SHEW BUX MOHATO & ORS. v. AJJT NATH Dl!ITA August 24, 1966 [K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT. JJ.] Probate and Administration Act, 1881, •. 90(1)-Power of utt11tor to d6111 with properr,-When retarded 03 ratrlcted.
N, by a will made in December 1888, appointed his widow, S, u the executrix of his estate; he also bequeathed to her for her natural life certain garden lands measurina; about 31 bijbaa and at~ her dealb to C bis aon absolutely by way of vealed remainder.
aauso 3 of the will directed S to pay maintenance to the T..,tator's mother; clause 4 provides that S could sell any portion of the estate if occesaary, for the purpose ol meeting the marriage expensea of the testator'• oon and daughter; clauh 5 provided that the executrix would pay the testator'• debto and realize IW dueo.
After N'1 death in September, 1899, the plaintilr1 rredeceaor in D interest purchased the aon's interest at an auction sale held in execution of a decree agaimt the son who became an insolvent.
In July 1901 S executed a leue of 6 bighaa out of the aforesaid 31 bighu of garden land and the interest in thia leuebold su"'eqneo1ly vealed in the 3rd defendant. In September 1945 the plaintiffs instituted.a auit claiming a declaration E of their title to and for recovery of khaa possession of the garden land and for other reliefs. The Trial Coun decreed the auit. The decree P- ed against the dereodnnts other than the 3rd defendant was confirmed
by the High Court and became final. In the appeal tiled by the 3rd defendant, the High Court confirmed 1ho decree of the trial coort declar· ins the plaintift's title to the 6 blghu of · land covered by the leasehold, but It set aside the decree for recovery of khaa possession and m1111e profits, and instead passed a decree for 3 yeara rent in
respect of the F property. In the appeal to this Court the plaintills challenged the correctness of the decree and it was contended on their behalf that the specific autho- rity in clause 4 of the will to deal with the estate in a particular way nega- tived any authority to deal with it in any other way. 1be question for consideration therefore was whether the will of N imposed any restriction on the power of S. executrix, to dispose of hia immovable properties veoted G in her aa the executrix.
HELD : On tho conaideration of the terma of Ille will that CllUIO 4 of the will did not fetter the power of the executrix to lease the property in due course of administration. Clear language was required for rm-
tricting the power of the executrix to deal with the property under ·&. 90 (I) of the Probate and Administration Act, 1881. The pnnciole apr111- H Sl4m faclt cn!are taciturn bad no application to the case. [16S B-F) hma CMndra Bak.rlti "· Hobin Clumdra GllllfOpadhya, ( 1903) 8 C.W.N. 562. referred to.
s. B. MOHATO v. A. N. DATTA (Bachawat, /.) CML APPELLATE JURISDICTION : Civil Appeal No. 196 of 1964. Appeal from the judgment and decree dated September 8, 1954, of the Calcutta High Court in Appeal from Original Decree No. 111 of 1948.
A. K. Sen, S. N. Choudhuri and D. N. Mukhtrjee, for the c appellant. A. N. Sinha and S. N. Mukherjee, for the respondents. The Judgment of the Court was delivered by Bachawat, J. The only question arising in this certificate appeal is whether the will of Nursingdas Seal imposed any restric- tion on the power of the executrix appointed by the will to dispose of his immovable properties vested in her as the executrix. Nursingdas Seal was the owner of garden land measuring 31
bighas and known as premises Nos. 26, 27 and 28, Dum Dum Cossipore Road, Ghooghoodanga. He died in December, 1888, leaving a will dated December 11, 1888 whereby he appointed his widow, Sukheswari, as the executrix and bequeathed his estate to Sukheswari for
her natural life and thereafter to his son, Nila- kantha absolutely by way of vested remainder. On September 9, 1899 one Sewdas Mohata purchased the interest of Nilkantha in the garden lands at an auction sale held in execution of a decr~e passed in a suit to enforce a mortgage dated September 7, 1893 executed by Nilkantha. Nilkantha became an insolvent and his estate· vested in the Official Assignee of Bengal. Sewdas's title to the property subject to the life interest of Sukhes- wari was confirmed by a compromise decree dated February 17, 1904 passed in Suit No. 595 of 1901 and a conveyance dated August 17, 1904 executed by Sukhe~wari and the Official Assignee of Bengal as the assignee of the estate of Nilkantha. On April 20, 1933, Sukheswari died. The title of Sewdas to the property subsequently devolved on the plaintiffs.
On July 30, 1901 one Upendra Nath Addey obtained from Sukheswari a Mourashi Mokrari lease of 6 bighas out of the afore- said 31 bighas of garden land on payment of Rs. 1,300/- by way of salami or premium. The leased property is comprised in C.S. Dags Nos. 144-150. The lease was executed by Sukheswari in pursuance of ·a decree passed against her on September 2, 1899 in a suit for specific performance of an agreement executed by her in or about 1891. The leasehold interest of Upendra Nath became iubsequently vested in the third defendant.
On September 15, 1945, the plaintiffs instituted the present suit claiming a declaration of their title and recovery of khas posses- I 84 SUPllEMB COUil T llEPOR TS (1967) 1 s.c.R.
sion of the garden lands and for other reliefs. The trial Court <lecreed the suit. The decree passed against the defendants other than the third defendant was confirmed by the High Court, and has now become final. In the appeal filed by the third defendant, the High Court confirmed the decree of the trial Court declaring the plaintiffs' title to 6 bighas of land comprised in C.S. Dags Nos. 144-150, but it set aside the decree for recovery of khas possession and mesne profits, and instead passed a decree for 3 years' rent in respect of the property. The correctness of this decree is chal- lenged by the plaintiffs.
If Sukheswari had power to lease C.S. Dags Nos. 144 to 150 to Upendra Nath Addy, it is not disputed that the plaintiffs cannot recover khas possession of the property from the third defendant this suit. Counsel for the plaintiffs, however, submitted that Sukheswari had no power to grant the lease. This contention was accepted by the trial Court, but it was rejected by the High Court. Under s. 90 of the Probate and Administration Act, 1881 (Act No. 5 of 1881), Sukheswari had power to lease the property unless this power was restricted by Nursingdas's will. Counsel submitted that cl. 4 of the will imposed such a restriction. The operative part of the will consisted of five clauses, which were in these terms:
"I. I appoint my wife Sm. Sooleswari alias Begum as the Executrix. 2. After my death aforesaid wife being vested with my title will enjoy and possess all the movable and im- movable properties etc. w~ich will be left by me as long
as she will be alive and after her death my son Shree Nilakantha Seal will come to be vested with the same title. 3. My wife will make payment in the same manner in· which I have been paying the maintenance (Kheraki)
to . my revered mother and stepmother and will make the house-hold expenses etc. in the same manner in which I have been making. 4. My second daughter and the aforesaid son, Nil- kantha Seal have not been married as yet. My wife will
spend a reasonable sum from my Estate on account of their marriage. If for that purpose a portion of my Estate has to be sold out, then my said wife will sell any portion of my estate whatever and will perform the said marriag~.
I give h~ absolute power in that behalf. c c s. B. MOHATO V. A. N. DATTA (Bachawat, J.) 5. My Executor will repay my debts on my death and realise my dues." It is to be noticed that clause 4 of the will authorised Sukhes- wari to sell a portion of the estate for meeting the expenses of the marriages of Nilkantha and his sister. Counsel for the appellant submitted that the specific authority in clause 4 to deal with the estate in a particular way negatived any authority to deal with it in other ways.
We are unable to accept this contention. Clause 5 directed the executrix to pay the testator's debts. Clause 3 directed her to pay maintenance to the mother and stepmother of the testa- tor. The testator could not have intended to impose any restric- tion on the power of the executrix to dispose of the estate for the payment of the debts and the maintenance. Clause 4 cannot be regarded as a general restriction on the power of Sukheswari to dispose of the properties in due course of administration. Counsel submitted that the lease was executed by Sukheswari for the purpose of raising money to meet the expenses of the mar- riage of her daughter. He argued that in view of clause 4 of the will, Sukheswari could raise money for this purpose by selling a portion of the estate and in no other manner. The materials on the record do not clearly indicate why Sukheswari granted the lease.
But we shall assume that the purpose of the lease was to raise moneys for meeting the marriage expenses. In our opinion. clause 4 did not fetter the power of the executrix to grant this lease. Clear language was required for restricting the power of the exe- cutrix to deal with the property under s. 90 (1) of the Probate and Administration Act, 1881. The will contained no such language. There was no provision in the will with regard 1o the power of the executrix to lease the property and the principle expresswn facil cessare tacitum has no application.
In Puma Chandra Bakshi v. Nobin Chandra Gangopadhya(') the Calcutta High Court h~ld that a provision in a will authorising the executor to sell the testator's property to pay off his debts could not be regarded as an implied prohibition against mortgaging the property. The executor had power under s. 90 of the Probate and Administration Act, I 881 to mortgage the property for paying the debts. The express power to sell the property did not imply a restriction on her to dispose of it in any other way under s. 90. We agree with this decision. In our opinion, clam;e 4 of the will of Nursingdas did not impose any restriction on the power of the exe- cutrix to lease the property in due course of administration_ The lease is binding on the plaintiffs, and they cannot re- cover khas possession of the property in this suit.
(I) (19J3) 8 C.W.N. 362. SUPRBMI! COURT RBPORTS ( 196 7] I s.c.R. This finding is sufficient for the disposal of the appeal. We, therefore, express no opinion on the question whether the title of the appellants to the property has now vested in the State of West Bengal under the West Bengal Estate Acquisition Act, 1953 and the notifications issued thereunder.
The appeal is dismissed with costs. Appeal dismissed. R.K.P.S.