Case: Purnendu Nath Tagore Vs. Administrator-General of West Bengal &amp; Others

the construction which we have placed on clause 10. Clause 20 directs as follows :"as to the house and lands which I have in Clacutta and in the mofussil as also such houses and lands if any as may be purchased in future, my executors and trustees shall be competent to increase the income of the estate by letting out the same. But such houses as will be required for the residence of the members of my family shall not be let out."By this clause, in clear terms, the trustees have been empowered to let out all the houses whether situated in Calcutta or in the mofussil, and they have also been given authority to allow members of the testators family to live in any of these houses if they are required for residence. Similarly, in clause 41, it was directed that if the testators widow likes to live at times at any place out of Calcutta, "then arrangement for her residence at my Alambazar Garden House, or at any house at Kasi or at any house at any other place shall have to be made." This also indicates that the management of the houses for 15 years was vested in the executors and trustees.Mr. Chatterjee argued that Clauses 20 and 41 indicated that the executors were not given power to let out the Alambazar house as it was not only the residential house of the deceased in which he eventually died but it was also intended that house should be kept for the residence of his wife. We are unable to agree with this argument. The true construction of these clauses is that the execturos were given full power to manage these houses and to let them out also, subject of course to any arrangement that may be made, when desired, about the residence of the widow and other members of the testators family.9. Considerable reliance was placed on the terms of clause 81 for the contention that the Alambazar Garden House had been absolutely given to the appellant and he was entitled to it from the date of the testators death. Clause 81 is in these terms."Save and except the legatees that I have provided for in this my present will and save my garden house at Alambazar Tagore Villa together with articles of furniture I give to my sons all my remaining movable and immovable properties that will be left and also the movable and immoveable properties whereto my right will accrue in future. Subject to the management and payment of those several trusts (Debutter, etc.) and the legacies that I have created or I have directed the creation thereof in this will my sons shall continue to hold and enjoy all the said movable and immoveable properties."It was contended that excepting the Alambazar house, all the other properties were give to the sons, subject to the payment of the legacies, but that no. such condition was attached in regard to the Alambazar house. In our judgment, this contention of Mr. Chatterjee does not seem to be based on a correct construction of clause 81. For 15 years, all the properties had to remain in charge of the executors but their administration was to come to an end on the expiry of 15 years. If some legacies remain unpaid till then, as regards the other properties, the heirs could only take them subject to the claims of the legatees, while as regards the Alambazar house, it was freed from the claims of the legatees after the expiry of 15 years. Clause 81, therefore, does not in any way help the case of the appellant.10. On a consideration of all the clauses of the will and of the different arguments placed before us, we have no. hesitation in affirming the view taken by the High Court on the construction of the will. This case seems to be analogous to the case of ..... Profulla Chander v. Jogendra Nath, 1 Cal LJ 605 (C). In the 18th clause of the will therein considered, there was a direction to the following effect :"...... that after 13 years from my death my executors and trustees shall make over to my sons the properties which I devised to them respectively and under this my will, but in the meantime my sons shall only be entitled to the monthly sum of Rs. 100 each as hereinbefore directed to be paid to them, and my executros and trustees shall have in their direction absolute disposal over the balance of the income of the said properties so devised to my said sons for the purpose of carrying out the directions hereinbefore contained for causing new buildings to be erected in the premise ..... and for otherwise improving the other trust properties."It was contended in that case that there was an absolute gift to the sons of the premises and that the direction regarding dealing with the property for 13 years by the trustees was in the nature of a restraint on the devise to them of the property and was bad in law and should be set aside.It was held that it was impossible to say that the testator intended to make an absolute gift of the entire present interest of the properties to the sons and that the case was not governed by the rule in - Lloyd v. Webb, 24 Calif 44 (D), where there was an absolute gift to the testators son which was to be given effect to at a later period but in which there was no. disposition over of the immediate interest, and that by the will the testator had directed the intermediate interest not to go to the sons but to be dealt with by the trustees for carrying out certain specific trusts, and that the gift to the sons during the period of 13 years was only a limited one which was to become an absolute gift of the entire estate on the expiration of 13 years.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Therefore, if by the terms of a will an absolute interest in certain property is given to a legatee, any subsequent provision postoponing the legatees right to possession of the property for any period beyond the majority of such legatee is contrary to the provisions of S. 138, Succession Act, and as such is void. Such postoponement of possession is repugnant to the absolute interest coupled with the right to immediate possession, and is therefore void also according to the general principles of repugnancy applied to wills by English Courts inSaunders v, . Vautier, (1841) 4 Beav 115, (A) and inGosling v. Gosling (1859) Johns 265 (B) which have been followed by Indian Courts. If, however, during such period of postponed possession beyond the minority of the legatee, the income of the property is given to a third person, this rule has no.are unable to accept the contention of Mr. Chatterjee on behalf of the appellant that the word "estate" used in clause 10 does not include within its ambit the property gifted to the appellant by clause 82 of the will. There are other clauses in the will which fully support the construction which we have placed on clause 10. Clause 20 directs as follows :"as to the house and lands which I have in Clacutta and in the mofussil as also such houses and lands if any as may be purchased in future, my executors and trustees shall be competent to increase the income of the estate by letting out the same. But such houses as will be required for the residence of the members of my family shall not be let out."By this clause, in clear terms, the trustees have been empowered to let out all the houses whether situated in Calcutta or in the mofussil, and they have also been given authority to allow members of the testators family to live in any of these houses if they are required for residence. Similarly, in clause 41, it was directed that if the testators widow likes to live at times at any place out of Calcutta, "then arrangement for her residence at my Alambazar Garden House, or at any house at Kasi or at any house at any other place shall have to be made." This also indicates that the management of the houses for 15 years was vested in the executors and trustees.Mr.Chatterjee argued that Clauses 20 and 41 indicated that the executors were not given power to let out the Alambazar house as it was not only the residential house of the deceased in which he eventually died but it was also intended that house should be kept for the residence of his wife.We are unable to agree with this argument. The true construction of these clauses is that the execturos were given full power to manage these houses and to let them out also, subject of course to any arrangement that may be made, when desired, about the residence of the widow and other members of the testatorss contended that excepting the Alambazar house, all the other properties were give to the sons, subject to the payment of the legacies, but that no. such condition was attached in regard to the Alambazarhouse. In our judgment, this contention of Mr. Chatterjee does not seem to be based on a correct construction of clause 81. For 15 years, all the properties had to remain in charge of the executors but their administration was to come to an end on the expiry of 15 years. If some legacies remain unpaid till then, as regards the other properties, the heirs could only take them subject to the claims of the legatees, while as regards the Alambazar house, it was freed from the claims of the legatees after the expiry of 15 years. Clause 81, therefore, does not in any way help the case of thewas held that it was impossible to say that the testator intended to make an absolute gift of the entire present interest of the properties to the sons and that the case was not governed by the rule inLloyd v. Webb, 24 Calif 44 (D), where there was an absolute gift to the testators son which was to be given effect to at a later period but in which there was no. disposition over of the immediate interest, and that by the will the testator had directed the intermediate interest not to go to the sons but to be dealt with by the trustees for carrying out certain specific trusts, and that the gift to the sons during the period of 13 years was only a limited one which was to become an absolute gift of the entire estate on the expiration of 13 years.