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On December 18, 1950, the first respondent filed the suit out of which this appeal has arisen praying for following declarations :

(a) that the power reserved by the settlor in the original Trust deed for altering the quantum of interest of the bene-

ficiaries 'by will alone and by no other means was irrevocable; (b) that the order passed by Ramfry, J. on August 25, 1937 was null and void as having been made without jurisdiction; and (c) the original Trust deed stood unaffected by the second Trust deed and therefore he was entitled to the benefits provided under the said deed. He also asked for a decree directing the Official Trustee to pay him 1/4th of the income of the Trust Estate, so long as Santimoyee Devee was alive and on her death to make over one-fourth of the corpus of the Trust Estate to him and further render accounts to him of the profits of the Trust Estate since the time of the death of the settlor. The Official Trustee as well as some of the other defendants resisted the suit. They contended that the settlor was entitled to execute the second Trust deed in exercise of the power reserved by him under the original Trust deed and in any event he could do so, because of the order of Ramfry, J. The trial court decreed the suit as prayed for but the first Appellate Court reversed the decree of the trial court and dismissed the suit upholding the contentions advanced on behalf of the contesting defendants. In second appeal the High Court reversed the decree of the first Appellate Court and restored the decree of the trial court. Two questions that -arise for decision in the appeal are (1) whether the settlor was entitled to execute the second Trust deed in pursuance of the power reserved by him under the original Trust deed and (2) whether in any event the validity of the second Trust deed is not open to challenge in view of the order made by Ramfry, J. on August 25, 1937. Mr. B. Sen, learned Counsel for the appellant contended that on a proper reading of the Trust deed it would be seen that the settlor had reserved to himself the power to vary the terms of the Trust, in so far as they relate to the quantum, of interest given to each of the beneficiaries after the death of the settlor. According to him the recital in the deed that such a variation can be done only by an instrument of will and not otherwise is not a " matter of substance but only a form. Therefore we must hold that the settlor had the power to make the variation in question. He did not dispute the proposition that a settlor is incompetent to vary any of the terms of a Trust settled by him unless he had reserved for himself the power to make the variation in question. The real question for decision is whether the stipulation in the Trust deed that the variation in question can only be made by will and not otherwise is binding condi- tion. If it is held to be a material condition then the settlor must be held to have had no power to vary the same. The law on the point is stated by Halsbury (1) thus Defects not of the essence. Equity relieves only against defects which are not of the essence of the power; relief will not be granted so as to defeat anything material to the intention of the donor of the power. Thus mere defects in the mode of execution will be aided, and so will an appointment by will made, under a power to appoint only by deed. But no aid will be given to an appointment by irrevocable deed made under a power to appoint only by will or to an 3rd Edn. Vol. 30 p. 272 Paragraph, 518.