1. In this case the plaintiff who is the daughter-in-law of the deceased sues the first and second defendants as executors of his will. The plaintiff claims that under the will of the deceased she was entitled to be paid a proper maintenance out of the profits of a fund of Rs. 25,000 and odd disposed of by the will, and charges the defendants with certain acts of maladministration, non-payment of maintenance and refusal to keep and show accounts, and prays among other things that the executors may be made to account and may be removed; and the suit may I think be treated as an administration suit in which the Courtis asked to take upon itself the administration of the estate and see that the provisions of the will are given effect to. One question raised is whether the plaintiff is entitled to maintenance under the will out of the fund. In my opinion she is. Under the will, exhibit A, there was to be no delivery to her until there was issue to her and her husband, and in the meantime she and her family were to be paid maintenance out of the fund. Although the husband died after the institution of the suit, it is still open to her to adopt if aha can obtain the necessary consent, and I do not think there can be said to have been a failure of issue so as to let in the residuary legatees. Under these circumstances I am of opinion that the widow has an interest sufficient to maintain the suit.
2. It is however contended by the first defendant that the property devised by the will was not the self-acqaired property of the testator but was joint family property to which he and his brother the plaintiff's husband became solely entitled by survivorship on the death of the testator. The Subordinate Judge found that the properties so acquired were not joint family properties, but this finding is based on the proposition that when members of a joint family acquire property by working together without the aid of ancestral property, they are to be presumed to acquire it as co-owners and not as joint family property unless an intention to acquire it as joint family property is proved. I am however of opinion that the onus is the other way as laid down by Bhashyam Ayyangar, J., in Sudarsanam Maistri v. Narasimhulu Maistri I.L.R. (1902) Mad. 149 and it would therefore be necessary to consider whether the plaintiff has discharged the onus on her and shown that the property was not joint family property, were it not that in my opinion the first defendant who raises the contention is estopped from raising it by having acted as executor under the will and got possession of the estate as executor.
3. In Srinivasa Moorthy v. Venkata Varada Ayyangar I.L.R. (1906) Mad. 239, where a son had taken out probate of his father's will which dealt with the property as the self-acquired property of the testator, and had collected assets under the authority of the probate, and afterwards set up a claim that the property was joint family property which ha took by survivorship, Subrahmania Ayyar, J., observed at page 280 'In the next place, no such question of title can in point of law be taken as presented for our decision inasmuch as the defendant having with full knowledge of all the circumstances bearing on his rights as the testator's son, accepted the office of executor, obtained probate and, under its authority collected assets and otherwise so acted as to cause the plaintiffs to alter their position, the defendant is estopped from impeaching the will, repudiating his fiduciary position or setting up in respect of the property dealt with by the will any rights inconsistent with the dispositions and conditions therein. See Bigelow on 'Estoppel,' 5th edition, page 554,' Now so far as I can recollect the only way in which the plaintiffs in that case altered their position for the worse was by looking on and not opposing the defendant in the steps taken by him to get possession of the assets relying on him to give effect to the provisions of the will of which he had consented to act as executor. The facts of the present case seem to me to be precisely similar. It is not suggested that the first defendant was ignorant of any of the circumstances bearing on his rights as the testator's son when he took upon himself the character of executor and collected assets as such. It is true that in the present case the first defendant has not taken out probate being an executor under a Hindu will to which the Hindu Wills Act is not applicable and so entitled under Section 88 of the Probate and Administration Act to collect assets without probate, Shaik Moosa v. Shaik Essa I.L.R. (1884) Bom. 241, but this seems to me immaterial. Nor does it seem to me material whether the estate of the deceased vests in him as executor under Section 4 without probate, or he is merely in the position of a manager until he takes out probate, though I may say that the view that under Section 4 of the Probate and Administration Act the estate vests in the executor without probate which is in accordance with the last mentioned case and Collector of Ahmedabad v. Savchand I.L.R. (1903) Bom. 140, and the opinion of Messrs, Phillips and Trevaleyan in their 'Hindu Wills Act' appears to be supported by the judgment of their Lordships delivered by Sir Arthur Wilson in Mirza Kriratulain Bahadur v. Peara Sahib .
4. In the present case as in Srinivsa Moorthy v. Venakta Varada Ayyanar I.L.R. (1806) Mad. 23, the first defendant accepted the office of executor under the will and collected the assets as executor and was allowed to do so by the beneficiaries without any opposition. What precisely they would have done if he had refused to act as executor and claimed to take by survivorship is not susceptible of proof, and in my opinion such a consideration does not arise here any more than in the analogous cases of a tenant setting up an adverse title against his landlord or a trustee against his cestuique trust. The principle is well explained in the passage in Bigelow, page 554, referred to by Sir Subrahmania Ayyar. 'We have now to call attention to some cases of estoppel akin to those already considered, in which, however, there is no contract, or in which there may be no contract, giving to the party estopped the right of possession. Still, it will be found that the view taken of the situation is that the taking possession is in accordance with a right which would not have been granted except upon the understanding that the possessor should not dispute the title of him under whom the possession was derived. The oases referred to are successions post mortem, that is, estates' devolving by testacy or intestacy upon the persons taking possession.'
It is also a general principle of law that an executor or administrator of property, into possession of which he has been et under the will or letters of administration is, like a tenant, estopped while he continues in possession from disputing the title of his testator or intestate. And this is true even of the widow of such representative of the estate when claiming under a title of her husband. The property must be surrendered and administration abandoned before the estoppel is removed
5. Later on under the heading of Quasi-Estoppels the learned author deals with Election and Inconsistent Positions generally and observes at pages 683--
Upon a principle similar to that applied to persons taking under wills, beneficiaries under a trust are estopped, by claiming under it, to attack any of its provisions. The same is to be said, on still stronger grounds, of the trustee; and in general, persons accepting and holding lawful posts of duty are similarly estopped while holding the post, or while retaining the emoluments or benefits of it.
6. As regards trustees the principle is embodied in Section 14 of the Indian Trusts Act, and it is well settled that an executor is for most purposes in the position of a trustee as observed by Kay, J. in In re Marsden (1884) L.R. 26 Ch.D. 783,' where an executor accepts that office he accepts the duties of the office, and he becomes, in the language of Williams on Executors a trustee in this sense: 'An executor is personally liable in equity for all breaches of the ordinary trusts which in Courts of Equity are considered to arise from his office,' '--Lewin on Trusts, Chapter XIII, page 266, 9th edition.
7. In my opinion an executor is not at liberty to set up an adverse title to property which has come to his hands as executor any more than a trustee is entitled to set up an adverse title to property which he has taken possession of as trustee. If it were otherwise it would be open to a dishonest executor to embarrass and delay beneficiaries seeking to render him accountable by pleading that the estate did not; pass under the will of the testator. I am therefore of opinion that the first defendant is estopped as in Sreenivasa Moorthy v. Venkata Varada Ayyangar I.L.R. (1906) Mad. 239 from setting up any claim inconsistent with the conditions and dispositions of the will. No attempt was made to dispute the findings of the Subordinate Judge that the first defendant has been guilty of acts of maladministration and has refused maintenance, and the second defendant pleads that he has been prevented from discharging his duties as executor by the first defendant.
8. On the whole I have come to the conclusion that the plaintiff as a beneficiary is entitled to the account prayed for against the defendants and to have their removal from the executorship and a receiver appointed to complete the administration under the superr vision of the Court and should therefore be in favour of modifying the decree accordingly.
9. As my learned brother differs, we have decided to refer under Section 98 the question of law:
Is an executor under a will who has accepted the office of executor and acted as such estopped thereby from setting up an adverse title to property disposed of by the will?
10. In my view of this case it is necessary first to state my reasons for concluding that the wills of Parasuraman are ineffective to dispose of the property dealt with in them.
11. The evidence shows that Parasuraman and his brothers being presumably members of a joint family, and living together borrowed Us. 1,500 from a maternal relative and started a ' Mandi'; they conducted their business jointly for some time and then effected a partition, and after the partition, Parasuraman acquired the bulk of the property disposed of by his wills. But there is no evidence that his acquisition of this property was effected 'without detriment to' the property he received at the partition,
12. I do not think that Parasuraman's attestation of exhibit I-A is evidence of a nucleus of family property, nor do I think that the fact that he employed part of the capital in a business in which his sons were interested as well as himself is evidence that he intended to treat all his property as joint family property. His statements in the earlier will are evidence indicating a contrary intention. But there is nothing to rebut the defence evidence as to the original acquisition of the property, and we were not invited to find that the evidence on that point was untrue.
13. Mr. Krishnaswami Ayyar did not contend that the facts may not raise the presumption that the acquisition of Parasuraman and his brothers were joint family property but he says that, taking the question to be, how did the brothers intend to hold their acquisitions, the intention is shown by first defendant's conduct to have been an intention to hold the property as the separate property of partners put together for trading purposes. But in my opinion this is not made out. The first defendant's conduct is easily explained. Even if he knew that the will was inoperative it was to his interest to profess belief in its validity and to act accordingly so long as his brother Jayavelu remained alive; his conduct therefore in acting as executor is of no value as evidence of consciousness that the property dealt with by the will was his father's separate property. Whether he knew it was separate or not he would probably have acted in the same way. When Jayavelu died it became the first defendant's interest to repudiate the will, but he did not wait for that: he had already before that event presented his written statement; in this suit alleging the invalidity of the will. In these circumstances I find no evidence of any value in the first defendant's conduct after his father's death.
14. The presumption then remains that the acquisitions of Parasuraman and his brothers were joint family property in their hands, The Subordinate Judge no doubt puts the presumption the other way: in the absence of evidence of an intention to hold the property as joint family property he will presume that was held as partnership property. He does not however support his conclusion by any authority and he recognizes that it is contrary to the opinion expressed by Bhashyam Ayyangar, J., in Sudar-scmam Maistri v. Narasimhulu Maistri I.L.R. (1902) Mad. 149 and 156. Mr. Krishnaswami Ayyar did not as I have said support the Subordinate Judge upon this point, and it seems to me clear that the dictum of Bhashyam Ayyangar, J., ought to be accepted as a correct exposition of the law.
15. The acquisition of Parasuraman and his brothers were therefore joint family property and the remaining question is whether Parasuraman's sons had an interest in that property which would defeat his disposition of it by his will. Mr. Krishnaswami Ayyar cited Jamna Prasad v. Ram Partap I.L.R. (1907) All. 667 as authority for the proposition that the sons had no interest during their father's lifetime, the property not being 'ancestral' property, i.e, derived by Parasuraman from his father. The view taken in that case is opposed to the opinion expressed by a Full Bench of this Court (Karuppai Nachiar v. Sankaranarayanan Chetty I.L.R. (1904) Mad. 300 ) to the effect that there is no joint family property in respect of which the male issue of the joint owners will not by birth become joint owners with their father--and this opinion accords with that expressed by Beaman, J., in Karsondas Dharamsey v. Gangabai I.L.R. (1908) Bom. 479.
16. And even if the sons were born before the acquisition it seema to me easier to hold that in the absence of evidence to the contrary the acquisition is made for them as well as for their fathers than to accept the view presented by Mr. Kriahnaswami Ayyar that though the sons take an interest at their father's death sufficient to prevent their exclusion by his surviving joint acquirers, they have no interest during his life. That it seems to ma is to introduce 'a species of joint family property unknown to the Mitakshara '(Karuppai Nachiar v. Sankaranarayanan Chetty I.L.R. (1904) Mad. 300 ). The will of Parasuraman is therefore inoperative as against the first defendant unless the first defendant is estopped from contesting its validity.
17. As to estoppel the facts are that the first defendant acted for some years as executor under the will, and the question is whether he is entitled in the suit to repudiate it and shew that it is invalid.
18. In Sreenivasa Moorthy v. Venkata Varada Ayyangar I.L.R. (1906) Mad 239 the estoppel was between an executor and his co-executors, who had, Subrahmani Ayyar, J., held, altered their position in consequence of his acceptance of the position of executor. It does not appear from the report what they had done but at least they had allowed him to deal with some of the property in the way of administration, which they could not have done had he not represented himself to be acting as executor.
19. The present is a different case. The first defendant was entitled to possession of all the estate whether the will was good or not: had he at the outset said the appointment of executor is a mere nullity, but I am managing member of the family and as such take over the estate, 'Jayavelu and the plaintiff could not have resisted him.
20. The difference is clear: there is a practically irresistible presumption that the co-executors of the defendants in Sreenivasa Moorthy v. Venkata Varada Ayyangar I.L.R. Mad. 239 would not have allowed him to take possession of the estate but for his conduct in accepting the position of executor; there is no such strong presumption in the present case.
21. In other words it is not clear in this ease, as it was in that, that the excutor was let into possession under the will and unless that is found the principle enunciated in Bigelow on Estoppel at page 554 does not apply.;
22. Consequently it seems to me that the estoppel in the present case can rest only upon the ground on which Mr. Krishnaswami Ayyar put it, that the first defendant's conduct has induced the beneficiaries under the will to alter their position. The plaintiff's position cannot have been altered: it must have remained precisely the same whether the first defendant administered the estate as executor or as manager of the family: she might have contested his position earlier than she has done but that is all.
23. But Jayavelu might have called for a partition and by a partition might have secured for himself and his wife a better position than that given them by the will, and if I could find a scintilla of evidence to indicate that he refrained from demanding a partition in consequence of his brother's conduct, I should unhesitatingly hold the first defendant estopped from setting up what on the evidence is the true position under Hindu Law. But such evidence as there is seems to point the other way. Jayavelu lived separately from his brother after his father's death so long as he was on good terms with his wife but when he quarrelled with her he went to live with his brother (first defendant). There is nothing to suggest that he was likely to demand a partition in his wife's interests; he lived for some time after the institution of the suit, but he did not join in it, or make any attempt after his brother had repudiated the will, to obtain his share of the property by a partition.
24. I am unable therefore to hold that there is any estoppel in this case and the plaintiff is not entitled to anything more than the Hindu Law would have given her, had Parasuraman died intestate. In my opinion the appeal should be allowed and the suit should therefore be dismissed with costs. But, as my learned brother differs, that will not be the order of the Court. I would like to add that if the plaintiff is entitled to rely on the will I agree that she has sufficient interest to maintain the suit and that the suit may be treated as a suit for administration: in that case the order proposed by my learned brother will be the order which we ought to make in the circumstances.
25. This case coming on for hearing before Sir Arnold White, Kt., C.J., on the question of law referred under Section 98 of the Code of Civil Procedure, the Court expressed the following --
26. The point I have to consider has been referred to me in the form of an abstract question of law and I must deal with it in that form, The question is: Is an executor under a will who has accepted the office of executor and acted as such estopped thereby from setting up an adverse title to property disposed of by the will?
27. In my opinion the principle of the decision in Srinivasa Moorthy v. Venkata Varada Ayyangard I.L.R. Mad. 239 with reference to the point in question (see page 280) applies and I would answer the question in the affirmative. I agree with Wallis, J., that the fact that an executor has not taken out probate (at any rate where the law does not require him to do so) is immaterial.
28. In the case in which this reference has been made it was contended that the executor was entitled to possession of the estate whether the will was good or not. Assuming this to be so I do not think it affects the question of estoppel. As 1 understand the facts, the executor took possession as executor and not in the exercise of any alleged right of survivorship. I do not think it is necessary for the party who in a case of this sort relies on the estoppel to prove that he did, or refrained from doing, some specific act by reason of the fact that the executor had accepted the office and acted as such. If an executor accepts the office and acts as executor 'with full knowledge of all the circumstances-bearing on his rights [see Srinivasa Moorthy v. Venkata Varada Ayyangar I.L.R. Mad. 239] I think he is estopped from subsequently repudiating the will and setting up an adverse title as against a beneficiary claiming under the will.
29. It seems to me (although I do not know that I am called upon to express any opinion as to this) that the special rule laid down by Buckley, J., in In re Anderson Pegler v. Gillatt (1905) 2 Ch. 70, does not apply to the case of an executor who has accepted office and acted as such and who afterwards claims rights by way of survivorship which if well founded would have entitled him to take possession,
30. This appeal coming on this day for final hearing before Wallis and Miller, JJ., the Court delivered the following
31. The decree will be modified as proposed in our referring judgments. The appellants must pay the respondent's costs.
32. The memorandum of Objections is allowed with costs.