1. This was a suit brought by the plaintiff to recover Rs 6,000 as principal and Rs. 2,925 as interest on a mortgage passed by defendant No, 1 as executor of one Sheikh Aboo Baker bin Saeed Ali who left two documents, one relating to Aden property dated May 12,1910, and the second relating to Hadramot property dated September 12, 1913. On January 19, 1920, defendant No, 1 obtained probate of the document relating to Aden property dated May 12, 1910, annexing a copy of the other document relating to Hadramot property, dated September 12, 1913. On February 17, 1920, defendant No, 1 as executor and constituted attorney of defendants Nos. 2 to 7 executed a mortgage of the property Grant No. 53 at Aden in favour of the plaintiff to secure an amount of Rs. 6,000.
2. The plaintiff filed Suit No. 77 of 192 7 in March 1927 in the Court of the Senior Judge at Aden. A written statement was filed by defendant No. 1 on behalf of himself and defendants Nos. 5 and 6, and defendants Nos. 2, 3, 4 and 7 filed a separate written statement. On July 25, 1927, issues were raised in the case, and the case was adjourned to August 8, Neither party produced any evidence in the ease, and the case was adjourned to September 5, 1927, for arguments, On August 25, the plaintiff applied for a commission to the District Court of Tarim and also to the District Court of Hyderabad to examine the witnesses who attested the power-of-attorney passed by defendants Nos. 2 to 7 in favour of defendant No. 1. That application was reject-ed on the ground that the hearing was finished and the case was adjourned for arguments. On September 15, the arguments were handed in, and on the 26th the Court delivered judgment dismissing the plaintiff's suit.
3. The Senior Judge was of opinion that the will imposed a restriction on the executor not to mortgage the property, and that defendants Nos. 2, 3, 4 and 7 could avoid the mortgage, as permission of the Court was not obtained under Section 307 of the Indian Succession Act of 1925. The learned Judge also held that defendants Nos. 2 to 7 did not execute the power-of-attorney authorising defendant No. 1 to mortgage the property. He, therefore, dismissed the plaintiff's suit.
4. On appeal, the Resident at Aden did not give any definite finding on the question as to whether there was any restriction on the power of the executor to mortgage or alienate the property. His opinion was that the finding of the lower Court might be wrong, for a restriction on alienation was not to be implied lightly. He, however, held that the suit was properly dismissed against defendants Nos. 5 and 6 on the ground that the summons must be considered to have been returned unserved on May 25, 1927, and the Court was justified in dismissing the plaintiff's suit against defendants Nos. 5 and 6 on September 26,1927, under Order IX, Rule 5. The Resident referred the whole case to this Court on the ground that the plaintiff, having asked for a reference, was entitled to such a reference.
5. The Resident, in our opinion, was wrong in referring the whole case to this Court. He ought to have raised specific issues of law and fact which arise in the case for determination by this Court as a Court of reference. It was held in Ibrahim Mohamad Rahimtulla v. Tob Mesha Menahim Mesaa (1929) Civil Ref. No. 1 of 1928, decided on August 6,1929, by Kemp Ag.C.J. and Murphy J. (Unrep.) that it is necessary for the Resident to submit for the decision of this Court the questions of law and fact on which the opinion of this Court was invited, and that it was not open to the Resident to submit the whole case. What is intended is a statement of the points on which the opinion of the High Court is sought, with the evidence on them to enable the High Court to give its opinion, The ' case' contemplated, is similar to a case stated under Section 60 of the Presidency Small Cause Courts Act, or, as in England, to an application to Justices to state a case for the opinion of the High Court.
6. We have, however, allowed counsel on both sides to argue this reference on the two points which appear to arise in the case, and in order to avoid delay we considered it unnecessary to send the case back to the Court at Aden in order to formulate the points of law and fact on which the opinion of this Court was invited.
7. From the letter of reference we think that only two points arise on this reference. The first is whether the will imposes any restriction on the executor not to mortgage the property, and the second whether the Court was right in dismissing the suit because the summonses were not served on defendants Nos. 5 and 6, Various other points were argued on behalf of the plaintiff and on behalf of the defendants, but we think that on this reference it is not necessary to consider those points.
8. It was urged on behalf of the plaintiff that the Court was not right in refusing the application for examining the attesting witnesses on the power-of-attornoy, That question was not referred to this Court for decision, and it appears that the plaintiff had ample opportunity to lead evidence in the case and could have asked for commission on July 25, 1927, when the issues were raised, or on August 8 when the case was heard.
9. With regard to the second point arising in this reference, namely, whether the Court was right in dismissing the suit because summonses were not served on defendants Nos. 5 and 6, it appears that the learned Judge was not right in dismissing the suit against defendants Nos. 5 and 6 in the final judgment in the suit. The Judge could have proceeded under Order IX, Rule 5, if the plaintiff was negligent in not asking for summons within three months after the summona was returned unserved. No order was passed by the Court under Order IX, Rule 5. Under Order IX, Rule 6(6), it was incumbent on the learned Judge, if the notice was not served, to issue a fresh summons to defendants Nos. 5 and 6. Counsel appearing on behalf of the plaintiff intimated to this Court that he did not wish the case to be sent back on the ground that the suit was not rightly dismissed against defendants Nos. 5 and 6, and requested this Court to decide the principal question arising in this reference, namely, whether there was any restriction on alienation imposed on the executor by the will of the deceased, He, therefore, submitted that the names of defendants Nos. 5 and 6 should be struck off We, therefore, accede to his request and strike off the names of defendants Nos. 5 and 6, and the decision of the lower Court in favour of defendants Nos. 5 and 6 will, therefore, stand.
10. The principal question to be decided in this reference is whether there is any restriction on alienation imposed on the executor by the will under Section 307 of the Indian Succession Act of 1925. Under Section 307, Sub-section (1), the executor has power to dispose of the property of the deceased vested in him under Section 211, either wholly or in part, in such manner as he may think fit. Illustration (ii) to the section is:-'The executor in the exercise of his discretion mortgages a part of the immoveable estate of the deceased. The mortgage is valid'. Sub-section (2) of the section says that if the deceased is a Mahomedan, the general power conferred by Sub-section (1) shall be subject to the following restrictions and conditions, namely :-
The power of an executor to dispose of immoveable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.
11. If there is no restriction imposed on the power of the executor to dispose of the immoveable property by the will, then the mortgage in this case would be valid. If, on the other hand, there is restriction imposed by the will, it was incumbent on defendant No. 1 to approach the Court which granted the probate for permission ,to mortgage the property. The Resident is doubtful on the question as to whether there is a restriction on alienation imposed by the will, though the Senior Judge was of opinion that there was a restriction on alienation imposed by the will.
12. There are two documents passed by the testator, one relating to the Aden property dated May 12, 1910, and the second relating to Hadramot property dated September 12, 1913. The Judge of first instance considered that these two documents were two separate wills. It appears from the terms of the two documents that the second will confirmed the first will so far as the Aden property is concerned, and has made one variation with regard to the appointment of the executors. By the document of May 12, 1910, the testator appointed defendant No. 1, Sheikh Ahmed bin Omer bin Joda Zoobeidi, and his two eons, Saeed and Omar, as his executors. By the second document dated September 12,1913, he confirmed the appointment of defendant No. 1 as the executor and cancelled the appointment of one of his sons, Saeed, as executor. In the document of May 12, 1910, there is no reference to the payment of the debts of the testator. In the second document of September 12,1913, the testator enjoined his executors to pay off his debts, The terms of both the documents show that the testator intended that his property should not be divided till his minor sons attained the age of twenty-one years, The learned Judge of first instance considered that these two documents were two separate wills, and that defendant No. 1 obtained probate of the will dated May 12, 1910, which did not enjoin on the executor the duty of paying the debts, and he inferred from the direction that the estate should not be divided till the minors attained the age of twenty-one years, an intention of the testator to restrict the power of alienation of the executor.
13. The two documents cannot be considered to be two separate wills but the two together must be considered to indicate the testamentary intention of the deceased. According to Section 2, Clause (A), of the Indian Succession Act, 1925, 'will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. According to the decision in Douglas-Menzies v. Umphelby  A.C. 224 whether a man leaves one testamentary writing or several testamentary writings, it is the aggregate or the net result that constitutes his will, or, in other words, the expression of his testamentary wishes. It was observed as follows (p. 233):-
The law, on a man's death, finds out what are the instruments which express his last will. If some extant writing be revoked, or is inconsistent with a later testamentary writing, it is discarded. But all that survive this scrutiny form parts of the ultimate will or effective expression of his wishes about this estate. In this sense it is inaccurate to speak of a man leaving two wills ; he does leave, and can leave, but one will.
14. We think, therefore, that there was only one will left by the deceased. Though he passed two documents, one relating to the Aden property and the other relating to the Hadramot property, the legal declaration of the intention of the testator must be gathered not from one document but by reading both the documents together. It would, therefore, follow that the testator intended that his debts should be paid.
15. It is contended by the defendants relying on the document relating to the Hadramot property that the debts ought to have been paid from the personal estate first or from the Hadramot property before the debts can be paid out of the Aden property. There was no contention in the written statement of the defendants before the learned Judge that there was any personal property left by the deceased, and there is no express provision in the second document that the debts were to be paid out of the Hadramot property and not out of the Aden property. Under the law it is the duty of the executor to pay the debts of the deceased. If the two documents are read together, it would appear that the testator intended that his debts were to be paid. The mere fact, therefore, that the direction with regard to the payment of debts appears in the document relating to the Hadramot property does not lead to the inference that the testator intended to impose any restriction on the executor to alienate the Aden property.
16. The second ground on which the learned Judge infers such a restriction is that under both the documents the property was not to be divided till the minor sons attained the age of twenty-one years. It is urged on behalf of the plaintiff that such a direction would be inconsistent with the absolute estate given to the sons and is illegal and void under Section 138 of the Indian Succession Act, 1925. It is not necessary to go into that question, because the question does not arise on this reference as it was not raised before the lower Court and submitted to this Court for decision, and it is also unnecessary to consider whether the restriction referred to in Section 307 is necessarily a valid restriction. 'We, therefore, refrain from going into the point which is urged at length on behalf of the plaintiff.
17. The only question before us is whether the testator intended that there should be a restriction on the power of alienation of the executor. The mere fact that the testator intended that the property should not be divided till the minors attained the age of twenty-one years does not give rise to the inference that the testator intended to impose any restriction on the power of alienation of the executor. If the testator intended to impose that restriction he could have done so expressly, and we do not think that the terms of the will give rise to an inference that there was an implied restriction on the power of alienation of the executor.
18. We, therefore, hold on the important question arising in this case that there was no restriction on the power of alienation of the executor.
19. Under Section 211 of the Indian Succession Act, 1925, which corresponds to Section 4 of the Probate and Administration Act, the executor of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. Though according to the Mahomedan law, a Mahomedan cannot dispose of by will more than one-third of the property after payment of his debts and funeral expenses and the remaining two-thirds must go to his heirs unless the heirs consent to the provisions of the will, the matter is now governed by Section 211 of the Indian Succession Act. That appears to be the effect of the decision of the Privy Council in privy Kurratulain Bahadur v. Peara Saheb and the decision in the case of Sir Mahomed Yusuf v. Hargovandas Jivan I.L.R. (1922) Bom. 231 24 Bom. L.R. 753 where it was held that the executor of the will of a Mahomed an can validly sell and convey the testator's immoveable property without taking out probate or obtaining the consent of all the heirs of the testator. The position of the executor of a Mahomedan will is governed by the Probate and Administration Act, 1881, whether or no he takes out probate, and under Section 4 of that Act, which corresponds to Section 211 of the Indian Succession Act, 1925, the property of the testator vests in the executor and can be sold and conveyed by him under Section 90 of the Act, corresponding to Section 307 of the Indian Succession Act.
20. We think, therefore, that the mortgage effected by defendant No. 1 is valid as there is no restriction on the power of alienation of the executor.
21. It is urged on behalf of the defendants that it is not shown that there was any necessity for effecting the mortgage and that the estate derived benefit by the mortgage. We are not concerned with these questions, for if the mortgage is valid, the mortgagee is not bound to see to the application of the money, nor is he bound to enquire as to the necessity for the loan.
22. It appears that under Order XXXIV, Rule 1, all persons having an interest either in the mortgage-security or in the right of redemption must be joined as parties to any suit relating to the mortgage. The suit having been dismissed as against defendants Nos. 5 and 6, the question is whether the plaintiff can obtain a decree on his mortgage in the absence of defendants Nos. 5 and 6. Order XXXIV; Rule 1, is 'Subject to the provisions of this Code', which would include the provisions of Order XXXI, Rule 1, which runs as follows:-
In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the person beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.
23. We think, therefore, that the mortgage effected by defendant No, 1 in favour of the present plaintiff was a valid mortgage under Sub-section (1) of Section 807 of the Indian Succession Act,
24. We would, therefore, return this reference with our opinion on the principal issue arising in the case. The plaintiff should get the costs of this reference from defendants Nos. 1, 2, 3, 4, and 7, and pay the costs of defendants Nos. 5 and 6.
25. I agree with the judgment pronounced by my learned brother and propose to confine my remarks to the consideration of the principal issue which arises in this reference.
26. The suit was by a mortgagee under a mortgage executed on February 17, 1920, by defendant No, 1 Sheikh Ahmed, as executor under the will of one Sheikh Aboo Baker, who died in 1917 and whose heirs are defendants Nos. 2 to 7, The mortgage related to a house belonging to the testator in Aden, and is alleged to have been executed in order to defray the debts of the testator. Prima facie and on the pleadings it would be a good mortgage unless it is contrary to some provision in the will restricting the executor's power to dispose of the property, in which case permission of the Court would have been necessary by reason of Section 90, Clause (2), of the Probate and Administration Act V of 1881, corresponding to Section 307 of Act XXXIX of 1925. The permission of the Court was not obtained.
27. It appears that the testator Sheikh Aboo Baker made two wills or testamentary writings, one relating to his Aden properties on May 12, 1910, which was admitted to probate on January 19 1920, and another relating to his properties at Hadramot in the Aden hinterland which was executed on September 12, 1913. In the will relating to the Aden properties it was provided as follows:-
They (the executors) shall manage, receive, take charge of, and aecure all that belongs to Sheikh Abu Baker aforesaid at the Port of Aden and Maalla... They shall record them in the Government Register and shall appoint the trustees from the time o his death. The estate shall not be divided but shall remain for twenty-one years in the name of Shaikh Abu Baker bin Saeed aforesaid. They (the executors) shall let them on hire according to their own judgment and shall receive all rents etc. and spend there from the necessary payments for the repairs, Government taxes, quit rent etc. and sue in the Court any one who fails to pay the rent, and file suits against, obtain warrants etc. They shall divide the rent receivable between the heirs of the said testator..After the expiry of twenty one years from the date of the death of Shaikh Abu Baker the said property shall be divided between the heirs according to the Mahomedan Law.
28. In this writing nothing was said about the testator's debts. In the will relating to properties at Hadramot, there were several specific legacies to various people, after which was provided that the estate at that place should remain undivided until the testator's minor sons attained the age of twenty-one years. It was also directed that the executors should settle the testator's debts. The previous wills made by the testator were declared to be cancelled, but the operation of the will relating to the Aden properties executed on May 12, 1910, was expressly saved, except in one single respect, namely, that the latter will revoked the appointment of one of the testator's sons as executor under the former will.
29. No evidence has been adduced by any of the parties in the suit, so that, apart from the construction of these testamentary writings, there is nothing on the record to suggest that the testator desired or had any reason to desire that his debts should be paid solely or primarily out of the property at Hadramot. The view of the trial Court, with which the Resident agrees though with some hesitation, is that the provision that the property should be kept intact for twenty-one years in the Aden will together with the absence of any reference to debts in (hat will imposed a restriction which rendered the mortgage effected by the executor voidable at the instance of the beneficiaries, The trial Judge said :-
I interpret this (i. e. the passage from the first will which I have already quoted) as a direction to the executors to keep the corpus of the property intaot for twenty-one years and to dispose of the income of the property in a particular way in the meantime.
30. In order to reach this conclusion the two testamentary writings have been treated as distinct and independent wills. Mr. Judah on behalf of the plaintiff-mortgagee contended that the two wills must be read together, the second being regarded as a codicil to the first, and if that be done and if the two writings are regarded as forming together the last will and testament of the testator, then there is no restriction on the power of the executor to mortgage his house at Aden. This argument appears to me to be sound, having regard to the definitions of will and codicil in Section 2 of the Indian Succession Act, and to the decision of the House of Lords in Douglas Menzies v. Umphelby  A.C. 221 Reading the writings together as a single will, the fact that the reference to debts occurs only in what may, for the sake of convenience, be called the second will does not justify an inference that the debts were to be paid only out of the Hadrainot; property, nor is there anything in the provisions of this second will which would require one to take that view. There may possibly have been no debts at the time of the execution of the Aden will, In any cage, the testator has not expressed or clearly indicated any intention that the payment of his debts, for which under the Mahomedan law the whole of his estate would clearly be liable, should be a charge on the Hadramot property only.
31. It appears that it was the testator's intention and desire that his estate should not be divided but retained as a single property for a certain period after his death. That was his desire not only in respect of his Aden properties but in respect of those at Hadramot also, It appears that one of his minor sons was only four years old in 1913, so that the period for which the Hadramot properties were to remain undivided would be nearly equal to the period fixed in the case of the properties at Aden. Whether or not such a provision that the properties should remain intact for a period of twenty-one years or thereabouts is valid in law, it is not open to us to consider on this reference ; nor is it necessary, in my opinion, because the mere expression of an intention that the property should remain undivided cannot be construed as a restriction on the ordinary power and duty of an executor to make such disposition of the estate as is necessary to discharge the testator's debts.
32. On behalf of the defendants Mr. Mulgaonkar argued that there is no proof that as a matter of fact there were any debts, and that, assuming that there were such debts, the executor should first have proceeded against the personal property of the testator, the personal estate being primarily liable for the payment of debts. But the defendants did not allege at the trial of the suit that the testator left no debts, nor that he had any per sonal property. No issues were raised on these points and in this reference it is not open to us to consider them, Moreover, the question whether there were any debts or not would appear to be irrelevant, in view of the provisions of Sections 211 and 307, Clause (1), of the Indian Succession Act. In a suit like the present brought to enforce a mortgage effected by an executor the only point for consideration is whether the power of the executor to dispose of the property is negatived by any restriction in the will. In the present case there is no such restriction.
33. I agree with the order which my learned brother proposes to make on this reference.