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aforesaid had been given ; but any person damnified by any such unauthorized exercise of such power shall have his remedy in
damages against the person or persons selling Applica- 9. The money arising by any sale effected as aforesaid shall tion of pur- be applied by the person receiving the same as follows: chasemoney.
first, in payment of all the expenses incident to the sale or incurred in any attempted sale ;
secondly, in discharge of all interest and costs then due in respect of the charge in consequence whereof the sale was made;
thirdly, in discharge of all the principal-moneys then due in respect of such charge ;
and the residue of such money shall be paid to the person entitled to the property subject to the charge, his executors, administrators,
or assigns, as the case may be . Convey- 10. The person exercising the power of sale hereby conferred purchaser.
shall have power by deed to convey or assign to and vest in the purchaser the property sold, for all the estate and interest therein which the person who created the charge bad power to dispose of.
Provided that nothing herein contained shall be construed to authorize the mortgagee of a term of years to sell and convey the fee simple of the property comprised therein in cases where the mortgagor could have disposed of such fee simple at the date of
the mortgage Owner of
any time after the power of sale hereby conferred shall charge may have become exerciseable, the person entitled to exercise the same call for title-deeds
shall be entitled to demand and recover from the person entitled and con
to the property subject to the charge, all the deeds and documents veyance of legal es
in his possession or power relating to the same property, or to the title thereto, which he would have been entitled to demand and recover if the same property had been conveyed, appointed or surrendered to and were then vested in him for all the estate and interest which the person creating the charge had power to dispose of;
and where the legal estate shall be outstanding in a trustee, the person entitled to a charge created by a person equitably entitled, or any purchaser from such person, shall be entitled to call for a conveyance of the legal estate to the same extent as the person creating the charge could have called for such a conveyance if the charge had not been made.
23 & 24 Vic., c. 145, s. 13.
23 & 24 Vic., C. 145, S. 15.
12. Any person entitled to appoint or obtain the appointment Appointof a receiver as aforesaid, may from time to time, if any person or
receiver. persons has or have been named in the deed of charge for that purpose, appoint such person or any one of such persons to be receiver, or if no person be so named, then may, by writing delivered to the person or any one of the persons entitled to the property subject to the charge, or affixed on some conspicuous part of the property, require such last-mentioned person or persons to appoint a fit and proper person as receiver, and if no such appointment be made within ten days after such requisition, then may in writing appoint any person he may think fit? NO
person shall be ineligible for the office of receiver merely because he is an officer of the High Court. 13. Every receiver appointed as aforesaid shall be deemed to be Receiver
deemed the agent of the person entitled to the property subject to the charge, who shall be solely responsible for his acts or defaults un- mortgagor. less otherwise provided for in the charge 2.
14. Every receiver appointed as aforesaid shall have power to Powers of demand and recover and give effectual receipts for all the rents,
receiver. issues and profits of the property of which he is appointed receiver, by suit, distress or otherwise, in the name either of the person entitled to the property subject to the charge, or of the person entitled to the money secured by the charge, to the full extent of the estate or interest which the person who created the charge had power to dispose of
15. Every receiver appointed as aforesaid may be removed by Receiver the like authority, or on the like requisition as before provided may be
removed, with respect to the original appointment of a receiver, and new and new receivers may be appointed from time to time":
appointed 16. Every receiver appointed as aforesaid shall be entitled to
Receiver to retain out of any money received by him, in lieu of all costs, charges receive expenses whatsoever, such a commission, not exceeding five commission
not exceedper centum on the gross amount of all money received, as shall be
ing five specified in his appointment, and if no amount shall be so specified, per cent. then five per centum on such gross amount 6.
17. Every receiver appointed as aforesaid shall, if so directed in Receiver to writing by the person entitled to the money secured by the charge, insure if
required. insure and keep insured from loss or damage by fire, out of the money received by him, the whole or any part of the property included in the charge which is in its nature insurable 6. * 23 & 24 Vic., c. 145, 8. 17.
23 & 24 Vic., c. 145, 8. 20. 23 & 24 Vic., c. 145, s. 18.
23 & 24 Vic., c. 145, s. 21. 23 & 24 Vic., c. 145, 8. 19.
23 & 24 Vic., c. 145, 8. 22
Applica- 18. Every receiver appointed as aforesaid shall pay and apply tion of moneys
all the money received by him in the first place in discharge of received Government revenue and of all taxes, rates and assessments whatby him.
soever, and in payment of his commission as aforesaid, and of the premiums on the insurances, if any; and in the next place in payment of all the interest accruing due in respect of any principalmoney then charged on the property over which he is receiver, or on any part thereof; and, subject as aforesaid, shall pay all the residue of such money to the person for the time being entitled to the property subject to the charge, his executors, administrators
or assigus'. This part
19. The powers and provisions contained in sections 6 to 18 of to relate to this Act, both inclusive, relate only to mortgages or charges made charges by
to secure money advanced or to be advanced by way of loan, or to mortgage
secure an existing or future debt ?. only. 23 & 24 Vic., . 145, s. 23.
* 23 & 24 Vic., c. 145, 8. 24.
INTRODUCTION TO THE TRUSTS ACT.
Trusts, in the strict sense in which that term is used by English lawyers, that is to say, confidences to the existence of which a double ownership, a ‘legal' and an equitable' estate, are necessary, are unknown to Hindú and Muhammadan law? But trusts in the wider sense of the word, that is to say, obligations annexed to the ownership of property which arise out of a confidence reposed in and accepted by the owner for the benefit of another, are constantly created by the Natives of India and are frequently enforced by our Courts. There is probably,' said Mr. Justice Phear?, ‘no country in the world where fiduciary relations exhibit themselves so extensively and in such varied forms as in India ; and possession of dominion over property, coupled with the obligation to use it, either wholly or partially, for the benefit of others than the possessor, is, I imagine, familiar to every Hindú.' So, too, in the case of Muhammadans, where a woman is entitled to a share of her deceased father's estate in the hands of her brother, or to exigible dower in the hands of her husband 4. Trusts created by an old man for his own maintenance and for ulterior purposes, trusts created for a widow, or for a daughter, step-daughter, or daughterin-law and her children, trusts for the maintenance of a family idol ', are of frequent occurrence among Indians whether Hindú or Mubammadan, and it was desirable to keep these trusts free from the complication of double estates, in which, without the intervention of the legislature, they would probably have become entangled.
The system of benámí, or the enjoyment of the profits of property held by another in trust for the beneficiary, was familiar to the people of India before the introduction of British rule, and the implied trusts in case of a benámí purchase were recognised and established in the Judicial Committee 6. In no country, owing
Tagore v. Tagore, 9 Ben. 401, per 4 Ben. 0. C. J. 134. Willes J. Tothe double ownership in 3 Suth. 1864, p. 377, col. 2. English trusts there seems no clear • 6 Suth. Civ. R. III. parallel either in Roman law or in the 5 These trusts give the trustee it modern systems founded thereon. Even valuable interest and are dissoluble the separation of quiritarian and boni- only by the assent of the whole family tarian ownership is of a materially or of all concerned, when the idol is different nature. See an article in The
open to public worship, West & B. Academy for Aug. 14, 1886, p. 99, by 203. Mr. G. P. Macdonell.
6 6 Moo. I. A. 53: 9 Ben. 401
to the extreme subdivision of immoveable property and the partition of inheritances, are constructive trusts more common. Apart from the Native property-holder, there is the large body of domiciled Europeans and Eurasians, who have for nearly a century enjoyed and taken advantage of a trust-law recognised by our Courts; and now that the number and wealth of this class have increased, and every Court in the country may be called upon to administer a trust-law, the question of the advisability of its codification seems no longer open to discussion '.
Before 1882 the statutory law relating to trusts was contained in 29 Car. II, c. 31, secs. 7-11, Act XXVII of 1866 (=13 & 14 Vic. c. 60 and 15 & 16 Vic. c. 5), Act XXVIII of 1866 (=22 & 23 Vic. c. 35 and 23 & 24 Vic. c. 145). But the Statute of Frauds was in force only in the Presidency Towns, and the two Acts of 1866 extended only to cases to which English law is applicable. There were also a few isolated provisions relating to trusts scattered through the Penal Code, the Specific Relief Act, the Civil Procedure Code', the Stamp Act", the Limitation Act", the Government Securities Act?, the Companies Act, and the Presidency Banks Act!
The Trusts Act, especially the ninth chapter, therefore supplies a defect in the codified law of British India; and though it has not yet been extended to the Presidency of Bombay, the Lower Provinces, Ajmer and Merwára, the Andaman Islands or Burma, it is in force in all the other Provinces, and has been found of practical utility to the Mufassal Courts and pleaders.
The Act is divided into nine chapters: the first containing preliminary matter, the others dealing respectively with the creation of trusts; the duties and liabilities of trustees; their rights and powers; their disabilities ; the rights and liabilities of the beneficiary; vacating the office of trustee; the extinction of trusts; and, lastly, certain obligations in the nature of trusts, under which head the Act deals with what English lawyers call constructive and resulting trusts.
CHAPTER I. PRELIMINARY. This chapter declares that nothing in the Act shall affect in malam partem Report of the Indian Law Com.
56, 60. mission, 1879, pp. 48, 49.
88. 3, 10, sched. Nos. 98, 100. 2 ss. 405-409.
? Act III of 1881, s. 4. ss. 12 (a), 21, 54. ss. 266, 437
& Act VI of 1882, s. 53. 5 Act I of 1879, sched. 1, Nos. 25, • Act XI of 1876, s. 22.