PRAN KRISHNA DAS Vs. SRIMATI SATIBALA SEN

JUDGEMENT

(1.) This is an appeal preferred by the plaintiffs against the decision of the learned Subordinate Judge of Chittagong, dated the 25th April 1916, modifying the decision of the Munsif of Patiya. The plaintiffs brought the suit to recover possession of a tank with its banks. The first Court decreed the suit in full. The, lower Appellate Court decreed it with regard to a twelve-anna share of the tank with its banks and dismissed it with regard to the remaining four-annas share. The plaintiffs have preferred the present appeal with regard to this four-annas share.

(2.) There were two brothers, Naba and Pranhari. Pranhari died having made a Will and appointing his brother Naba the executor. Having recited various terms in the Will, he authorized the executor in these terms: For all these, it may be necessary to mortgage, sell or let in ijara any portion of the properties and my brother will do it." The question is whether that was a power to mortgage, sell or let in ijara any portion of the properties for any of the purposes mentioned in the Will, or whether it was a power to mortgage, sell or let in ijara to enable the executor to dig a pond for the testator s mother and to suitably dedicate that pond. I do not think there can be any doubt that the testator in conferring the power to mortgage sell or let in ijara as mentioned in the Will was not considering only that purpose of digging a pond for the benefit of his mother and dedicating that pond. I think the power to mortgage, sell or lease contained in the Will was with reference to all the purposes mentioned in the Will. What happened was this: Naba leased out his own share and the share of his brother to whose Will he was the executor in perpetuity. The question now turns on Section 90 of the Probate and Administration Act. Under Section 90 an executor has power to dispose, if he thinks fit, of all or any of the properties vested in him under the terms of Section 4. Now the power of disposal of immoveable property so vested in the executor is subject to any restriction which may be imposed by the Will appointing him, unless the Court granting the Probate by an order in writing authorises the disposal notwithstanding the restriction. The question is whether this clause binding the power of the executor to lease by way of ijara is a restriction so as to prevent Naba from granting a permanent lease. I think the power to lease by ijara applies to the whole of the property, and that excludes by the very nature of it the right to grant a permanent lease. I think the conclusion arrived at by the learned Judge of the lower Appellate Court, although I do not agree with the reasons given by him, is correct. The present appeal, therefore, fails and must be dismissed with costs. Smither, J.

(3.) I agree.