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11. The case made in the plaint is that there were three executors and trustees named in the Will, namely, (1) Sureswari, the widow of the testator. (2) Sitanath Bose and (3) Sisir Kumar Bose, Sureswari died before probate was granted to the two remaining executors Sitanath and Sisir on August 28, 1920. Sitanath died on July 10, 1932, and on the application of Sisir the District Judge, Alipore, appointed Phani Bhusan Ghose as executor. If we ignore for the moment the procedure adopted and consider the application of Sisir and the order of the District Judge as an act of appointment we may treat the appointment to be a valid appointment having regard to the fact that it was done within three months. The number of trustees was not less than two for more than three consecutive months. The provisions in the Will may therefore be said to have been complied with. On June 2, 1940, Sisir died and not before September 4, 1940, did Phani apply to the District Judge for the appointment of Hem Chandra Dey as executor on which am order was made on September 9, 1940. Even. if we take this application of Phani Ghose the surviving executor to be an act of appointment of a new trustee, it was done more than three months after the death of Sisir. It is really three months and two days. There was thus less than two executors and trustees for more than three consecutive months. It is, therefore, contended that the appointment of Hem Chandra has not been made in terms of the Will and as such his title to be appointed a trustee is defective. The argument is that on September 2, 1940, there were less than two trustees for more than three consecutive months and in terms of the Will, they ipso facto vacated office and the Official Trustee became automatically trustee on and from the expiry of three months i.e., September 2, 1940. It has not been as indeed it cannot be disputed that Hem Chandra's appointment was not made before September 4, 1940 and that Sisir being one of the two executors hitherto appointed and functioning as such died on June 2, 1940. Mr. Sambhu Ghose appearing on behalf of the defendant Pratap Narayan conceded that there has been two days delay only in the matter of appointment and the question is whether this delay for two days should upset the apple cart and invalidate all acts done by persons appointed as such by orders of the Court on September 9, 1940, and after. Phani died on April 19, 1944, and Hem Chandra purporting to be the sole surviving trustee made an application to the District Judge, 24 Pergan-nas for the appointment of Pratap Narayan Bose as an executor and trustee. This application was made within three months of the death of Phani Bhusan, If however the appointment of Hem Chandra, is held to be invalid then he would have no power to appoint an executor or trustees in terms of the Will. This application of Hem Chandra was rejected by S. N. Guha Ray the then District Judge, 24 Pergannas, with the following observation:-

13. It has to be considered then whether the appointment of Phani Ghose, Hem Chandra Dey and Protap Narayan Bose, can be otherwise supported. The first thing to remember is that though the executors are also trustees and stated as such in the testamentary instrument, the executors administered the estate so long as the estate remained unadministered and if there is a trust Created by the Will, they functioned as such trustees only after the estate is fully administered. It is only after the executor realised the assets, pays the funeral expenses and debts of the testator and then pays the legatees that they are required to make over the residue to the residuary legatee. It is only then administration is said to be complete. Even if the executor does not in fact make over the estate to the residuary legatees, after payment of the funeral expenses, debts and other legacies, he is deemed in law to hold this residue in trust for the residuary legatees and the administration is deemed to be complete. (See Snell's Equity 22nd Ed. p. 269 under the heading "Distribution of Assets"). If there is some express trust created by the Will, and the executors are also made express trustees of the trust, it is only after the estate is fully ad-ministered that they would be trustees simpliciter and no longer executors. In such event they would no longer be bound and governed by the provisions of the Indian Succession Act, In the instant Will there is a trust created and the executors have been directed to establish and consecrate an image of Annapurna Devi and start a charitable institution for feeding the poor Hindus. This appears not to have been done by the named executors. The Order Sheet in the probate proceedings indicate that the estate was under administration till July 23, 1949. It follows that till, then the estate was under administration and as such there could not be any appointment of trustees simpliciter in the manner indicated in the testamentary instrument. Further the Will provides that there should be a minimum of two executors and trustees to carry on the administration, though for the maximum period of three months a single executor and trustee has been empowered to act. Sisir died on June 2, 1940, and no appointment was made by the surviving executor till September 4, 1940, i.e. for more than three months by two days. In terms ot the provisions of the Will, after September 2, 1940, i. e. three months after the death of Sisir the administration came to a standstill., It follows that when Phani Bhusan purported to make the appointment of Hem Chandra Dey, he alone had no power to appoint. The appointment of Hem Chandra Dey as executor and trustee must therefore be held to be contrary to the provisions of the Will and as such invalid. The same would be the consequence if we proceed on the footing that administration has been completed and the executors, and trustees were functioning as trustees simpliciter. The trustees are no longer executors and their functioning must be regulated by the provisions of the trust. Three months after the death of Sisir on June 2, 1940, there was not the minimum of two trustees and one trustee was unable to act without the minimum number. The instrument indicates that in such event the Official Trustee will become the trustee Mr. Chaudhuri submitted that in the event of there not being the minimum for more than three months, the solitary trustee was not merely unable to function but ipso facto vacates his office and the Official Trustee steps into his shoes. This would operate as a discharge of the surviving trustee under Section 71(c) of the Official Trustees Act. It is however argued against this contention that the Official Trustee suffers from the disability to become a trustee of the instant trust under Section 7(5) of the Official Trustees Act. Section 7(5) of the Official Trustees Act reads as follows:-

"The Official Trustee shall not save as provided in the Rules made under this Act accept any trust for religious purposes....."

The testamentary instrument in suit provides that in certain contingencies -- one of them being when there is less than the minimum number of two trustees for three consecutive months "the Official Trustee of Bengal shall become the executor and trustee Of this my Will and the sole trustee of the debutter and charitable institution to be created and established as aforesaid in which case my heir or heirs for the time being shall be shebait and perform the religious trust only and he or they shall perform and carry out such trust under the supervision of the said Official Trustee for the time being, the said Official Trustee pay the amounts payable under tilts Will to the said she-baits for the time being for expenses in connection with the religious trust only."

14. It seems to me that the provisions of the religious part of the trust being performed by the heirs of the settlor, takes the instant case out of the provisions of Section 7(5) of the Official Trustees Act and the said section is no impediment to the Official Trustee acting as trustee in the instant case. I do not however base my decision on this argument.

15. Even if it is held that Section 7(5) operates as a bar to the Official Trustee in acting as trustee under the instant trust, less than two trustees are incompetent in terms of the instrument to exercise the function of trustee for a period more than three months and as such Phani Ghose alone was competent in law to appoint Hem Chandra' as trustee. If Hem Chandra Dey's appointment was illegal, he could not have appointed Protap Narayan Bose as trustee after the death of Phani on April 19, 1949.