Dismissed¶62

Shew Bux Mohato & Ors. v. Ajjt Nath Dutta

Supreme Court24 Aug 19661966 INSC 143 · [1967] 1 S.C.R. 1621966 INSC 143

Case brief

AI extract

What is this about?

S. B. Mohato v. A. N. Datta, Supreme Court of India, August 24, 1966, Civil Appeal No. 196 of 1964 (Wanchoo, Shah and Bachawat JJ.; judgment by Bachawat J.). Executrix's power under s. 90 of the Probate and Administration Act, 1881 to lease estate property is not restricted by a specific clause 4 power of sale for marriage expenses; clear language is required to restrict an executrix's powers; expressio unius maxim inapplicable where will silent on leasing; Mourashi Mokrari lease of 6 bighas binding on plaintiffs claiming under purchaser of reversioner's interest; recovery of khas possession refused; vesting under West Bengal Estate Acquisition Act, 1953 expressly left open; appeal dismissed with costs.

What did the court decide?

None; the appeal was dismissed with costs. ¶62

Shew Bux Mohato & Ors. versus Ajjt Nath Dutta — Supreme Court (1967) — LawSathi Research

What the court decided

AI extract

Outcome

None; the appeal was dismissed with costs.

¶62

Issue for consideration

Whether the will of Nursingdas Seal 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. +1 more

¶26

Court's answer

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.

¶54

Ratio / Principle

Clause 4 of the will of Nursingdas Seal did not impose any restriction on the power of the executrix to dispose of the properties in due course of administration; it did not fetter her power to grant the lease.

¶53

Key takeaways

As the will contained no provision with regard to the power of the executrix to lease the property, the principle expressio facil cessare tacitum had no application.ratio¶54
The lease executed by Sukheswari is binding on the plaintiffs, and they cannot recover khas possession of the property in this suit.ratio¶56
The Court expressed 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.

Detailed headnote1 paragraphs

Probate and Administration Act, 1881, s. 90(1) - Power of executrix to deal with estate property. Testator appointed his widow executrix, bequeathed his estate to her for life with vested remainder to his son, and by clause 4 authorised her to sell any portion of the estate for the marriage expenses of the son and daughter; clause 5 directed payment of debts. The executrix granted a Mourashi Mokrari lease of 6 bighas out of 31 bighas of garden land. Held: clause 4 did not fetter the executrix's power to lease the property in due course of administration; clear language is required to restrict the power of an executrix to deal with property under s. 90(1); the will contained no provision on leasing and the maxim expressio facil cessare tacitum had no application; an express power to sell does not imply a restriction on disposal in other ways (Puma Chandra Bakshi v. Nobin Chandra Gangopadhya, (1903) 8 C.W.N. 562, relied on). The lease is binding on the plaintiffs, who cannot recover khas possession. Whether the appellants' title has vested in the State of West Bengal under the West Bengal Estate Acquisition Act, 1953 was left open. Appeal dismissed with costs.

¶1

SHEW BUX MOHATO & ORS.

AJJT NATH Dl!ITA

August 24, 1966

[K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT. JJ.]

¶7

¶8

Probate and Administration Act, 1881, •. 90(1)-Power of utt11tor to d6111 with properr,-When retarded 03 ratrlcted.

¶9

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.

¶10

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.

¶11

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.

¶12

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.

¶13

In the appeal to this Court the plaintills 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. 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.

¶14

•

¶15

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 rmtricting 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)

¶16

hma CMndra Bak.rlti "· Hobin Clumdra GllllfOpadhya, ( 1903) 8

¶17

C.W.N. 562. referred to.

¶18

¶19

163

¶20

s. B. MOHATO v. A. N. DATTA (Bachawat, /.)

¶21

A CML APPELLATE JURISDICTION : Civil Appeal No. 196 of 1964.

¶22

Appeal from the judgment and decree dated September 8, 1954, of the Calcutta High Court in Appeal from Original Decree No. 111 of 1948.

¶23

B A. K. Sen, S. N. Choudhuri and D. N. Mukhtrjee, for the appellant.

¶24

A. N. Sinha and S. N. Mukherjee, for the respondents.

¶25

The Judgment of the Court was delivered by

¶26

Bachawat, J. The only question arising in this certificate c appeal is whether the will of Nursingdas Seal 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.

¶27

Nursingdas Seal was the owner of garden land measuring 31 bighas and known as premises Nos. 26, 27 and 28, Dum Dum D 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.

¶28

On September 9, 1899 one Sewdas Mohata purchased the E interest of Nilkantha in the garden lands at an auction sale held in execution of a decre 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 F 17, 1904 executed by Sukhewari 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.

¶29

¶30

On July 30, 1901 one Upendra Nath Addey obtained from G 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 H iubsequently vested in the third defendant.

¶31

On September 15, 1945, the plaintiffs instituted the present suit claiming a declaration of their title and recovery of khas posses-

¶32

(1967) 1 s.c.R.

¶33

SUPllEMB COUil T llEPOR TS

¶34

I 84

¶35

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 challenged by the plaintiffs.

¶36

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:

¶37

"I. I appoint my wife Sm. Sooleswari alias Begum as the Executrix.

¶38

After my death aforesaid wife being vested with my title will enjoy and possess all the movable and immovable 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.

¶39

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.

¶40

My second daughter and the aforesaid son, Nilkantha 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.

s. B. MOHATO V. A. N. DATTA (Bachawat, J.)

¶50

165

¶51

¶52

My Executor will repay my debts on my death and realise my dues." · ·

¶53

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 B 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 restricc 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.

¶54

Counsel submitted that the lease was executed by Sukheswari for the purpose of raising money to meet the expenses of the marD 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. E 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 1o the power of the executrix to lease the property and the principle expresswn facil cessare tacitum has no application.

¶55

¶56

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 G 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 executrix to lease the property in due course of administration_ H The lease is binding on the plaintiffs, and they cannot recover khas possession of the property in this suit.

¶57

(I) (19J3) 8 C.W.N. 362.

¶58

( 196 7] I s.c.R.

¶59

SUPRBMI! COURT RBPORTS

¶60

166

¶61

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.

¶62

The appeal is dismissed with costs.

Appeal dismissed.

R.K.P.S.

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment and decree dated September 8, 1954, of the Calcutta High Court in Appeal from Original Decree No. 111 of 1948, by which the High Court confirmed the declaration of the plaintiffs' title to the 6 bighas covered by the leasehold but set aside the decree for recovery of khas possession and mesne profits and instead passed a decree for 3 years' rent.¶22
Calcutta High Court · September 8, 1954
Prior proceeding
Nursingdas Seal died in December 1888 leaving a will dated December 11, 1888 appointing his widow Sukheswari as executrix, bequeathing his estate (garden land measuring 31 bighas, premises Nos. 26, 27 and 28, Dum Dum Cossipore Road) to her for her natural life, with vested remainder to his son Nilakantha absolutely.¶27
Prior proceeding
On September 9, 1899 Sewdas Mohata purchased Nilkantha's interest in the garden lands at an auction sale in execution of a mortgage decree (mortgage dated September 7, 1893); his title subject to Sukheswari's life interest was confirmed by a compromise decree dated February 17, 1904 in Suit No. 595 of 1901 and a conveyance dated August 17, 1904; the title devolved on the plaintiffs.¶28
Prior proceeding
On July 30, 1901 Sukheswari granted Upendra Nath Addey a Mourashi Mokrari lease of 6 bighas (C.S. Dags Nos. 144-150) out of the 31 bighas on payment of Rs. 1,300/- salami, in pursuance of a decree of September 2, 1899 for specific performance; the leasehold interest subsequently vested in the third defendant.¶30
Prior proceeding
On September 15, 1945 the plaintiffs instituted a suit for declaration of title and recovery of khas possession of the garden lands; the trial Court decreed the suit.¶35
Prior proceeding
The decree against the defendants other than the third defendant was confirmed by the High Court and became final; in the third defendant's appeal the High Court confirmed the declaration of the plaintiffs' title to the 6 bighas but set aside the decree for khas possession and mesne profits, passing instead a decree for 3 years' rent.¶35

Shew Bux Mohato & Ors. v. Ajjt Nath Dutta

Case brief

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Shew Bux Mohato & Ors. v. Ajjt Nath Dutta

Case brief

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