Nimai Charan Chatteejee vs Lakshmi Naeayan Chatteejee

Mookerjee, J.—This appeal is directed against an order passed by the Subordinate Judge, 24-Parganas, ordering the issue of probate with a copy of the will of Khagendra Nath Mukherjee annexed, in favour of the Respondent Lakshmi Narayan Chatterjee.

The testator Khagendra Nath Mukherjee died on March 8, 1948, while suffering from tuberculosis, and when he was an inmate at the Pendra Road Sanitorium in the Central Provinces. Khagendra Nath was an inhabitant of Belgharia in the district of 24-Parganas. He had lost his parents at an early age. He had two sisters Gourirani and Umarani. The Appellants-objectors are the sons of these two sisters represented by their respective father and natural guardian. The Petitioner propounder Lakshmi Narayan Chatterjee is the father-in-law of the testator. He claims that he is the sole executor nominated by a will alleged to have been executed on March 7, 1948, the day previous to the death of the testator.

In the objections filed by the nephews of the testator it was contested that the will was not duly executed and attested; that it had been obtained from Khagendra Nath by undue influence and coercion; and that he had no testamentary capacity to execute a will. An objection was also raised that no executor having been appointed under the will, the present proceedings were misconceived and the Petitioner was not entitled to apply for grant of probate to the will.

The Subordinate Judge came to the conclusion that the relationship between Khagendra, the testator, and his father-in-law Lakshmi Narayan was not at all a cordial one, during the stay of the former at the sanitorium till December, 1947. Lakshmi Narayan who had obtained a power of attorney from his son-in-law before the latter was removed to the sanitorium, had sold a large portion of the properties belonging to Khagendra, and that Lakshmi Narayan "fully exploited the illness of his "son-in-law to his own material advantage." Khagendra had attempted to remove himself from the control of his father-in-law, but when he actually came back to Belgharia on December 31, 1947, he was disillusioned as to the ability and willingness of his sisters'' husbands to help him. He resigned himself to the care and protection of his father-in-law, and reconciled himself to his lot though he had made bitter complaints against him in his letters up to December, 1947. The Subordinate Judge further came to the conclusion that there was no sufficient reason to disbelieve the evidence of some of the attesting witnesses to the will, and held that the will had not been obtained by undue influence or coercion and that the testator had testamentary capacity at the time of the execution of the will. With regard to the objection raised about the competency of the present proceedings, the Subordinate Judge held that Lakshmi Narayan had been appointed executor by implication and he was accordingly entitled to the probate of the will.

On behalf of the objectors-Appellants it has been argued that on a proper interpretation of the terms of the will it should have been held that no executor was appointed under the will and Lakshmi Narayan could not be regarded as having been appointed an executor by implication. With regard to the merits, we have been taken through the entire evidence in the case in support of the contention that the testator had no physical and mental capacity at the time of the alleged execution of the will, and that moreover there being definite evidence, and the findings being in favour of the objectors about the hostility against the father-in-law up to December, 1947, and there being no evidence to indicate any change in the mental attitude of the testator from January to March, 1948, the propounder should have been held to have failed to satisfy the conscience of the court that the will was the voluntary act of the testator.

Before we need enter into the question as to whether the will had been properly executed and attested, and whether it was the voluntary act on the part of the testator, we have first to consider the objection about the maintainability of the present proceedings initiated by Lakshmi Narayan. If we arrive at the conclusion that no executor had been appointed by the will, either directly or by implication, the present proceedings initiated by Lakshmi Narayan must be dismissed in limine as no probate can be granted in favour of Lakshmi Narayan.

u/s 2(c) of the Indian Succession Act, as executor is the person to whom the execution of the last will of a deceased person is, by the testator''s appointment, confided. An executor may be appointed under Sub-section (2) of Section 222 of that Act by express words in the will or by implication, i.e., according to'' the tenor of the will. Where an executor has not been appointed as provided in Section 222 of the Act, the estate can be represented only by an administrator who is "a person appointed by a "competent authority to administer the estate of a deceased ''''person where there is no executor." u/s 222(1) an application for probate may be made only by an executor appointed by the will.

On behalf of the Appellants-objectors it is contended that the present proceedings initiated by Lakshmi Narayan Chatterjee for the grant of a probate to the will of Khagendra Nath are misconceived, as under the will the Petitioner had not been appointed executor either by an express declaration or by necessary implication.

It is the common case of both the parties that in the wilt in question there is no express appointment of an executor. We have, therefore, to consider whether the Petitioner can be regarded as having been appointed executor according to the tenor of the will.

On behalf of the propounder reliance is placed on the passage in the will quoted below as indicating that the Petitioner was appointed executor by implication. After making a clear device in favour of Archana Debi, wife of the testator, of an absolute estate in respect of all the properties to be left by the testator, it is provided:

For the purpose of protection of the person of my wife Sm. Archana Debi and for the purpose of protection of the properties covered by the will and bequeathed to my wife Sm. Archana Debi, I appoint Sreejut Lakshmi Narayan Chattopadhya, father of my wife Sm. Archana Debi and my father-in-law revered as father, the sole guardian. If my wife Sm. Archana Debi desires to make any gift, sale and transfer of any movable or immovable property she will not be entitled to do so without the permission of her father Sreejut Lakshmi Narayan Chattopadhya.

It may be at once stated that on the date when the will was being executed, Archana Debi was not a minor and no guardian of her person could be appointed.

On behalf of the objectors it is urged that Lakshmi Narayan is not appointed under the will to look after the testator''s estate as such after his death, but to protect and manage the properties as the properties of Archana after they vest in her as the legatee.

What are the tests which are to be applied for ascertaining whether or not a person has been appointed as an executor according to the tenor of the will? Unless the court can gather from the words of the will that a person named as trustee therein is required to pay the debts of the deceased and generally to administer his estate, it will not grant him probate as executor according to the tenor thereof. In the goods of Thomas Parnell (1872) L.R. 2 P&D. 379.

Even when a person is directed in a will to pay debts or funeral expenses, not out of the general estate, but out of a particular fund, such a direction will not be sufficient to constitute the person so named to be an executor according to the tenor of the will. In re Davis (1843) 163 E.R. 889: 3 Curt 748; In re James Jones (1861) 2 S.W&Tr. 155 : 164 E.R. 952.

In Ameer Chand v. Mohanund Bibi (1907) 8 C.L.J. 423, 459 reference was made to the above decisions followed by the observation:

The principle deducible from these cases is that in order to constitute one an executor according to the tenor of the will, it must appear on a reasonable construction thereof, that the testator intended that he should collect his assets, pay his debts and funeral expenses and legacies which, in the words of Sir James Hannen in In the goods of Adamson (1875) L.R. 3 P&D. 253, are the essential duties of an executor.

In the will before us the words used cannot by even straining the language, be interpreted to mean that the testator had any intention that Lakshmi Narayan was to collect his assets as under the will. The estate of the testator is not to vest after his death in Lakshmi Narayan with a direction either to hold and administer the same for the benefit of Archana or to Lund over the same to the latter. The duties cast upon Lakshmi Narayan are to begin not on the death of the testator, but after the properties had vested in the legatee Archana Debi. The limitations which are imposed on the rights of Archana Debi or the responsibilities which are assigned to Lakshmi Narayan are not in respect of the estate to be left by the testator, before such properties come into the possession of the legatee Archana.

A direction that a person is "to hold and administer" in trust "all my estate" is sufficient to constitute the person an executor according to the tenor of the will. In the goods of Way L.K. (1901) P 345. See, however, In the Estate of Mackenzie L.R. (19(sic)) P 305. When all the estate is bequeathed to one person but another is directed "to pay off my just debts" was accepted as an executor by implication. In the goods of Cook L.K. (1902) P 114; Viramma v. Seshamma (1930) ILR 54 Mad. 266.

There are no provisions in the will importing a general power to receive what is due to the estate of the testator or to pay the debts from the estate, as in In re James Jones (supra).

It is now Well-settled that provisions in a will naming a particular person as the guardian of a minor legatee with authority to protect the property during the minority of such a legatee (Seshamma v. Chennappa (1897) I.L.B. 20 Mad. 467) or, a clause in the will providing that certain persons "shall remain trustees, i.e., "guardians and next friend" (Gopal Dass Agarwallah v. Budree Dass Sureka (1906) I.L.B. 33 Cal. 657) cannot be interpreted as the appointment of an executor by necessary implication.

A person who is given the right to manage or to appoint a manager or is given rights to spend the income as the guardian of the legatee is not an executor by implication. Lado Rani Gurtu v. Sibhag Rani AIR (1927) (Lah.) 770.

Even when a person is authorised by a will to pay out the legacy, that also would not make him an executor according to the tenor. Sardar Singh v. Chakrapani Acharya ILR (1946) All. 398.

When a direction is only to pay debts out of a particular fund or out of a legacy given to the person directed to pay the debt, the person so directed is not to be regarded as an executor by implication. In re Thomas Foomy (1864) 3 Sw. and Tr. 562 : 164 E.R. 1393.

In determining whether the will appoints an executor by necessary implication or not, the court has to look into the terms of the will and cannot look beyond the testamentary paper, Brojo Ohunddr Goswami v. Raj Kumar Roy (1901) C.W.N. 1 :C.

There is no doubt that the will now before us cannot be so interpreted as to support the appointment of Lakshmi Narayan as an executor. The intention of the testator must be clearly stated. If there be any doubt, the court would rather grant administration of the estate with a copy of the will annexed, than strain the language for the purpose of constituting a person to be the executor according to the tenor. Ameer Chand v. Mohanund Bibi (1907) 6 C.L.J. 453.

Reading the will as a whole there is no escape from the conclusion that the testator did not directly appoint Lakshmi Narayan as the executor, the terms of the will cannot be reasonably interpreted so as to support the appointment of Lakshmi Narayan as an executor by implication or by the tenor of the will.

On the conclusion reached by us that no executor had been appointed under the will, this appeal must be allowed and the grant of probate dismissed. We do not express any opinion on the merits. If and when an application for the grant of letters of administration with a copy of the will annexed is filed by the legatee it will be for the court to consider the relevant question about the validity of the will and whether the paper produced is the last will and testament of Khagendra.

The learned Subordinate Judge even when ordering issue of probate with a copy of the will annexed to the applicant, having regard to the facts of the case, directed the parties to bear their own costs. In view of the decision reached by us we think the proper order as to costs would be that the costs incurred by the Petitioner Lakshmi Narayan should be borne by him personally and the estate of the deceased should not be made liable for any portion thereof.

The applicant Lakshmi Narayan will pay the costs of the hearing of this appeal, hearing fee being assessed at five gold mohurs. Such costs will also be recoverable from the Petitioner personally and no portion of the estate of the deceased will be liable for the same.

The application filed by the Appellants on August 8, 1951, is not pressed and is rejected.

The cross objection is dismissed without any order as to costs.

Lahiri, J.

I agree.