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PETITIONER: SHEW BUX MOHATO & ORS.

       Vs.

RESPONDENT: AJIT NATH DUTTA

DATE OF JUDGMENT: 24/08/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. SHAH, J.C.

CITATION:  1967 AIR 1204            1967 SCR  (1) 162

ACT: Probate  and  Administration Act, 1881,  s.  90(1)-Power  of executor to deal with property-When regarded as restricted.

HEADNOTE: 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

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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. 163

JUDGMENT: 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 respondents. 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 posses- 164 sion  of the garden lands and for other reliefs.  The  trial Court  decreed  the  suit.  The decree  passed  against  the

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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 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:               "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 behalf.               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  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 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

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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  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  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 thereunder. The appeal is dismissed with costs.                                    Appeal dismissed. R.K.P.S. 167