S.K. Hazra, J.
1. Sir Nripendra Nath Sircar during his lifetime created two Trusts for the benefit of his fourth son Dhirendra Nath Sircar and his heirs. Under the first deed of Trust which is dated December 6, 1943, Shri Dhirendra Nath Sircar was appointed as the sole trustee of two immovable properties. The first deed of trust is nut relevant for the purpose of the application made before me.
2. This application has been made under Sections 25 and 26 of the Official Trustees Act, 1913 and Sections 34 and 36 of the Indian Trusts Act. 1882. The petitioners I and 2 are Sm. Juthika Sircar and Sri Dhirendra Nath Sircar. Sm. Juthika is the wife of Sri Dhirendra Nath. The other petitioners 3, 4 & 5 are Sm. Alaka Ghose, Sm. Sujata Basil and Sm. Sumitra Ghose. They are the three daughters of Sm. Juthika Sircar and Shri Dhirendra Nath Sircar.
3. In this application prayer (a) of the petition relates to the second Deed of Trust dated March 12, 1945 created by Sri Nripendra Nath Sircar by which the Official Trustee of Bengal was appointed as the trustee. The trust security consists of certain Government securities of the face value of Rs. 2,85,000/- Now it consists of two immovable properties purchased out of the sale proceeds of the Government securities.
4. The petitioners before me pressed for prayer (a) of the petition, which is as follows:
'The Respondent Official Trustee be directed to transfer all Trust properties held by him under the Deed of Trust dated the 12th March, 1945 to your petitioners Nos. 1 and 2 jointly.'
Prayer (b) of the petition is not pressedbefore me by Mr. Amiya Kumar Basu, the learned counsel appearing for the petitioner. No allegation has been made against the official Trustee before me and paragraph 10 of the petition which contains such allegations against the Official Trustee are not pressed before me. The only point urged be-fore me is that the Official Trustee should be directed to transfer the trust properties held by him under the Deed of Trust to petitioners Nos. 1 and 2 jointly. Mr. Basu placed Section 56 of the Indian Trusts Act, 1882 and submitted that the Rule in Saunders v. Vautier (1841) 4 Beav 115 = 10 LJ Ch 354 = (1841) Cr & Ph 240 should be applied in this case. He stated that as the beneficiaries arc sui juris and are ultimately entitled to the income they could require the trustee at once to convey the capital sum to them. He also stated that the petitioners will hold the trust properties in terms of the Deed of Trust. It is also submitted before me that all the persons who are now beneficially interested want that the Official Trustee should transfer the trust properties to the petitioners Nos. 1 and 2 and the Court should allow this prayer.
5. Mr. Karuna Sankar Roy appearing for the Official Trustee of West Bengal referred to Clause (v) of the Deed of Trust dated March 12, 1945 and submitted that upon construction of Clause (v) the petitioners are not entitled to the order as prayed in prayer (a) of the petition.
6. The question in this application is whether the petitioners Nos. 1 and 2 can require the trustee to convey the trust properties to them.
7. Section 56 of the Indian Trusts Act. 1882 provides as follows:
'The beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary's interest;
and where there is only one beneficiary and he is competent to contract, or where there are several beneficiaries and they are competent to contract and all of one mind, he or they may require the trustee to transfer the trust property to him or to such person as he or they may direct.
Under this section the beneficiary who is competent to contract has the right to say that the intention of the settlor to the extent of the beneficiary's particular interest should be specifically enforced and where there is only one beneficiary and he is competent to contract and where there are several beneficiaries and they are competent to contract and they are all of one mind, he or they may require the trustee to execute conveyance of the legal estate as the beneficiary or beneficiaries may direct.
8. Before me the Official Trustee of West Bengal has raised the point that the petitioners are not the exclusive beneficiaries. In my view, a trustee is entitled to be satisfied by the fullest evidence that the persons calling for conveyance are the exclusive beneficiaries.
Therefore, it has to be seen whether the petitioners are the exclusive beneficiaries.
9. In this connection it is necessary to consider the relevant portion of the second deed of trust dated March 12, 1964 which is as follows:--
'As regards the balance of the three and a half per cent Government Securities of the face value of Rs. 2,85,700/- only the same will be held on the trusts hereinafter stated:--(i) to pay the income thereof to the Settlor during his lifetime and (ii) after his death to make over absolute three and a half per cent Government Securities of the face value of Rs. 60,000/- to the Settlor's son Dhirendra Nath Sircar; (iii) After Settlor's death to pay the interest on the balance of the three and a half per cent Government Securities of the face value of Rs. 2.25,000/- only to Settlor's sop, Dhirendra Nath Sircar, who will receive the same as trustee for his wife, his daughters, his sons, sons' sons, to be used entirely for their benefit and/or their maintenance, education, social, religious, medical and expenses of all other kinds whatsoever and that the said Dhirendra Nath Sircar will have no beneficial interest in the said income or any part thereof and that the receipt given by him shall operate as complete discharge to the Official Trustee for all payments made by him in pursuance of this clause; (iv) Upon the death of the said Dhirendra Nath Sircar the Official Trustee shall pay the income of the Trust Funds to his wife for the maintenance and all other expenses of herself and her family and the receipt given by her shall operate as complete discharge to the Official Trustee for all payments made in pursuance of this clause'.
Clause (v) of the deed of trust is important for the purpose of this application. Clause (v) is as follows:
'Upon the death of the Survivor of the said Dhirendra Nath Sircar and his wife the whole of the trust fund both as to corpus and income will be made over by the Official Trustee absolutely to such person or persons as would be heir or heirs of the said Dhirendra Nath Sircar according to the law of intestate succession applicable to him and it is hereby mutually agreed that the settlor will have the power to revoke by deed partially or entirely any or all the trusts created in respect of the trust funds to take effect during his lifetime or after his death and to substitute therefor such trusts if any as to him may seem fit and proper.'
10. Thus it appears that so far as the petitioner No. 1 is concerned certain specific interest has been given to her viz., that the Official trustee shall pay the income of the trust fund upon the death of her husband, petitioner No. 2 Dhirendra Nath Sircar for the maintenance of herself and her family. This stage has not yet come because her husband the petitioner No. 2 is alive. The right of petitioner No. 1 will accrue to her upon the death of petitioner No. 2 her husband. So far as petitioner No. 2 DhirendraNath is concerned, be is entitled to have the interest on Government securities or the income of immovable properties purchased out of the sale proceeds of the Government Securities. He has no right to call upon the trustee to transfer the corpus to him. He is not entitled to the corpus at all but only to the income or interest which is to be spent for the purpose mentioned in the Deed of Trust.
11. The petitioners Nos. 3, 4 and 5 who are the daughters of petitioners Nos. 1 and 2 have no present interest because the intention of the settlor is that the whole of the trust fund both as to corpus and income will be made over by the official trustee absolutely to such person or persons as would be the heir or heirs of Dhirendra Nath Sircar according to the law of intestate succession applicable to him. Therefore, so long as Dhirendra Nath Sircar is alive it could not be specifically stated that the petitioners Nos. 3, 4 and 5 would be the heirs of Dhirendra Nath Sircar according to the law of intestate succession at the time of death of Dhirendra Nath Sircar. This stage has not yet come. Other persons may have possible interest in the trust properties.
12. Now the question is whether the petitioners jointly can say that the trustees should transfer the trust properties to petitioners Nos. 1 and 2.
13. In my view they cannot. The settlor wanted ultimately to give benefit to those persons or persons who would be the heir or heirs of Dhirendra Nath Sirkar according to the law of intestate succession applicable to him. The petitioners Nos. 3, 4 and 5 cannot now say that they are the persons who would be the heirs under the law of intestate succession, because, the question whether petitioners are beneficiaries or not rould only be determined upon the death of Dhirendra Nath Sircar and not before.
In my view the Rule in Saunder v. Vautier does not apply in this case.
In 'Lewin on Trusts', 16th Edition page 624, the rule in Saunders v. Vautier has been stated thus:
'If there is only one beneficiary or if there are several beneficiaries, and sui juris and of one mind, the specific execution of the trust may be stayed and the special trust will acquire the character of a simple trust; for through whatever channel the settlor may have intended his bounty to flow, the beneficiaries as the persons ultimately to be benefited, are in equity and from the creation of the trust, and before the trustees have acted in the execution of the trust, the absolute beneficial proprietors.'
14. Mr. Karuna Sankar Roy the learned Counsel for the Official Trustee of West Bengal relied on 1895 AC 186 at p. 198 (Mary Duncan Wharton and Elizabeth Warwick v. Edward Masterman) where the principle of Saunders v. Vautier has been explained by the House of Lords. LordDavey at page 198 of the judgment pronounced as follows:
'This being so, the principle of Saunders v. Vautier would at once be applicable if this were the case of a gift to an individual. The principle is this: that where there is an absolute vested gift made payable at a future event, with direction to accumulate the income in the meantime, and pay it with the principal, the Court will not enforce the trust for accumulation in which no person has any interest but the legatee, or (in other words) the Court holds that a legatee may put an end to an accumulation which is exclusively for his benefit. The principle is stated, as well elsewhere, by Lord Hatherley in the passage from his judgment in Gosling v. Gosling, ((1895) John 265 at p. 272) which was read by Lindley, L. J., in the Court of Appeal. There is no condition precedent to happen or to be performed in order to perfect the title of the legatees, and there is no other person who has any interest in the execution of the trust of accumulation, or who can complain of its non-execution.'
15. I think Mr. Karuna Sankar Roy rightly referred to the passage in Lewin on Trust, 16th Edition at page 624 and the observation of Lord Davey in 1895 AC 186. I accept the submission of Mr. Roy on this point. In my view, in order to apply the principles laid down in Saunders v. Vautier the petitioners must show that they are (a) the ultimate beneficiaries and (b) the exclusive beneficiaries. But the petitioners are not so.
16. In my view Section 56 of the Indian Trusts Act relied upon by Mr. Amiya Kumar Basu is not applicable under the facts and circumstances of this case.
17. Mr. Basu, lastly, contended that even if Section 56 of the Indian Trusts Act is not applicable and even where there is moral certainty that the petitioners may be the ultimate beneficiaries I shall direct the trustee to hand over the corpus of the estate to the petitioners.
18. Mr. Basu relied on a passage in Underhill's 'Law of Trusts and Trustees', 8th Edition, Article 70 at page 374 which is as follows:--
'Even where it is not absolutely certain that no more beneficiaries can come into existence, but it is morally so (e.g., where the ultimate remainder is in trust for the children of a woman who is past the age of child-bearing), the court will, on summons give the trustees liberty to act according to the directions of the beneficiaries in case so long as the contingent rights of living persons are not prejudiced, although it is understood that the Court will not in such cases imperatively order the trustees to do so.'
The same passage also appears in Underhill's 'Law of Trusts and Trustees', 11th Edition at page 449. In my view, this passage also does not help the petitioners.
19. There is no material before me by which I can hold that the petitioners Nos. 3, 4 and 5 are women who have passed the age of child-bearing. There is no moral certainty that petitioners would be the ultimate beneficiaries. Therefore, this application fails. There will be no order on this application. The petitioners must pay the costs of this application to the Official Trustee which is assessed at 20 Gms. to be retained and paid out of the assets of the estate in his hands.
20. Mr. Basu lastly submitted that he has not pressed prayer (b) of the petition and this prayer should be left open. It is recorded that I am not deciding prayer (b) of the petition in this application and the matters relating to prayer (b) is left open.