JUDGMENT
Ameer Ali, J.
1. This appeal arises out of an application for execution of two decrees obtained by one Rai Dhunput Singh Bahadoor against the present appellant in respect of certain putni rents. The application is dated the 3rd of December 1896.
2. It appears that on the 27th of June 1893 Rai Dhunput Singh, who was the owner of Pergunnah Haveli within which the putni mehals are situated, sold his right and interest to one Mussammat Bhagwaubuti Chowdrani. On the 10th of July 1896, he obtained the decrees in question for the rents due from the appellant for a period prior to the sale; and on the 19th July 1896 he executed a trust deed in favour of one Gopi Chand Bothra and others by which he conveyed to them various properties, both moveable and immoveable, upon certain trusts. The two decrees against the appellant were included in the said trust deed.
3. Dhunput Singh died in September 1896; and on the 3rd of December following, as already stated, the trustees applied for execution.
4. On the 3rd March 1897 a petition of objection was put in on behalf of the judgment-debtor in which he contended, first, that the trustees’ power came to an end on the death of Dhunput Singh, and that, therefore, they had no authority to apply for execution; secondly, that the decree-holder’s adult sons Gunpat Singh and Nurput Singh, together with his minor son, Maharaj Bahadoor Singh, were his legal representatives; thirdly, that, inasmuch as the judgment-debtor’s right in the properties had already been sold, and purchased by one Bibi Jarao Kumari Saheba, the respondents were not entitled to proceed against the tenure; and fourthly, that under Section 148, Clause (h), of the Bengal Tenancy Act, the application for execution of the decree on behalf of the trustees was not maintainable.
5. Upon these objections the Subordinate Judge laid down the following points as arising for determination:
1st.–Is the application for execution of the decree on behalf of the trustees maintainable?
2nd.–If maintainable, whether the decree under execution can be treated as a first charge on the properties sought to be sold, and whether they should be considered rent decrees?
3rd.–Whether Maharaj Bahadoor alone is legal heir and representative of the deceased Babu Rai Dhunput Singh, the original decree-holder?
4th.–Whether a subsequent application by Maharaj Bahadoor for being added as an applicant, remedies the defect which the judgment-debtor seeks to press?
6. It is to be noticed that on the 7th of August 1897 Maharaj Bahadoor, the infant son of Dhunput, joined in the application for execution.
7. The Subordinate Judge holds that the power of the trustees did not expire with the death of Dhunput, and that the trustees are entitled to execute the decrees; he holds further that inasmuch as the rents for which the decrees were obtained accrued when the relationship of landlord and tenant existed between Dhunput and the judgment-debtor, the lien still continues and that the trustees are entitled to enforce the same. He also holds that any technical defect in the application arising from the non-joinder of the personal representatives of Dhunput was cured by the fact of Maharaj joining in the application. And the learned Judge accordingly overruled the judgment-debtor’s objections, directed execution of the decrees at the instance of the trustees and Maharaj Bahadoor, and declared that the putni tenures were liable to be sold in execution of those decrees.
8. The judgment-debtor has appealed to this Court. His ease has been argued with considerable ingenuity, and the same objections which were taken in the Court below have been pressed before us.
9. I think, however, that those objections are not tenable.
10. First, with regard to the authority of the trustees the contention is that they were merely agents of Dhunput Singh, and that consequently upon the death of Dhunput the agency came to an end, and the trustees became practically functi officio, all authority vesting in them by virtue of the trust deed falling to the ground. In my opinion this argument proceeds upon a somewhat fallacious reasoning. The passages cited from Lewin on Trusts must be read with the documents on which the cases referred to in the text-book proceeded. Each ease must, it seems to me, be dealt with upon its own special facts; and we have, accordingly, to see what the document in the present case directs and provides. In other words, we must see whether, as is contended by the appellant’s pleader, it only gives to the trustees an authority to do certain acts, constituting them merely as his agents for certain purposes, or whether, as the learned Subordinate Judge finds, it conveys a legal estate to the trustees and virtually amounts to an actual transfer in their favour, subject to certain trusts. For this purpose it is necessary to refer to the terms of the trust deed. It begins by reciting that the executant Dhunput was largely involved in debt, and that it was necessary for him to make a settlement for the purpose of liquidating the same and accordingly, as he himself was “unable to do business any more in a satisfactory way,” and it was the wish of most of his creditors that he should make over all his properties, moveable and immoveable,” that is to say, all kinds of properties of which he was then the owner,” to certain trustees for the purpose of liquidating his debts, he, accordingly, made over all his immoveable and moveable properties to the persons therein named. The deed then goes on to provide that the trustees were to hold possession of all his properties as proprietors, to get their names registered in the Collector-ate, and pay the debts from the profits of the properties or by mortgage and sale of all or some of them. After the debts were discharged they were to give back the surplus or whatever remained to Dhunput or his heir, Maharaj Bahadoor. The deed then declares that neither he nor his representatives shall be able to revoke the said trust, and that it shall operate in an irrevocable way. And it then goes on to state as follows:
This trust deed shall remain in force until my debts are satisfied, that is to say, not only during my life-time (but) also after my death and my heirs and representatives shall be bound by the terms of this trust deed. If all or any of the trustees be willing to give up the trust they must appoint another trustee and he shall act according to the trust. But if any of the trustees should resign without appointing another trustee, or if he should die before the appointment of another trustee, then any person whom I, during my lifetime, or after my death, my widow Rani Mina Kumari or my youngest son Maharaj Bahadoor, if he had(?) of age may appoint as trustee, shall be the trustee.” And it winds up by declaring: “This trust deed shall be treated as a deed of conveyance of property. As to those landed properties jotes and jummas, which are made over to the hand of the trustees under this trust deed, they shall be persons’ fully entitled to realize the arrears and outstandings, etc., and all kinds of dues relating to them. To this effect I execute this trust deed in a sound state of mind.
11. Upon the terms of the deed there can be no doubt that it purports to convey to the trustees, absolutely, the properties covered by it subject to certain trusts. In my opinion there is no ground whatsoever for saying that it was merely an authority to the so-called trustees to do certain acts, which authority ceased with the death of the principal. The properties were conveyed to the trustees for the purpose of discharging his debts, and then returning any residue left either to Dhunput or his heir. It was to be irrevocable on the part of his heirs and representatives, was to take effect as a conveyance, and was to continue in force, not only in his lifetime, but after his death, until the purpose for which it was executed had been fully discharged. In my opinion there is no ground for contending that the trustees under such a conveyance had no power to execute the decrees. I hold, therefore, that the first objection is wholly untenable.
12. It is also clear from the recitals contained in the document printed at page 44 of the Paper Book, which bears date the 30th June 1893, and from the entire evidence on the record, that the two adult sons of Dhunput separated from him in 1887, and ceased to have any interest whatsoever in the properties covered by the deed of trust, and that Maharaj Bahadoor, Dhunput’s minor son, alone is the person entitled to the benefit of the trust. No question of limitation is raised in this case. Maharaj has by a petition joined in the application for execution; and I think the learned Judge in the Court below was right in holding that Maharaj, in conjunction with, or separately from, the trustees, was entitled to execute the decrees obtained by his father.
13. It was contended that under Clause (h) of Section 148 of the Bengal Tenancy Act the trustees were not entitled to execute the decrees. That clause runs as follows:
(h) Notwithstanding anything contained in Section 232 of the Code of Civil Procedure, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord’s interest in the land has become and is vested in him.
14. In my opinion there is no force in this contention. From one point of view the trustee is an assignee, inasmuch as the property is conveyed to him as has been done in this case. But to my mind the Legislature never intended to include in the word “assignee” used in Clause (h) persons in whom a legal estate was vested by an act of the owner, but who had no independent interest in the property. I think that the provision in question applies only to outside purchasers for consideration.
15. There remains then only one question to consider, namely, whether, in view of the fact that the putni mehal had been sold in execution of a money decree and purchased by one Bibi Jarao Kumari, the applicants are entitled to proceed against the tenures for the satisfaction of their rent decrees. As the learned Judge points out certain rents had become due from the appellant whilst he held the tenure. After Dhunput transferred the property to Mussammut Bhagwanbuti Chowdhrani he obtained decrees for these rents, The sale of these tenures in execution of money decrees could not release the tenures from the lien which had already attached to them. Further it seems to me that as the appellant contends he has lost the property he is not entitled to raise the question that the tenures are not liable to sale in execution of these decrees.
16. The applicants are clearly entitled to have execution of the decrees; and I should accordingly dismiss the appeal with costs.
Macpherson, J.
17. I agree that the appeal must fail. We are asked to hold that the Court could not act upon the applications for execution, because the trustees had no authority to make them, and the want of authority was not cured by the subsequent joinder of Maharaj Bahadoor. Also that the Court was wrong in declaring that the putni mehals could be sold under the provisions of the Tenancy Act. First, because the applications were in direct contravention of the provisions of Clause (h), Section 148 of that Act, the original applicants being assignees of the decrees in whom the landlord’s interest had not become vested; secondly, because the decrees were not decrees for rent within the meaning of the Act as Dhunput was not at the time when he obtained them the landlord of the appellant the judgment-debtor.
18. By the deed of the 19th of July 1896, Dhunput made over the decrees in question, and all his property to the applicants for execution, in trust avowedly for the payment of his debts, and the surplus was to be returned to him, or his heir Maharaj Bahadoor, when the debts were satisfied, but not before. The effect of this deed as a trust for the payment of debts was considered in the case of Fink v. Maharaj Bahadoor (1898) 2 C.W.N., 469. That was a suit brought by the receiver of an estate to recover the money due on three hundis drawn by Dhunput. The claim on one of the hundis was barred by limitation–unless the creditor could, as he attempted to do, take advantage of the trust deed. It was not proved that the deed had been communicated to the creditors or assented to by them, and the Court held that the creditor was not a beneficiary under the deed and could not take advantage of it. We are now asked to go a step further, and to hold, at the instance of a debtor to the estate, that the deed was wholly inoperative, or that it at all events became so on the death of Dhunput, and this solely for the purpose of determining whether the Court could execute the decrees on the application of the trustees.
19. There is no doubt as to the execution of the deed which purports to convey the properties, and to be very much more than a deed of agency, it has never been questioned by Maharaj Bahadoor, who putting the creditors on one side, appears to be the only person who could question it, and there is no proof that it has not been acted on. The proof is, indeed, the other way. It seems to me unnecessary in this proceeding to consider what the legal effect of the deed may be as regards the properties affected by it. There was, I think, a perfectly good application for execution under Section 232 of the Civil Procedure Code, and the Court might have acted upon it if it thought fit to do so. The judgment-debtor, it is true, objected, and said there had been no valid assignment,-but the transferor, or rather his representative, then joined in the application, and by so doing and in the absence of any question of limitation, put an end to the necessity of any further discussion as to the validity of the transfer. It is said that as Dhunput left two other sons Maharaj Bahadoor is not his only representative. It appears that in 1887 there was a family settlement by which the two elder sons took a portion of the property, and agreed not to claim any part of what was left in Dhunput’s possession or was afterwards acquired. It is argued that this operated only as an agreement which must be enforced in the regular way. The sons are not before us, and do not appear to have claimed any part of the property covered by the trust deed. They assert no interest in these decrees, and their rights, if any, are not prejudiced by allowing the execution. So far as appears they have no rights, and I see no reason why the decrees should not be executed on the applications before us.
20. Can they then be executed as rent decrees? Section 148, Clause (h) of the Tenancy Act enacts that “notwithstanding anything contained in Section 232 of the Code of Civil Procedure an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree, unless the landlord’s interest in the land has become and is vested in him.” The landlord’s interest in the land is not vested in the trustees, and it is argued that their applications for execution were inadmissible by an express provision of law, and that the subsequent joinder of Maharaj Bahadoor could not make them good applications under the Tenancy Act. Dhunput, it may be observed, bad parted with his interest in the land before the decrees were obtained, but it cannot, on that ground, be successfully contended that he could not have executed the decrees under the provisions of the Tenancy Act, by the sale of the tenures in respect of which they were obtained. The relationship of landlord and tenant existed during the period for which the rent was claimed, the rent was due to him as landlord, was decreed to him as such, and it was a charge on the tenures. The only question, therefore, is whether, having regard to the provisions of Section 148, Clause (h) of the Tenancy Act, the applications should have been rejected. I agree that the word “assignee” as used in that section does not include persons in the position of the applicants, who are executing the decrees under an assignment, which is not for their benefit, but for the benefit of the heir of their assignor. If the deed does not, as the appellant contends, create a trust foe creditors, Maharaj Bahadoor is now the only beneficiary under it, and the applicants are trustees for him. He could certainly have applied for execution without infringing the provision of Section 148, and to hold that the trustees could not do so would be, I think, to give the section a wider scope than it was intended to have. He, moreover, has now joined in the application.
21. It is not alleged that the tenure has been sold for any arrears which have since become due, and the sale of the judgment-debtor’s rights and interests, if there has really been any such sale, would not prevent the sale of the tenures in satisfaction of these decrees. For the above reasons I consider that the appeal fails and must be dismissed with costs.
