Dawson Miller, C.J.The appellant instituted the suit out of which this appeal arises to recover possession of a share in a certain property known as the Kanti indigo concern in which she was beneficially interested under her fathers Will, alleging that a mortgage-decree obtained in 1910 by Messrs. Shaw Wallace and Co., the third defendant in the suit, against her mother and two brothers as trustees of the property, and a sale in execution thereof and a subsequent sale by Shaw Wallaca and Co. the execution purchasers, to the first defendant and the late husband of the second defendant were fraudulent, void, illegal and inoperative and not binding upon the plaintiff. She also claimed an account and mesne profits from the first three defendants.

2. The Subordinate Judge of Muzafferpur before whom the case came for trial dismissed the suit, and the plaintiff has appealed.

3. Mr. George Toomey, the father of the plaintiff, died in England is the year 1892 leaving a widow and two sons George R. Toomey and Arthur T. Toomey, defendants Nos. 4 and 5 and two daughters Flora Mary, who died in 1916, and the plaintiff Elizabeth May. At the date of his death he was possessed of certain property in England and was also proprietor of a 12-annas share in the Kanti indigo factory in the District of Muzafierpur in this Province. By his Will dated the 22nd October, 1890, he appointed his wife Flora Toomey and Archibald Mac Dougal Macrae and Dr. Fredrick Robert Swain, a Lieutenant Colonel in the Indian Medical Service, as trustees and executors of his Will. Probate of the Will was granted to Mrs. Toomey the widow in July, 1892, in England, power being reserved to the other executors. Subsequently a grant of Letters of Administration with a copy of the Will annexed was made by the District Judge of Tirhut to the executrix and each of the executors with regard to the property in India. After giving certain legacies to his wife the testator devised and bequeathed the residue of his estate real and personal in England, India and elsewhere to the trustees upon trust to sell, call in and convert into money the same, or such part thereof as should not consist of money, and, after paying the funeral and testamentary expenses and debts and legacies to invest the residue in certain named securities, and declared that the trustees should stand possessed of the residuary trust fund upon trust out of the income thereof, in the first place, to pay the sum of 2,400 to his wife during her life, and in the next place, during the life of his wife, to pay each of his sons who should attain the age of 21 years the annual sum of 200 subject to a condition that if the eldest son George Robert Toomey should become manager of the Kanti indigo concern, the annuity to him should cease and determine, and the trustees were to accumulate the surplus of the said income by way of compound interest by investing the same and all the resulting income thereof. The income of the fund so formed was to be available to make up any deficiency in the wifes annuity of 2,400 in the event of the income from the residuary trust fund falling below that sum. After the death of the wife, the trustees were to hold the residuary trust fund upon trust to divide the same amongst such of the children living at the date of his death as being a son or sons should attain the age of 21 years, or being a daughter or daughters should attain that age or marry, each of the sons to take a three-sixteenths share and each of the daughters five-sixteenths. Power was also given to the trustees to postpone the sale and conversion of the real and personal estate and particularly the sale of the 12 annas share in the Kanti indigo concern as long as it should appear of them to be for the benefit of the persons beneficially interested under the Will that the same should remain unsold, and the rents, profits and income therefrom were to be paid and applied to the person or persons and in the manner to whom and in which the income of the proceeds of such sale and conversion would for the time being be payable or applicable under the Will if such sale and conversion had been actually made. Until the sale should take place the trustees were given wide powers of management including the power to raise any sums of money which might be necessary for carrying on the management, cultivation and improvement of the indigo concern and it was provided that "no person lending money to my trustees shall be in any wise concerned to ascertain whether such money or any part of it is required for the purposes aforesaid or otherwise as to the propriety or regularity of such transaction and my trustees may if they think fit make advances and zerpeshgi loans on the security of any leases or renewed leases of any lands or villages connected with the said concern or my share therein and may also renew and accept renewal of leases of any lands and villages which my trustees may consider necessary or expedient for the purposes of the said concern or my share there in and my trustees may do all such acts and things whatsoever as to them shall appear necessary or expedient for the management, cultivation, extension, or improvement of the said concern or my share therein and the disposal of the produce thereof in the same manner as if my trustees were absolute proprietors of the said share in the said concern without being responsible for any loss which may be incurred in such management, cultivation, extension, improvement ordisposal".

4. The eldest son George R. Toomey was in India when his father died and was then about 23 years of age. The plaintiff, the youngest of the family, was then a child about 8 years old. In 1895 the mother and the other members of the family also went to India and resided on the estate. The plaintiff from 1903 to 1910 appears to have resided permanently in India with her mother except for periodical visits to England. In 1906 Mr. Macrae who resided in England and Colonel Swain who was than Civil Surgeon of Ranchi, wished to retire from the trust, and Mrs. Toomey was appparently desirous of appointing her two sons in their place. It seems that the elder son, George was the manager of the factory at that time. A deed was accordingly executed, dated the 20th June, 1906, by the three trustees whereby after reciting that Mr. Macrae and Colonel Swain were desirous of retiring from the trust, the remaining trustee, Mrs. Toomey, appointed her two sons George and Arthur in their place, and the old trustees conveyed the whole of the 12 annas share in the Kanti concern to the new trustees and Mrs. Toomey upon the trusts declared in the Will. It is contended that this instrument was illegal and inoperative.

5. In May 1907, money was required for the expenses of cultivating and manufacturing indigo for the season 1907-1808 and an agreement was come to between the new trustees and Shaw Wallace and Co. who carry on an extensive business at Calcutta, amongst other things, as agents for the sale of indigo, whereby they agreed to make advances up to Rs. 80,000 for the current seasons expenses taking a charge upon the years crop and a promissory note from the trustees for the amount advanced and subsequently by way of further security they took an equitable mortgage upon the 12 annas share in the indigo concern by deposit of title-deeds. It is contended that this transaction was invalid, illegal and fraudulent. It is not disputed that such a transaction was usual amongst indigo planters in Bihar at that time. Arthur Toomey, the younger brother, was then on a visit to England and had executed a general power-of-attorney, dated the 17th May, 1907, in favour of his elder brother to carry on the management on his behalf as trustee during his absence. Certain title-deeds relating to the 12 annas share in the Kanti indigo concern were subsequently deposited with Messrs. Orr Diguum and Co. the Solicitors to Shaw Wallace and Co. It should be mentioned that Messrs Sanderson and Co. were the Toomeys Solicitors at that time and had the custody of the title deeds, but in June, 1907, there was a change of Solicitors, and Messrs. Leslie and Hinds of Calcutta were appointed in place of Sanderson and Co., as appears from a letter Ex. 5(3) dated the 24th June, 1907, addressed to Leslie and Hinds and signed by Mrs. Toomey and George R. Toomey acting on behalf of himself and his brother. The letter states "We have raised a loan of Rs. 80,000 from Messrs. Shaw Wallace and Co. Will you kindly act on our behalf and deposit the deeds of twelve-sixteenths share by way of equitable mortgage into their hands. Messrs. Orr Dignum and Co. are Messrs. Shaw Wallace and Co.s Solicitors." It appears from the evidence of Mr. Steel Parkins that Messrs. Sanderson and Company, before handing over the documents to the new Solicitors required Mr. Arthur Toomeys consent and telegraphed to him in England for the purpose of obtaining his consent and the actual deposit of the deeds was not made until November. The receipts for the sale of indigo for that season showed a profit over and above the sum advanced of over Rs. 20,000 which ended the transaction for that season. In the following season according to the evidence a similar arrangement was come to between the trustees and Shaw Wallace and Co. whereby the latter agreed to advance up to Rs. 1,10,000 and the trustees agreed to execute a promissory note and a hypothecation of the seasons crop and the title-deeds were left on deposit by way of equitable mortgage. At that time Arthur Toomey tad returned to India and the promissory note and the hypothecation deed were executed by all three of the trustees and dated the 9th March, 1908. The fact that the title-deeds were left on deposit by way of equitable mortgage is challenged by the plaintiff. On this occasion the Bum realised by the sale of the indigo crop fell short of the sum advanced by some Rs. 60,000 which the trustees were unable to pay. Consequently in June, 1909, Shaw Wallace and Co. instituted a suit before the Subordinate Judge of Muzafferpur to enforce the equitable mortgage against the three trustees and certain other persons who claimed as judgment-creditors of the trustees of the indigo concern to have a lien on certain portions of the mortgaged properties which they had attached in execution of their decrees. The trustees did not contest the suit, but several of the other defendants appeared and pleaded, inter alia, that the mortgage transactions alleged in the plaint were fraudulent and collusive and that no equitable mortgage had been created in favour of the plaintifts. Amongst other issues raised at the trial in that suit were the following:--(1) Did the plaintiffs advance to the defendants Nos. 1 to 3 various Bums of money as stated in the plaint in paras. 2 and 4 and in the accounts attached thereto (2) Were the title-deeds of the Kanti concern as stated in para 3 of the plaint delivered to and deposited with the plaintifts as security lot such advances (3) Did the handing over and depositing enure on an equitable mortgage of the property of the 12 annas share of the said concern The Additional Subordinate Judge who tried the mortgage suit found that the money was advanced and that the mortgage transaction was not fraudulent or collusive and that there was an express agreement that the title-deeds deposited to secure the first years advances should remain with the mortgagees as security for the second years advances and by his judgment dated the 22nd April, 1910, passed a mortgage decree for sale of the mortgaged properties except those claimed by the defendant No. 29 in the suit who proved a legal mortgage of later date in respect of a part of the mortgaged property. On the 23rd June, 1911, shaw Wallace and Co. having given the trustees an extension of time to pay the decretal amount which they failed to do, put up the property for sale in execution of their decree and themselves purchased it. On the 21st December in the same year Shaw Wallace and Co. sold the property to Mr. Bhupendra Nath Basu the defendant No. 1 and Babu Langat Singh the late husband of the defendant No. 2. These transactions are also challanged by the plaintiff on the ground that they were fraudulent and collusive.

6. By the judgment now under appeal the learned Subordinate Judge has found that the appointment of new trustees and the conveyance to them by the indenture of the 20th June, 1906, were valid and operative and that the trustees had power to mortgage the property under the Will. He held that the evidence in the present suit did not establish that there was an equitable mortgage on the security of the title-deeds for the advances made by Shaw Wallace and Co. but was of opinion that this question was directly in issue in the mortgage suit in which the plaintiff was represented by the trustees, and that the mortgage decree of 1910 operated as res judicata and the question could not be re-opened, He further held that Shaw Wallace and Co. acted in perfect good faith in making the advances and, in any event, were entitled to a money-decree against the trustees and that the sale held in execution of their decree could not be set aside. He also found that no case of fraud or collusion had been made out either in the mortgage transaction or in the subsequent sale of the properties in execution of the mortgage decree or in any other respect and that the price obtained was not inadequate. He accordingly dismissed the suit.

7. In appeal before us a great number of questions have been raised in argument. I may say at the outset that the plaintiff produced no affirmative evidence upon which a case of fraud could be based. She herself gave evidence but knew nothing about the charges of fraud made in her plaint, stating that they were based upon information received from an old servant, Muni Lal. There is in fact no affirmative evidence on the question at all and the plaintiff is driven to rely on such inferences as may arise from the documents and certain facts in the case deposed to by the defendants witnesses. In the first place it was contended that the evidence discloses that the plaintiffs mother and brother in. borrowing the money and in charging the trust property acted as proprietors and did not disclose the fact that they were trustees and, therefore, upon the principles enunciated in Soloman v. Attenborough (1912) 1 Ch. 451 : 81 L.J. Ch. 242 : 106 L.T. 87 : 56 S.J. 270 : 28 T.L.R. 225, Attenborough v. Solomon (1913) A.C. 76 : 82 L.J. Ch. 178 : 107 L.T. 833 : 57 S.J. 76 : 29 T.L.R. 79, In re De Leeuw (1922) 2 Ch. 540 : 91 L.J. Ch. 617 : 127 L.T. 350 and similar cases they could not give a good title to the mortgagees. In support of this point reliance is placed upon a statement of Mr. Pope, a witness called for the defendants, who is now a partner in the firm of Shaw Wallace and Co. and was an assistant with that firm in 1907. Ha stated in his evidence in cross-examination that his firm ascertained that the parties applying for the loan represented the owners of the indigo concern and that this was ascertained by his Solicitors. He further says that he took them to be the owners. It is clear, however, that the matter was in the hands of the Solicitors from the outset and whatever Mr. Popes impression may have been, there can be no doubt whatever that his Solicitors were fully a ware of the exact circumstances of the case. After this lapse of time much of the documentary, evidence that might otherwise have been available is not forthcoming, but it is clear from such correspondence as has been preserved that Messrs. Orr Dignum and Co the mortgagees Solicitors knew at all events not later than the 12th July, 1907, that the Toomeys were trustees of the property. They probably knew much earlier as the negotiations were conducted through Solicitors on both sides, but the letter of that date from Leslie and Hinds to Orr Dignum and Co, shows that Arthur Toomeys power-of-attorney disclosing that he was a, trustee under the indenture of the 20th June, 1906, was in the hands of Orr Dignum and Co. sometime before the 12th July, 1907. The transaction which was the subject of the mortgage suit was in respect of advances for the following year when there was not the slightest doubt as to the exact position of all the parties. It is, in my opinion, idle to contend that any fraud in this respect was either attempted or succeeded, or that Shaw Wallace and Co. were unaware that they were contracting with trustees under the Will of George Toomey. Moreover the plaint alleges no such fraud. On the contrary the allegation in para. 14(c) of the plaint is that Shaw Wallace and Co. had notice of the Will of the plaintiffs father and knew full well that they were taking a charge upon a trust property from persons who had no power or authority to create the same. Whether they had such power depends not upon any question of fraud but upon the terms of the Will and the validity of the indenture of the 20th June, 1906, appointing new trustees. The truth is that the Toomeys were both trustees and beneficiaries and in the beginning of the negotiations expressions may have been used which emphasised their interest as owners rather than as trustees, but long before the transaction upon which the equitable mortgage for the second years advances is founded, and probably from the vary beginning the position was clearly ascertained. Nor is there any thing to show that the conduct of the trustees in this respect was influenced by any fraudulent motive.

8. Various other matters were also urged before us as indications of fraud, namely, the fact that the trustees did not defend the suit, that the remaining 4 annas share purchased by Mrs. Toomey on her own behalf in 1895 was not included in the equitable mortgage; that G.R. Toomey although he took proceedings to have the sale set aside abandoned them in collusion with the first defendant; that the sale price was inadequate; that the Receiver of the property appointed in a partition suit brought by Mrs. Toomey against the other members of her family after the mortgage suit was instituted was not added as a party; that the sale proclamation included some villages not mentioned in the decree; that the properties were purchased by Shaw Wallace and Co. at the execution sale on behalf of the first defendant and Langat Singh, that properties were sold which were not included in the title-deeds deposited and that the decree was obtained by suppressing the fact that most of the money borrowed had already been paid back but no account rendered.

9. On the last mentioned point no evidence has been given of any fraudulent attempt to decerve the Court. The accounts of Shaw Wallace and Co., which were produced show clearly that the credit balance of the first years transactions was paid to the National Bank to the joint account of the trustees and that after giving credit for the sales of the second years transactions there was a debit balance of Rs. 60,017-5-3.

10. That the trustees did not defend the suit is in itself no evidence of fraud. They had legal advice and there is no reason to suppose that they would not have defended the suit had they been conscious of any good reason for so doing. The suggestion that they were all along in collusion with all the principal defend ants for some reason, which could scarcely be for their own benefit finds no support from any evidence in the case. There is no evidence to show that the sums advanced were not applied to the legitimate objects of the indigo business.

11. That Mrs. Toomeys 4 annas share was not included in the mortgage can hardly be regarded as evidence of fraud on the part of Shaw Wallace and Co. They dealt with the trustees as holders of the 12 annas share and were content to take, a mortgage of that share. They were not bound to see to the application of the money advanced nor, as stated, is there anything to show that the money was misapplied. It is not clear what the value of the 4 annas share held by Mrs. Toomey may have been. We only know that it was already heavily mortgaged to the Eastern Mortgage Co. and that subsequently when the whole estate was purchased by Mr. Basu from Shaw Wallace and Co. for Rs. 1,30,000 the sum of Rs. 55,000 went in satisfaction of the Eastern Mortgage Co.s incumbrance, leaving a balance of Rs. 75,000 for the 12 annas and the 4 annas share. It also appears that over the whole transaction Shaw Wallace and Co. incurred a loss of about Rs. 13,000. I am unable to understand how the omission to include the 4 annas share in the equitable mortgage can be imputed as fraud on the part of Shaw Wallace and Co. which would vitiate the transaction.

12. With regard to the charge of collusion between Mr. Basu and the trustees so far as can be gathered from the documents in the case, it stands thus:--The whole interest in the Kanti indigo concern was purchased from Shaw Wallace and Co. and the Eastern Mortgage Co. by Mr. Basu and Babu Langat Singh in December 1911. Mrs. Toomey, the wife of George R. Toomey seems to have been anxious to buy back the property if she could raise the money. On the 30th November, 1912, an agreement was entered into between these parties whereby Mrs. Toomey was given the option of purchasing the whole 16 annas share up to the 31st March, 1913, for Rs. 1,50,000. At the date of the agreement proceedings were pending between G.R. Toomey and Shaw Wallace and Co. for setting aside the sale in the mortgage suit. It is not shown that there were any substantial grounds for setting the sale aside. Such proceedings are very frequently instituted in this country on unsubstantial grounds for the sole purpose of delaying the execution. There were also claims outstanding by decree-holders against the property and George R. Toomey himself was claiming certain moveables which had not been included in the mortgage decree and the subsequent sale in execution. He was also claiming a share in advances previously made to the tenants and aright to live in one of the bungalows on the estate. Mr. Basu and his co-purchaser thereupon entered into an agreement with George R. Toomey, also dated the 30th November, 1912, the effect of which was that the former undertook to assist Mr. Toomey to recover his share of the advances made to tenants, agreeing to pay him as advance of Rs. 2,500 on account, subject to future adjustment, and recognised his right to his share in the value of the moveables whilst Mr. Toomey on the other hand undertook to give up his share in the bungalow and to assist the purchasers in obtaining possession of any lands of which they were dispossessed by other claimants and in completing their title and possession over the property to which they were lawfully entitled as against the other unsecured creditors and in return for such assistance, Mr. Toomey was to receive a monthly allowance of Rs. 125. He also agreed to withdraw the petition to set aside the sale. It was contended that the purchase by Shaw Wallace and Co. at the sale is execution of their mortgage decree was a benami transaction on behalf of Basu and Langat Singh, and that this, coupled with the incidents I have just referred to, points to a conspiracy between those parties and G.R. Toomey to purchase the property at an inadequate price at the execution sale and transfer it to G.R. Toomey in the name of his wife to the detriment of the plaintiff. The suggestion of a benami transaction although not foreshadowed in the plaint is based upon, a statement of Mr. Pope that, so far as he remembered, the property was purchased by Langat Singh from Court, and oh a petition dated the 11th June, 1914, filed on behalf of Mr. Basu asking to be discharged from the Receivership of the property in which it is stated that the 12 annas share was sold in the Court of the Subordinate Judge of Muzafferpur and purchased by the petitioner and Langat Singh. With regard to this part of the case it is not very surprising that the evidence adduced by the defendants is not very full for in paras. 20 and 2l of the plaint which deal with the purchase by Shaw Wallace and Co. and the subsequent sale by them to Mr. Basu and Langat Singh there is no suggestion of a benami transaction. After the lapse of so many years, and remembering that the property did pass to Mr. Basu and Langat Singh about six months after the sale in execution, Mr. Popes memory may well be at fault. The statement in the petition of the 5th June, 1914, would seem to imply that, the property was purchased by Mr. Basu and Langat Singh at the Court sale but, although not happily worded, it is not necessarily inconsistent with the case of a purchase by Shaw Wallace and Co. and the subsequent sale to Mr. Basu and Langat Singh. The only importance of the statement for the purposes of the petition was to show that Mr. Basu and Langat Singh were proprietors at the date of the petition. Fortunately certain letters which passed between Shaw Wallace and Co. and Messrs. B.N. Basu and Co. in November and December 1911, have been preserved and are in evidence before us. These prove beyond all doubt the sale by Shaw Wallace and Co. to Mr. Basu and Langat Singh in December, 1911, of the whole 16 annas share and acknowledge the receipt of the purchase money. I have no doubt upon this evidence that the property was purchased in the first instance by Shaw Wallace and Co. on their own behalf and subsequently transferred to Mr. Basu and Langat Singh. Whatever may be said as to the legality of the proposed transfer of the estate by Mr. Basu and Langat Singh to the wife of one of the former trustees, the option to purchase given by the agreement of the 30th November, 1912, was never exercised and the matter fell through. I do no consider that the charges of fraud have been established.

13. As to the inadequacy of the purchase price obtained at the sale in execution of the mortgage decree it appears that the decree-holders purchased the 12 annaa share for Rs. 64,200 in all. The sale was adjourned from day to day between the 16th and 23rd June and no batter bid was obtained. There is no evidence before us to show that the property was worth more and the fact that the indigo trade in Bihar had at that time ceased to be a profitable commercial undertaking, owing to the introduction of synthetic days, must have made it difficult to dispose of such a business. The working expenses of such a business are heavy and it must have been known to prospective buyers that the Kauti concern as commercial undertaking had failed to pay its way. Reliance is placed upon the particular given in the petition for execution of the decree in which the schedule shows properties valued as Rs. 1,01, 582 but this includes a sum of Rs. 70,000 as the value of the property which was excluded from the decree by the judgment of the Subordinate Judge as having mortgaged to the defendant No. 29 in that suit. The only verbal evidence as to the value is that of Mr. Kennedy who states that having regard to the condition of the Kauti concern, and the muddle that it was in, Shaw Wallace and Co. purchased it for more than its fair price. I see no reason for differing from the finding of the trial Court on this point.

14. It has not been shown how the failure to add the Receiver appointed in the partition suit six months after the mortgage suit was instituted constituted fraud on the part of the plaintiff in the mortgage suit. Nor was it necessary to join the Receiver. Attachment of the property was not necessary in the mortgage suit and it was not sought at that stage to interfere with the Receivers possession. See Jogendra Nath Gossain v. Debendra Nath Gossain 26 C. 127 : 3 C.W.N. 90 : 13 Ind. Dec. (N.S.) 686. When the execution sale took place in June 1911, Mrs. Taomeys partition suit had abated, she having died in January that year, and no steps had been taken to substitute her representatives. The reason for the appointment of a Receiver had, therefore, disappeared although he was not formally discharged until later. But in any case the non-joinder of the Receiver in the execution proceedings would not render the sale void as pointed out by the learned Subordinate Judge.

15. With regard to the inclusion in the sale proclamation of interests in villages not specifically mentioned in the decree it is to be observed that the decrees as for the sale of the 12 annas share in the Kanti indigo concern together with everything appertaining thereto as described at some length in the decree. Certain particulars of the villages are then set out at the end of the decree which it is said do not include some of the items subsequently sold. There can be little doubt that the dominant description is that of the subject-matter given in the earlier part of the decree as follows: "All there twelve sixteenths parts or shares of and in all those indigo factories or sets of works for the cultivation and manufacture of indigo which collectively compose or are called or known by the name of Kanti together with the factories or, outworks and buildings thereto belonging or appertaining and are called or known by the name or description of Raghai...and now called or known by the name of Kanti indigo concern and are situate lying and being in the District of Tirhut and Sub District and Tharia of Muzafferpur in the Province of Bihar and in all other (if any) the lands indigo factories and hereditaments which belong to or form part of or are held with the Kanti indigo concern and also the like shares in all plantations and-gardens upon the said lands or any part thereof" etc., etc., If the particulars subsequently enumerated are not exhaustive of everything included in the earlier general description this should not limit the meaning of the earlier comprehensive and generic description of the subject-matter. I think the. principle laid down by Lord Westbury in West v. Lawday (1865) 11 H.L.C. 375 : 13 L.T. 171 : 11 E.R. 1378 : 145 R.R. 238 is applicable in the present case, and if some items of property belonging to the indigo concern which were not specifically mentioned in the particulars get out in the decree were sold, they would nevertheless be covered by the general description. The rule as laid down by Lord Westbury is that the entirety which has been expressly and definitely given shall not be prejudiced by an imperfect and inaccurate enumeration of the particulars. Moreover, this in itself is no evidence of fraud even if I should be wrong is my view as to applying the rule enunciated to a decree. The decree-holders may well have thought, and they no doubt had legal advice on the matter, that they were entitled to sell that which was included in the general description set out in the decree in their favour.

16. The last point to be noticed on this part of the case is that properties were sold which were not included in the title-deeds deposited. The question of what was mortgaged is one of intention. The deeds deposited were five in number and they covered the whole of the 12 annas share of the Kanti indigo concern. It seems clear to me that the intention was as appears from the correspondence, to mortgage the 12 annas share and for the purpose of creating an equitable mortgage on that share it was quite sufficient to deposit the deeds under which the shara had been acquired by the plaintiffs father. If subsequently some properties were acquired as part of the 12 a an as interest. I think they must betaken as accessions to that interest. The question now under consideration arose and was decided in the case of Bhupendra Nath Basu v. Wajihunnissa Begam 39 Ind. Cas. 564 : 2 P.L.J. 293 : 3 P.L.W. 20. The judgment is Ex. L in the present case and although it is not binding as res judicata and was determined on the facts there proved it is an authority of this Court which is entitled to respect and the question raised was the same as that now arising. The question there arose both with regard to the 4 annas share of Mrs. Toomey and the 12 annas share of the trustees. Chapman, J., after pointing out that shares in indigo concerns are constantly transferred and dealt with all over Bihar and that such a share was a perfectly definite and specific kind of property stated as follows: "If the parties meant anything they meant this that the mortgagees by instituting a suit is proper form at some future date should be able to obtain a complete title to a share in that Kanti Indigo Concern. Can the parties have possibly meant that that title to be acquired at some future date by the mortgagees should be to a share in the concern as it stood at the time of the mortgage. It is obvious that this cannot have been the intention, for it would not be possible for a person to acquire say in the year 1911 a title to a share in the Kanti Indigo Concern as it stood in the year 1895, the good-will, the debts, the liabilities the rights under contract, everything would have changed beyond re-call. I have no doubt that what the parties meant was that if the mortgagees brought a suit for foreclosure at some future date they should acquire a title to a share in the Kanti Indigo concern as it stood upon the date upon which they obtained foreclosure." After referring to the decision of the Judicial Committee in the case of Raja Kishendatt Ram v. Raja Mumtaz Ali Khan 5 C. 198 : 5 C.L.R. 213 : 6 I.A. 145: 4 Sar. P.C.J. 17 : 3 Suth. P.C.J. 637 : Rafique & Jacksons P.C. No. 58 : 3 Ind. Jur. 426 : 3 Shome L.R. 1 : 2 Ind. Dec. (N.S.) 737 (P.C.) the learned Judge remarks: "There would be little difficulty in holding upon the principle therein laid down that these properties were accessions but I have preferred to deal with the question on somewhat different lines. The view I take is that if a share in an indigo concern in mortgaged what the parties must intend is that when the foreclosure or sale takes place at some subsequent date, the share shall pass to the mortgagee as it stands at the date of sale or foreclosure. This would include not only what strictly could be called accessions but also changes in good-will, rights under contract, and so forth". In dealing particularly with the 12 annas shares, and the mortgage thereof, which is the subject of the present suit the learned Judge further remarks. "There is no technical rule that in an equitable mortgage all the title-deeds should be deposited. It is merely a matter of intention. The authorities for this are given in Courts Law of Mortgages, 8th Edition, Vol. I, page 74. It appears to me to be clear that the intention was to mortgage the 12 annas share in the Kanti Indigo Concern and for the purpose of creating an equitable mortgage of that share it was quite sufficient for Mr. Toomey to deposit the conveyances under which his father had purchased that share. The only question is whether Mr. Toomey intended to mortgage the 12 annas share as it stood at the time of the conveyances of his father in the years 1866 to 1883. These conveyances were of 2 annas share in 1866, 2 annas in 1876, 2 annas in 1881 and 6 annas in 1883. It is quite inconceivable that in 1907, Mr. Toomey intended to mortgage a 2 annas share as it stood in 1866, another 2 annas as it stood in 1876, another 2 annas as it stood in 1881, and another 6 annas as it stood in 1883. That appears to me to be an absolutely inconceivable proposition. It is perfectly clear that when Mr. Toomey executed this mortgage in 1907, he meant that in the event of a suit for sale the 12 annas share of the Kanti Indigo Concern as it stood at the time of the sale should be sold". I agree with the proposition stated in that judgment that for the purpose of creating an equitable mortgage of a share in the indigo concern it is quite sufficient to deposit the title-deeds under which that share was acquired and although the question of intention is one of fact and must be determined upon the facts before us, I am satisfied in the present case having regard to all the circumstances disclosed that the intention was to mortgage the 12 annas shares as it should exist from time to time and not merely as it existed at the date of the various title deeds.

17. I now leave the point of fraud and collusion, upon which I think the plaintiff has lailed, and pass to the argument that the trustees had no power to mortgage the property and could pass no title to the mortgagees. By the terms of the Will they were empowered to raise any sum or sums of money that might be necessary for the purpose of carrying on the management," cultivation and improvement of the indigo concern and although the power to mortgage is not expressly stated. it might well be difficult to raise money without giving adequate security, and the testators intention may be gathered from what follows immediately afterwards where he says: " And my trustees may do all such other acts and things whatsoever as to them shall appear necessary or expedient for the management, cultivation, extension or improvement of the said concern or my share therein and the disposal of the produce thereof in the same manner as if my trustees were absolute proprietors of the said share in the said concern without being responsible for any loss which may be incurred in such management, cultivation, extension, improvement or disposal." Their powers could scarcely be expressed in more comprehensive terms and as they were given powers to borrow for the purpose of management and cultivation so I consider that it was the testators intention that they should, if they found it necessary or expedient be entitled to hypothecate the property in order to raise money for those purposes as if they were absolute owners.

18. It was next argued on a variety of grounds that the appointment of the new trustees was illegal and inoperative and conferred no powers upon them. First it was urged that the Will itself impliedly negatived the appointment of. new trustees during the lifetime of those nominated, the intention being that no new appointment should be made except in the contingency of all the named trustees dying and the executor or administrator of the last survivor of them being in possession. I do not think any such intention can be read into the words. It would be a most unusual limitation and in my opinion would require a much clearer direction to enable us to impute any such intention to the testator.

19. Next it was contended that until the residuary trust fund is ascertained by sale and conversion of the whole estate the persons nominated in the Will remained executors and were not trustees. They could not, therefore, retire and new executors could only be appointed by the Court, There is no suggestion that any part of the estate except the Kanti Indigo Factory remained unadministered, or that the testators debts had not been paid, or that the legacies had not vested. The duties of the persons nominated as trustees and executors ceased, at all events for the time being, to be executorial when they elected to postpone the sale and manage the property for the benefit of the persons entitled to the income of the residuary estate. The property became vested in them under the Will as trustees and they ceased to have it in their hands as executors whilst managing the property vested in them for that purpose. See per Fletcher Moulton, L.J., in Solomon v. Attenborough (1912) 1 Ch. 451 : 81 L.J. Ch. 242 : 106 L.T. 87 : 56 S.J. 270 : 28 T.L.R. 225. The appointment of new trustees was exercised under the Trustees and Mortgagees Powers Act (XXVIII of 1866) Section 34 and although the powers given by the Act are to be exercised by the person or persons nominated for the purpose by the instrument of trust, if no such person is nominated the Act provides that the power may be exercised by the surviving or remaining trustees or trustee. I can find nothing in the Will which limits the power to any particular person. In fact the Will is silent as to the appointment of new trustees and in my opinion the power of appointing was properly exercised by Mrs. Toomey as the remaining trustee under the indenture of 1905. This was done simultaneously with the retirement of the other two trustees and by the same instrument the property was vested by the old trustees in the new trustees, Mrs. Toomey herself being included in both categories. The order of events must be taken, I think, as stated in the instrument itself. First the retirement of the two trustees, next the appointment of new trustees by Mrs. Toomey and last the vesting of the property in the new trustees by the old.

20. It was next contended that the indenture of the 20th June, 1906, was not properly proved as neither of the attesting witnesses to Mr. Macraes signature had been called, nor had the handwriting of either of such witnesses been proved as provided by Sections 68 and 69 of the Indian Evidence Act. It may be stated that Mr. Macrae executed the document in England. It was then sent to India to be executed by the other trustees. It is admitted that such a document does not require attestation in this country. All that; was necessary, therefore, was to prove the signature of Mr. Maorae which was done but it was argued that his signature required attestation under England Law, and as Mr. Macrae executed the document in England it was one which by law required to be attested. Whatever conflicting views may have been expressed as to the proper law to apply to contracts in relation to land where the lex loci contractus and the lex loci rei site or, as Prefeesor Dicey calls it the lex situs dider, it seems to be generally agreed by Storey, Dicey, Westlake and other test writers that in so far as the formalities of alienation or conveyances are concerned the law applicable is that of the country where the land is situate. (See Dicey Conflict of Laws, Chap. XXIII and Appendix, Note 17), The case of Adams v. Clutterbuck (1883) 19 Q.B.D. 403 : 52 L.J.Q.B. 607 : 48 L.T. 614 : 31 W.R. 723 supports this vie wand no case has been drawn to our attention which conflicts with it. I agree with the learned Subordinate Judge is holding that the document was properly proved.

21. A further argument which was dealt with in the judgment of the trial Court, and which was out faintly argued before us, is that the returning trustees were compelled by Mrs. Toomey to retire. The argument as I understand it is that there was some undue influence improperly exercised upon them by Mrs. Toomey for some purpose of her own. There is no evidence to support such a case and it seems to me idle to speculate as to the motives which influenced the retiring trustees. That they voluntarily retired can hardly be doubted in the face of the document which they signed. Their motives for doing so are immaterial and I consider this argument to be devoid of all substance.

22. Again it was contended that the document was not properly registered as execution was admitted on behalf of Mr. Macrae and the document presented for registration on his behalf by Mr. Kennedy under a general power-of-attorney from the former. We are asked to hold, first that a general power-of-attorney must be prasumed to give no power for such purposes and, secondly, that a trustee cannot delegate his authority for the like purposes. For the flrat part of this argument reliance is placed on the cases of Ishri Prasad v. Baijnath 28 A. 707 : 3 A.L.J. 743 : A.W.N. (1906) 195 and Jambu Parshad v. Muhammad Nawab Aftab Ali Khan 28 Ind. Cas. 422 : 37 A. 49 : 19 C.W.N. 282 : 13 A.L.J. 129 : 17 M.L.T. 148 : 21 C.L.J. 218 : 2 L.W. 277 : 28 M.L.J. 577 : 17 Bom. L.R. 413 : (1915) M.W.N. 592 : 42 I.A. 22 (P.C.). In those cases a defect in the formalities necessary for valid registration was affirmatively proved. The case here is quite different. The document purports to Have been properly registered in accordance with the provisions of Sections 32 and 33 of the Indian Registration Act. It was the duty of the Sub-Registrar to satisfy himself that the power-of-attorney gave Mr. Kennedy the necessary authority and it must be assumed until the contrary is proved that he so satisfied himself before he admitted the document for registration and signed the endorsement. I am certainly not prepared to find merely because the power-of-attorney is described as a general power in the Sub Registrars endorsement that it did not authorise Mr. Kennedy to admit execution or present the document for registration. The power-of-attorney is no longer forth coming which is not surprising so many years after the event, but Mr. Kennedy who was called as a witness said that this was the only act he performed under the power which it would seem was sent to him mainly, if not solely, for the very purpose of effecting registration on behalf of Mr. Macrae. With regard to the second objection on this point it is sufficient to say that although a trustee must exercise his own discretion in matters connected with the trust and cannot generally delegate his powers in this respect, no question arises here as to the exercise of any discretion in connection with the duties of the trust. It is clear that Mr. Macrae by. signing the instrument of June, 1906, intended that it should become effective and, if registration wore necessary, that it should be registered, which could only be done in India and it must have been for this very purpose that he executed the power-of-attorney in favour of Mr. Kennedy. It would be too much to expect that he should travel out to India for any such purpose and the mere registration which required no further exercise of discretion on his part was an act which, in my opinion, he was clearly entitled to delegate to an agent.

23. It was further contended that the Will gave the trustees a mere power to sell and did not pass the legal estate and hence they had no power to mortgage without the consent of all parties intereated. I can not so interpret it. The word a of the Will are "I devise and bequeath all the rest residue and remainder of my property real and personal whatsoever and whether situate in England, India or elsewhere unto my trustees upon trust that my trustees shall sell, call in and convert into money the same and" after paying the debts, legacies etc, "shall invest the residue." They were then to stand possessed of the residuary trust fund upon trust in the first place to pay out of the income the annuities and other charges during the widows lifetime and after her decease upon trust to divide the trust fund among the children who should attain the age of 21 or being daughters should attain that age or marry. I have always understood that a mere direction to sell or a devise that the land shall be sold by executors or any one else passes a mere power, but a devise of lands to executors in trust for the purpose of selling, especially where they are to deal afterwards with the proceeds of sale, passed the legal estate and the beneficiaries take an equitable interest. I am of opinion that the legal estate passed under the Will to the trustees.

24. It was also contended, that the power to postpone the sale for an indefinite period was void as contravening the law against perpetuities. As I read the clause empowering the trustees to postpone the sale it contemplates a postponement during the life of the widow only. This may be gathered from the fact that the profits of the indigo concern, as long as it remained unsold, were after paying out goings, to be paid and applied to the person or persons in whom and in the manner in which the income of the residuary estate, if converted, would be payable. After the widows death there was no such person. The Will provides for payment of the income of the residuary trust fund during the widows life only and after her death the corpus is to be divided amongst the children. It seems to me clear from this that the testators intention was that the power to postpone the sale should operate only during the widows lifetime. But even so it is said that the children on attaining the age of 21 acquired a vested interest by way of remainder in the residuary trust fund and, therefore, the legal estate which passed to the trustees was an estate pur autre vie, namely, the life of the widow and they could not, therefore, grant a mortgage upon the larger interest. So to state the case is not strictly accurate. There is no gift to the widow with remainder over to the children. The property was charged with an annuity in her favour which formed the first charge thereon. In order to ascertain the intention of the testator and the interest which the trustees took, the Will as a whole must be regarded. I have already expressed the opinion that they had the power to mort-gage. The words giving them power to do all such other acts or things whatsoever as to them shall seem expedient for the management etc., as if they were absolute proprietors gave them, in my opinion, full proprietary rights and they represented the estate for all purposes and could deal with it accordingly. The beneficial interest that the plaintiff acquired was subject to the right of the trustees to deal with the property in the ordinary course of management as absolute proprietors. The plaintiffs interest was not, in my opinion, a vested interest in a share in the land. She was entitled only to a share in the residue after conversion and after paying the debts and liabilities incurred in the course of management before conversion. Nor had she any interest which would entitle her in my opinion to be joined as a party in the mortgage suit. Once it is conceded that the pro-party vested in the trustees, as I find is did, I do not think their interest can be said to be limited to the lifetime of the widow. After her death they still had many duties to perform. Even had the property not been mortgaged the creditors would still have been able to attach and sell the assets of the indigo concern in satisfaction of any decree they might obtain in respect of the loans. The property, until it was sold and the proceeds were distributed, was still vested in the trustees and they fully represented the beneficiaries for the purposes of the suit under Order XXXI, Rule 1 of the CPC and the plaintiff is bound by the decision in that suit.

25. The last point, which needs consideration is that on the findings of the trial Court it has not been proved that Shaw Wallace and Co., had an equitable mortgage by way of deposit of title-deeds. Although I consider the evidence sufficient to prove that for the second years transactions the deeds were allowed by all the trustees to remain on deposit by way of equitable mortgage to secure the advances, it is not necessary to decide this point. The plaintiff is not entitled to have a re-trial of the issues determined in the mortgage suit and this decree cannot be set aside except by proving that it was obtained by fraud. If, as I have found, the plaintiff was properly represented by the trustees is the mortgage suit she is bound by that decision and cannot require the defendants to prove over again, after a lapse of maray years, an issue which has already been decided against her. In my opinion the appeal should be dismissed with costs. There will be one set of costs only payable to the respondents first and second party. The respondents second party, Shaw Wallace and Co., have paid the costs of printing the respondents portion of the paper book. This sum will be deducted first of all for the printing costs and refunded to Shaw Wallace and Co. The hearing fee will be divided equally between the defendants first and second party. In other respects the costs will be applied to the sums actually incurred by the respective respondents proportionately.

Mullick, J.

26. I agree. The first question is what is the estate conferred upon the trustees by the Will. In my opinion the Will did not confer upon the trustees a bare power of sale. It made the trustees full owners who had power to dispose of the corpus of the estate either by mortgaga or otherwise, and the property did not vest absolutely in the beneficiaries at any time although they had an interest in the sale proceeds if and when the estate was sold. This disposes of the argument that the; trustees had no power to mortgage the corpus to Shaw Wallace and Co., and that the beneficiaries were necessary parties to the mortgage.

27. The next question is whether the original trustees named in the Will had power to appoint other trustees. The Will does not in terms give such a power but the Trustees and Mortgagees Act which is applicable to this case renders the appointment of G.R. Toomey and A.T. Toomey perfectly regular and valid.

28. The third question is whether the deed (Ex. R) by which the new Trustees were appointed was regular and in accordance with law. In my opinion execution has been duly proved. The Indian Law which is the law applicable to the case does not require the presence of attesting witnesses. The provisions of the Indian Law also with regard to registration have been complied with. It was not sufficient for the plaintiff merely to suggest in her cross-examination of the witness Kennedy that he had power to admit execution before the Registrar. Also the rule that a trustee cannot delegate his fiduciary duties has not bean contravened.

29. It is next contended that the mortgagors acted not asexeoutors and trustees but as owners and that, therefore, the trust property could not pass. It is clear from the evidence that the mortgagee knew that the mortgagors were acting in their capacity as executors and trustees and that the trust estate was the subject of the transaction.

30. It is however, contended that at any rate the beneficial interest of Elizabeth Toomey could not be affected because she had good reason for impeaching the transaction and the trustee did not in the circumstances represent her. This would be a valid contention if it could be shown that the trustees were asting adversely to her interest. There is nothing to support such a charge. A great deal has been said about the fraudulent conduct of the trustees ; but in my opinion there is no substance in the allegations to which I will refer presently in greater detail.

31. If than Flora Toomey, G.R. Toomey and A.T. Toomey had power to mortgage the trust estate, was there anything defective, in the decree that followed on the 22nd April, 1910 Apart from objections based on. fraud there are two grounds on. which the suit and the decree and the subsequent proceedings are attacked. Firstly it is said that Elizabeth was a necessary party to the suit. I have already shown that the trustees were not acting adversely to Elizabeth Toomey and that, therefore, she was properly represented.

32. Secondly it is said, that the Receiver appointed in the partition suit instituted by Flora Toomey on the 16th November, 1909, should have been made a party is the mortgage suit. In my opinion the Receiver was not a necessary party. Any decree passed in the mortgage suit could have been executed against the property in the hands of the Receiver.

33. I now come to the allegations of fraud. It is urged that there was a conspiracy between Shaw Wallace, the trustees and defendant No. 1 and the husband of defendant No. 2. Fraud is alleged, before the suit, during the suit and after the decree.

34. With regard to fraud before the suit and during the suit, it is contended that there was no debt which could be the consideration for the mortgage; secondly, that the defendants were sued as trustees when they ought to have been sued in their private capacity, thirdly, that the Receiver was fraudulently kept in ignorance of the suit, and fourthly that in law there was no equitable mortgage at all.

35. With regard to fraud after the decree, the principal grounds are, firstly, that the property was sold at an inadequate price by reason of under valuation, and secondly, that several properties not covered by the title deeds deposited by way of the alleged equitable mortgage were sold is execution of the decree.

36. With regard to the objections regarding fraud before and during the suit the greatest obstacle that the plaintiff has to meet is that it is not possible for us to re-try the mortgage suit. If as I hold the trustees were representing the plaintiff the decree is res judicata and we cannot now re-open questions which might have been raised by the trustees in their defence. Moreover, upon the merits which have been fully argued on both sides I am satisfied that neither the mortgage nor the suit nor the decree were fraudulent and that the allegations of fraud in respect of this part of the case must fail.

37. Then as to the events which happened after the decree, I agree that what was mortgaged was twelve annas of the Kanti indigo concern whatever it might beat the time of the enforcement of the mortgage The mortgaged estate could not be limited to the particular properties enumerated in the title-deeds deposited with the mortgages at the time of the mortgage. The intention of the parties was clearly to mortgage the twelve annas interest in the entire indigo concern, an expression which has a special meaning among those engaged in the cultivation and manufacture of indigo. In my opinion the charge of fraud against the trustees and against Shaw Wallace in the matter of the suit: and the decree and the sale have not been proved.

38. Next as regards the complicity of defendant No. 1 and of Langat Singh, the husband of defendant No. 2 there is nothing to show that they had any hand in causing the suit to be brought or in the conduct of the suit or in the conduct of the execution proceedings, and as for the purchase by Shaw Wallace and Co at the execution sale, I agree that it has not been shown that they were benamidars for the above defendants. Shaw Wallace and Co. in fact lost over Rs. 13,000 on the mortgage transaction and the sum of Rs. 1,30,000 paid by the defendants to them for the 16 annas of the property was a fair price. The defendants were certainly bona fide purchasers for value.

39. The result, therefore, is that I agree that the appeal should be dismissed with costs.