ALWIS v. JUANIS APPUHAMI.

ALWIS v. JUANIS APPUHAMI.

D. C, Colombo, 16,798.

Trustee-Ordinance No. 7 of 1871, ss. 4, 5-Trustee appointed under a postnuptial settlement deed-Death of trustee without appointing a successor- Successor nominated by District Court-Power of such trustee to substitute another person in his place.

    Where a postnuptial settlement deed creating a trust contained a power to appoint a new trustee, and, in the event of the District Court appointing such trustee, that he should have the power to appoint a new trustee,-

    Held, that the trustee appointed by the Court can lawfully exercise that power, and appoint a new trustee in his stead.

    IN this case the plaintiff, claiming to be the trustee of the postnuptial settlement of one James Perera and Alice Perera, sued the defendants on a bond, whereby it was alleged the first defendant became bound and indebted in a sum of Rs. 1,500 to one Don Bastian Perera Abeyesekere as trustee for the time being of the said postnuptial settlement.

    The plaint also alleged that the said Don Bastian Perera Abeyesekere died without appointing a successor, and that the District Court of Colombo nominated Benedict Oliver Bias- trustee

of the said postnuptial settlement, and that the said Benedict Oliver Dias appointed the plaintiff trustee in his stead.

    A preliminary issue was framed, whether it was competent for Benedict Oliver Dias to appoint the plaintiff as trustee in his stead, and the learned District Judge (Mr. Joseph Grenier), by order dated 5th May, 1903, held as follows:-

    The preliminary issue was framed by me in this case with the consent of both parties, and upon its determination would depend whether or not the plaintiff is entitled to maintain this action. The facts relating to this issue are admitted, and the only question is whether it was competent for Benedict Oliver Dias to appoint a trustee in his place of the postnuptial settlement pleaded in the plaint. It was submitted for the defendant that, although Dias had in point of fact exercised the power of substitution by indenture dated the 11th July, 1900, whereby he substituted the present plaintiff as trustee, yet that he had not the power to do this, but that reference should have been made to the Court under the provisions of Ordinance No. 7 of 1871, and that the Court should have appointed a trustee. It is necessary, therefore, to examine the appointment of B. 0. Dias by the Court to ascertain that powers of substitution were vested in him. By order dated the 6th May, 1897, in special case No. 128, it was ordered and decreed that Mr. B. 0. Dias of Panadure be and is hereby appointed trustee under the indenture dated the 23rd and 27th days of January, 1885, in the room and place of the late Don Bastian Perera Abeysekara Tillekeratna, Mudaliyar, the deceased trustee, with as full and similar powers as the said Don Bastian Perers Abeysekara Tillekeratna, the deceased trustee, had under the said indenture of the 25th and 27th day of January, 1885.

    " Now it is plain that the appointment by the Court placed Dias on the same footing with the deceased trustee in regard to the exercise of certain powers. Were these powers limited only to the administration of the trust property, or did they embrace the power of substitution? Turning to the indenture itself we find the following words :-' It shall be lawful for the trustees hereby appointed, or for the continuing trustee or trustees for the time being, or if there shall be no continuing trustee, then for the retiring or refusing trustee or trustees, or for the District Court of Colombo in pursuance of the powers and provisions contained in section 4 of the Ordinance No. 7 of 1871, to appoint any other person or persons to be a trustee or trustees,' &c. Further on the indenture says: ' And every such new trustee shall have all the powers and authorities of the trustee in whose pl

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