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4. The disposition made by the deceased in respect of Suraiya Brothers Pvt. Ltd. had already been transferred in favour of the legatees named in the will. It was the case of the executors that without the utilisation of the dividend and the sale proceeds of the shares in Food Specialities Pvt. Ltd it was impossible for the executors to manage the estate.

5. Mr. Ranadeb Chowdhury, the learned lawyer appeared with Shibaji Mitra on behalf of the plaintiffs and submitted that by virtue of Sections 307 and 308 of the Indian Succession Act the executors were empowered to do the same. He further submitted that the legacy in favour of the respondents Nos. 1, 2 and 3 was not specific legacy but general or at the most demonstrative legacy, as a result whereof the executors were entitled to utilise the shares given by way of general legacy for the purpose of administration of the estate. The bequest was not directly referable to the distinctive share numbers; as a result they could not be distinguished from the entire stock of shares held by the deceased's estate so that could not be treated as specific legacy but as a part of demonstrative legacy or general legacy it was liable to abate. As a result the defendants were entitled to pro rata interest in the legacy subject to the availability of corpus. The bequest of 12,175 shares of Food Specialities Pvt. Ltd. did not tally with and/or fell short of the actual share-holding of 12,000 shares belonging to the estate of the deceased. Under the circumstances such a legacy although termed as specific legacy in the will itself could not be treated as specific legacy.

9. In the case reported in AIR 1918 PC 249, Lala Bala Mal v. Ahad Shah, similarly it was held at P. 250 that illustrations are to be taken as part of the statute.

10. In (1928) 55 Ind App P. 18 : (AIR 1928 PC 2) the guideline laid down was that the Courts must be guided by the statutory provisions in India and should not be guided by the English Case laws where the statutory provisions are specific and clear.

11. In the case reported in (1949) 2 Ch P. 119 and 122 it was held :

"Of course, it is quite competent for a testator to give stock of a certain description as a general legacy, and in Mr. Vaughan Hawkins' book on Wills, 1st Ed P. 301, the general rule is laid down that "a legacy of stock, of whatever denomination, is not prima facie a specific, but is a general legacy."

12. In Beaven's Report Vol. 2 1839-40 P. 515 there the question arose whether the legacies of certain shares in the Leeds and Liverson were to be considered as general or as specific legacies. The testator having 15 1/2 leeds and Liverpool canal shares bequeathed 5 1/2 such canal shares to A, 5 such shares to B, and 5 such shares to C. There was no description or reference in the will to show that the testator intended to give those particular shares which he held at the date of his will. At the date of his death he possessed no canal shares. It was held that the legacies were general and not specific. There at P. 519 the learned Master of the Rolls observed that in the gift the testator had used no words of description or reference by which it appeared that he meant to give specific and particular shares. But the testator only meant to give shares. Under these circumstances the Court could not conclude that the legacies were specific. He did not give specific shares which could be distinguished or severed from the rest of the shares. That bequest in question did not appear to the learned Judges of having the qualities of a specific legacy. Under the circumstances these were held to be and considered as general legacies.

13. Mr. P. K. Roy on behalf of the respondents referred to various sections of the Indian Succession Act and submitted that the legacies given in favour of his clients were specific legacies and not demonstrative or general as claimed by the executors. He submitted that while construing the will the Court should not strain the language of the will but give effect to the plain meaning of the words used by the testator. He submitted that the legacy created in his client's favour was clear and unambiguous. Under the circumstances it could not be qualified or controlled by any general expression of intention. For the purpose of determining the questions as to the object or subject of the will the Court under Section 75 is to take into consideration as to what person, what property is denoted by any words used in a will. The circumstances and to every effect in knowledge of which may conduce to the right application to the words which the testator has used (Sic). He relied on Section 86 and submitted that in view of the provisions the same words occurring in different parts of the said will should be taken to have been used in the same sense unless a contrary intention appeared. He was aggrieved in as much as the legacies in favour of the executor Vijoy Merchant had been paid under similar circumstances whereas to legacies made in favour of his clients in Food Specialities Pvt. Ltd. have not been given effect to by the executors on the plea that the estate did not have sufficient fund for such payment. According to him discrimination had been made by the executors in their own favour against the claim of respondents. It had further been contended on behalf of the plaintiffs herein that in a criminal proceedings initiated by the defendants Nos. 1 & 2 for breach of trust being Criminal Case No. 1068 of 1982 at Bombay against the executors such Criminal proceedings ended in a judgment by the Bombay High Court delivered on 26th March 1983 justifying the actions of the executors and thereby declaring that the shares given in favour of the respondents were not specific legacies. The action of the executors 6f offering the shares of Food Specialities Ltd. as security to the Estate Duty Officer was held not to be invalid in as much as the executors under the Indian Succession Act were required to pay all debts of the deceased. Hence while administering the estate the executors were under an obligation to pay the debts of the deceased on first priority basis and in view of the legacies created in favour of the respondents not being specific legacies' the executors were within their rights to deal with the shares for the purpose of payment of statutory liabilities. There the learned Judge came to the conclusion that the case did not disclose the offences of breach of trust or any misappropriation of funds and the petitioners were acquitted of the charges levelled against them. Mr. Ranadeb Chowdhury the learned lawyer referred to the judgment passed by the learned Judge of the Bombay High Court and submitted that this Court should also hold that the legacies created in favour of the respondents were not specific legacies, but general legacies. In the case repprted in Adi Pherozshah Gandhi v. H. M. Seervai it was held by the learned Judges of the Supreme Court that in a civil proceeding the decision of the Criminal Court is not res judicata. The decision of the Criminal Court would not preclude a party from raising the issue before a Civil Court. Under the circumstances the decision of the Bombay High Court was no bar on the part of the respondents from contending that the legacies given in favour of the respondents were specific legacies before this Court.