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1949 Supreme(Cal) 444
CALCUTTA HIGH COURT
Lahiri, J., G.N. Das, J.
Adeline Maude Ellanor Catchick Nee Robertson & Anr. - Appellant
Versus
Sunderlal Daga & Ors. - Respondent
A.F.O.D. No. 110 of 1945
Decided On : 18-08-1949
Atul Ch. Gupta and Upendra Ch. Mallik, for the Appellant;Naresh Chandra Sen Gupta and Jnanendra Nath Bakshi, for the Respondent
The extent of the executor's power of disposal, the validity of transactions for administrative purposes, and the binding nature of such transactions on the estate.
Headnote:
Probate - Disputed Property - 1892 Will, Codicil - Mortgage and Sale - [Probate] - [Succession Act (x [10] of 1865), Section 269, Succession Act, Section 307, Succession Act, Sections 332, 333, 335, Succession Act] - The court discussed the validity of the mortgage and sale of the disputed property by the executrix, the extent of the executor's power of disposal, and the binding nature of the transactions on the estate. The court held that the transactions were for administrative purposes and were binding on the plaintiffs.
Fact of the Case:
The plaintiffs appealed against the dismissal of their suit for possession and mesne profits of a disputed property. The property was bequeathed to the executrix for life with a remainder to the plaintiffs. The plaintiffs alleged that the estate had been fully administered before the mortgage and subsequent transactions, and that the executrix had no right to transfer more than her life estate for the purposes mentioned in the documents.
Finding of the Court:
The court found that the expenses incurred for repairs and improvements were administrative purposes for which the executrix could charge the estate. The court also held that the mortgage and subsequent transactions were binding on the plaintiffs, as the alienee had no notice of any improper purposes for the loans. The court dismissed the appeal and directed the parties to bear their own costs.
Issues: The issues included the maintainability of the suit, non-joinder of parties, estoppel, waiver, and acquiescence, valuation of the suit for court fee, and whether the estate was fully administered before the mortgage and subsequent transactions. The court also considered the entitlement of the plaintiffs as legatees under the will and their right to maintain the cause against the defendant.
Ratio Decidendi: The court held that the expenses for repairs and improvements were administrative purposes for which the executrix could charge the estate. The court also emphasized that the alienee had no notice of any improper purposes for the loans, and therefore, the transactions were binding on the plaintiffs.
Final Decision: The appeal was dismissed, and the parties were directed to bear their own costs.
JUDGMENT
G.N. Das, J. - This is an appeal by the plaintiffs against a decision of Mr. B. Mookerjee, Additional Subordinate Judge, 2nd Court, Alipore, District 24 Parganas, dated 29th November 1944, dismissing their suit for possession and mesne profits.
2. The plaintiffs' case is that the disputed property and other properties belonged to their father George Adolphus, Robertson. The letter was at all material times, living separate from his wife Olivia by whom he had several children. He had by one Mrs. Adeline Maude Bredee, a widow, two daughters viz., the plaintiffs.
3. On 4th July 1892, Mr. Robertson executed a will. The will inter alia provided that Mrs. Bredee would be entitled to the disputed property for her life and the remainder would go to the plaintiffs. Mrs. Bredee and the testator's two brothers William Cecil Robertson and Edwin Robertson were appointed executors.
4. On 12th January 1894, a son named George Nathaniel Robertson was born of Mrs. Bredee by the testator.
5. On 11th June 1898, the testator executed a codicil modifying several dispositions made in the will. The effect was that as regards the disputed property, it was to devolve on Mrs. Bredee for her life and the remainder was to go to the plaintiffs and the said George Nathaniel Robertson in certain contingencies.
6. Mr. William Cecil Robertson, one of the executors, having died, one Joseph Leslie was appointed an executor in his place.
7. The testator died on 30th August 1898. Mr. Edwin Robertson did not join in the application for probate of the will and the codicil which was filed by Mrs. Bredee and Mr. Joseph Leslie on 13th September 1898 in the Original Side of this Court. Probate was granted on 13th November 1898.
8. Joseph Leslie died on 27th May 1901. On 9th August 1901, Mrs. Bredee for self and as executrix to the estate of George Adolphus Roberson, mortgaged the disputed property to one Narendranath Mookerjee to secure an advance of Rs. 6,000 with interest at 9 per cent. per annum with quarterly rests for the alleged purpose of paying off debts incurred for effecting thorough repairs and making substantial additions and alterations in the disputed property.
9. On 3rd December 1901, Mrs. Bredee for self and as executrix raised a sum of Rs. 1,000 from the said Narendranath Mookerjee on a further charge of the disputed property, on similar conditions and for the same purpose. On 7th August 1903, Mrs. Bredee for self and as executrix released the equity of redemption in the said property in favour of the said Narendranath Mookerjee for a consideration of Rs. 3,168 only.
10. On 8th April 1904, the said George Nathaniel Robertson died. On 22nd January 1934, the said Narendranath Mookerjee took a loan from the defendant on a mortgage by deposit of the title deeds of the disputed property and of other properties. The said Narendranath Mookerjee instituted a suit being Suit No. 169 of 1935 for redemption of the said mortgage in the Original Side of this Court.
11. Pursuant to a preliminary and a final decree in the said suit, the disputed property and certain other properties were sold by the Registrar of this Court on 11th May 1938 and the defendant was declared the purchaser; the sale was confirmed and on 27th September 1938 a sale certificate was issued in favour of the defendant; the defendant took possession through Court and is in possession.
12. Mrs. Bredee died on 13th September 1941; and in terms of the will and the codicil, the plaintiffs have become entitled to the disputed property.
13. The plaintiffs further alleged that prior to 9th August 1901, the estate had been fully administered and that no money was required for purposes of administration at the date of the mortgage in favour of the said Narendranath Mookerji or at any later date; that at the material dates, Mrs. Bredee was in possession as legatee and not as executrix, and the said Narendranath Mookerjee had notice, actual or constructive, of these facts; that accordingly no title except that
