Lakshmi Kanta Jha vs Maharani Rajyalakshmi

Masud, J.—In this matter Originating Summons has been taken out by the Executor, Sri L. K. Jha, in respect of the Will of Maharajadhiraja Sir Kameshwara Singh of Darbhanga, hereinafter described as the ''Maharajadhiraj''. The Will was executed on July 5, 1951, and the Maharajadhiraj died on October 1, 1962. Earlier, an application was made on December 3, 1967, by Maharani Kamsundari, the Respondent No. 2, for removal of the Executor and for other directions. On that application, controversy arose on construction of the said Will. In my judgment, on the said application, I made an observation that no final decision on the construction of the Will could be made in that application and that the Executor should have made an application in the Court by way of originating summons for construction of the Will which would crystallize the rights of the legatees including those of Maharani Kamsundari. Thereafter, the present application was made on July 17, 1968. But for reasons best known to the parties adjournments were taken from time to time.

Mr. Gouri Mitter, on behalf of the Executor, has at the outset made it clear that his client would abide by any construction which would be made by the Court on the Will. I, however, have requested him to express his views on the construction which he would think to be correct. On request, Mr. Mitter has made his submissions. But, before I discuss his views on the matter it is necessary to set out the relevant provisions of the Will which read as follows:

***

Now, I the said Maharajadhiraja Kameshwara Singh of Darbhanga do hereby make the bequests as follows:

(1) I bequeath the property mentioned in Schedule ''A'' to my wife Maharani Rajyalakshmi for her life for her residence only (and for no other purpose). She shall be entitled to reside it the said house and use the furniture and fittings solely without let or hindrance by anybody. After her demise the said property shall vest in my youngest nephew Rajkumar Subheshwara Singh absolutely.

(2) Similarly, I bequeath the property mentioned in Schedule ''IV to my wife Maharani Kamsundari for her life for- the residence only (and for no other purpose) and at her demise the said property shall vest in my youngest nephew Rajkumar Subheshwara Singh absolutely.

(3) I further bequeath to my wife Maharani Rajyalakshmi assets of the value of Rs. 15 (fifteen) lacs and to my wife Maharani Kamsundari assets of the value of Rs. 15 (fifteen) lacs.

(4) Subject to the dispositions and bequests mentioned above the entire residue of my estate shall vest in a Board of Trustees consisting of persons named and described in Schedule ''C, who will hold the property in Trust for my two wives and the children of my aforesaid three nephews (sons of my deceased brother). The Trustees shall pay out of capital assets Rs. 8 (eight) lacs to Maharani Rajyalakshmi and Rs. 12 (twelve) lacs to Maharani Kamsundari, and keep the properties, particularly the house properties in proper repairs. On the demise of my two wives, one-third of the properties shall vest in the children of my youngest nephew Rajkumar Subheshwara Singh, born of a wife of his own Brahmin community, and one-third will be divided between the children of my other two nephews, Rajkumar Jeeveshwara Singh and Rajkumar Yajneshwara Singh and one-third will remain in Trust for public charitable purposes.

(5a) The properties bequeathed to my wife Maharani Rajyalakshmi shall be held in Trust for her life by a Board of Trustees consisting of (1) Sri Girindra Mohan Misra, son of Pandit Bhagwant Bihari Misra of Village Behta, Thana Behara, District Darbhanga, (2) Sri Lakshmi Kanta Jha, son of Pandit Ajaib Jha of Village Balia, Thana Madhubani, District Darbhanga, and (3) Sri Mukunda Jha, son of Pandit Ganesh Dutta Jha of Village Mohanpur, Thana Sadar, District Darbhanga, who will hold the property in Trust for the said legatee, and shall pay to her, after payments of taxes and other public demands, Rs. 3,000 (Rupees three thousand) per month to her; and should the net income of the properties after payment of taxes and other similar liabilities be not found in any year to be sufficient to enable the Trustees to pay to her Rs. 3,000 (Rupees three thousand) per month, they will be at liberty to make up the deficit from out of the capital assets.

(5b) Similarly, the properties bequeathed to my wife Maharani Kamsundari shall be held in Trust for her life by a Board of Trustees composed of the same persons, namely, Sri Girindni Mohan Misra, Pandit Lakshmi Kanta Jha and Sri Mukunda Jha, who shall pay to her monthly Rs. 3,000 (Rupees three thousand) from out of the income of the property and should the net income of the property after payment of taxes and other public demands be not sufficient in any year to enable the payment of the net amount of Rs. 3,000 (Rupees three thousand) to her, the Trustees will be at liberty to make up the deficit from out of the capital assets of the legatee.

(6) The Trustees aforesaid shall keep in proper repairs the house properties mentioned in Schedules ''A'' and ''B'' and spend the necessary amount for their maintenance from out of the properties bequeathed to Maharani Rajyalakshmi and Maharani Kamsundari respectively.

***

(8) The Trusts shall terminate on the death of my two wives except the Trust in respect of public charitable purposes.

(9) I appoint Sri Lakshmi Kanta Jha, son of Pandit Ajaib Jha deceased of Balia, Thana Madhubani, District Darbhanga, an Advocate of Supreme Court, as the Executor of this my last Will and Testament. The aforesaid Executor shall, on my demise, pay all expenses incidental to or consequent on my demise, and also pay all liabilities that I might have incurred before my demise or that may accrue as a consequence of my demise including all public demands after my demise in respect of my estate. It shall also get all my assets valued by an approved Valuer and shall make distribution of the bequests as per directions given above. In making such distribution of the assets the properties mentioned in Schedules ''A'' and ''B'' and also properties situate within the Rambagh compound will not be taken into account. The Executor shall take all the necessary steps to the administration of the estates in accordance with the directions hereinbefore laid down.

***

Mr. Mitter has put before me the following construction on the Will. The two widows of the Maharajadhiraj, Maharani Rajyalakshmi and Maharani Kamsundari are entitled to reside in the residential house at Rambagh and at Nargauna palace respectively and also to use the furniture and fittings in the said two buildings without interference by anybody. After the death of Maharani Rajyalakshmi the house at Rambagh shall vest in Maharaja''s youngest nephew Rajkumar Subheshwar Singh absolutely. Similarly, on the death of Maharani Kamsundari, Nargauna palace shall vest in the said nephew. Further, the two Maharanis would be entitled to have assets of the value of Rs. 15 lacs each out of the� estate of the Maharajadhiraj. Subject to the said disposition and bequest, the entire residue of the estate shall vest in a Board of Trustees consisting of three Trustees, Sri Girindra Mohan Mishra, Sri Lakshmi Kanta Jha and Ojha Sri Mukunda Jha. The said Trust was constituted for the benefit of the said two Maharanis and the children of the Maharajadhiraj''s three nephews. The Trustees of this residuary estate shall pay out of the capital assets sums of Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari. On the death of the two Maharanis 1/3 of the residuary estate shall vest in the children of the said nephew Rajkumar Subheshwar Singh, born of a wife of his own Brahmin community, 1/3 will be divided to the children of Maharaja''s other two nephews Rajkumar Jeeveshwar Singh and Rajkumar Yajneshwar Singh and the remaining 1/3 will remain in perpetual Trust for public charitable purposes. Clauses 5(1), 5(b) and 6, however, have put restrictions on the absolute use of the properties bequeathed to the two Maharanis. The first restriction is that all the properties bequeathed to the Maharanis will be held in a Trust for their respective lives by two separate Boards of Trustees consisting of the said three persons ; or in other words, the Maharanis'' limited estate in the house at Rambagh and Nargauna palace and also assets of the total value of Rs. 30 lacs would be administered by the said three Trustees who are to pay every month to each of the two Maharanis a sum of Rs. 3,000 during their life-time after payment of taxes and other public demands. According to Mr. Mitra, if the net income of the property bequeathed to each of the Maharanis is not sufficient to pay the said sum of Rs. 3,000 to each of the Maharanis, the Trustees will be at liberty to make up the deficit from out of the capital assets. Under Clause 6, the Trustees shall not only keep the house at Rambagh and Nargauna palace in proper repairs but also will spend money for the maintenance of those buildings out of those properties respectively bequeathed to the two Maharanis. Mr. Mitra has contended that there will. be three Trusts, one for the properties bequeathed to Maharani Rajyalakshmi, second for the properties bequeathed to Maharani Kamsundari and the third for the residuary estate. The said Trusts excepting the Trusts for public charitable purposes which are mentioned in Clause 4 will terminate on the death of the two Maharanis.

Mr. B. Das, on behalf of Rajkumar Subheshwar Singh, the Respondent No. 3, has urged that all the specific properties bequeathed to the two Maharanis are to be administered by the Trustees till their demise. According to him, the said sum of Rs. 30 lacs "under Clause 3 and the sum of Rs. 20 lacs under Clause 4 payable to the two Maharanis shall vest in the Trustees mentioned in Clauses 5(a) and 5(b). After the death of the two Maharanis the sums that would be left with the Trustees would form part of the trust mentioned in Clause 4 in respect t of the residuary estate. He has further argued that the Clauses 3 and 5 are irreconcilable and, as such, the last clause shall prevail. In support of the said propositions reliance has been placed by him on Sections 82 and 88 of the Indian Succession Act, 1925, and also the observations in William on Executor (14th ed., p. 517).

Mr. Sankardas Banerjee on behalf of Maharani Kamsundari has strenuously contended that the constructions put on the Will by Mr. Mitter and Mr. Das should be rejected. According to him, the Maharanis under Clauses 1 and 2 will get the right of residence during their life-time in the respective palaces mentioned ''in Schedule 1 and each of them is entitled to receive under Clause 3 assets of the value of Rs 15 lacs absolutely. In his view, there is no second or third Trust contemplated in Clauses 5(a) and 5(b). Clauses 5(a) and 5(b) have not put any restriction of the provisions of Clauses 1, 2, 3 and 4, but they are in amplification of the earlier clauses. He does not think that any part of the said will is irreconcilable with other part. Relying on Sections 74 and 82 of the Act, he has submitted that the clear intention of the Maharajadhiraj was that the two Maharanis, after his death, would continue to live in accordance with their high status and dignity and naturally be provided that each of them would be entitled to have the right of residence, use of furniture and fittings in the two palaces and assets of the value of Rs. 15 lacs under Clauses 1, 2 and 3 without any limitation. Further, the Trustees have also been directed to pay a sum of Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari. According to him, Maharajadhiraj never intended to have the said sums of Rs. 30 lacs and 20 lacs mentioned in Clauses 3 and 4 to be administered by the Trustees. In course of his argument, he has referred to a Trust made by the Maharajadhiraj on September 21, 1943, in favour of the senior Rajmata, the value of which is Rs. 71,71,872-8-0, payment to each of the Maharanis the annuity of a fixed sum of Rs. 3,000 per month besides the right of residence could not have been intended by the Maharajadhiraj when he had provided in the said Trust in favour of Rajmata a payment of a sum of Rs. 1,44,000 to Rajmata annually. Mr. Banerjee has also urged that the Executor after the bequest and disposition mentioned in Clauses 1, 2 and 3 will hand over the remaining properties of the estate of the deceased Maharajadhiraj to the three Trustees mentioned in Sch. ''B'' to the Will. The first duty of the said Trustees would be to pay Rs. 8 lacs to the elder Maharani and Rs. 12 lacs to the younger absolutely. The Trustees will manage the said residuary properties till the death of the two Maharanis and after their death 2/3 of the properties would be handed over to the children of the nephews mentioned in Clause 4, but they will continue to hold the remaining 1/3 of the estate for public charity. As stated earlier, the two Trusts mentioned in Clauses 5(a) and 5(b) are not two separate Trusts as contended by Mr. Mitter and Mr. Das. The properties mentioned in Clauses 5(a) and 5(b) are to be administered under the same Trust as mentioned in Clause 4 and this construction is substantiated by the fact that the names of the Trustees mentioned in Clause 4 are the identical names mentioned in Clauses 5(a) and 5(b). He has drawn my attention to Clause 9 and has submitted that in this clause also it is specifically stated that the said Trustees would distribute the assets of the estate of the deceased Maharajadhiraj according to the directions above. It is not stated there that; each group of Trustees in Clauses 4, 5(a) and 5(b) are to distribute the assets.

Mr. Banerjee has next contended that assuming it is held that Clauses (5), 5(b) and 6 are contradictory to Clauses 3 and 4 the Court should ignore the alleged restrictions imposed in Clauses 5(a) and 5(b) and construe the words in Clauses 3 and 4 as absolute gift. He has asked me to ignore the words of limitation inasmuch as Clauses 3 and 4 in the Will show clear words of unconditional gift. It is also argued by him that no rigid construction of a Will written in English by an Indian should be made; mother language, conditions of life and habits of life of the Testator should also be taken into consideration of his Will. Reliance has been placed by him on Indira Rani Ghose v. Akhoy Kumar Ghosh (1932) 59 I.A. 419 (430). According to him, it is absurd to accept the construction of Mr. Mitter or Mr. Das which would virtually mean that excepting the right of residence in the two palaces, each of the two Maharanis would not be entitled to get any sum in excess of Rs. 3,000 every month as maintenance. Obviously, the effect of such a construction could not be in consonance with the intention of the Testator.

I would now discuss the contentions of the counsel for the parties. It is obvious that the Testator in executing the present Will has intended to benefit the two Maharanis in preference to any other legatee or beneficiary under the document. Under Clause 9 of the Will the Maharajadhiraj appointed the Petitioner Sri Lakshmi Kanta Jha as Executor of this Will and directed him to pay all expenses incidental to or consequent on his death and also to pay all liabilities that might have been incurred before his death or that may accrue after his death including all public demands in respect of his estate. The Testator has also directed the said Executor to have all his assets valued by an approved Valuer and, thereafter, shall make distribution of the bequests in accordance with the directions set out in the previous clauses of the Will. But, the Testator has made it clear that the residential house at Rambagh and the palace known as Nargauna palace should not be touched in carrying out the said directions. Some of the directions on the basis of which the Executor is to make distribution of the assets are mentioned in Clauses 1, 2 and 3. Admittedly, there is not much difficulty on the construction of Clauses 1 and 2. Under Clause 1, Maharani Rajyalakshmi will be entitled to reside in the residential house at Rambagh for her life and she would alone use the furniture and fittings without any interference from anybody. The said house, however, will not be utilized for any purpose other than residential. After her death the said property would devolve on the Testator''s youngest nephew Rajkumar Subheshwar Singh absolutely. Clause 2 provides for similar benefits to Maharani Kamsundari and the said nephew in respect of Nargauna palace. Thus the dispositions of the said two properties are complete inasmuch as the present and the future right, title and interest in them have been fully dealt with by the Testator.

Clause 3 of the Will, however, has been construed differently by Mr. Banerjee on the one hand and Mr. Goliri Mitter and Mr. Das on the other. According to Mr. Banerjee, under this clause bequests of ''assets of the value of Rs. 15 lacs'' to each of the two Maharanis are absolute, and the Executor on completion of the administration must hand over the said assets to each of the two Maharanis. According to him, the said assets of the value of Rs. 15 lacs cannot be handed over to the Board of Trustees as set out in Clauses 5(a) and 5(b). He has argued that the Trusts mentioned in the Will can only come into being after the completion of the administration of the estate, and distribution of the said assets of the value of Rs. 15 lacs to each of the two Maharanis. Relying on Tripurari Pal and Anr. v. Jagat Tarini Dassi and Ors. 40 I.A. 37; Truchendur Sri Subramnniasummi v. P. Ramaswami Pillai and Ors. 54 C.W.N. 081 and Cally Nalh Naug Choudhury v. Chunder Nalh Naug Choudhury and Ors. ILR 8 Cal. 378 he has urged that the clear direction of the Testator on the Executor is to make an absolute gift of the said assets of the value of Rs. 15 lacs to each of the two Maharanis on the completion of the administration of the estate and before the Trust is created. Both Mr. Mitter and Mr. Das, however, have contended that Clauses 4, 5(a) and 5(b) provide for three separate Trusts inasmuch as each of the said three Trusts deal with separate properties. In my view, the construction put on Clause 3 by Mr. Mitter should be accepted. The Testator has used the word ''bequeath'' in Clauses 1, 2 and 3. Clauses 5(a), 5(b) and 6 deal with the ''properties bequeathed to'' Maharani Rajyalakshmi and Maharani Kamsundari. It is significant that Clause 4 does not mention the word ''bequeath'' or ''bequeathed properties''. Admittedly, Clause 4 deals with a residuary estate and the residuary estate comprises of all properties moveable and immoveable of the Testator other than the residential house at Rambagh, Nargaima palace and assets of the value of Rs. 30 lacs. Under Clause 5(a) the properties bequeathed to Maharani Rajyalakshmi shall be held in Trust for her life by a Board of Trustees consisting of Sri Girindra Mohan Mishra, Sri Lakshmi Kanta Jha and Sri Mukunda Jha. Similarly, under Clause 5(b) the properties bequeathed to Maharani Kamsundari shall be held in Trust for life by a Board of Trustees composed of the said three persons. The subject-matter of the Trust mentioned in Clauses 5(a) and 5(b) cannot be the residuary properties mentioned in Clause 4 inasmuch as no property has-been bequeathed to the Maharanis in Clause 4. Trust constituted under Clause 4 cannot comprise of the properties already bequeathed to the two Maharanis. This is clear from the following recital in Clause 4 ''subject to disposition and bequests mentioned above''. Thus, there cannot be a second bequest for the two Maharanis in Clause 4 in respect of the residuary estate. Clause 4 specifically provides that the Trustees, and not the Executor, will hold the Trust properties for the benefit of the two Maharanis and also the children of the three nephews of Maharajadhiraj. The Trustees in Clause 4 have been enjoined to pay out of the residuary estate a sum of Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari. The Trustees have also been directed to keep the properties, particularly the house properties, in proper repair. Maintenance of the properties would naturally require money, and under this clause the Trustees have been directed first to pay Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari and then out of the balance income to keep the properties in proper repairs which, it may be added, are many in number. The Trustees in Clause 4 will continue to maintain the said properties until both the Maharanis die. On their death, 1/3 of the properties shall vest in the children of the Rajkumar Subheshwar Singh who would be born of a wife of a Brahmin community; 1/3 will be divided between the children of the other two nephews, Rajkumar Jeeveshwar Singh and Rajkumar Yajneshwar Singh ; and the remaining 1/3 will be held by the Trustees for public charitable purposes. Thus, under Clause 4 right, title and interest of the residuary Trust properties in presently and future directions in respect of those properties are also complete. Apart from the payments of Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari no specific moveable or immoveable property has been bequeathed to the two Maharanis. Thus, the properties mentioned in Clause 4 cannot include ''the properties bequeathed'' referred to in Clauses 5(a), 5(b) and 6.

Mr. Banerjee has also urged that the residuary estate under Clause 4 has been directed to be vested in a Board of Trustees for the benefits of Maharaja''s two wives and children of the three nephews. But these nephews would not be entitled to anything until after the death of both the Maharanis. Thus the testator''s clear intention is that the residuary estate in Clause 4 is also property devised for the benefits of the two Maharanis. It is, therefore, argued that Clauses 5(a) and 5(b) refer to the residuary properties given to the two Maharanis and they cannot be properties mentioned in Clause 3 or the sum of Rs. 20 lacs which have been directed to be paid to the two Maharanis by the Executor or the Trustees respectively. In my view, this construction cannot be accepted. Admittedly, Clause 4 deals with the properties other than the residential house at Rambagh and Nargauna palace and assets of the value of Rs. 30 lacs mentioned in Clauses 1, 2 and 3. Under Clause 4 a Trust has been constituted and the Executor has nothing to do with the administration of the Trust property. It is specifically provided that the Trustees in Clause 4 will hold the residuary property in Trust not only for the two Maharanis but also for the children of the three nephews. The payment of Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari have been mentioned in a separate sentence after the words ''in trust for my two wives and the children of my aforesaid three nephews (sons of my deceased brother)''. No specific amount has been directed to be paid to the children of the said three nephews. Similarly, as the corpus of the residuary properties after the death of the two Maharanis have been given to the nephews and also for charity, the former were not given any rights in the said residuary estate. As the Trust has been created for the two Maharanis and also the children the Testator must have meant in a general way that the beneficiaries would be two Maharanis and also the children of the three nephews. As beneficiaries Maharani Rajyalakshmi has been directed to be paid Rs. 8 lacs and Maharani Kamsundari Rs. 12 lacs. Save and except the said sum of Rs. 20 lacs neither corpus nor the income of the residuary properties have been given to the Maharanis. But the Maharanis are all the same beneficiaries in respect of the said sum of Rs. 20 lacs. The children of the nephews also are the beneficiaries, as after the death of the two Maharanis they will get 2/3 of the residuary estate. There is no question of any Trust for the benefit of the nephews in Clauses 5(a) and 5(b) nor there has been any provision for holding the Trust properties for public charitable purposes in Clauses 5(a) and 5(b). Clauses 5(a) and 5(b) deal with properties bequeathed to Maharani Rajyalakshmi and Maharani Kamsundari only and those properties are to be held in Trust during their life-time separately by two Boards of Trustees. It is true that the Trustees mentioned in Clauses 4, 5(a) and 5(b) are the same persons, but unlike Clause 4, Clauses 5(a) and 5(b) do not mention that the properties would be held in Trust for Maharani Rajyalakshmi, Maharani Kamsundari and the nephews. Further, the word ''A'' in Clauses 5(a) and 5(b) shows that the Testator intended to have two separate Boards of Trustees other than the Board of Trustees mentioned in Clause 4. Further, Clauses 5(a) and 5(b) specifically direct the two Boards of Trustees to pay a sum of Rs. 3,000 per month after payment of taxes and other public demands to each of the two Maharanis. A limit has been fixed by the Testator and the Trustees are not bound to pay more. If Mr. Banerjee''s contention is accepted then the income of the residuary estate would have to be divided among the two Maharanis which might be much more than Rs. 3,000. Further, it cannot be the intention of the Testator to pay Rs. 3,000 to the Maharanis in Clauses 5(a) and 5(b) and again to pay the net income of the residuary estate in equal shares to the two Maharanis under Clause 4. The true construction of Clauses 5(a) and 5(b) is that the properties bequeathed to Maharani Rajyalakshmi and Maharani Kamsundari are rested in two Boards of Trustees for payment of a sum of Rs. 3,000 per month to each of them after payment of taxes and other public demands.

It has also been argued that the words ''capital assets'' have been mentioned only in Clauses 4, 5(a) and 5(b) and, therefore, Testator must have intended that the properties mentioned in Clauses 4, 5(a) and 5(b) are subject-matters of one Trust. In my view, the ''capital assets'' in Clause 4 could only be the entire corpus of the residuary estate. But, the capital assets in Clauses 5(a) and 5(b) are the assets of the value of Rs. 15 lacs which are to be handed over to the two Boards of Trustees by the Executor to the credit of each of the two Maharanis. Clause 4 provides that the Trustees shall pay out of the capital assets Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari. No other payment has been directed in Clause 4. In Clauses 5(a) and 5(b) the same word ''pay'' has been used and, therefore, the Board of Trustees under the said two clauses shall pay to each of the two Maharanis Rs. 3,000 per month. In Clause 3, however, the word ''pay'' has not been used. There the Testator has stated that he bequeaths to his wife Maharani Rajyalakshmi ''assets of the value of Rs. 15 lacs'' and to his wife Maharani Kamsundari ''assets of the value of Rs. 15 lacs''. Mr. Banerjee has contended that the word ''bequeathed'' should be understood as ''to give by Will''. But, if such meaning is accepted, it does not help Mr. Banerjee''s client. It is argued that not only assets of the value of Rs. 30 lacs in Clause 3, but also Rs. 20 lacs in Clause 4 have been given to the two Maharanis by Will and, as such, the Board of Trustees in Clauses 5(a) and 5(b) would administer or invest the same. It should be remembered that there is no question of payment of a sum of Rs. 15 lacs in cash to each of the two Maharanis. In fact, Mr. Banerjee has conceded that the actual payment of the sum of Rs. 15 lacs to each of the two Maharanis is not contemplated. He, on the contrary, has argued that it is quite possible that the Executor might hand over assets of the value of Rs. 15 lacs to each of the two Maharanis which might not yield any income. If there is no income from those assets, payment of the sum of Rs. 3,000 per month to each of the two Maharanis under Clauses 5(a) and 5(b) cannot be made, if Clauses 5(a) and 5(b) contemplate only the payment of the said assets of the value of Rs. 30 lacs. Mr. Gouri Mitter has rightly replied that the Executor cannot hand over assets of the value of Rs. 15 lacs to each of the two Maharanis which would not yield any income. The purpose of the Trust is to provide maintenance of Rs. 3,000 per month to each of the two Maharanis as set out in Clauses 5(a) and 5(b) and, therefore, the Executor must hand over such assets of the value of Rs. 15 lacs to each of the two Maharanis which would yield income. In my view, the Executor should carry out not only the directions of the Testator but also in carrying out the directions the Executor should implement Testator''s intention. It is obvious that as bequests of the assets of the value of Rs. 15 lacs in favour of each of the two Maharanis are to be held in Trust by the two Boards of Trustees mentioned in Clauses 5(a) and 5(b) and as a sum of Rs. 3,000 is to be paid per month to each of the two Maharanis out of the bequeathed or Trust properties, the Executor should only hand over such assets which might yield such income. Mr. Banerjee has argued that the Executor is not bound to hand over the said assets to the value of Rs. 15 lacs to the two Boards of Trustees, which must necessarily yield an income of Rs. 3,000 per month. According to him, there is only one Trust in Clauses 4, 5(a) and 5(b) and the said Trust comes into being only after the Executor completes his obligations and is discharged. The Executor''s duty in Clauses 1, 2 and 3 have nothing to do with, Mr. Banerjee has argued, the directions on the Trustees. In my view, it is not quite correct to say that, the Trusts are constituted at a stage long after the discharge of the Executor. The Executor administers the estate of the deceased. On the completion of the administration of the estate of the Testator, the Executor has been enjoined to hand over assets of the value of Rs. 15 lacs each to the two Boards of Trustees in Clauses 5(a) and 5(b) and two Trusts in Clauses 5(a) and 5(b) are constituted. Similarly, the Executor is to constitute another Trust as set out in Clause 4 and unless (these directions are complied with his duty is not finished. Therefore, the Trusts are not created subsequently, but they came into operation simultaneously or immediately on the discharge of all obligations by the Petitioner as the Executor.

There is another reason why the properties mentioned in Clauses 5(a) and 5(b) cannot be the residuary properties mentioned in Clause 4. If the Testator''s intention was that the bequests of Rs. 15 lacs |to each of the two Maharanis are to be handed over to the Maharanis and not to the Trustees, Clauses 5(a) and 5(b) would be redundant. Similarly, if the income of the residuary properties in Clause 4 is to be utilized for the maintenance of the two Maharanis, no special provision for payment of a maximum limit of Rs. 3,000 should have been provided in Clauses 5(a) and 5(b). If Mr. Banerjee''s contention is accepted, the Maharanis would get the following properties:

(a) A free right of residence in two separate buildings or palaces.

(b) Assets to the value of Rs. 15 lacs each.

(c) Rs. 8 lacs and Rs. 12 lacs to Maharani Rajyalakshmi and Maharani Kamsundari respectively.

(d) And the net income of the residuary properties after the payment of statutory liabilities and cost of maintenance and cost of repairs.

It is true that the Maharajadhiraj wanted that his two wives would live in accordance with� the same comforts and dignity after his death as they were used to live during his life-time, but at the same time I fail to understand why the Maharajadhiraj should have added so many other clauses restricting the user of the properties to them. I agree (that the Maharajadhiraj must have intended that the Maharanis should live comfortably during their life-time, but it is also his clear intention that after the death of the two Maharanis there should be a provision for a perpetual Trust for charity and also for rendering benefits to his descendants, that is, the children of his nephews. The Trustees have not been directed to pay the income of the Trust properties beyond the sum of Rs. 3,000 per month. The properties bequeathed to the Maharanis are to be held in Trust by the Trustees and not to be squandered away by them or their advisors. At the same time the Maharajadhiraj has taken pains to provide for the maintenance of the residence and also for their personal fund. He has not only given them the two best buildings for their right of residence till their death but also he has allowed them to use the furniture and fittings without any interference from anybody. But apart from residence, use of furniture and fittings, the Maharanis would need some cash money which would be necessary for their personal expenses and, accordingly, Maharani Rajyalakshmi was given Rs. 8 lacs and Maharani Kamsundari Rs. 12 lacs in cash. Such payments would be made in addition to a monthly maintenance of Rs. 3,000 to each of the two Maharanis out of the corpus or income of the assets of the value of Rs. 15 lacs bequeathed to each of the two Maharanis under Clause 3 and to be held by Trustees under Clauses 5(a) and 5(b). 1970 Lakshmi Kanta Jha v. Maharani Rajyalakshmi; Masud J.

There is another reason why the contention that Clauses 4, 5(a) and 5(b) referred to one Trust only, cannot be accepted. Clause 4 specifically provides that the Trustees shall keep the residuary properties, particularly the house properties, in proper repairs. Obviously the cost of the repairs would come out of the income of the residuary properties. Admittedly, the residential house at Rambagh and the Nargauna palace are not a part of the residuary estate. Therefore, the cost of repairs or costs of maintenance of Rambagh palace and Nargauna palace cannot be made out of the income of the residuary estate. But Clause 6 provides that the Trustees shall keep in proper repairs the said Rambagh palace and Nargauna palace and the costs of maintenance will be made out of the properties bequeathed to Maharani Rajyalakshmi and Maharani Kamsuhdari respectively. Thus the testator specifically mentions the fact that Rambagh palace has been bequeathed to Maharani Rajyalakshmi for her residence and the costs of repairs of the Rambagh palace have to be made out of the properties bequeathed to Maharani Rajyalakshmi. Similarly, the costs of maintenance of Nargauna palace had to be made out of the properties bequeathed to Maharani Kamsundari. In Clause 6 the word ''respectively'' is added which means that the costs of maintenance for Rambagh palace cannot be made out of the properties bequeathed to Maharani Kamsundari and the costs of maintenance of Nargauna palace cannot be made out of the properties bequeathed to Maharani Rajyalakshmi. The Trustees under Clause 4 have nothing to do with the said two buildings and, therefore, the Trustees referred to in Clause 6 in just be different Trustees. If the properties bequeathed in Clauses 5(a), 5(b) and 6 refer to residuary properties and constitute one Trust as mentioned in Clause 4, there need not be any special direction as to the maintenance of the said two palaces as set out in Clause 6.

It is contended by Mr. Banerjee that Clauses 5(a) and 5(b) provide a contingency that after payment of taxes and other public dues if the Trustees do not find sufficient money to pay Rs. 3,000 to each of the two Maharanis every month the deficit should be made up from out of the capital assets. According to Mr. Banerjee, the capital assets are to be held only by the Trustees in Clause 4. The second and third Boards of Trustees in Clauses 5(a) and 5(b), as suggested by Mr. Mitter, would never have any control over the capital assets mentioned in Clause 4. In the premises, he has contended that the second and third Boards of Trustees are the Trustees of the self-same Trust as set out in Clause 4. In my view, the capital assets mentioned in Clauses 5(a) and 5(b) do not refer to the capital assets mentioned in Clause 4. If Mr. Banerjee''s contention is correct then the following words should have to be added after ''capital assets'' in Clauses 5(a) and 5(b):

Capital assets as set out in Clause 4. On the contrary, it is obvious by reading the instrument in its entirety, that the capital assets in Clauses 5(a) and 5(b) refer to the assets mentioned in Clause 3. He has drawn my attention to Sections 77, 82, 83 and 84 in support of his contention that the instrument should be construed as a whole and the intention is to be spelt out from the entire document. I accept the said contention and I am of opinion that if the instrument as it stands cannot be given any reasonable meaning or if the meaning of a particular word in the instrument results in absurd conclusion or if no legal effect could be given to a particular clause of the instrument, the Court has got a wide power to construe the document on such a way that a reasonable meaning could be given to the whole document, if necessary, by adding particular word or words which has or have been omitted. But, in my view, the instrument as it stands can be given a reasonable meaning and there is no difficulty in implementing its provision as it stands.

It is also argued that there is no provision in Clause 4 for the payment of taxes and statutory liabilities. Clauses 5(a) and 5(b) specifically provides for the same. Mr. Banerjee has, therefore, asked me to hold that the Trusts mentioned in Clauses 4, 5(a) and 5(b) refer to the same Trust. According to him, Clause 4 provides for maintenance of '' the properties and Clauses 5(a) and 5(b) provide for, inter alia, taxes and statutory liabilities. In my view, even if no provision for payment of statutory liabilities is mentioned in Clause 4 the residuary properties are vested in the Trustees and, as such, they are legally liable to pay the same. Reference may be made to Underbill''s Law of Trust and Trustees (10th ed., p. 234 ; Article 40) where the learned author has made the following observations:

The trustees of a private trust is, as legal owner liable to be rated in respect of the trust properties.

Mr. Banerjee has also contended that if the Executor hands over assets to the value of Rs. 15 lacs to the Trustees as set out in Clauses 5(a) and 5(b), the said assets might not yield any income which would enable the Trustees to pay the maximum sum of Rs. 3,000 per month to each of the two Maharanis. In my view, there is not much force in the said contention. u/s 34 of the Indian Trust Act, 1882, the Court has power to give direction on an application of the Trustee relating to the management or administration of the Trust property. Reference may be made to the decisions, In re New (1901) 2 Ch. 534 where the Court has got overriding power to sell Trust property which does not yield any income. u/s 34 the Executor can also apply for converting the Trust property into properties, which would yield income. After all, even properties ordinarily yielding income may cease to yield income. In any event, under Clause 9 the assets have got to be valued by a Valuer and assets to the value of Rs. 15 lacs have to be given to each of the two Trustees mentioned in Clauses 5(a) and 5(b). If such valuable assets do not yield any recurring income the Trustees with the permission of the Court can get them sold.

There are certain other features which also do not support Mr. Banerjee''s contention. In respect of bequests in Clauses 1 and 2 the Testator has used the word ''absolutely'', but with respect to the properties in Clause 3 the'' word ''absolutely'' has not been mentioned. This would lead to the conclusion that the provisions in Clause 3 are to be given effect to subject to the limitations in Clauses 5(a) and 5(b). Further, the nature of the Trust and the duty of the Trustees in Clauses 4, 5(a) and 5(b) are not the same. During the life-time of the two Maharanis the Trustees under Clause 4 have not got any power to utilize the income of the residuary property for the benefit of any person. Trustees there have only been directed to pay Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari. The Trustees will spend the income for keeping the properties in repair and keep the balance for ultimately handing over to the children of the nephews and also for charity as mentioned* in Clause 4. They have no power to eat up the corpus or to spend income in any other way whereas in Clauses 5(a) and 5(b) the Trustees have been empowered to touch capital assets, i.e. Rs. 15 lacs in each case, and also eat up the corpus of the said capital assets do not yield a net monthly income of Rs. 3,000. It may be stated here that any long term investment of Rs. 15 lacs might yield income of about Rs. 90,000 a year. An extreme hypothetical case may be considered if the income of the assets of the value of Rs. 15 lacs does no yield any income at all, then every year a sum of Rs. 36,000 is to be withdrawn from the said 15 lacs, and even if it runs for 40 years, which may be considered as reasonable expectation of life a sum of about Rs. 14,40,000 will be spent. In any event, the Maharanis would not be in distress as sums of Rs. 8 lacs and Rs. 12 lacs-have been given in cash to Maharanis Rajyalakshmi and Kamsundari respectively, apart from the assets of the value of Rs. 15 lacs each.

A question has been raised by Mr. Banerjee that if the Trusts mentioned in Clauses 5(a) and 5(b) are different from the Trust mentioned in Clause 4, the Trustees in Clauses 5(a) and 5(b) should have been given directions as to how the unspent balance money of the assets of the value of Rs. 15 lacs each is to be utilized after the death of each of the two Maharanis. Mr. Mitter- has argued that the balance, if any, would be held by the Trustees for the benefits of the heirs of the Maharajadhiraj under a resulting Trust. He has drawn my attention to Section 83 of the Indian Trust Act, 1882, which clearly provides that, where a Trust is completely executed or exhausted, the Trustee in the absence of a direction to the contrary must hold the Trust property or so much thereof as is unexhausted for the benefit of the author of the Trust or his legal representatives. Mr. B. Das has submitted that it is not necessary for me to express any opinion on He said point as no specific question has been raised on such a contingency in the present originating summons. In any event the assumption of such money would only arise after the death of the Maharanis and, as such, the question does not arise now. In my view, Mr. Das is right that in this particular case I should not express my opinion either way. There is another reason why in this particular case I will not express any view. A residuary estate has been constituted under Clause 4. It is quite possible that after the death of the Maharanis the balance of the unexhausted Trust properties in Clauses 5(a) and 5(b) may be diverted to the residuary properties under Clause 4. Reliance may be made on King v. Dennyson 35 E.R. 102 (106, 107) where the following observations have been made:

Where therefore, the whole legal interest is given for the purpose of satisfying Trusts expressed, and those Trusts do not in their execution exhaust the whole, so much of the beneficial interest as is not exhausted belong to the Heir, but where the whole legal interest is given for a particular purpose with an intention to give to the Devisee of the legal Estate the beneficial interest, if the whole is not exhausted by that particular purpose, the surplus goes to the Devisee as it is intended to be given to him.

Before I answer the question raised in the summons it is necessary for me to refer Mr. Das''s contention that the sum of Rs. 8 lacs and Rs. 12 lacs payable to Maharani Rajyalakshmi and Maharani Kamsundari under Clause 4, should also be handed over to the Trustees mentioned in Clauses 5(a) and 5(b). In my view, it is impossible to accept such a contention. In Clause 3 the word used by the Testator is that�

I further bequeath to my wife Maharani Rajyalakshmi assets of the value of Rs. 15 lacs and to my wife Maharani Kamsundari assets of the value of Rs. 12 lacs.

Whereas in Clause 4 the language used is that the Trustees shall pay Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani* Kamsundari. The Executor has nothing to do with payment of these sums of money to the two Maharanis. Therefore, it cannot be said that these two sums of money are also ''properties bequeathed'' within the meaning of Clauses 5(a) and 5(b). It is contended that the Trust in Clause 4 has been created under the Will and, as such, a payment of any sum under the Trust would be also a property bequeathed under the Will. If such a wide construction is given, then even the sum of Rs. 3,000 to each of the two Maharanis payable in Clauses 5(a) and 5(b) also are properties bequeathed to the two Maharanis. In such a case the Maharanis cannot even touch any sum of money including the monthly payment of Rs. 3,000 to each of the two Maharanis in Clauses 5(a) and 5(b). This would lead to an absurd conclusion that the Maharajadhiraj did not intend that the Maharanis would have no money of their own. Further, such a construction would be contrary to the intention of the Testator and the tenor of the Will.

For all the reasons stated above I answer the questions raised in the summons in the following way:

I. Assets of the value of Rs. 15 lacs payable to Maharani Rajyalakshmi are to be handed over by the Executor to the Board of Trustees mentioned in Clause 5(a) after deduction of any excess, amount paid to her by the Executor for maintenance. Similarly, assets of the value of Rs. 15 lacs payable to Maharani Kamsundari are to be handed over by him to the Trustees mentioned in Clause 5(b) of the Will after deduction of any excess amount paid to her by the Executor for maintenance. A sum of Rs. 8 lacs will be paid by the Trustees in terms of Clause 4 of the Will to Maharani Rajyalakshmi and a sum of Rs. 12 lacs mentioned in Clause 4 of the said will be paid by them to Maharani Kamsundari.

II. The Trustees mentioned in Clauses 5(a) and 5(b) of the Will and not the Defendants Nos. 1 and 2 are to receive assets of the value of Rs. 15 lacs each mentioned in Clause 3 of the said Will. The said assets or documents thereon are to be handed over to the Trustees without further delay and, in any event, immediately on completion of the administration of the estate.

III. Defendants Nos. 1 and 2 are to receive from the Trustees mentioned in Clause 4 a sum of Rs. 8 lacs and Rs. 12 lacs respectively immediately on completion of the administration of the estate by the Executor.

IV. Yes. In addition to the answers stated above, each of the Defendants Nos. 1 and 2 is entitled to receive from the respective Trustees mentioned in Clauses 5(a) and 5(b) of the Will, Rs. 3,000 per month.

V. No, but the said assets or documents thereof are to be handed over without further delay, in any event, immediately on completion of the administration of the estate.

VI. The same answers as given to Q.S. II, III, IV and V.

Mr. T. P. Das, on behalf of the Defendant Maharani Kamsundari has contended that in addition to the assets of the value of Rs. 15 lacs each as set out in Clause 3 and Rs. 8 lacs and Rs. 12 lacs to each of theta two Maharanis as set out in Clause 4 both Maharanis are entitled to get interest with effect from October 1, 1963, under Sections 349, 350, 351 and 353 of the Indian Succession Act. Mr. Mitter has. accepted such claim of interest and, in the premises, although the question of interest has not been raised until the last date of the hearing, I hold that the Executor in handing over the assets of the value of Rs. 15 lacs to each of the two Boards of Trustees, as mentioned in Clauses 5(a) and 5(b), should also add interest to the said sum of Rs. 15 lacs each at the rate of 6 per cent per annum. Further, I hold that the Trustees in Clause 4 of the Will should hand over interests on Rs. 8 lacs and Rs. 12 lacs to Maharani Rajyalakshmi and Maharani Kamsundari respectively- at the rate of 6 per cent with effect from October 1, 1963. The costs of all the appearing parties will come out of the estate. The costs will be as costs of a hearing. Certified for two counsel. The costs of the Executor would be as between Attorney and client.