TMI Blog1948 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... een contested by opposite party 1 alone. 2. The late Sarnath Sanyal left two sons, Hrishikesh Sanyal, opposite party 1, and Satyendranath Sanyal, and three daughters, namely, Srimati Sarjoo Bala Devi, Srimati Shu Kumari Devi and Srimati Lalana Bala Devi. By his will Sarnath Sanyal disinherited his younger son, Satyendranath Sanyal, who had not married and lived separately from him and, as stated in the will, had squandered much of the testator's money and had not been obedient to him. He, however, permitted him to live in his residential house if he so wished and if he also paid back the money which he had borrowed from the testator he was to be paid a sum of ₹ 15 per mensem during his lifetime so long as he lived in the testator's residential house. The testator, in para. 5 of his will, also gave the right to live in his house during their lifetime to his eldest daughter, Srimati Sarjoo Bala Devi and his youngest daughter, Srimati Lalana Bala Devi and fixed an allowance of ₹ 15 each per mensem for them so long as they lived in his house. 3. In para. 6 of the will he says that his second daughter, Srimati Shukumari Devi, was living in his house with her th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramed : (1) Whether this application lies under S. 301, Succession Act ? (2) Whether opposite party No. 1 has failed, without sufficient cause, to comply with the provisions of para. 6 of the will dated 13th September 1931, of the late Sarnath Sanyal ? (3) Whether opposite party No. 1 has failed, without sufficient cause, to comply with the second provision of para. 8 of the said will ? (4) Whether the transfer by opposite party No. 1 to bis wife of house No. D. 38/24, Hauz Katora, Banaras city, is contrary to the provisions of para. 10 of the said will? (5) Whether this application is maintainable in view of the decree of this Court dated 20th April 1942, made in Letters Patent Appeal No. 9 of 1941 ? 8. Before I take up the issues it may be mentioned that an application under S. 301, Succession Act, had previously been made on behalf of the applicant, who was then a minor, and his minor brothers and sisters under the guardianship of Mr. A.P. Bagchi, who is counsel for the applicant in the present case. This application was made in September 1940. It came up for hearing before Allsop J., who dismissed it on 3rd January 1941. There was a Letters Patent appeal, on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowance of ₹ 50 as fixed by the testator for his eldest daughter, Srimati Sarjoo Bala Devi, and his children in para. 6 of his will and the amount of RS. 35 per mensem as fixed by the compromise entered into between the parties in Letters Patent appeal No. 9 of 1941 on 20th April 1942 on the ground that it is open to him to seek such remedy by means of a separate suit. 11. In view of what has been said before and the above statement of Mr. Bagchi it would appear that issues 2 and 3 no longer arise except in so far as issue 2 relates to the alleged failure on the part of opposite party 1 to pay the marriage expenses of the two daughters of Srimati Shukumari Devi. And the answer to issue 5 would be that the present application is maintainable, if it is maintainable at all, only in so far as it relates to the alleged failure on the part of opposite party 1 (part of issue No. 2) to pay the marriage expenses of the two daughters of Srimati Shukumari Devi and the transfer by him to his wife of house No. D. 38/24 Hauz Katora, Banaras City. 12. I shall now proceed to consider issue 1. The contention of opposite party 1 is that the present application under S. 301, Succession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, get in and administer the estate of the deceased and after this has been done and the estate has been settled his duties as executor are finished and if he is required to continue to be in charge of the property for the benefit of certain beneficiaries he ceases to be an executor and becomes a trustee of the property. 15. The leading case on the subject is that of Taran Singh Hazari v. Ram Ratan, 31 cal. 89. One Gauri Debi had been appointed executrix of the will of the minor's father Shib Lal Tewari. She continued to manage the property of the minor for some time and then applied to the Court of Wards to take over the estate. The Court of Wards took over the estate and subsequently brought a suit on behalf of their ward against the defendant Taran Singh to recover from him the amount due on a mortgage bond executed by him in favour of Gauri Debi as guardian of the minor. One of the defendant's contentions was that as Gauri Debi was the executrix appointed under the will and had taken out probate of the will she was the only person legally entitled to sue. It was held that Gauri Debi had ceased to manage the property as executrix of the will of the deceased Shib Lal T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be the estate of the deceased and has become the property of the residuary legatee under the will, the executor as such has no authority to manage the estate on his behalf. Under the will the beneficial interest in the property vested in the minor as soon as the testator died, and Gauri Debi was appointed as executrix to manage the property till the minor attained majority. In describing her as executrix for this purpose there has, in our opinion, been a confusion or misinterpretation of the term executrix . What was intended appears to us to be that she should as executrix administer the estate and see that the terms of the will were carried out, and this being done, that she should manage the property covered by the will not as executrix under the will and administratrix of the deceased's estate, but as manager for the minor till he attained majority. The intention clearly was to appoint her to be manager of the minor's estate. We think that in interpreting the will we must have regard not merely to the words used but to the evident intention of the testator. It has been suggested that she could not as executrix make over the property to herself as manager of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funeral and testamentary expenses, debts, and legacies have been satisfied, and the surplus has been invested upon the trusts of the will, the executor then drops that character and becomes a trustee in the proper sense, and may then be discharged from the office like any other trustee. 19. The duties of an executor and a trustee are quite different. But an executor may also be a trustee under a will appointing him executor and creating the trust and in this connexion the following is reproduced from the judgment in the case of Hara Coomar Sircar v. Doorgamoni Dasi, 21 Cal. 195 : The learned pleader for the respondent contends that an executor is in fact a trustee, and that as such a Court of Equity can either grant or refuse him probate at its discretion. We think, however, that this contention is not sound. An executor may no doubt be regarded as occupying the position of a trustee for the purpose of administering the estate, and he may also be a trustee under a will appointing him executor and creating the trust, but that is quite a different matter from saying that an executor qua executor is a trustee. The true position, powers, and duties of an executor are essentially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id properties in the way he thinks proper either by giving it to some charitable purpose or by giving it to my grand children (daughters' sons) but this shall not operate during the lifetime of my children. 24. Hrishikesh Sanyal is said not to have complied, or not fully to have complied, with the obligations imposed on him by these clauses, and the question which arises is whether Hrishikesh Sanyal, as regards the execution of such obligations, held the character of executor or that of trustee. The answer to this question does not depend upon the words used in the will for the latter may create a trust of which the executor, although described as such is in law the trustee. The duties of an executor in general terms are to collect the assets of the deceased, to pay his debts and the funeral and testamentary expenses and thereafter to make over the residue of the estate to the person or persons entitled thereto under the will. Where the testator intends to create a trust of the whole or part of his property his will, if properly drawn, will direct the executor, after performing the ordinary duties of administration, to make over the estate or such part thereof as the testato ..... 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