Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. In my opinion the learned Judge in the Court below hasmade a mistake in law. In point of fact he holds that au executor under a Hinduwill, before the Hindu Wills Act came into force, is substantially in the sameposition as an English executor under an English Will, in the sense that theproperty vests in him; and that this is his view is clear from the fact that herelied upon the well-known case of In re Tanqueray Willaume, (1882) L.R., 20Ch. D., 465, decided in the English Courts, which shows that he regarded theproperty under the will as vested in the executor. I think it is clear from theauthorities that have been cited that an executor under a Hindu will is not inthat position which the learned Judge in the Court below seems to think, but hepractically holds the property as manager, as is stated by Mr. Justice Markbyin the case of Kherodemoney Doasee v. Doorgamoney Dossee (1878) I.L.R. 4 Cal.455 where he says: "It has been frequently, held that, the mereappointment of a person as executor to a Hindu does not cause any property tovest in him at all; and that if as executor he is entitled to hold theproperty, he holds only as manager." I think that view of the law iscorrect as applied to the executors appointed under the particular will in thiscase; but that does not dispose of this point. Mr. Hill argued ingeniouslythat, having regard to the provisions of Sections 2 and 4 of the Probate andAdministration Act V of 1881, the property vested in these executors under theeffect of Section 2 of that Act, which says that Section 4, amongst others, isto apply to the case of every Hindu dying before the 1st April 1881, which isthe date on which the Act came into operation. Admittedly, in this case, thetestator did die before that date, and Mr. Hills contention is that, havingregard to the language of Sections 2 and 4, the effect of those sections is tovest in these executors, who were appointed, so far back as 1857, under a Hinduwill, which it was then not obligatory to prove, the property of the testator.This argument does not commend itself to me as sound; one must look to thewhole purview and intention of the Act. If we look to the preamble of the Act,it there stated that the Act is intended to provide for the grant of probatesof wills and letters of administration to the estates of deceased persons, incases to which the Indian Succession, Act does not apply; that is the object ofthe Act---the grant of probates of wills and letters of administration. The Actdid not come into force until April 1881, and to my mind it would be a verystrong conclusion to draw from the words of Section 2 "dying before the1st April 1881" that it was intended--this Act having been passed for thepurpose which I have stated above--that Section 4 should have a retrospectiveoperation, so as to vest in an executor appointed under a Hindu will an estatewhich but for that section would admittedly not otherwise vest in him. I thinkSections 2 and 4 read together mean that in the case of a Hindu dying beforeApril 1881, where the estate is unadministered, if any one desire to come inand prove the will and get the benefit of the Act in that sense, he may havethe opportunity of doing so, and the effect would be that the estate from thattime would vest in such executor under Section 4. That view to my mind isstrengthened by the consideration that Section 4 comes in under Chapter II ofthe Act, and the heading is "of grant of Probate and Letters ofAdministration," which to my mind indicates strongly that the vesting wasonly to follow upon the grant of probate of the will in the one case, or grantof letters of administration in the other. That view is further strengthened bythe consideration that the section applies, not only to executors but toadministrators who obtain letters of administration under the Act.

2. But assuming that view of Sections 2 and 4 of the Act tobe wrong, it appears to me chat Mr. Hill does not carry his case much furtherby reason of the provisions of Section 90 of the Act, which says that the"power of an executor to dispose of Immovable property so vested inhim" under the will I "is subject to any restriction that may beimposed by the will appointing him." Now, in this case, the willdistinctly states that there was to be no sale and no alienation other than analienation for the payment of debts. Mr. Hill tries to get out of thisdifficulty by contending that, once concede that the estate is vested in theexecutor, the cases in the English Courts show (amongst others that to which Ihave referred) that where an executor, in whom the estate is vested, has apower to sell for debts, the purchaser need not inquire as to the existence ofthose debts or the necessity for the sale. But I doubt if the principle ofthese English cases can apply in the face of the clear statutory provision ofSection 90. However, as in my view no estate was vested in this II executor,the point becomes immaterial. I think the Judge was wrong on this w point oflaw.

3. That being so, it appears to me that we must remand thecase, and must remand it because the Judge in the Court below has not, as amatter of fact, gone into the question of whether this sale was effected forthe purpose of paying the testators debts. I desire, however, to point out, Ihope for the assistance of the learned Judge in the Court below when the caseis retried on this remand, that it is not necessary, as a condition precedentto the validity of this transaction, that the defendants should make out thereal existence of the necessity for raising this money, Beyond that he willdoubtless give every due effect to the lapse of time, which has occurred inthis case, for the sale is 30 years old, to the fact that the original vendeeis dead, and can give no account of the transaction, to the long possession andenjoyment of which the defendants have had of this property, and to that whichlooks prima facie something like acquiescence on the part of the plaintiffs,and especially to the recital on the face of the kobala itself that accordingto the provisions of the will made by the deceased Tituram Haldar, we, to clearthe debts and liabilities of his estate have sold to you the said land withbuildings and all interests for a consideration of Rs. 3,000; you are vestedthis day with the right to dispose of the said property by sale or gift, etc."

4. Now in the case of Hunoomanpersaud Panday v. MundrajKoonweree (1856) 6 M I.A. 393 (419)--the passage which I am about to read is atpage 419--the Privy Council say: "It is to he observed that therepresentations by the manager accompanying the loan as part of the res gestesand contemporaneous declarations of an agent, though not actually selected bythe principal, have been held to be evidence against the heir; and as theirLordships are informed that such prima facie proof has been generally requiredin the Supreme Court of Calcutta between the lender and the heir, where thelender is enforcing his security against the heir, they think it reasonable andright that it should be required." In the present case there was a clearrepresentation by the executors that they were selling the property to clearthe debts and liabilities of the estate, and that, in the opinion of the PrivyCouncil, is prima facie evidence as to the necessity for the loan. It is, infact an admission; it is an admission by a Hindu executor as to the object andnecessity for which the money was being raised. We must, therefore, ask thelearned Judge to consider whether on the face of these recitals there is notprima facie evidence in favour of the defendants case, and, if so, that would-besufficient to shift the onus and throw it upon the plaintiffs to show thatthere was no necessity for raising this loan. In remanding this case, we remandit upon the terms that neither party is to be allowed to go into freshevidence, but the case is to be decided upon the evidence already adduced.Having regard to the length of time during which this case has been going on,we direct that the lower Court should dispose of this matter as soon asconveniently can be. The costs will abide the result.

Banerjee, J.

1. I am of the same opinion. I only wish to add one wordwith reference to Mr. Hills argument based upon Section 2 read with Section 4of the Probate and Administration Act. It is quite true that Section 2 of thatAct makes chapters II to XIII, both inclusive, applicable to the case of everyHindu dying before, on, or after, the first day of April 1881; and if the wordsof the section are to be taken in an unrestricted sense, Section 4, whichoccurs in chapter II of the Act, would apply to this case, and would have theeffect of vesting in the executor in this case the property of the testator.But the provisions of the Act must be taken to be controlled by the preamble ofthe Act which is very significant, and which runs in these words: "Whereasit is expedient to provide for the grant of probate of wills and letters ofadministration to the estates of deceased persons in cases to which the IndianSuccession Act 1865 does not apply, it is hereby enacted as follows." TheAct then is passed with a view to provide for the grant of probates and lettersof administration to the estates of deceased persons in cases to which theIndian Succession Act does not apply, and any provision of the Act which issaid to be applicable to the case of a Hindu dying before the 1st September1870, in which the taking of probate is optional [See Krishna Kinkur Roy v. RaiMohun Roy (1886) I.L.R. 14 Cal. 37; and Moosa v. Essa (1884) I.L.R. 8 Bom.,241] must be taken to be applicable to his case only in the event of the Actbeing resorted to for the purpose of obtaining probate or letters ofadministration But where the Act is not availed of for the purpose of obtainingprobate or letters of administration, for the granting of which it was passed,I do not think it would be right to hold that the provisions of the Act wouldapply to such a case.

2. Granting, however, that Section 4 of the Act wasapplicable to this case, and that the property of the testator was, therefore,vested in the executor, that would not affect the result, because bySub-section 2 of Section 90 the power of the executor to dispose of Immovableproperty so vested in him is subject to the restriction imposed by the will.The question would still remain whether the power of sale was exercised in thiscase within the limits prescribed.

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Sarat Chandra Banerjee and Ors. vs. Bhupendra Nath Basu andOrs. (03.08.1897 - CALHC)