1. This is an appeal against the decision of the Subordinate Judge of Mymen-singh dated the 5th February 1907. The suit was for specific performance of a contract and the plaintiff claimed that the defendant had agreed to grant him Kxmi Mokarari Dartaluk of the Mouzahs in dispute at an annual rent of Rs. 100 on receiving the sum of Rs. 22,700 by way of Selami. The plaintiff further claimed that under that agreement he is also entitled to the outstanding arrears of the mehal. This agreement was come to on the 6th Ashar 1310, that is, the 21st June 1903, and on the following day a sum of Rs. 1,000 was received by the defendant as earnest money and she, the defendant, gave a receipt for that money. The plaintiff goes on to say that under the above agreement, pattah and Jabuliat were executed within three months of the granting of the receipt, and that the plaintiff in due time tendered the remainder of the selami with a request that the defendant should execute the pattah and that she refused to do so.
2. The defendant, on the other hand, alleges that by the Will of her husband certain charges were created on the property in dispute and that under that Will she had no right to grant any Kaemi mokarari dartaluk, and that when this agreement was made, her right to make it was not ascertained or discussed. It was only subsequently that she came to know after consulting her legal advisers that she had no such power. She also alleges that as she had adopted a son as authorized in the Will, the adopted son became the rightful owner of the property, and her own position has been changed to that of an executor with limited powers. She admits the receipt of the one thousand Rupees as earnest money and says that after she came to know that she had no power to grant any kaem mokarari dartaluk, she tendered to the plaintiff the above sum with interest thereon at 12 per cent. per annum, from the date of receipt of that sum by her up to the date of tender, which the plaintiff declined to accept. She has made other allegations also, with which, so far as the present appeal is concerned, we have nothing to do.
3. The Subordinate Judge held that the plaintiff was not entitled to specific performance of the contract, that he should get back the one thousand Rupees together with interest thereon at 12 per cent. per annum from the 7th Ashar 1310 up to the end of Kartik 1311, and further held that the plaintiff should bear his own costs and pay the costs of the defendant.
4. The plaintiff now appeals to this Court. The grounds taken are, first, that tinder the terms of the Will there is no restriction on the power of the defendant to grant a kaemi mokarari dartaluk of the mouzahs in question; secondly, that if it is found that there was such restriction and that she had no such power, then she should be directed to grant the said kaemi mokarari dartaluk to the plaintiff after obtaining the necessary permission from the District Judge; and lastly, it is urged that in the event of such an order not being passed, the plaintiff should get a decree for compensation for interest on the money which has been lying, as it is alleged, idly in his hands, and also for full costs in both Courts.
5. The main contention turns on the proper interpretation of paragraph 13 of the Will (p. 32). It appears from this paragraph that the power given by the testator is four-fold. It runs as follows: The exeputor or executrix or administrator shall be competent, in order to pay off my debts, to contract other debts or to mortgage any property left by me; and on taking into consideration the state of the debts and of the properties, if they think the best means to pay off the debt would be to sell any property or to grant a patni lease or to settle it on permanent rent, in that case they shall be competent to pay off the debt by selling Tappa Hazradi and Tappa Kuri Khai situate within the property which I have purchased from Mr. T. Kalanooj under a registered deed of sale, dated 6th Chaitra 1279, and the property of Pergannah Baroda Khat or any part thereof, or by granting patni lease thereof or by settling the same on kxm jama (permanent rent).'
6. This context clearly defines the power that the testator has given to the executrix The executrix can contract debts for the purpose of paying off the debt of the testator, and for that purpose she can also mortgage any property left by him. Apart from these two powers given for the purpose of paying off present debts, the context deals with the power to sell or lease property. The testator, in our opinion, intended to restrict the power of the executrix, so far as sale and lease were concerned, by confining it to Tappa Hazaradi and Tappa Kuri Khai situated within the property which the testator had purchased from Mr. T. Kalanooj. If the testator's intention had been to give a general power to sell or lease any property left by him, there is no reason why that power should not have been mentioned along with the power to contract debts and mortgage properties. From the context it is also clear that the testator was reluctant that any property should be sold or permanently leased and directed certain specified properties to be sold or permanently leased only in case the executors thought either of those methods the best means of paying off his debts.
7. In support of the appellant's contention a number of authorities have been cited, but we find that in none of these authorities was any principle of law laid down. The cases depend on the wording of the Wills, respectively propounded in them and profess to interpret those Wills in accordance with the wording in each particular case.
8. It also appears that the properties mentioned in the Will as properties which can be sold under the provisions of paragraph 13 of the Will have not all as yet been alienated for paying off the debt. The property in dispute is not situated in Tappa Hazradi or Tappa Kuri Khai. Under the above circumstances, we are clearly of opinion that although there is no express restriction, there is a very strong implication that the testator never intended to give authority to the executor to grant any permanent lease of property not situated within those two tappahs. It is contended that it is necessary that there should be an express restriction, and there being no such express restriction in the Will, the executor had a right to grant a permanent lease of the properties. But Section 90(2) of the Probate and Administration Act, 1881, does not provide that there should be an express restriction in so many words. Restriction may either be express or implied. In the present case, the restriction appears to be implied.
9. The next point urged was that if the defendant had no power to execute the deed she should be directed to execute it after obtaining the necessary permission from the District Judge. We have no power, however, to direct the District Judge to grant permission, nor is it likely that he will grant it. He would have to consider the application not from the point of view of the plaintiff but from that of the interest of the estate. He would doubtless be greatly influenced by the clear wishes of the testator, as also by the fact insisted on by the learned Pleader for the appellant that this contract is repudiated by the defendant because she can obtain much better terms. In any case as the District Judge has full power to grant or refuse the application as he thinks fit, the contract as it stands is, in our opinion, from its nature such that the Court cannot enforce specific performance of it, to quote Section 21 of the Specific Relief Act.
10. The last point urged is that inasmuch as there was an agreement and the respondent has received the sum of one thousand rupees by way of earnest money and has given a receipt, the institution of the present suit by the plaintiff was bona fide and not frivolous and he is, therefore, entitled to compensation for he loss of the interest upon the money which he had paid and upon that which lay, as he says, idly in his hands, and to costs of both Courts. We find that there is no prayer in the plaint with regard to this point, nor was there any issue with regard to it. The respondent made a, tender of one thousand rupees, as has already been observed, and she asked the plaintiff to take back the money on the ground that she had no power to execute the dar moharari. But the plaintiff did not consent to take back the money.
11. In these circumstances, he cannot claim either compensation beyond the sum of Rupees 1,000 and the interest on it or costs.
12. For the above reasons we dismiss the appeal with costs.