2. That he has applied to the said C D specifically to perform the said agreement on his part, but he has not done so.

3. That plaintiff has been, and still is, ready and willing specifically to perform the agreement on his part, of which the said C D has had notice.

Wherefore plaintiff prays for judgment and decree :—

1. That the defendant C D specifically perform the said agreement, and pay plaintiff the said purchase-money, and accept a conveyance and possession of the said property.

2. For costs of suit.

Measure of Damages.-The seller is entitled to interest from the date fixed for completion, even though the money were lying dead, if he was not in fault for the delay, or the buyer gave no notice that the money was idle; but if he was in fault, and the money was actually and fully appropriated, and the seller had notice that it was lying dead, he cannot claim interest.*

Form No. 352.

ALLEGATION OF DEFICIENCY OF LAND.

That since the making of said agreement the plaintiff has discovered that there is a deficiency in the quantity of said that the same does not contain

acres, but only

Wherefore plaintiff prays for decree :—

and

acres.

1. That a just deduction from the purchase-money be made on account of said deficiency, and that on payment of the residue of said purchase-money, the defendant execute to the plaintiff a sufficient conveyance of the said property;

2. For Rs.

3. For costs of suit.

compensation for withholding the same;

Purchaser's Remedy.-When the seller has contracted to sell an estate larger in extent or interest than he has, the purchaser may compel the seller to convey to him such estate or interest as he is entitled to, with compensation for what he cannot ;t when, however, the part of a contract which cannot be performed

* DeVisme v. DeVisme, 1 M. & G. 346; Calcraft v. Roebuck, 1 Ves. Jr. 227. + S. 14, Specific Relief Act, 1877; and see Sugden, V. & P. 253; Mortlock v. Baller, 10 Ves. 315; Barker v. Cox, 4 Ch. D. 464; Peacock v. Henlon, 11 Beav. 355; Barnes v. Wood, L. R., 8 Eq. 424; Horrocks v. Rigby, 9 Ch. D. 180; Hooper v. Smart, L. R., 18 Eq. 683; McKenzie v. Hesketh, 7 Ch. D. 675.

forms a considerable portion of the whole, or does not admit of compensation in money, the Court will not enforce specific performance of the part which can be performed, unless the plaintiff relinquishes all claim to further performance, and all right to compensation, either for the deficiency, or for the loss or damage sustained by him through the default of the defendant."

CHAPTER XII.

TRUSTS.

Form No. 353.

BY TRUSTEE FOR EXECUTION OF TRUST.

Plaintiff states:

day of

1. That he is one of the trustees under an instrument of settlement bearing date on or about the 18 made upon the marriage of E F and G H, the father and mother of the defendant (or an instrument of assignment of the estate and effects of E F for the benefit of C D, the defendant, and other the creditors of E F).

2. That A B has taken upon himself the burden of the said trust, and is in possession of (or, of the proceeds of) the moveable and immoveable property conveyed (or assigned) by the before-mentioned instrument).

3. That the said C D claims to be entitled to a beneficial interest under the before-mentioned instrument.

4. That plaintiff is desirous to account for all the rents and profits of the said immoveable property (and the proceeds of the sale of the said, or part of the said, immoveable property, or moveable, or the proceeds of the sale of, or of part of, the said moveable property, or the profits accruing to the plaintiff as such trustee in the execution of the said trust); and he prays that the Court will take the accounts of the said trust, and also that the whole of the said trust-estate may be administered in the Court for the benefit of the said C D, the defendant, and all other persons who may be interested in such administration, in the presence of the said C D, and such other persons so interested as the Court may direct, or that the said C D may show good cause to the contrary.

* S. 15, Specific Relief Act.

Trusts Defined.-A trust is defined in the Specific Relief Act, 1877, as including every species of express, implied, or constructive fiduciary ownership : in England it is defined as a beneficial interest in, or a beneficial ownership of, real or personal property, unattended with the legal ownership thereof. An express trust is one which is clearly expressed by the author thereof, whether verbally or by writing; an executed trust is one where no act is necessary to be done to constitute it, the trust being finally declared by the instrument creating it; but an executory trust is where there is a mere direction to convey upon certain trusts, and the instrument does not of itself proprio vigore constitute the trust, or effect the conveyance which it directs; a constructive trust is one which is raised by construction of equity without reference to any intention of the parties either express or implied; and an implied trust is a trust which is founded on an unexpressed but presumed, i. e., implied intention of the party creating it. With implied trusts are classed resulting trusts.

Trusts How Created.-The declaration or creation, and the grant or assignment, of an express trust of lands, tenements, and hereditaments, must be in writing, signed by the party declaring, creating, granting, or assigning such trust, or by will; and where the Trusts Act, 1882, is in force, trusts of immoveable property must be declared by writing, signed by the author of the trust or the trustee, and registered, or by will; and in case of trusts of moveable property the same must be declared in the same way, unless the ownership of the property is transferred to the trustee.‡

The provisions of the Statute 29 Charles II., c. 3, relating to trusts, have been held to apply to Parsis.§

Revocation.-Although there might be cases in which, when no other person but the settlor was interested, the deed might be regarded as a mere direction as to the manner in which the settlor's property should be applied for his benefit, and as such revocable by him, yet where another is beneficially interested, the deed cannot be revoked.||

Duties of Trustee.-By section 19 of the Trusts Act, 1882, a trustee is bound to keep clear and accurate accounts of the trust-property, and, at all reasonable times, at the request of the beneficiary, to furnish him with full and accurate information as to the amount and state of the trust-property; and when his duties are completed, he is entitled to an examination and settlement of his accounts, and where nothing is due to the beneficiary, to an acknowledgment to that effect.

* M'Fadden v. Jenkins, 1 Ph, 157; Benbow v. Townsend, 1 My. & K. 506; 2 Story's Eq. 964; 2 Spencer's Eq. 875.

4

+ Stat. 29 Charles II., c. 3, ss. 8 and 9.

Stat, 29 Charles II., c. 31, ss. 5 and 6.

§ Bhaimanekbai v. Baimerbai, I. L. R., 6 Bom. 363.

|| Golam Yassein v. The Official Trustee of Bengal, I. L. R., 8 Cal. 887.

TS. 35.

Liability of Trustee.-Where Act II. of 1882 applies, when co-trustees jointly commit a breach of trust, or where one of them by his neglect enables the other to commit a breach of trust, each is liable to the beneficiary for the whole of the loss occasioned by such breach; but he is not liable merely by reason of signing a receipt for trust-property where he does not receive the same.†

Settlement Defined.-Settlement means any instrument (other than a will or a codicil) whereby the destination or devolution of successive interests in moveable or immoveable property is disposed of or is agreed to be disposed of.

Who May Sue.-The beneficiary may sue for the specific performance of a trust; and the beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust.§

Religious Trusts-Who May Sue.-The representative of a testator who has created trusts for religious or charitable purposes may institute proceedings to have abuses in the trust rectified, there being no officer in this country who has such powers of enforcing the due administration of such trusts by information at the relation of some private individual, as is possessed by the Attorney-General in England; and so can another person interested in the proper observance of a religious endowment. Any person interested in any temple, mosque, or religious endowment, or in the performance of a trust relating thereto, may sue the trustee, manager, or superintendent, or the member of the committee appointed under Act XX. of 1863, for misfeasance.**

Religious Trusts-Costs.-Where a suit under Act XX. of 1863 is for the benefit of a trust, and no party to the suit is in fault, e.g., where the right to the succession is disputed, and it is necessary to secure the property, the Court may order the costs to be paid out of the estate; but where a person is in fault, no such order ought to be made.††

Public Charitable or Religious Trusts.-In cases of public charitable or religious trusts suit must be instituted by the Advocate-General acting ex officio; or where there is no such officer, by the Collector, or by such officer as the local

⚫ S. 27.

+ S. 26.

S. 12, Specific Relief Act, 1877.

§ S. 61, Trusts Act, 1882.

|| Brojo Mohun Doss v. Hurroraloll Doss, I. L. R., 5 Cal. 700; 6 C. L. R. 59.

¶ Kali Churn v. Galabi, 2 C. L. R. 129; Radhabai v. Chimaji, I. L. R., 3 Bom. 27; Rup Narain v. Junko Bye, 3 C. L. R. 113; Panch Cowrie v. Chunoolal, I. L. R., 3 Cal.

563.

::

** Fakuruddin Sahib v. Ackeni Sahib, I. L. R., 2 Mad. 197.

++ Sookram Doss v. Nund Kishore, 22 W. R. 21.

Government may appoint, or by two or more persons interested in the trust with the consent, in writing, of the Advocate-General, when the relief claimed is :

(a) the appointment of a new trustee ; or

(b) vesting any property in the trustees under the trust; or

(c) declaring the proportions in which the objects of the trust are entitled; or (d) authorizing the whole or any part of the trust-property to be let, sold, mortgaged, or exchanged; or

(e) settling a scheme for the management of the trust.

Where the object of the suit is merely to recover the trust-property from outsiders, it does not fall within section 539 of the Civil Procedure Code, and can be proceeded with without making the Advocate-General a party to it.*

Parties.-When the contention in suits concerning trusts is between the persons beneficially interested on the one hand, and a stranger on the other, the trustee shall represent the person interested, and they need not be made parties ;† but it is otherwise when the trustee is wholly uninterested in the matter,‡ or where he has an interest adverse to the beneficiaries.§

Appointment of Trustee by Court.-Under Act II. of 1882, when no trustees are appointed, or all the trustees die, disclaim, or are discharged, or when, for any other reason, the execution of a trust by the trustees is or becomes impracticable, the beneficiary may apply to have the trust executed, and to have a trustee or new trustees appointed.||

Hindu Trusts-Powers of High Court.-Section 3 of the Trustee's Act, 1866, which provides that the power and authority given by the Act to the High Court shall be exercised only "in cases to which English law is applicable," cannot be intended to limit the operation of the Act only to cases to which, in their whole extent, the law prevailing in England applies, without qualification or reserve, as this would virtually exclude the Act in any case on which an Act of the Indian Legislature has any bearing. The cases referred to in the section must be cases to which English law is in some measure applicable; but in what measure, is not indi. cated in the Act. English law must be regarded as applicable in the sense intended, if the principles recognized by the English Equity Courts are applicable. At the date of the grant of the Charter to the Supreme Court of Bombay in the year 1823, English Equity had become a system which would deal with a body of quasi Common law in a scientific manner, and in obedience to known and uniform rules. When it applied its method to the determination or the constitution of a right, even based on the Hindu or Mahomedan law, it administered English law. In this sense English law was applicable" at the date of the passing of the Indian Trustee's Act, 1866, to all cases in which peculiarly equitable doctrines had obtained recognition

* Lakshmandas v. Ganpatrav, I. L. R., 8 Bom, 365.

+ Civil Procedure Code, s. 437; Hammond v. Walker, 3 Jur., N. S., 686.

Clegg v. Rowland, L. R., 3 Eq. 373.

§ Payne v. Parker, L. R., 1 Ch. App. 327.

|| S. 59.