GANAPATHI AIYAR Vs. SLVAMALAI GOUNDAN

JUDGEMENT

(1.) THE plaintiff as legatee under a will sues to recover certain properties which were sold by the first defendant, his natural father and the executor under the will, to the second defendant in 1897. THE suit was instituted in 1908. THE plaint alleged that the sale was not binding on the plaintiff. THE second defendant contended that the first defendant had authority to sell and that the sale was made for discharging certain debts due by the deceased testatrix. THE District Munsif held that the sale was not binding on the plaintiff and gave a decree in his favour. On appeal the District Judge disposed of the case on the question, of limitation. He held the suit barred as it was instituted by the plaintiff more than three years after the date of his attaining majority; he regarded the suit as one to set aside an alienation made by a guardian and applied Article 44 of the Limitation Act. THE second defendant has not contended that the sale was made by the first defendant in his capacity as guardian. We are of opinion that the finding on the question of limitation cannot be upheld. THE first defendant was executor and he had the powers of an executor. His right to deal with the estate must be regulated by rules relating to the powers and duties of an executor subject to any express provisions that may be contained in the will. THEre are in the will in this case no provisions either restricting or extending the scope of the executor s powers. THE act cannot be regarded as having been done by the executor as a guardian when his powers were regulated by the rules relating to an executor. Article 44 of the Limitation Act must therefore be held to be inapplicable. Mr. Govindaraghava Ayyar contends that Article 91 must govern the case. We cannot agree with him; we do not think that the plaintiff could not succeed in recovering the property without setting aside the alienation. THE alienation was not one made by him or by any one from whom he claims the property as heir. THE executor s alienation would be binding on the plaintiff if it was valid; if it was not, it would have no effect as against him. It cannot be held to be a transaction binding on him until he set it aside, although no doubt he could ratify the act done by the executor. No authority has been cited in support of the application of Article 91 in such a case. We hold it is not applicable. THE District Judge has not recorded any finding on the merits of the case, that is, on the question whether the alienation is binding on the plaintiff. We propose to decide the question ourselves instead of remanding the case for decision by the Appellate Court. THE plaint does not contain any allegation that the second defendant was aware that the sale was not a proper act of administration, and was not required for the purpose of discharging debts of the deceased. Undoubtedly the plaintiff was bound to allege it and the onus would be on him to show that the second defendant s conduct disentitled him to the protection which alienees from executors are entitled to under the law, If, therefore, the first defendant was at the date of the sale entitled to exercise the powers of an executor, the sale must be upheld, But it was argued by Mr. T.M. Krishnaswami Ayyar for the appellant that as Probate had not been obtained of the will or Letters of Administration taken out with the will annexed, the first defendant could not exercise the powers of an executor. He urges that the property of the deceased testator would vest in the first defendant only if and when he took out Probate or Letters of Administration and as he never did so, he never became possessed of the status and powers of an executor. We are unable to uphold this contention. THEre is no provision in the Probate and Administration Act which requires a person appointed as executor under a will to take out Probate or Letters of Administration. Section 187 of the Indian Succession Act which provides that no right as legatee or executor under a will can be enforced unless Probate or Letters of Administration have been taken out has not been enacted in the Probate and Administration Act. It was imported into the Hindu Wills Act, but it was apparently for very good reasons considered undesirable to embody it in the Probate and Administration Act. Under Section 4 of the Act all the property of the deceased rests in the executor as such. Probate is not necessary to make a person an executor. His title is derived under the will. If Section 187 of the Succession Act had been imported into the Probate and Administration Act, then neither the executor nor any persons claiming as alienees under him would be entitled to enforce any right as executor or alienee. But we can see nothing in the Act as it stands to prevent the executor from acting as executor and exercising the powers given to him under the Act without obtaining probate. This was the view taken in Sheik Moosa v. Sheik Essa (1884) I.L.R., 8 Bom., 241 and Mathuradas Lowji v. Goculdas Madhowji (1886) I.L.R., 10 Bom., 468. In the former case Sargent, C.J., states that the law is the same in this country as in England as to the title of an executor to the property devised by a will; that probate is regarded as the authentic evidence of the will itself from which the executor derives his title and by virtue of which the property vests in him from the death of the testator from which time the executor would be entitled to collect the debts due to the deceased. Mr. Krishnaswami Iyer has referred us to a case, Sarat Chandra Banerjee v. Bhupendra Nath Bosu (1898) I.L.R., 25 Calc., 103; but the question in that case was as to the validity of a sale made by an executor under a Hindu will in the year 1864 long before the Probate and Administration Act was passed. It was contended on behalf of the alienee that the acts of the executor were as valid as if they had been done after Act V of 1881 had come into force. Reliance was placed on Section 2 of Act V of 1881 which lays down that "chapters II to XIII, both inclusive, of this Act shall apply in the case of every Hindu, Muhammadan, Buddhist and of every person exempted under Section 337 of the Indian Succession Act of 1865 dying before or after the said 1st day of April 1881." THE argument was that as the provisions of the Act were applicable to the case of a Hindu dying before April 1881 the executor under the will in question had the powers given by the Act. It would probably have been quite enough to observe in answer to such an argument that no person could in 1864 have powers which were given to an executor only in 1881, though some other provisions of the Act of 1881 might be applicable to wills made before that date. For instance Probate of a will made before 1881 could be obtained under the provisions of that Act. Before the Probate and Administration Act was passed, when there was no provision for granting Probate or Letters of Administration with respect to Hindu wills, the position of a Hindu executor was taken to be that of a mere manager and not of one in whom the legal estate in the properties of the deceased vested whether by virtue of Section 4 of Act V of 1881 the property of the deceased could be taken to have vested immediately on the death of the deceased in a person appointed as executor by a will made before 1881, it is unnecessary to consider. But apparently the learned judges who decided the case regarded the executor s powers as depending on the question whether the title vested in him on the death of the deceased. THEre are no doubt observations to be found in the judgment of those learned judges which would show that in the case of a Hindu dying before April 1881 if the executor or administrator should wish to get the benefit of Section 4 of the Act, he should come in and prove the will and take out Probate or Letters of Administration and reference is made to the preamble of the Act and the heading of chapter II in which Section 45 is to be found, the preamble stating that it is desirable to provide for the grant of Probate of Wills and Letters of Administration to the estates of certain persona and the heading of chapter II being "Grant of Probate and Letters of Administration." THE inference is apparently drawn that a party could obtain the benefits of the provisions of the Act only by obtaining Probate or Letters of Administration, but this inference so far as this decision is concerned is expressly limited to the case of a Hindu dying before April 1881. We cannot assume that the learned judges would have taken the same view with respect to wills made by a person who died after 1881. If the learned judges had taken the view, which we do, that no executor could before 1881 claim powers which were for the first time given by that Act, they would probably not have considered it necessary to rest their decision on the ground that a person who did not take out Probate of the will of a testator who died before 1881 could not claim the benefit of any of the provisions of the Act. We do not think that either the preamble or the heading of chapter II requires such a construction to be put on the words of Section 4. That section certainly does not relate to the grant of probate and would be beyond the scope of the heading and the preamble; the fact is that the Act contains many provisions which would not strictly borne within either. THE first defendant in this case in our opinion had as an executor the power to sell the estate for the purposes of administration and the second defendant must be protected in the absence of any allegation that he was a mala fide purchaser having knowledge that the sale was not made in due course of administration. In the result therefore the decree of the Appellate Court must be affirmed but in the circumstances of the case we shall make no order as to the costs of the Second Appeal.