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T.S. Ayirantha Chetty Vs. Aramanathochi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1911)21MLJ73
AppellantT.S. Ayirantha Chetty
RespondentAramanathochi and ors.
Excerpt:
- .....the will; because she was the guardian of the 2nd defendant, and because she was in possession as life-tenant.2. the will does not expressly appoint the 1st defendant executor, nor does the language of the will justify us in holding that she is an executor by implication. there is no direction to her to perform the most important duties of an executor, viz., to realize the debts due to the testator and to pay the debts due by him. the 1st defendant is not the natural or testamentary guardian of the 2nd defendant, nor has she been appointed his guardian by the court. further she is not in possession of the property as the 2nd defendant's guardian, but in her capacity as life-tenant under the will. the proposition that as life-tenant the 1st defendant had the power to mortgage the 2nd.....
Judgment:

1. The only question is whether the 1st defendant had authority to mortgage the interest of the 2nd defendant. It is contended that she had such authority because she was executor under the will; because she was the guardian of the 2nd defendant, and because she was in possession as life-tenant.

2. The will does not expressly appoint the 1st defendant executor, nor does the language of the will justify us in holding that she is an executor by implication. There is no direction to her to perform the most important duties of an executor, viz., to realize the debts due to the testator and to pay the debts due by him. The 1st defendant is not the natural or testamentary guardian of the 2nd defendant, nor has she been appointed his guardian by the Court. Further she is not in possession of the property as the 2nd defendant's guardian, but in her capacity as life-tenant under the will. The proposition that as life-tenant the 1st defendant had the power to mortgage the 2nd defendant's interest is not supported by any authority and does not commend itself to us.

3. The second appeal is dismissed with costs.


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