Manindra Nath Banerji vs Ganesh Chandar Chatterji

Fazl Ali, J.—The appellants obtained two decrees against the respondent and sought to execute these decrees by attachment and sale of the interest which the respondent admittedly has in certain properties as a residuary legatee under a will executed by his uncle Mr. S.P. Chatterji under which the respondent was not only a residuary legatee, but also the executor. The respondent opposed the application of the appellants on the ground that he had no proprietary interest in the properties under attachment and that the decree could not be executed against those properties until the administration had been completed and his interest as a residuary legatee fully ascertained. This objection did not find favour with the learned Subordinate Judge of Jamtara, to whose Court the decree had been transferred for execution but it was allowed to prevail by the learned District Judge on appeal.

The only question therefore to be decided by us is whether the interest of a residuary legatee can be attached and sold in execution of a decree. The point is not free from difficulty, but on considering the authorities which have been cited before us by the learned advocate for the appellant we are disposed to agree with the view taken by the learned Subordinate Judge. There is no doubt that the residuary legatee does not become proprietor until after the administration has been completed and the residues ascertained and made over to him. If any authority is needed for this proposition it will be found in the case of Ganoda Sundary Chaudhurani v. Nalinee Ranjan Raha [1909] 36 Cal 28. It does not however, necessarily follow that merely because the residuary legatee does not become a proprietor, he has no disposing power over the interest which he acquires under the will. The question as to whether he has such a power or not was considered by the Judicial Committee in Chatteput Singh v. Maharaj Bahadur [1905] 32 Cal. 198 and it was observed there that when the estate of a deceased person is under administration by the Court or out of Court, a purchaser from a residuary legatee or heir buys subject to any disposition which has been made or may be made of the deceased''s estate in due course of administration. These remarks clearly indicate that the residuary legatee''s interest is capable of being sold and purchased. This view also finds support from the decision in Khagendra Nath Mukherjee v. Kshetra Nath Pal AIR 1923 Cal. 21 where it was held that an interest taken by the legatee in the subject matter of the legacy can validly be mortgaged, before the assent of the executor is given to complete the title of the legatee and that where the will creates a vested interest in the legatee in the subject-matter of the legacy, he has a transmissible interest subject to the reservation that the legacy whether in his hands or in the hands of his transferee may be imperilled to the extent necessary for the due administration of the estate by the executor. It is true that that was the case of a pure legatee, but there is nothing in the decision to indicate that the case of a residuary legatee would have been considered on a different footing. The only difficulty which we thought might stand in the way of the appellant was that under Clause (m), Section 60, Civil P.C., it is provided that a merely contingent or possible right or interest shall not be liable to attachment or sale in execution of the decree. Now the question is whether the interest acquired by a residuary legatee is a vested interest or a merely contingent or possible interest. There is no doubt that no benefit can accrue to a residuary legatee until all the debts and legacies provided by the will have been paid out, and it may turn out in some cases that ultimately nothing is left to go to the residuary legatee. But it does not necessarily follow that his interest is not a vested interest under the will because whatever interest is derived by such a legatee is derived under the will and vests in him as soon as the testator dies and the will is proved. A vested interest has been defined both in Section 19, T.P. Act, arid in Section 119, Succession Act. The explanation to Section 119, Succession. Act, runs thus:

An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed or whereby a prior interest therein is bequeathed to some other person or where by the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision that if a particular event shall happen the legacy shall go over to another person.

The Courts always lean in favour of vesting of residuary gifts and as has often been remarked:

a very clear intention must be indicated in order to postpone the vesting under the residuary bequest since intestacy is often the consequence of holding it to be contingent or at least such may be its effect.

In this particular case the Court off first instance has clearly pointed out that the properties left by Mr. S.P. Chatterji are worth several lakhs of rupees while the legacies are only for a few thousand rupees and the debt also is by no means very large. In these circumstances it is difficult to hold that the respondent had not a vested interest.

Looking to the body of Section 60 it would appear that under this provision any property, moveable or immovable over which or the profits of which the judgment-debtor has a disposing power which he may exercise for his own benefit (whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf), may be sold in execution of a decree. It is well settled that a vested interest is generally transferable, and in this particular case all that could be sold would be the right, title and interest of the respondent. I would therefore allow these appeals, set aside the decision of the Court below and direct the execution to proceed. As the respondent does not appear there will be no order for costs.