GOUWRI Vs. NARAINA MUCHINTHAYA

JUDGEMENT

(1.) The first question that we have to decide in this appeal is whether the plaintiff is entitled to mesne profits from the date of the death of the testator, under whose Will she is entitled to the property in question. The Will, Exhibit A, beqeaths the item of the property with which we are concerned in the case to the plaintiff, his daughter, who, at the time of the Will, was only two years old. The testator bequeathed the other properties, moveable and immoveable, to the defendants, who were distant cousins of his. The bequest to the plaintiff is absolute and the Will provides that the defendants are to bring about the marriage of the plaintiff with a boy named in the Will and that they are to deliver possession of the property given to her on such marriage. The property became the plaintiff s on the death of the testator; prima facie she is entitled to all the income from that date. There is nothing in the terms of the Will by which her right to the income of the property bequeathed to her is limited as accruing from any other date.

(2.) The District Judge was, however, of opinion that she was not entitled to mesne profits. He seemed to think that the defendants were not to render an account of the proceeds because the Will does not specifically provide for it. On the other hand, what he ought to have held, in the absence of any specific provision in the Will showing that the legatee is not entitled to the income from the date from which the bequest came into operation, was that she would be entitled to the income from that date. Section 128 of the Probate and Administration Act is clear on the point. It lays down: "The legatee of a specific legacy is entitled to the clear produce thereof, if any, from the testator s death. Evidently this provision of the law was not brought to the notice of the District Judge. We must reverse his finding on issue No. 1.

(3.) Then the defendants claimed that the expenses of the plaintiff s marriage incurred by them must be allowed. We think this is a valid contention. In the Will the defendants are asked to marry the plaintiff to a boy named Subroya Kanuraya, but it does not say that they are to find the expenses of that marriage from their own pockets. If that was the intention of the testator he would have said so in so many words, as we find that he charges the defendants with the expenses necessary for certain ceremonies specified in the Will, among which the marriage of the plaintiff is not included. The learned Vakils for the appellant and respondents have agreed to Rs. 200 being fixed for expenses on account of plaintiff s marriage.