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

3. Raja Prafulla Nath Tagore, a Hindu governed by the Dayabhaga School of Hindu Law, died onleaving him surviving his widow and five sons. Kumar Purnendu Nath Tagore, the appellant, is his eldest son. Onthe late Raja executed his last will and testament. Clause 82 of the will is in these terms :"I give my Alambazar Garden House "Tagore Villa together with all articles of furniture to my eldest son Sriman Purnendu Nath Tagore. On the expiry of the term of office of the Executors and Trustees, Sriman Purnendu Nath shall get the said Garden House. No. other son of mine shall be competent to put forward any claim to the said Garden House or the articles of furniture."The late Raja owned and possessed extensive properties, moveable and immoveable, lying within and outside the Original Jurisdiction of the High Court at Calcutta. The will is divided into 83 paragraphs. It gives full and elaborate directions for the management of his vast estate and in respect of its final disposition.After the death of the Raja, his five sons obtained onin testamentary Suit No. 12 of 1938, an order for the issue of probate, which was later issued to them. Onthey were removed from their office as trustees and executors, and theof West Bengal was appointed the sole executor. Onal took out an Originating Summons for the determination of the question above mentioned arising in the administration of the estate of the late Raja and for incidental directions.

Reasoning: 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.