Judgment

HEGDE, J .:- Two important questions of law arise for decision in this appeal, by certificate. It will be convenient to formulate those questions after we set out the material facts.

2. One Aswini Kumar Chatterjee (since deceased) executed the Trust deed Exh. I on December 6, 1930, in respect of some of the properties owned by him. It is provided therein (a) that the settlor would be the trustee of the Trust Estate and would enjoy the income and profits of the trust properties during his lifetime, (b) after his death his wife Smt. Santimoyee Devee and/or his sons as soon as they or any of them attain the age of majority should be the sole Trustee or Joint Trustees and (c) from and after his death the said Trust Estate should be held to the use and for the benefit of the said Smt. Santimoyee Devee and the said sons. Santimoyee Devee to be paid from the income and the profits of the said estate Rs. 50/. monthly and the balance of the Income and profits of the Trust Estate to be held for the use and benefit of each of the sons in equal shares and after the death of the said Santimoyee Devee to make over the whole of the Trust Estate to each of the sons in equal shares. He reserved to himself the power to vary the terms and conditions of the Trust so far as they relate to the quantum of interest given to each of the beneficiaries after the earn of the settlor "by his instrument by will alone and in no other way or act".

3. The settlor administered the trust property for sometime and thereafter thought of effecting by deed inter vivos certain changes in the trust. To enable him to do so he took out an originating summons on the original side of the Calcutta High Court under Chapter XIII of the Original Side Rules of that Court seeking primarily two reliefs viz., (1) to have the Official Trustee, Bengal appointed as the Trustee in his place and (2) to empower him to alter the clause renting to variation of the quantum of interest given to each of the beneficiaries by a deed inter vivos. From the averments made in the application, it is clear that relief was sought under the provisions of the Indian Trusts Act (Central Act 2 of 1882) and the Official Trustees Act (Central Act 2 of 1913). In the body of the petition the settlor definitely prayed for permission to revoke the clause in the Trust deed relating to his power to vary the quantum of interest of the beneficiaries by will alone and in its place authorise him to make that variation "by deed inter vivos and not by will alone. The relevant reliefs asked for in the petition read as follows :

(1) "that the provisions contained in the Deed of settlement dated the 6th December,1930, whereby the persons therein named were appointed Trustees of the said Trust Estate and whereby power was reserved to petitioner to alter the said quantum of interest by will alone and in no other way be revoked; and

(2) that the petitioner be empowered to alter the said quantum of interest in such manner as he may think proper, by deed inter vivos and not by will alone."

4. The aforementioned originating summons was taken out on August 20, 1937. The matter came up for hearing before Ramfry, J., evidently after service of notices on the respondents on August 25, 1937. On that date the learned Judge passed the following order :

"It is ordered that the provisions contained in the said Deed of Trust whereby the persons therein named were appointed Trustees of the said Trust Estate and whereby power was reserved to the said applicant to alter the quantum of interest of the beneficiaries by will and in no other way be and they are hereby revoked and it is further ordered that the said applicant as such settlor as aforesaid be at liberty to alter the said quantum of interest in such manner as he may think proper by deed inter vivos and not by will and it is father ordered that the said applicant the present sole trustee under the said Deed of Trust be and is hereby discharged from further acting as such Trus