JUDGMENT 1. THIS is an appeal from the judgment and order of Gr. K, Hitter, J. answering certain questions on an originating summons. The applicant who is called the plaintiff in this procedure took out this originating summons on or about the 5thmay, 1961. The questions on this originating summons arise on the clauses and the interpretation of the will of one Ezekiel Elias David Ezra who died on the 19th December, 1943. Before his death he published his last will and testament en the 8th October, 1940 and a codicil 1 hereto on the 1st November, 1940 in the United Kingdom. Probate of that Codicil was granted' to the Official Trustee of West Bengal by this Court on the 11th September, 1944. The testator left an estate consisting of numerous properties in Calcutta. These properties were jointly held by the Official Trustee along with certain other co-shares. The properties which were jointly held by the testator and the said other co-sharers and which still remained joint ft the date of the application are set out in the schedule to the petition and the defendant Official Trustee has an undivided l6th share in such properties. The plaintiff claims to be entitled to a 2/6th share in the estate of the testator and as such entitled to a 1/18th share absolutely in the said properties held jointly by the defendant and the other co-sharers. Some of these properties have been sold from time to time and particulars of the properties sold have also been set out in the schedule to the petition. 2. THE co-sharers holding 5/6th share of the remaining properties have recently sold their 5/6th share in respect of certain properties belonging to them and held jointly with the defendant as representing the estate of the testator. These co-sharers are desirous of selling the remaining properties belonging to them and held jointly with the defendant as representing the estate of the testator. It is alleged that they have in fact entered into an agreement for sale of the properties known as 17, 18 and 19, Old Court House Street and 1a, Larkin Lane, known as Bathgate Block. They are also negotiating for sale of No, 16, Old Court House Street. It is alleged that they have in fact entered into an agreement for sale of the properties known as 17, 18 and 19, Old Court House Street and 1a, Larkin Lane, known as Bathgate Block. They are also negotiating for sale of No, 16, Old Court House Street. The plaintiff-applicant says that he has given his consent to such sales, but the defendant did not join in the sale of the said properties on the ground that the sale prices offered by the different purchasers were not acceptable to him. Difference between the plaintiff and the defendant arose over this question and the plaintiff called upon the defendant to transfer Ms share in the sale proceeds of the said properties which had already been sold and requested the defendant to transfer to the plaintiff his undivided 1/18th share in the properties not sold. The plaintiff-applicant Cecil Libovitz is a legatee 2nd beneficiary under the will. On this difference arising between him and the Official Trustee, he took out the present originating summons for an answer by the Court of the fallowing questions;- (1) Whether in the events that have happened the plaintiff's l/18th share should be sold along with the 5/6th share of the other co-sharers who have entered into an agreement for sale of such 5 /6th share in the properties concerned. (2) Whether the plaintiff is not in the facts and circumstances of the case entitled to the transfer of his 1/18th share in the properties and in the income thereof by the defendant in his favour. (3)Whether any, if so, what provision should be made for payment by the defendant of income tax, wealth tax etc., and whether such provision, should he made out of the income of the plaintiff's 1/18 share. (4)Whether in the events that have happened plaintiff is not entitled to the appropriation of his 1/8th share in the specie in satisfaction of the legacy given to him under the said Will, (5) Whether the plaintiff is not entitled to require the defendant if the properties are not sold with in such time as the Honorable court considers reasonable to transfer the same and the accumulated income thereof to the plaintiff. (6) Whether the defendant is bound to obtain the consent of the other beneficiaries under the said will before transferring the plaintiffs 1/18th share to him. 3. (6) Whether the defendant is bound to obtain the consent of the other beneficiaries under the said will before transferring the plaintiffs 1/18th share to him. 3. THE Official Trustee of West Bengal opposed this summons and used an affidavit-in-opposition. The main objection of the Official Trustee can be stated briefly. His first defence is that under the Will of the testator he has absolute discretion in this matter and the Court should not control his discretion. His second defence is that he Is trustee for sale end the plaintiff is entitled to the share of money to arise by sale and conversion of the properties, Therefore, the Official Trustee says that the plaintiff is not entitled to transfer in specie of any undivided share of the property to him. The third defence of the Official Trustee is that two other beneficiaries are opposing the sale of the 1/ 6th share at the price stated by the plaintiff in his application and, therefore, he should not in any event, be ordered to sell the same. In defence of his action of not agreeing to the sale, the Official Trustee says that the prices offered were comparatively low. The valuation of the properties should figure at Rs. 12,88,000/- and the plaintiff's Attorney requested him to sell them at a much lower price of Rs. is lakhs only. The reason he gives is that he could not agree as the price of house properties in Calcutta since 1950 had considerably increased and the said price offered was considered by him to be wholly inadequate in comparison with the valuation made in 1950. This, in brief, is the substance of the defence of the Official Trustee in this application. The reason he gives is that he could not agree as the price of house properties in Calcutta since 1950 had considerably increased and the said price offered was considered by him to be wholly inadequate in comparison with the valuation made in 1950. This, in brief, is the substance of the defence of the Official Trustee in this application. The first question set out above raises a point of interpretation of a clause in the Will, the material portion of which reads as follows: - "7 (a) Subject to the payments aforesaid I Give Devise and bequeath all the real and personal moveable and immoveable estate and property unto my Trustee upon Trust that my Trustee shall sell the said real and immovable estate and property (including chattels real) and call in sell and convert into money such part of my personal and moveable estate and property as shall not consist of money with full power nevertheless to postpone the sale calling in or conversion of any part of my said estate and property for such a period as my Trustee may in his absolute discretion think proper. " 4. THE Official Trustee relies upon this clause to say that postponement of sale and the time for selling or conversion of property has been left to his 'absolute discretion' by this clause of the Will of the testator. So long, therefore, he exercises this discretion fairly, properly and reasonably without any malafides, his discretion should not be interfered with by the Court. There is no allegation of malafides in this case at all against the Official Trustee. He says, on the facts of this case, his discretion is reasonable, proper and fair, first, on the ground that the price offered was low and secondly on the ground that two other beneficiaries were objecting to the sale of the properties at that price, long and elaborate arguments have been addressed to us from the Bar and many cases have been cited in support of the Court';; reluctance to interfere with the absolute discretion given to the Trustee. Before making any reference to the cases the general legal position can be stated in. the following terms on the authority of Farwell on Powers, Third Edition. Before making any reference to the cases the general legal position can be stated in. the following terms on the authority of Farwell on Powers, Third Edition. The principle is, that where a power, which is purely discretionary, is given to trustees, the Court cannot exercise such power or compel the trustees to exercise such power in any particular manner, but can restrain them from exercising it in any improper manner. If, however, there is a duty coupled with the power, then the Court can compel the trustee to perform that duty (Farwell on Powers, 3rd Edn., page 50 ). If the Trustees refuse to exercise their discretion at all, the Court will treat it as a trust, and direct an inquiry how much ought to be allowed for maintenance and the Court if it considers that the trustees were acting capriciously, can interfere. But if, by the instrument creating the power, the discretion is made absolute and uncontrollable, the Court cannot, interfere (Farwell on Powers, Third Edition, page 54). A power may be conferred upon the donee either beneficially or in trust. In the latter case the power is merely part of the machinery of the trust. Thus, if property is conveyed to trustees upon certain trusts, with power of sale, the power is a trust-power, and must be exercised, if at all, solely for the purposes of the trust, but the trustees have a discretion as to exercising it, with which the Court will not interfere, so long ay the trustees in fact exercise their discretion in good faith. The Court will interfere if trustees refuse to exercise their discretion, or do so capriciously. But there is an intermediate class of cases, where a power of selection is given to a donee, who is not otherwise a trustee, and such a power is said to be a 'power in the nature of a trust', since the Court understands the donor of the power as creating a trust for the objects, subject only to the donee's power of selection ; and accordingly, the subject of the power will pass to the objects although the power has not been exercised, and although the Court cannot directly enforce its exercise. (Farwell on Powers, Third Edition, pages 524-5 ). The a authorities are clear on the point and almost on a similar clause there are certain leading authorities on the subject. (Farwell on Powers, Third Edition, pages 524-5 ). The a authorities are clear on the point and almost on a similar clause there are certain leading authorities on the subject. It will be appropriate therefore, take to notice of some of those decisions, in (1) Charlotte F. Gisborne v. Walter Joseph Gisborne, 2 A. C. 300 it is laid clown that where by a Will a property is given to the Trustees on the express term of absolute discretion and uncontrollable authority, the Court will not exercise its ordinary powers. At page 305 if that report Lord Chancel for, Lord Cairns, observed as follows:- "My Lords, larger words than those, it appears to me, it would be impossible to introduce into a Will. The Trustees are not merely to have discretion, but they are to have 'un-control-lable',t that is, uncontrolled, ' Authority'. Their discretion and authority, always supposing that there is no malafides with regard to its exercise, is to be without any check or control from any superior tribunal. . . . . . .,and upon the question of what is expedient it is their discretion which is to decide, and that discretion according to which they are to decide is to be uncontrolled. " Another high authority is in (2) Chambers and Ors. v Smith and ors. 3 A. C. 795 In that ease the House of Lords lays down that where trustees have an unlimited discretionary power to postpone as long as they think fit, the payments of shares of a residuary fund ; and where of the time and manner of exercising the power they are to be the sole and final judges, nothing can abridge the powers of the trustees as long as they act reasonably, fairly and without male -fides. Lord Blackburn at pages 815-6 of that report observed as follows:- "My Lords, where a trustier gives discretionary powers to be exercised by his trustees, in order to protect the interests of others, the trustees are bound to exercise their discretion and cannot in general deprive themselves by anticipation of the power to do so: Welter v. Kerr-Law Rep, 1 H. L. Sc. 11. 11. In the present case, however, the terms of the trust are such that the trustees might properly pay the whole or part of the share at the end of six months or any subsequent period ; and they in fact did pay a part and as to that part their discretionary power was gone. " 5. A similar question has come up before the Courts from time to time and In the light of the principles laid down by the above authorities, the legislation seems to be well settled In (3) Tempest v. Lord Camoys, reported in 21 Chancery Division, 571 it is laid down that where absolute discretion has been given to trustees as to the exercise of a power the Court will not compel them to exercise it but if they propose to exercise it, the Court will see that they do not exercise it improperly or unreasonably. This is also an authority for the proposition that where the power is coupled with a trust or duty the Court will enforce the proper and timely exercise of the power, but will not interfere with the discretion of the trustees as to the particular time or manner of their bonafide exercise of it. In that case there was even a difference amongst the trustees, but not with standing that difference the Court of Appeal upheld the decision of Chitty, J. that the Court not control the dissentient trustee in the exercise of his discretion in refusing to make the purchase, or in refusing to exercise his power of raising money by mortgage for the proposed purpose. The trustees had absolute discretion in that case, Chitty, J., at page 574 of that report in commenting on the House of Lord's decision in (1) Gisborne v. Gisborne, 2 A. C. 300 observed:- "The words in the will are "uncontrollable authority", but it is to be observed that both the Court of Appeal and the House of Lords in the decree varied the expression by using the words 'the trustees have an absolute discretion' The result is this, although I do not think this argument is really needed, upon construing the will the Court of Appeal and the House of Lords put in the very term 'absolute' in lieu of the term 'uncontrollable' to express the meaning of the decision at which they arrived-the very term which we have in this will. " 6. IN the Court of appeal Jeassel, M. R. at page 578 of the report made the following observations: - "But in all cases where there is a trust or duty coupled with the power the Court will then compel the trustees to carry it out in a proper manner and within a reasonable time, In the present case there was a power which amounts to a trust to invest the fund in question in the purchase of land. The trustees would not be allowed by the Court to disregard that trust, and if Mr. Fleming had refused to invest the money in land at all the Court will have found no difficulty in interfering. But that is a very difficult thing from saying that the Court ought to take from the trustees their uncontrolled discretion as to the particular time for the investment and the particular property which should be purchased. In this particularly case it appears to me that the testator in his will has carefully distinguished between what is to be at the discretion of the trustees and what is obligatory on them. " Taking a cue from the above observations Mr. Basu for the appellant attempted to distinguish the present case by saying that here under the will the sale was a duty coupled with the power and as the official trustee has not sold, therefore, the Court should interfere. This distinction is without a difference as Jessel, M. R., himself had pointed out in the above observation. Basu for the appellant attempted to distinguish the present case by saying that here under the will the sale was a duty coupled with the power and as the official trustee has not sold, therefore, the Court should interfere. This distinction is without a difference as Jessel, M. R., himself had pointed out in the above observation. Cause 7 of the will as quoted above in this case no doubt makes the trustee responsible for selling the estate but then it is expressly provided in the clause that in so doing the trustee will have "absolute discretion" as he thinks 'proper' to postpone the sale, calling in, or conversion of any part of the estate for such period as the trustee thinks proper. Having regard to the large number of properties and having regard to the fact that the trustee has been selling these properties from time to time it cannot be said that the trustee has committed any breach of the trust to sell the estate under clause 7 of the will. Naturally such properties cannot be sold in a hurry. In this connection Mr. Basu for the appellant referred to the decision in the (4) Rs: Courtier, Coles v. Courtier, Courtier v. Coles, reported in 34 Chancery Division, 136. The ratio of that decision is that there also the Court held that it had no jurisdiction to interfere with the discretion of the widow, who hid then become surviving trustee, and to order her to exercise her power of selling the leaseholds. But Mr, Basu's reliance was mainly on the grounds of distinction between this case and the case of (3) Tempest v. Lord Camoys, 21 Ch. D, 576 quoted above. Cotton, L. J., at page 140 of the Report n (4) 34 Ch, D. 136 made the following observations on which Mr. Basu relied :- "The second question we have to decide is whether the Court ought to compel the surviving trustee to sell the short leaseholds. I can see no reason for the Court making such an order. There is an imperative trust for sale after the death of the tenant for life, but during her life the short leaseholds are only to be sold if the trustees should think it advisable. I can see no reason for the Court making such an order. There is an imperative trust for sale after the death of the tenant for life, but during her life the short leaseholds are only to be sold if the trustees should think it advisable. This power is not a part of a general trust for the management of the estate ; it is a mere discretion given to the trustees. It is true that in such cases as Nickisson v. Cockill, 3 D. J, and S. 622 and Tempest v. Lord Camoys, 21 Ch. D. 576, were there was what appeared to be a mere discretionary power, the Court dealt with it as part of a trust for management of the estate, and interfered with the trustees' discretion. But those cases were decided on the special terms of the will; the Court considered the power introduced in the trust for management as part of the trust. But it is clearly settled law that where the trustees have a power as distinguished from a trust, although the Court will prevent them from executing the power unreasonably, it will not oblige them to exercise it. " 7. THE case mentioned by Cotton, L. J., reported as (3) Tempest v. Lord Camoys in the note portion at page 576 of the Report in 21 Ch, D. 571 was a case where a testator gave to his trustees a special power of leasing at their absolute discretion ; which formed part of a special scheme of management of his mansion-house and estate for a limited period. In that connection it was held by the Court in a suit for execution of the trusts of the will the Court would compel the trustees to exercise the power of leasing. Lord Cairns, L. C. who delivered the judgment observed at page 577 of the Report in 21 Ch. D. as follows:- "It seems to me that the power is nothing more than part of a general scheme for the management of the estate; and the estate being brought under the management and superintendence of the Court on a scheme now before the Court, the Court will see that this part is as much as any other part, attended to," This, however, is not the case in the instant appeal before us and therefore this principle cannot be Invoked to distinguish the present case. This position will be abundantly clear if we consider now a few more decisions on this point. The first is (5) Re: Burrage Burningham v. Burrage, reported in 62 L. T. (N. S.) 752, Here Chitty, J. reaffirms the principle which he had laid down in the first decision (3) Tempest v. Lord Camoys, that where a power is coupled with a trust or duty, the court would enforce the proper and timely exercise of the power, but would lot interfere with the discretion of the trustees as to the particular time or the manner or their bonafide exercise of it. Chitty, J. at page 753 of the report puts this proposition in a very short judgment briefly as follows : "The question which I have to decide is, whether the trustees of a voluntary settlement should be ordered to sell at once certain leasehold premises, and invest the proceed; of sale so as to equalise as far as possible the income between a tenant for life and those entitled in remainder. There is undoubtedly a duty upon the trustees to sell the leaseholds some time. I think their power of sale is coupled with a trust or duty, which the court will enforce if the trustees neglect to act in a proper and timely manner, but the court will not interfere with the discretion which the trustees possess as to the particular time or manner when aid in which they will exercise their power, so long as their conduct is bona fide and they act fairly between the beneficiaries. " Now in the facts of this case the Official Trustee certainly acted bonafide and ho acted fairly to the beneficiaries especially because when one beneficiary actually opposed and the other left it to the discretion of the Official Trustee. On those facts the instant case comes within the principle laid down by Chitty, J. in (5) Re: Burrage Burningham v. Burrage, 62 L. T. N. S. 752. 8. THE next case is (6) in Re Bryant v. Hicktley-reported in 1894 (1) Chancery Division 324. There the Court was of the view that there was no absolute trust to apply the income to the maintenance of the infants, but a discretionary trust, equivalent to a power. 8. THE next case is (6) in Re Bryant v. Hicktley-reported in 1894 (1) Chancery Division 324. There the Court was of the view that there was no absolute trust to apply the income to the maintenance of the infants, but a discretionary trust, equivalent to a power. In that view of the matter the Court was of the opinion that the co-trustees having, in the bona fide exercise of their discretion, refused to make any allowance for maintenance, because they did not consider it necessary or for the true benefit of the infants at the time, the Court could not interfere to over-rule their discretion. Chitty, J. who delivered the decision in this case also made a similar observation at page 330-32 of that report the next case is (7) in Re Charteris v. Biddulph-reported in 1917 (2) Chancery Division 379. Lord Justice Swinfen Rady after reviewing the leading cases in (1) Gisborne v. Gisborne and (3) Tempest v. Lord Camoys, at page 391 summed up his conclusion at page 393 of that report in the following terms : - "Effect must be given to the express power to postpone or delay sale or conversion, into money of any part or parts the estate. In my opinion, where there is an express power to postpone contained in a will, and where the executors are honestly exercising that power by reason of its being inexpedient to sell at the present time, it is immaterial that there is no sale within a year of the death. It may well be that in the absence of any such power to delay they might have to realize within a year from the death, for that is the ordinary period for realization ; but where there is an express power to postpone or delay the sale of any part or parts of the real and personal estate ; and 'to allow the same respectively to remain in the state of investment or condition existing at the time of my death, i am of opinion that there is no obligation upon the trustees to exercise the trust for sale or conversion within twelve months from the death. " The point there in that case was, whether when the Executor's year was over the trustee could delay the sale any further. " The point there in that case was, whether when the Executor's year was over the trustee could delay the sale any further. They had express power under the trusts in the Will to postpone or delay the sale. The Court upheld that power even though the executor's year was over. Here at this stage Mr. Boss made a reference to the fact that a long time has elapsed from the death of the testator in this case. It is said that the period his passed beyond the / limits of reasonable time. Seventeen long years have passed. The learned Editor of Fifteenth Edition of Lewin on Trusts at page 336 states, "where the trustees have a discretionary power they must exercise their judgment according to the circumstances as they exist at the time, and they cannot, therefore, anticipate the arrival of the proper period by affecting to release it or by pledging themselves before and as to the mode in which the power shall be executed in future. " No doubt powers are not to be exercised nuns pro tune. But then that principle is very different. What the learned Editor says there and that will be apparent from the reference he quotes in support of that proposition namely, (8) Weller v. Ker, L. R, 1 H. L. Se. 11 that the trustees cannot anticipate the arrival of the proper period by affecting to release or by pledging themselves beforehand no such question arises here. Here the question at best is a question of reasonable time. A large number of properties and very valuable properties, are involved in the present estate. Quick and rash sale cannot be made in the facts of this case, especially when there has been, as admitted by both sides, in their arguments from the Bar, that quite a large number of properties have been sold from time to time and the trust for sale is being executed. This particular sale was objected to on the ground of valuation and on the ground that it was opposed by two other beneficiaries. There is, therefore, nothing unfair or unreasonable in the facts of this case. What is reasonable is a question of fact in every case. This particular sale was objected to on the ground of valuation and on the ground that it was opposed by two other beneficiaries. There is, therefore, nothing unfair or unreasonable in the facts of this case. What is reasonable is a question of fact in every case. Indeed, clause 7 (c) of this Will before us expressly contemplates the trust continuing because it gives power to the trustee to lease properties for a term not exceeding twenty one years. We do not consider, therefore, that the Official Trustee has been at all dilatory in the facts of this case, the other case is (9) in re Blake_ 29 Chancery Division 913. The ratio again of that decision is that where the real estate is devised to trustees in trust for sale, with a discretionary power to postpone the sale, the court will not interfere with a bona fide exercise of their discretion as to the time and mode of sale. Cotton, L. J. at page 917 of the report made the following observations ; -There are landed estates in the country of Norfolk which are left to the trustees with what is really a trust for sale, because they were authorised and directed to sell with a discretionary power of postponing the sale ; and they are proceeding, having exercised their judgment, to Sell at once without any longer postponement. In my opinion it would be contrary to principle to interfere with the discretion of the trustees. They have considered the matter, and having regard to the circumstances of the case they say they consider that it would be proper to sell. Being, then, of opinion that it would be altogether wrong to interfere with the discretion of the trustees, I think the learned Judge was right in dismissing with costs that part of the summons which seeks to restrain the trustees from selling. " 9. MR. Bose for the appellant tried to get out of this principle by attempting a distinction that in that case the trustees were trying to obey the will by selling the property and therefore, carrying out the trust. But in this case, the main trust for sale is being delayed. This again is not a valid distinction. " 9. MR. Bose for the appellant tried to get out of this principle by attempting a distinction that in that case the trustees were trying to obey the will by selling the property and therefore, carrying out the trust. But in this case, the main trust for sale is being delayed. This again is not a valid distinction. The principle on which the English Court of appeal (9) in re: Blake, 29 C. D. 913, declined to interfere was not that the trustees were not selling, but because their discretion to appoint time of sale should not be interfered with by the Court. In other words, if the discretion is properly, reasonably and bona fide exercised by the trustees, their decision either to sell or postpone the sale will not be interfered with by the Court, especially when the discretion is in absolute terms as it is in the present Will before us, in fact this principle has been scrupulously observed by the Courts. The learned Editor of Lewin's Law of Trusts and Trustee, Tenth Edition at page 390 expresses the law to be: - "Not only will the Court refuse to restrain the exercise of discretionary powers, but it will give no relief to beneficiaries where the honest exercise of such a power has by error of judgment led to loss. Thus, where a testator directed the sale of his residuary estate, with power nevertheless to his trustees to postpone sale so long as they should in their uncontrolled discretion deem proper, the trustees were held to be free from any liability for loss caused by their having honestly retained certain shares for some years in a continually falling market. " Obviously, the Court's power of interference in a case of this nature is limited mainly to two main grounds. The first ground is the careful distinction between s true discretionary power and a power which although discretionary is really coupled with, a duty. We have considered that ground already. The other ground is naturally whether the trustee has not exercised the discretion at all or whether he has exercised this discretion capriciously not bona fide or not properly or not reasonably. We have considered that ground already. The other ground is naturally whether the trustee has not exercised the discretion at all or whether he has exercised this discretion capriciously not bona fide or not properly or not reasonably. On the facts of this case we are satisfied that neither of these two grounds exists here in the instant appeal before us for any interference with the Official Trustee's absolute discretion granted under the Will of the testator. The same conclusion can be reached by an examination of the relevant sections of the Trusts Act. Section 17 of the Trustees Act provides: "Where there are more beneficiaries than one, the trustee is bound to be impartial, and must not execute the trust for the advantage of one at the expense of another. Where the trustee has a discretionary power, nothing in this section shall be deemed to authorise he Court to control the exercise reasonably and in good faith of such discretion. " 10. IMPARTIALITY among the beneficiaries is one of the basic duties and obligations of: the trustee. The trustee has got to hold the balance fairly and according to the terms of the trust between the beneficiaries. This has been done by the Official Trustee in the facts of this case. This section gives statutory recognition to the principle already noticed by us that the Court will not control the exercise of the absolute discretionary power of trustee so long as it is exercised reasonably and in good faith. We have already held that the Official Trustee had acted reasonably in this case and in good faith. Sect. on 22 of the Trust Act provides for the case where sale by trustee is directed by the settler within a specified time. It says that where a trustee directed to sell within a specified time extends such time, the burden of proving, as between himself and the beneficiary that the latter is not prejudiced by the extension lies upon the trustee, unless the extension has been authorised by the appropriate court. It may be noticed here that under the terms of the present Will before is no specific time limit was given by the testator within which the trustee was directed to sell. Mr. It may be noticed here that under the terms of the present Will before is no specific time limit was given by the testator within which the trustee was directed to sell. Mr. Basu for the appellant made a reference to the second paragraph of section 38 of the Trust Act which reads as follows: "Where a trustee is directed to sell trust-property or to invest trust money in the purchase of property, he may exercised a reasonable discretion as to the time of effecting the sale or purchase. " Mr. Basu advanced his argument by relying on the statutory illustration (b) where it is said that if A bequeaths property to B, directing him to sell it at such time and in. such manner as he shall think fit and Invest the proceeds for the benefit of C, that does not authorise B, as between him and C, to postpone the sale to an indefinite period, the second paragraph or its statutory illustration under section 38 of the Trust Act does not help the appellant. No doubt the exercise by the trustee of his 'discretion must be a reasonable one. It must be a reasonable discretion as to the time of effecting the sale. But then as we have already pointed out, what is reasonable depends on the facts of the case. This is not a case of postponing the sale for an indefinite period of time. We have already stated that the sales have been. effected from time to time and sales are still being held. Section 49 of the Indian Trust Act gives express recognition to the principles noticed in the authorities cited above that where a discretionary power conferred on a trustee is not exercised reasonably and in good faith, then the appropriate Court can always control such power and interfere with the trustee. In that view of the matter, this Court's answer to question No. 1 is in the negative, before we leave this question, we need only add that the subsequent events show, and this was admitted by Counsel on both sides, that 5/6th share of the other co-sharers had already been sold and that the Official Trustee has filed a suit for partition of the plaintiff's 1/l8th share which is pending in this Court. The next point of law raised by the plaintiff is that he is entitled to the property in specie in satisfaction of his legacy. That point is raised in questions 2 and 5 mentioned above whether the plaintiff-appellant is entitled to the property in specie or not must in the first instance depend on the very terms of the Will, We shall, therefore, address ourselves first to the terms of the Will. Clause 7 of the Will already quoted above, clearly imposes trusts upon the Official Trustee to sell the estate of the testator and convert into money. That is the main trust. Clause 8 of the Will then proceeds to direct: "My trustees shall invest the moneys to arise from the said sale calling in and conversion of or forming part of my said real and personal movable and immovable estate and property (which moneys and the property for the time being representing the same are hereinafter called 'the Trust Fund') in the name if my trustee in or upon any of the investments hereby authorised with power to vary or transpose such investments for or into others or a nature hereby authorised. " That makes it clear that the trustees shall invest moneys arising from the sale of various investments. It is followed by clause 9 of the Will which is in these terms:- "My trustee shall hold the residue of the said moneys upon Trust to divide the same into as many equal shares as shall be necessary to provide two shares for my grandson Civil Libovitz son of my deceased daughter Rachel Libovitz two shares for my grandson Eric Ezra son of my deceased son Elias Ezra one share for my grand daughter Giovanna Marie Theresa Babette (Mary) nee Ezra the daughter of my deceased son David Ezra and one share for my grand daughter Claudine Libovitz daughter of my deceased daughter Rachel Libovitz who or any issue of whom shall be living at my death. " 11. THE main feature of this very important clause in the Will is that the trustees are directed to hold the residue of the moneys. He is also directed to divide that residue into certain shares stated there. " 11. THE main feature of this very important clause in the Will is that the trustees are directed to hold the residue of the moneys. He is also directed to divide that residue into certain shares stated there. It follows, therefore, on the interpretation of the above clauses in the Will, that the trustee's duty is to first convert and then to invest the sale proceeds and then to hold the residue and thereafter to divide the residue into certain shares. That seems to leave no scope for any transfer of property in specie, mr. Bose for the appellant realises that position and therefore relies on clause 10 of the Will which is in these terms: "My trustee shall hold the share of the Trust Fund hereinbefore given to my said grandson Cecil Libovitz in trust for him absolutely. " 12. MR. Basu relies on the word 'absolutely', and contends that the appellant has an absolute share as mentioned in clause 9 in the trust fund. He also contends on the strength of clause 8 that the trust fund consists not only of moneys of the sale proceeds of property conveyed but also of real property which had remained unsold. In support of his argument he also mentions that clause 11 in the Will giving the share to the other grandson Eric Ezra, the provision for absolute grant is not made in exactly similar terms as in clause 10. It is to be noted however that the material portion of clause 11 of the Will reads as follows: "My trustee shall hold the share hereinbefore given to my said grandson Eric Ezra upon trust (a) to transfer the capital and any unspent income thereof to him on his attaining the age of twenty five years for his own use absolutely. " And (b) certain other provisions not relevant for the present appeal. On a careful reading of clauses 10 and 11 of the Will and particularly clause 10 we have come to the conclusion that Mr. Basu's submission cannot be accepted. What clause 10 of the Will does is to make the trustee hold share of trust fund given to Cecil Libovitz in trust for him absolutely. But what is this trust fund ? This trust fund 13 begin with is a fund composed of sale proceeds plus such of the properties which remained unsold. Basu's submission cannot be accepted. What clause 10 of the Will does is to make the trustee hold share of trust fund given to Cecil Libovitz in trust for him absolutely. But what is this trust fund ? This trust fund 13 begin with is a fund composed of sale proceeds plus such of the properties which remained unsold. But then the trustee is to sell all the estate. No property was expected to remain. unsold, but naturally in the process of time it could only be done from time to time and therefore, the trust fund included in clause 8 of the Will both the sale proceeds as well as the proper sale proceeds as well as the properties which remained unsold. But that does not mean that clause 10 overrides clause 9. Clause 9 of the Will makes it clear that the trustee is only to hold and to divide that residue of the moneys into shares mentioned there. No doubt the share of the appellant is absolute but share in what. On an interpretation of the different clauses in the Will there is no room for doubt that the share is in the residue of the moneys which are the sale proceeds of the estate. It does not appear to us that reading clauses 7, 8, 9, 10 and 11 it was at all the intention of testator that any property should in specie be transferred to the appellant or to any other beneficiary for the matter of that. The only other clause in the Will that we shall refer to is clause 18 which uses the words 'in specie'. The only other clause in the Will that we shall refer to is clause 18 which uses the words 'in specie'. Clause 18 of the Will is as follows: "I declare that my trustee may appropriate any part of my estate in specie and whether of a description hereinafter authorised as investments or not in satisfaction of the whole or any part of any legacy or any share in the trust fund hereby constituted and may make such appropriation upon any valuation or estimate of value that my trustee shall think fit and that any such appropriation so made and the value placed upon the property so appropriated by my trustee shall be binding upon all persons interested under this my Will or any codicil hereto and that any investment or property so appropriated shall be subject to the same trusts or powers of sale and conditions and investments as if such appropriation; had not been made" No doubt this clause gives the power to the trustee to appropriate any part of the estate 'in specie' in satisfaction of the whole or any part of any legacy or any share in the trust fund. But then that is discretionary power for the trustee to appropriate. The same view was taken by Swinfen Rady, L. J., (7) in are: Charteris, reported in (1917) 2 Ch. D. 379 at page 392, There the learned Lord Justice observed: "Therefore I he power of appropriation is not a power which trustees can be compelled to exercise. " It is not for the beneficiary to enforce. It is all the more significant that the only way that the testator could think of transfer in specie was to proceed by way of. appropriation in trustee's discretion and not otherwise and he, therefore, impliedly denied that right to the beneficiary to claim in specie. To allow beneficiary any right to claim in specie would have been to frustrate the whole and the main object of the trust, namely a trust for sale and to hold the residue of the moneys and finally to divide that residue into certain shares. To allow beneficiary any right to claim in specie would have been to frustrate the whole and the main object of the trust, namely a trust for sale and to hold the residue of the moneys and finally to divide that residue into certain shares. In support of this conclusion we shall also advance the reason that the share of the beneficiaries in specie is at best an undivided share in the estate and no beneficiary can claim any particular property or properties as his share and therefore if the beneficiaries were permitted to claim in specie in a trust of these terms and of this nature then that could only be done by carrying out extensive partition and separation of the estate which are beyond the contemplation of the Will or language of its terms, and which if allowed will frustrate the whole object of the trust in the Will, on the terms of the Will and their interpretation we are, therefore, of the opinion that the appellant or any of the beneficiaries has ho legal right to claim property in specie. Now we shall notice some of the authorities on this point. The first authority on this branch of the law is (10), in re. Horsnaill, reported in. (1909) 1 Ch. D. 631. It is an authority for the proposition that whore land is devised to trustees in trust for sale with a discretionary power of postponement, and the proceeds are settled in trust for various beneficiaries, the vesting in possession of the share of one of the beneficiaries does not put an end to the power of postponement or entitled that beneficiary to call either for an immediate sale of the entirety or for a conveyance of an undivided share in the land. That was also a case on originating summons. ' Swinfen Eady, J. in that case at page 635 enunciates the law in the following terms: "In the present case there is one settlement, by the Will, of one estate upon trust for sale, not three settlements ; the settlement effected is of the proceeds of sale; no one cestuis que trust can call for a conveyance of the fee, or any undivided share of it. Where there is a trust for sale all the cestuis que trust must be absolutely entitled and concur in applying for a conveyance In lieu of a sale in order to obviate the need for a sale-In re Tweedie and Miles, 27 Ch. D. 345-and until they do so the trust for sale will also continue until all the shares become vested in possession. " 13. THIS enunciation of the law was approved of by the English Court of Appeal (11) in re. Kipping, reported in (1914) 1 Ch. D. 62. Buckley L. J., at page 67 of the report answers the contention of the appellant in this case and we shall quote the following observations of the learned Lord Justice : "The trusts declared of the proceed 3 of sale were for such of his children, who in fact were seven in number, as should attain the age of twenty-one years. Two of his children, had, at the date of the originating summons, attained that age. One of these two contends that he is entitled to have the residuary estate or a sufficient portion thereof sold in order that he may be paid his one-seventh share thereof, notwithstanding that the trustees in the bona fide exercise of their discretion have abstained from selling. In other words, his contention is that the trustees are bound to sell because he has a right to i distributive share of the residuary estate and to be paid that share. He is not, in my opinion, so entitled. The Will gives him., not a distributive share of a sum of money, but a distributive share of the income of the property so long as it remains unsold, and a distributive share of the proceeds of sale when the property is sold. There is no gift of the proceeds of sale until the property is sold, mid he is not entitled to interfere with the bona fide exercise by the trustees of their discretion and to call upon them to sell. There is no original gift to him under which is entitled to have the property sold now. The learned Judge followed the decision of Swinfen Eady, J. in re. Horsnail (1909) 1 Ch. D. 631, a case which, in my opinion, was rightly decided. " 14. AT this stage Mr, Basu for the appellant was inspired by the observation of Swinfen Eady, J. in. The learned Judge followed the decision of Swinfen Eady, J. in re. Horsnail (1909) 1 Ch. D. 631, a case which, in my opinion, was rightly decided. " 14. AT this stage Mr, Basu for the appellant was inspired by the observation of Swinfen Eady, J. in. (10) In re, Horsnail, reported in (1909) 1 Ch. D. 631 at page 635 which has already been quoted. The portion which inspired Mr. Basu to a new argument was the part of the observation of the learned Judge about one settlement and not three settlements. He invoked these observations to strengthen his submission which he made on clause 20 of the Will which mentions 'different trustee', Therefore, he submitted that this will also had different settlements under it. This argument is irrelevant and does not help the appellant in any way. It is irrelevant because the nature of the trust is such in this Will dealing with the division of the residue in money according to the shares in clause 9 that it cannot be called different settlements in the sense swinfen Eady, J: mentioned in the observations quoted above. The words 'different trusts' mentioned in clause 20 of the Will mean not separate settlements because all the different beneficiaries are interested in the entire estate under the same will and in respect of the same estate. The expression 'different trusts' in the context of this will mean the different directions that the testator gave to the trustee in respect of different beneficiaries. All the properties have to be sold under clause 7 and the residue of the sale proceeds ultimately will have to be divided under clause 9 according to shares stated there. Section 56 of the Trusts Act makes no difference in it e facts of this case and it does not give any right to the Appellant under the terms of this Will to claim properly in specie. What remains is question No. 3 as enumerated shove. The learned trial Judge did not answer the question on the ground that it was impossible to answer the question on the materials before the Court. What remains is question No. 3 as enumerated shove. The learned trial Judge did not answer the question on the ground that it was impossible to answer the question on the materials before the Court. On the facts already appearing fro n the record and particularly on the submissions made by the Counsel for the Official Trustee it appears that no Special provision need be made by this Court as we are satisfied that all reasonable provision has been made by the Official Trustee in respect of income tax, wealth tax etc. We answer the question accordingly. Lastly the 6th question as enumerated above w is rightly recorded by the learned Judge that it did not arise. For the reasons and grounds stated above this appeal is dismissed. The costs of the respondent Official Trustee as between attorney and client including the costs of the appellant will come out of the estate. Certified for two Counsel for the appellant.