Case: Shew Bux Mohato &amp; Ors Vs. Ajit Nath Dutta

2. 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.3. 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 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. Sewdass title to the property subject to the life interest of Sukheswari was confirmed by a compromise decree, dated February 17, 1904 in 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.4. 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.5. On September 15, 1945, the plaintiffs instituted the present suit claiming a declaration of their title and recovery of khas possession 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 plaintiffs.

Reasoning:
Clause 5 directed the executrix to pay the testators 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 ofmaterials 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, Cl. 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 tacitum has no application.9. In Purna Chandra Bakshi v. Nobin Chandra Gangopadhya, (1903) 8 Cal WN 362, the Calcutta High Court held that a provision in a will authorising the executor to sell the testators 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, Cl. 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 plaintiffs, and they cannot recover khas possession of the property in this suit.