Shew Bux Mohato & Ors Vs. Ajit
Nath Dutta  INSC 141 (24 August 1966)
24/08/1966 BACHAWAT, R.S.
CITATION: 1967 AIR 1204 1967 SCR (1) 162
Probate and Administration Act, 1881, s.
90(1)-Power of executor to deal with property-When regarded as restricted.
N, by a will made in December 1888, appointed
his widow, S, as the executrix of his estate; he also bequeathed to her for her
natural life certain garden lands measuring about 31 bighas and after her death
to his son absolutely by way of vested remainder. Clause 3 of the will directed
S to pay maintenance to the Testator's mother; clause 4 provides that S could
sell any portion of the estate if necessary, for the purpose of meeting the
marriage expenses of the testator's son and daughter; clause 5 provided that
the executrix would pay the testator's debts and realize his dues.
After N's death in September, 1899, the
plaintiff's predecessor in interest purchased the son's interest at an auction
sale held in execution of a decree against the son who became an insolvent.
In July 1901 S executed a lease of 6 bighas
out of the aforesaid 31 bighas of garden land and the interest in this
leasehold subsequently vested in the 3rd defendant.
In September 1945 the plaintiffs instituted a
suit claiming a declaration of their title to and for recovery of khas
possession of the garden land and for other reliefs. '[be Trial Court decreed
the suit. The decree passed against the defendants other than the 3rd defendant
was confirmed by the High Court and became final. In the appeal filed by the
3rd defendant, the High Court confirmed the decree of the trial court declaring
the plaintiffs title to the 6 bighas of land covered by the leasehold, 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.
In the appeal to this Court the plaintiffs
challenged the correctness of the decree and it was contended on their behalf that
the specific authority in clause 4 of the will to deal with the estate in a
particular way negatived any authority to deal with it in any other way. The
question for consideration therefore was whether the will of N imposed any
restriction on the power of S. executrix, to dispose of his immovable
properties vested in her as the executrix.
HELD : On the consideration of the terms of
the will that Clause 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 restricting the power of the executrix to deal with the property under a.
90 (1) of the Probate and Administration Act, 1881. The principle expressum
facit cessare tacitum had no application to the case. [165 E-F] Purna Chandra
Bakshi v. Nobin Chandra Gangopadhya, (1903) 8 C.W.N. 362, referred to.
CIVIL 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. 1 1 1 of 1948.
A. K. Sen, S. N. Choudhuri and D. N.
Mukherjee, for the appellant.
A. N. Sinha and S. N. Mukherjee, for the
The Judgment of the Court was delivered by
Bachawat, J. The only question arising in this certificates appeal is whether
the will of Nursingdas Seat imposed any restriction 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, Nilakantha absolutely by way of vested remainder.
On September 9, 1899 one Sewdas Mobata
purchased the interest of Nilkantha in the garden lands at an auction sale held
in execution of a decree 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 Sukheswari 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 Sukheswari 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
aforesaid 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
subsequently 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 posses164 sion of the garden lands and for other reliefs. The trial
Court decreed 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 challenged by the
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:
"1. 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 immovable properties
etc. which will be left by me as long as she will be alive and after her death
my son Shree Nilakantha Sea 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,
Nilkantha Seal have not been married as yet.
My wife willspend 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 marriages. I give her absolute power in that
165 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 Sukheswari 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
Clause 5 directed the executrix to pay the
Clause 3 directed her to pay maintenance to
the mother and stepmother of the testator. The testator could not have intended
to impose any restriction 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
marriage of her daughter. The 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 executrix
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 to the power of the executrix to lease the property and the
principle expressum facit cessare tacitun has no application.
In Purna Chandra Bakshi v. Nobin Chandra
Gangopadhya(l) the Calcutta High Court held 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, 1881 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, clause 4 of
the will of Nursingdas did not impose any restriction on the power of the
executrix to lease the property in due Course of administration. The lease is
binding on the plaintiff-,, and they cannot recover khas possession of the
property in this suit.
(1) (1913) 8 C.W.N. 362.
166 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 there under.
The appeal is dismissed with costs.