Report No. 66

8.51. Point (i)-suit by widow without re-course to the official trustee.-

We notice that the question has arisen whether the widow can sue without recourse to the Official Trustee. In Hari Dassi's case,1 Lord Williams J. of the Calcutta High Court observed:-

"At first sight I was under the impression that the Official Trustee could not refuse a trust apparently imposed by section 6 upon him, but, after further consideration, it seems to me obvious that there are inconsistencies between the provisions of section 6, Married Women's Property Act and the Official Trustees Act of 1913. Under section 7 of the latter Act, the consent of the official Trustee is required before any trust can be imposed upon him. He may act as a trustee only if he thinks fit, and under sub-section (iii) he may decline any trust either absolutely or accept on such conditions as he may impose. Sub-section (vii) provides that he shall be the sob trustee.

These provisions obviously are inconsistent with the provisions of section 6, Married Women's Property Act, because those provisions are mandatory, and wifa reference to any such sum as is the subject of the present suit, it is provided that he shall stand in the same position as if he had been duly appointed trustee thereto by the High Court under Act 17 of 1864, section 10; that is to say, his consent is to be assumed, because it is to be assumed that he has been duly appointed trustee."

He also said that the Official Trustee Act referred to in section 6 was the Act of 1864, whereunder the position, of the Official Trustee was different from the position under the 1913 Act. Hence, the reference to the Act of 1864 could not be read as a reference to the Official Trustees Act of 1913.

1. Hari Dassi v. Canadian Insurance Co., AIR 1937 Cal 380.