Indu Prova Debi vs Durga Charan Mitra and Another

Manohar Lall, J.—This is an appeal by the plaintiff against a decision of the learned Subordinate Judge of Deoghar dismissing the suit of the plaintiff which was instituted by her as a person to whom letters of administration were granted, for recovery of possession of the properties in suit belonging to the estate of the testator (who left a legacy in her favour) which passed to the possession of the respondent in the circumstances narrated below. The case of the plaintiff very briefly stated is this. One Gopal Chandra Chatterji had three sons, namely (1) Kali Prasanna Chatterji, (2) Siva Prasanna Chatterji and (3) Sarda Prasad Chatterji who died leaving the plaintiff as his widow and one Ganesh Chandra Chatterji as their son. Some time before 1923, Siva Prasanna Chatterji, after the death of his father, executed a will regarding his property in favour of his nephew Ganesh Chandra Chatterji and nominated him as his executor. Siva Prasanna died on 18th September 1923. In the same year on 8th December Kali Prasanna Chatterji executed another will in which he left a legacy to the plaintiff for Rs. 2000 and three other legacies for a total sum of Rs. 4200. By this will Ganesh was appointed as the executor. Kali Prasanna died on 13th November 1924 leaving the aforesaid will as his last will and testament which is Ex. 1 in this case.

In the will he after setting out the specific legacies stated by me just now, bequeathed

all the rest residue and remainder of my estate...after payment of my funeral and testamentary expenses and just debts and the legacies bequeathed...unto and to the use of my said nephew Ganesh Chandra Chatterji for his own absolute use and benefit.

In other words Ganesh Chandra Chatterji was both the executor and residuary legatee under this will of his uncle. On 10th September 1925 Ganesh Chandra, executed a mortgage (Ex. 2) by which he mortgaged the properties in suit in favour of the Hindustan Co-operative Insurance Society, Ltd., (hereinafter referred to as the society) who is defendant 2 and the only contesting respondent before us. The mortgage was to secure an advance of Rupees 1,05,000. The purpose of the loan was to administer the estate of Siva Prasanna, who appointed the mortgagor as his executor under the will of 18th September 1923, already referred to. So far as the properties in suit are concerned, the mortgagor expressly stated that he was absolutely seised and possessed of or otherwise well and sufficiently entitled to them and that he was executing the mortgage in his individual capacity.

So far as other properties of Siva Prasanna were included in this mortgage bond, the mortgagor expressly purported to give the mortgage in his own capacity as executor of Siva Prasanna. It was further stipulated in this document that the mortgagor will within six months obtain a probate of the will of his uncle Kali Prasanna under which he claimed the properties described in Schedule 3 and will execute a deed in favour of the mortgagees confirming these presents and in case the mortgagor failed to do that within the period of six months, he will repay to the mortgagees a sum of Rs. 30,000 out of the principal sum of Rs. 1,05,000 on the said terms. The mortgagor did not carry out this undertaking and the mortgagee instituted a suit in 1927 in the Calcutta High Court to enforce the mortgage of 1925. The society duly obtained a preliminary decree in January 1928, the decree was made final in December 1928. The properties mortgaged were ordered to be put to sale and the date fixed for the sale was 19th June 1931.

The properties were accordingly sold and were purchased by defendant 1 who subsequently transferred his interest to the society, defendant 2. The sale certificate was duly granted on 5th August 1931 to the auction-purchaser. The sale certificate was transferred to the Court of Dumka for delivery of possession on 23rd July 1932. An objection by the plaintiff to this delivery of possession was rejected and the delivery of possession was ordered on 8th September 1932. That matter came to this Court and by an order of 28th March 1933 (Ex. F) in Civil Revn. No. 619 of 1932, Macpherson J. affirmed the order of the lower Court but set it aside in so far as the property consisted of the holdings of a raiyat or a part thereof on the ground that transfers of this kind of property were invalid u/s 27 of Regn. III of 1872.

In the meantime, the plaintiff on 16th June 1931, applied for letters of administration with the will of the late Kali Prasanna annexed before the District Judge of Dumka. A notice was issued to the executor named in the will who renounced his executorship on 18th of July 1931. The letters of administration were granted without any opposition on 21st September 1932, and the present suit was instituted on 5th September 1933 asking for reliefs in the form that the plaintiff has a right to hold possession over the properties in suit as administratrix of the estate of Kali Prasanna Chhatterji. She desired possession of those properties from the society after vacating the order of the learned. Subordinate Judge which was affirmed by this Court to the extent indicated by the order of 28th March 1933.

The events narrated above are strong indications of the correctness of the view that the appellant applied for letters of administration simply with a view to avoid or obstruct the contemplated sale fixed for 19th June 1931; but this consideration is wholly irrelevant. The plaintiff is always entitled to rely upon her rights and if these are established in accordance with law the Court is bound to give proper relief to her irrespective of the motive which induced her to obtain letters of administration and then to institute the suit.

The real question is whether a legatee, to whom letters of administration with copy of the will annexed have been granted, is entitled to institute a suit for recovery of possession of the estate which has passed out of the possession of the executor as a result of a transaction entered into with the defendants by the executor in his character as the residuary legatee before he renounced the executorship without taking out probate.

It is necessary in the first instance to determine whether the estate of Kali Prasanna Chatterji was un-administered on the date of the present suit. The plaintiff alleged in para. 5 of the plaint that the executor Ganesh Chandra Chatterjee did not take any steps for obtaining probate of the will of the testator, nor did he make any payment to the plaintiff and other persons according to the directions in the will and subsequently he openly renounced the executorship. The defendants refused to admit the correctness of these allegations in para. 4 of the written statement and they asserted that no legacies remained to be paid out of the estate of Kali Prasanna Chatterji. In the face of these pleadings the onus was upon the plaintiff to prove that the estate remained unadministered. No evidence at all was offered by the plaintiff in the present case; it is significant that neither of the three legatees are made parties to this action, nor has any of them, including the executor and the plaintiff, chosen to come forward to give evidence to support the allegation of the plaintiff that the legacies still remained unpaid.

But it was argued by the learned advocate for the appellant that as soon as it is established that letters of administration with will annexed have been granted by the Court of the District Judge to the plaintiff it must be presumed in law that the specific legacies, or at least the legacy in favour of the plaintiff, was still due on the date when the letters of administration were granted on 16th June 1931 and that the same state of affairs should be assumed to continue on 5th September 1933, the date when the present suit was filed. The current of authority however is against this view. It is enough to refer to two cases of the Calcutta High Court, namely Adwait Ch. Mondal v. Krishnadhone Sarkar AIR (1918) Cal 1035 and Durgapada Bera Vs. Atul Chandra Bera and Others, . In the former case it was held that where a will has been propounded and proved, the Probate Court should grant probate even though it should appear that there were no debts due to or by the testator and the legatees have been in possession in accordance with the directions of the will for a long time, it being absolutely necessary for the legatees to establish their title by proving the will,

and it was observed by the learned Judges that

the probate Court cannot go into the question whether the legatees have acquired independent title by adverse possession.

The case in Durgapada Bera Vs. Atul Chandra Bera and Others, expressly follows the case just referred to and it is directly laid down in this case that in cases of testamentary succession, where there is a will and it has never been probated, the question whether the estate has or has not been already fully administered is not relevant and cannot be gone into by the Court in dealing with an application for probate or letters of administration.

In my opinion, therefore, the mere fact that the plaintiff obtained letters of administration with will annexed from the learned District Judge is no evidence to prove that the estate must be assumed to have been still unadministered nor that this Court should presume that all the legacies or at least the legacy in favour of the plaintiff has not been paid in accordance with the tenor of the will. The respondent, as already stated, obtained a title to remain in possession of the lands in suit by virtue of the sale in execution of a mortgage decree obtained on the footing of a mortgage bond which in my view must be taken to be executed by the executor in his personal capacity as a residuary legatee. Mr. P.R. Das, relying upon the case in Doe v. Sturges 129 ER 87, argued that it must be held that the mortgage was executed by the mortgagor in his capacity as an executor; but I am not able to place such a construction upon the mortgage bond as this will involve, apart from straining the language used in the document, the inference that the executor committed a breach of trust.

The recitals in the bond are clear that Ganesh Chandra Chatterji was executing the mortgage in order to raise'' funds not to administer the estate of Kali Prasanna Chatterji but to administer the estate of Shiva Prasanna Chatterji. Unless I am forced to come to the conclusion by the clear words used in the bond I must hold that no breach of trust was committed by the executor.

It is now well settled that where a legatee under a will mortgages an immovable property left to him by the testator before obtaining the assent of the executor to the legacy, the property could form the subject-matter of a valid mortgage, and the mortgagee is entitled to cut off the equity of redemption. The reason for the rule is that although the legatees have no property in the legacies by the devise until the assent of the executor is obtained, they have an interest in them which is capable of being transferred. In other words, as pointed out in Khagendra Nath Mookerjee v. Khetra Nath Pal AIR (1923) Cal 21 :

Though on the assent of the executor, the full title passes to the legatee, the assent creates no new title; it merely perfects the title acquired1 under the will.

The question which is relevant to consider in these circumstances is whether the executor assented to the legacy. The facts speak for themselves. A useful illustration of how to determine whether there was an assent by an executor, which may be by conduct, to a legacy is afforded by the case in Commissioners of Inland Revenue v. Smith (1930) 1 KB 713. The Master of the Rolls at page 733 observes:

All the relevant matters must be taken into consideration and, as Rowlatt J. says in his judgment in the present case, you may have an assent by conduct : ''When it is said that the executor ''assents to a bequest,'' what is meant is not that he assents to the disposition of the testator, but that he assents to its taking effect upon the specific property if the bequest is specific, upon a sum of money if it is pecuniary, or upon the residue brought out by the executor at the end of the administration if it is a residuary bequest. Lord Haldane''s exposition in Attenborough v. Solomon (1913) AC 76 makes this clear. The assent of the executor, it is important to add, may be inferred, when there is clearly nothing more to be done by way of administration.

The other Lord Justices took the same view. It was faintly argued that until the residue is ascertained the residuary legatee was not in a position to transfer his rights to the defendants.

In the present case it is admitted and proved that all the outgoings, as provided by the testator in the will, had been paid off before the mortgage of 1925, at least there is no evidence to the contrary. The principle applicable is expressed by Sir George Jessel in Trethewy v. Helyar (1876) 4 Ch D 53 where he says:

It appears to have been long-settled law that there is no residue of personal estate until after payment of the debts, funeral and testamentary expenses, and all costs of the administration of the estate of the testator. Therefore until you have paid the costs, you do not arrive at the net residue at all, and when you do arrive at it, it is distributed according to law. That is the principle.

See also The King v. Commissioners for the special purposes of the Income Tax Acts (1920) 1 KB 468. Applying these tests to the present case as I have stated just now the facts speak for themselves. There is no proof in the present case that any of the specific legacies remained to be paid out. Section 332, Succession Act (Act 39 of 1925), provides that the assent of the executor is necessary to complete the legatee''s title to his own legacy and by Section 335 it is provided that when the executor is a legatee his assent to his own legacy is necessary to complete his titles to it and his assent may be express or implied. Sub-clause (2) provides that assent shall be implied if in his manner of administering the property he does any act which is referable to his character of legatee and is not referable to his character of executor.

The illustration to the Section is of an executor who took the rent of a house or the interest of Government securities bequeathed to him and applied it to his own use and this is stated to be an assent. In the present case the mortgage was by the executor in his individual capacity as a legatee with respect to the properties bequeathed to him. He applied the money to his own use, because as I have pointed out already, the loan was taken by him not to administer the estate of his testator Kali Prasanna Chatterji. It follows by applying the principles in the English cases referred to above and also as provided by the Sections of the Succession Act referred to above that the executor assented to the legacy in his own favour on the date he gave the mortgage to the defendants.

It was then argued by Mr. S.N. Bose appearing for the appellant that the executor has no power to give assent as an executor before he obtained the probate of the will and as in this case no probate was ever obtained the assent given by the executor to himself as a residuary legatee was no assent in the eye of the law. A short answer to this contention is afforded by the case in AIR 1932 92 (Privy Council) where their Lordships have authoritatively laid down that the estate of the testator vests in the executor, if he accepts office, from the date of the testator''s death, and he has the powers of an executor under the Probate and Administration Act, 1881, even though probate has not been obtained.

In the present case the will has been duly proved before the Probate Court anterior to the suit. Mr. Bose sought to get over the difficulties thus created in his way by arguing that Ganesh Chandra Chatterji, the executor, having renounced his executorship in July 1931 and he never having taken out any probate, the assent by him would be inoperative to pass any title to the defendants. He relied upon the case in Satya Prashad Pal v. Motilal Pal (1900) 27 Cal 683 where the learned Judges made this observation at page 688:

It is only the executors who have obtained probate that can act as representatives of the testator; and we think it but reasonable that an executor who renounces or refuses or is unable to act should be regarded as if he had never been appointed.

This view seems to have been the older view of the Calcutta High Court but this was negatived by their Lordships of the Judicial Committee in the case referred to above. The present suit is not a suit by a legatee to recover his specific legacy from the person in possession of the testator''s estate.

The learned Subordinate Judge observes that Kali Prasanna Chatterji left two other houses worth about Rs. 4000 in Jasidih Bazar. Be that as it may, if the testator left no other property than the property in suit, it, is always open to the legatee to recover his specific legacy, if he brings an appropriate action and. there is no other obstacles by way of limitation or otherwise in his way, by suing for the amount from the persons in possession of the property of the testator as transferees. The transferees of the residuary legatee or the residuary legatees are always liable to have the property in their possession reduced to a proper extent in order to repay the specific legatees : see Khagendra Nath Mookerjee v. Khetra Nath Pal AIR (1923) Cal 21 already referred to. For the reasons given above I am of opinion that the appeal fails and should be dismissed with costs.

Varma, J.

I agree.