Judgment

MAHAJAN, J.: This appeal is directed against a judgment of the High Court of Judicature at Calcutta, dated 27-6-1950, affirming the judgment of S. R. Das Gupta J., dated 8-7-1949, in Suit No. 3798 of 1948.

2. The principal question to be determined in the case was whether upon a proper construction of the will, dated 14-3-1927, of Raja Prafulla Nath Tagore, deceased, the Administrator-General of Bengal was entitled to possession of a house known as "Tagore villa" at Alambazar for a period of 15 years as provided in the said will. The High Court answered the question in the affirmative. This answer is in challenge in this appeal before us.

3. Raja Prafulla Nath Tagore, a Hindu governed by the Dayabhaga School of Hindu Law, died on 2-7-1938, leaving him surviving his widow and five sons. Kumar Purnendu Nath Tagore, the appellant, is his eldest son. On 14-3-1927, the late Raja executed his last will and testament. Clause 82 of the will is in these terms:

"I give my Alambazar Garden House "Tagore Villa together with all articles of furniture to my eldest son Sriman Purnendu Nath Tagore. On the expiry of the term of office of the Executors and Trustees, Sriman Purnendu Nath shall get the said Garden House. No other son of mine shall be competent to put forward any claim to the said Garden House or the articles of furniture."

The late Raja owned and possessed extensive properties, moveable and immoveable, lying within and outside the Original Jurisdiction of the High Court at Calcutta. The will is divided into 83 paragraphs. It gives full and elaborate directions for the management of his vast estate and in respect of its final disposition.

After the death of the Raja, his five sons obtained on 24-8-1938, in testamentary Suit No. 12 of 1938, an order for the issue of probate, which was later issued to them. On 8-4-1948, they were removed from their office as trustees and executors, and the Administrator-General of West Bengal was appointed the sole executor. On 22-11-1948, the Administrator-General took out an Originating Summons for the determination of the question above mentioned arising in the administration of the estate of the late Raja and for incidental directions.

4. The appellant resisted the contention of the Administrator-General on the ground that on a proper construction of the will, he alone was entitled to remain in exclusive possession of "Tagore Villa" at Alambazar and to the income thereof from the date of the death of the late Raja. Tois claim was based on the terms of clause 82 of the will.

5. The general rule of law is well settled that a donee or a legatee can only take what is given to him on the terms on which it is given. By clause 82 of the will, the appellant was entitled to the Garden House of Alambazar on the expiry of the term of office of the executors and trustees. By clause 10 of the will, the testator directed that after his death, his executors and trustees shall conduct the affirs of the estate according to the rules fixed by him.

For payment of the legacies, he gave the following directions in this clause:

"The legacies fixed in this my present will shall have to be paid in full within fifteen years of my death and these fifteen years my estate shall be managed under the supervision of the Executors and Trustees. As to the various legacies that I have made a mention of, in this my will, my executors and trustees shall pay up all the said legacies out of the small savings made from the income of my estate year after year. For paying up the legacies my executors and trustees shall not be competent to sell any portion of my estate or any immoveable property."

The executors appointed under the will were, therefore, directed to take possession and charge of the whole of the estate left by the testator, and they were directed to pay the legacies out of the savings from the income of the whole of the estate within a period of 15 years. In other words, the whole estate was vested in the executors for a p