SHEW BUX MOHATO & ORS. versus AJJT NATH DUTTA

Citation: [1967] 1 S.C.R. 162 · Decided: 24-08-1966 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

Judgment (excerpt)

SHEW BUX MOHATO & ORS. 
v. 
AJJT NATH Dl!ITA 
August 24, 1966 
[K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT. JJ.] 
Probate and Administration Act, 1881, •. 90(1)-Power of utt11tor 
to d6111 with properr,-When retarded 03 ratrlcted. 
A 
B 
N, by a will made in December 1888, appointed his widow, S, u 
the executrix of his estate; he also bequeathed to her for her natural life 
certain garden lands measurina; about 31 bijbaa and at~ her dealb to C 
bis aon absolutely by way of vealed remainder. 
aauso 3 of the will 
directed S to pay maintenance to the T..,tator's mother; clause 4 provides 
that S could sell any portion of the estate if occesaary, for the purpose ol 
meeting the marriage expensea of the testator'• oon and daughter; clauh 
5 provided that the executrix would pay the testator'• debto and realize IW 
dueo. 
After N'1 death in September, 
1899, the plaintilr1 rredeceaor in D 
interest purchased the aon's interest at an auction sale held in execution of 
a decree agaimt the son who became an insolvent. 
In July 1901 S executed a leue of 6 bighaa out of the aforesaid 31 
bighu of garden land and the interest in thia leuebold su"'eqneo1ly 
vealed in the 3rd defendant. 
In September 1945 the plaintiffs instituted.a auit claiming a declaration E 
of their title to and for recovery of khaa possession of the garden land 
and for other reliefs. The Trial Coun decreed the auit. The decree P-
ed against the dereodnnts other than the 3rd defendant was 
confirmed 
by the High Court and became final. 
In the appeal tiled by the 3rd 
defendant, the High Court confirmed 1ho decree of the trial coort declar· 
ins the plaintift's title to the 6 blghu of · land covered by the leasehold, 
but It set aside the decree for recovery of khaa possession and m1111e 
profits, and instead passed a decree for 3 yeara rent in 
respect of the F 
property. 
In the appeal to this Court the plaintills challenged the correctness of 
• 
the decree and it was contended on their behalf that the specific autho-
rity in clause 4 of the will to deal with the estate in a particular way nega-
tived any authority to deal with it in any other way. 1be question for 
consideration therefore was whether the will of N imposed any restriction 
on the power of S. executrix, to dispose of hia immovable properties veoted G 
in her aa the executrix. 
HELD : 
On tho conaideration of the terma of Ille will that CllUIO 4 
of the will did not fetter the power of the executrix to lease the property 
in due course of administration. 
Clear language was required for rm-
tricting the power of the executrix to deal with the property under ·&. 90 
(I) of the Probate and Administration Act, 1881. The pnnciole apr111- H 
Sl4m faclt cn!are taciturn bad no application to the case. [16S B-F) 
hma CMndra Bak.rlti "· Hobin Clumdra GllllfOpadhya, ( 1903) 8 
C.W.N. 562. referred to. 
/. 
s. B. MOHATO v. A. N. DATTA (Bachawat, /.) 
163 
A 
CML APPELLATE JURISDICTION : Civil Appeal No. 196 of 
1964. 
Appeal from the judgment and decree dated September 8, 1954, 
of the Calcutta High Court in Appeal from Original Decree No. 111 
of 1948. 
B 
A. K. Sen, S. N. Choudhuri and D. N. Mukhtrjee, for the 
c 
D 
E 
F 
G 
H 
appellant. 
A. N. Sinha and S. N. Mukherjee, for the respondents. 
The Judgment of the Court was delivered by 
Bachawat, J. The only question arising in this certificate 
appeal is whether the will of Nursingdas Seal imposed any restric-
tion on the power of the executrix appointed by the will to dispose 
of his immovable properties vested in her as the executrix. 
Nursingdas Seal was the owner of garden land measuring 31 
bighas and known as premises Nos. 26, 27 and 28, Dum Dum 
Cossipore Road, Ghooghoodanga. He died in December, 1888, 
leaving a will dated December 11, 1888 whereby he appointed his 
widow, Sukheswari, as the executrix and bequeathed his estate to 
Sukheswari for 
her natural life and thereafter to his son, Nila-
kantha absolutely by way of vested remainder. 
On September 9, 1899 one Sewdas Mohata purchased the 
interest of Nilkantha in the garden lands at an auction sale held in 
execution of a decr~e passed in a suit to enforce a mortgage dated 
September 7, 1893 executed by Nilkantha. Nilkantha became an 
insolvent and his estate· vested in the Official Assignee of Bengal. 
Sewdas's title to the property subject to the life interest of Sukhes-
wari was confirmed by a compromise decree dated February 17, 
1904 passed in Suit No. 595 of 1901 and a conv

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