suit. The suit, therefore, could have proceeded without adding a trustee. But it is true that if the decision has been in favour of the plaintiff, the defendants could have raised the point that they were under no obligation to pay the sum decreed, except to trustees duly appointed within the meaning of the section.
9. In the circumstances the suit must now proceed, and in the event of the plaintiff-succeeding, the sum decreed will be paid to the trustee who will hold it in trust as provided by Section 6.
10. In view of the opinion which I have formed, neither of the questions raised by the Official Trustee of Bengal in his petition arises, and it is unnecessary to give any further direction to the Official Trustee.
11. The defendant company will pay to the plaintiff the costs of hearing of this preliminary issue incurred on the 17th November and to day, which will be treated as one day's costs.