Renupada Mukherjee, J.
1. This appeal arises out of a suit for partition, and the principal question involved in the appeal is the interpretation of some of the terms of a Will executed by one Rai Bahadur Jogesh Chandra Banerjee. The subject-matter of partition is a residential house at 10/2B, Sri Mohan Lane, P.S. Tollygunge which formerly bore No. 270/2B, Shanagar, Tollygunge P.S. The Will was executed on 22-1-1934, and was modified by a codicil, dated 9-3-1835.
2. It is an admitted fact that the testator left two houses bearing Nos. 270/2A and 270/2B Shanagar, besides a considerable amount of liquid money in the shape of postal cash certificates, shares of various companies, loans advanced to a son-in-law named Hiralal Mukherjee, and a life insurance policy. The testator died on 17-10-1944. He left two sons Jyotis Chandra Banerjee and Haripada Banerjee and six daughters at the time of his death, besides his wife Manmohini. Another daughter had predeceased the testator. In this appeal we are concerned with Nivanani, sixth daughter of the testator who is respondent No. 5 of this appeal and her two sons who are respondents Nos. 15 and 16. Nivanani had also another son at the date of the will. He has died since. The will shows, and it has not been disputed, that Nivanani had practically been deserted by her husband and she was living with her father under his care and protection with her children at the date of the will.
3. The testator made a bequest of various sums of money to various heirs of his from out of his liquid assets and he bequeathed the house at 270/2B Shanagar to his elder son Jyotis as a residuary legatee in addition to some shares and cash money. The other house at 270/2A Shanagar and the remaining money were bequeathed by the testator to the younger son Haripada under the terms of the original will. This bequest in favour of Haripada was, however, cancelled by the codicil, and arrangement was made for the residence and maintenance of his family, including Haripada himself. Jyotish and Manmohini were appointed executors under the will. The testator died on 17-10-1944 and after his death the executors applied for probate on 5-1-1945. Jyotis, one of the executors died on 20-12-1945, during the pendency of the probate proceedings. Manmohini was granted probate of the will, but after she had administered the estate only for a few years, she was removed on 28-6-1948, from her ex-ecutrixship at the instance of Kamal Kumar Banerjee, defendant No. 1 of the present suit. Appellant Badal alias Nabanna and defendant-respondent Kamal are two sons of Jyotis. After Manmohini was removed from executrixship Kamal applied for and obtained letters of administration in respect of the estate of Joges Banerjee on 5-1-1950. Some time thereafter Haripada applied for revocation of this grant, but was unsuccessful.
4. The present suit for partition of the residential house at 270/2B Shanagar was instituted on behalf of minor Badal by his certificated guardian mother Sm. Renurani Debi on 19-9-1951, on the allegation that the plaintiff and his brother Kamal had inherited this house in equal shares from their father Jyotis who had a vested interest in the house under the terms of the will. There was also a prayer for a declaration that the estate left by Rai Bahadur Joges Chandra Banerjee has been either fully administered or deemed to have been fully administered and that Kamal, defendant No. 1, has no longer any function to act as administrator in respect of the property in suit.
5. The Trial Court held upon a consideration of the evidence adduced before it that the estate of Joges Chandra Banerjee has not been fully administered, and the plaintiff and his brother, or for the matter of that, their father Jyotis, are not entitled to claim any interest in the disputed house until the estate of Joges has been fully administered in terms of the will. In view of this finding, the Trial Court dismissed the suit of the plaintiff in its entirety.
6. An appeal was preferred on behalf of the plaintiff, but the appeal was dismissed by the Lower Appellate Court on grounds similar to those given by the Trial Court. So the plaintiff has preferred this second appeal. This appeal was contested on behalf of respondents Nos. 9, 15 and 16. Learned Advocate for the Deputy Registrar who represented minor respondents Nos. 2 to 4 also opposed the appeal in so far as the plaintiffs prayer for a declaration that the estate of Joges Banerjee has been fully administered is concerned. There was no opposition on behalf of respondent No. 1 on whose behalf a vakalatnama was filed by Mr. Harendra Nath Haldar.
7. We may say at the very outset that on the materials before us we are not prepared to make a declaration that the estate of late Joges Chandra Banerjee has been fully administered. In fact respondent No. 1 Kamal Banerjee made an application for such a declaration and also for getting his discharge in the proceedings relating to the grant of letters of administration to Kamal. His application was rightly rejected by that Court, because there is no provision for discharging an administrator appointed by the Court for administering the estate of a deceased testator. After an administrator fully administers the estate of a deceased person, he can secure his own discharge by filing his accounts & getting them passed by the Court which has appointed him. In these circumstances, no question of making a declaration that the estate of Joges Banerjee has either been fully administered or should be deemed to have been fully administered arises in the present suit.
8. We now come to the only other question raised in this appeal, viz., whether a decree for partition should be made in favour of the plaintiff appellant as claimed by him. That the disputed house was bequeathed to Jyotis by his father Joges, the testator, admits of no doubt. The question is what is the nature of the interest given to Jotis whether it was a vested interest which was to be operative immediately on the death of the testator, or whether it was a contingent bequest which would come into effect only after the estate of the testator had been fully administered and not earlier.
9. The Lower Appellate Court is of opinion that Jyotis did not derive any interest in the house under the provisions of the will immediately after the death of the testator, and that his interest in the house would become effective only after the complete administration of the estate. In this connection reference may usefully be made to terms 11, 12 and 15 of the will. The relevant portion of term 11 of the will is that after the administration of the estate, according to the terms of the earlier provision of the will, Jyotis would get the house at 270/2B Shanagar as a residuary legatee besides some shares and some amount of money. Term 12 of the will says that the sons would not derive any interest in any of the properties before the completion of the administration of the estate, nor would they be entitled to alienate or charge any portion thereof. We may mention here incidentally that the bequest in favour of Haripada was subsequently cancelled by the codicil, but we are not concerned in the present suit about the bequest in favour of Haripada or his family. Term 15 of the will which is considered by Mr. Sen Gupta on behalf of the appellant to be the the most material term on the question at issue provides that the legatees and residuary legatees would get a vested interest in the legacies given to them under the will.
10. Mr. Janah contended on behalf of the contesting respondents, viz., respondents Nos. 9, 15 and 16 that if all the above terms of the will are read and construed together, then it will be clear that the bequest in favour of Jyotis in respect of the disputed house was a mere contingent bequest which could become effective only after the complete administration of the estate. Mr. Sen Gupta for the appellant contended, on the other hand, that term 15 of the will makes it clear that the testator gave a vested interest to Jyotis and that term 12 of the will, in so far as it purported to delay the bequest, is repugnant to term 15, and it should, therefore, be deemed to be void. In support of this contention he relied on the case of Cally Nath v. Chunder Nath, ILR 8 Cal 378.
11. After having perused the entire will, we are of opinion that there is a good deal of substance in the contention put forth by Mr. Sen Gupta and that the contention of Mr. Janah that the bequest in favour of Jyotis was a contingent bequest should not be accepted. Term 15 is a later term than term 12. It does not restrict the bequest in favour of Jyotis. That being so, the earlier clause restricting the enjoyment of the property until the complete administration of the estate must be considered to be repugnant to the vested interest, and it should, therefore, be deemed to be void. Of course, there are no materials in this case to show that the estate of the testator has been fully administered. The Lower Appellate Court has come to a positive finding on this issue, after having taken into its consideration the extent of the liquid assets set forth in the will, and after having considered the affidavit of assets sworn by Jyotis (exhibit C) which would show that the executors had received only Rs. 200/- in cash and a pension of Rs. 104/2as. in the shape of liquid assets. After having considered the description of the liquid assets, as given in the will, as compared with the affidavit of assets, the court below came to the conclusion that a substantial portion of the liquid assets must have been either suppressed or misappropriated by Jyotis. It should, however be remembered that the testator was alive for more than 10 years after the date of execution of the will. It should also be borne in mind that the respondents did not produce any material to show that any interested party raised any objection about the existence of the liquid assets during the pendency of the probate proceedings. In these circumstances, it would not be safe to infer from the materials existing on this record that Jyotis had intentionally suppressed or misappropriated any portion of the liquid assets. Still Mr. Sen Gupta submitted quite fairly on behalf of the appellant that the share of the appellant in the disputed house may be kept under charge for some period as a security for an amount of Rs. 4000/- which has been stated in the written statement of the contesting respondents, viz., respondents Nos. 9, 15 and 16 as being the amount of assets suppressed by the executors or the administrator. Mr. Sen Gupta submitted that if within a certain specified time, these respondents put forth a claim for that amount against the appellant in a proper suit, then their interest may be safeguarded by giving directions for keeping the share of the appellant in the disputed house under charge. We are of opinion that the interest of the contesting respondents would be sufficiently safeguarded, and there should be no objection to a partition of the disputed house subject to a charge of the appellant's share, as indicated above. The bequest in favour of Jyotis was an unconditional bequest and Jyotis got a vested interest in the disputed property. There is no reason why this partition should fail.
12. Mr. Janah appearing on behalf of respondents Nos. 9, 15 and 16 submitted that his clients were given a right of residence under the will and that right should be respected if the property is partitioned between the appellant and respondent No. 1. The will provides that Nivanani and her sons would be entitled to reside in the disputed house under the care and supervision of the executors. The executors were also charged to provide a suitable small dwelling house for Nivanani and her sons. It is not known now whether the executors have been able to make any arrangement for such separate residence of the contesting respondents. We would, therefore, direct that Nivanani and her two sons would have a right of residence in the disputed property in terms of the will when that property is partitioned by metes and bounds. That right of residence should be limited to two living rooms besides a kitchen bath and privy. It will be for the partitioning commissioner to determine which portion of the disputed house would be most suitable for the residence of those contesting respondents.
13. In view of the foregoing observations, we allow the appeal and set aside the judgments and decrees passed by the Courts below. We decree the suit in part. The prayer of the plaintiff appellant for a declaration that the estate of deceased Joges Chandra Banerjee has been fully administered or should be deemed to be fully administered is refused. The prayer for partition of the disputed house by metes and bounds between the plaintiff appellant and defendant respondent No. 1 is decreed in a preliminary form. When partition is actually effected by a commissioner he will reserve a suitable portion for the residence of respondents Nos. 9, 15 and 16 in terms of the foregoing observations. The reserved portion will consist of two living rooms and a kitchen, bath and latrine. The share of the appellant in the house will remain under charge for a sum of Rs. 4000/- against any claim which respondents Nos. 9, 15 and 16 may put forth in a proper Court against the appellant within a year from this date. If such a suit is brought within a year from this date, then the charge will continue till a final decree is passed in that suit. If no such a suit is brought within a year from this date, then the charge will stand automatically released.
14. In view of the result of this litigation, we direct that all parties will bear their own costs in all the Courts including this Court.
B.N. Banerjee, J.
15. I agree.