Gouwri vs Naraina Muchinthaya and Another

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 immovable, 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.

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.

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.

There is a finding of the District Judge that the plaintiff is entitled to interest on the arrears of mesne profits from the date of her marriage. But the

law on that point seems to be what is laid down in Blogg v. Johnson (1867) 2 Ch. 225in these terms: ""The Court will not charge an executor, who

has been guilty of delay in accounting, with interest on arrears of income unpaid by him."" There the cases are discussed and this rule of law is so

stated. The same statement of the law is to be found in Simpson on ''The Law of Infants'' at page 261. There is no authority that has been referred

to which goes the other way. There are no Indian cases on the point. But the rule laid down in Blogg v. Johnson (1867) 2 Ch. 225 : 16 L.T. 306

seems to be reasonable and we do not find any grounds for not adopting it. The decree of the District Judge will be modified and mesne profits will

be embodied in it from the date of the testator''s death on 6th February 1899 and interest on the mesne profits will be allowed from December

1907. From this amount a sum of Rs. 200 will be deducted on account of the marriage expenses incurred by the defendants.

The decree will provide for proportionate costs.