Decided on December 22,1960



- (1.) THIS appeal is directed against an appellate decree reversing the decree passed by a learned Subordinate Judge. There is no dispute as to the facts hereinafter stated. One Aswini Kumar Chatterjee, since deceased, (hereinafter referred to as the Settler) created a trust, for the purpose of making provision for the maintenance of himself, his third wife Santimoyee, his sons Sachindra, Sudhir and Panchugopal and also such other sons as might be born to him, by a registered deed, bearing the date December 6, 1930. The trust property consisted of certain securities and stocks and shares, valued in the deed of trust at Rs. 1,98,764/ -. The main provisions in the aforementioned deed were as follows :- "the settler doth hereby as settler transfer and assign unto himself as trustee the said stocks, shares and securities to the succession uses and trust following, viz: (a) to the use and for the benefit of the settler during his life time the whole of the income and profits of the said trust estate, (b) from and after the death of the said settler his widow the said Santimoyee Debi and/or his sons as soon as they or any of them attain the age of majority shall be and act as the sole trustee or joint trustees (c) from after the death of the settler the said trust estate shall be held to the use and for the benefit of the said Santimoyee Debi and the said sons, namely, to pay to the said Santimoyee Debi from the income and profits of the said trust estate Rs. 50/- monthly and every month and hold the balance of the income and profits of the said trust estate for the use and benefit of each of the sons in equal shares and after the death of the said Santimoyee Debi to make over the whole of the said trust estate to each of my sons in equal shares if he has attained majority Provided nevertheless and it is hereby expressly declared that the settler reserves to himself the right to vary the terms and conditions hereof so far as relate to the quantum of interest given to each of the beneficiaries after the death of the settler by his instrument of will alone and in no other way or act. "
(2.) THE settler administered the trust property for some time and thereafter conceived the idea of effecting, by a deed intervivos, certain changes in the trust, contrary to the express provisions of the trust deed. With the object of enabling him so to do, the settler took cut an originating summons, under Chapter XIII of the Original Side Rules of this Court, interalia, asking for reliefs of the nature or kind hereinafter indicated. He asked for revocation of the provisions contained in the deed of trust whereby the persons therein named were appointed trustees of the trust properties and whereby power was reserved in himself, as the settler, to alter the quantum of interest of the beneficiaries by will and in no other way; further he asked for liberty to alter the said quantum of interest in such manner as he may think proper by deed intervivos and not by will; also he asked for his own discharge and for appointment of the Official Trustee of Bengal as the sole trustee of the said trust.
(3.) THE originating summons was entitled as "in the matter of the Indian Trusts Act (II of 1882) and in the matter of the Official Trustees Act (II of 1913) and In the matter of the Trust created by the Deed of Trust dated the 6th December, 1930 by Aswini Kumar Chatterjee.;

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