Venkatasubba Rao, J.
1. The plaintiff files this suit to enforce an equitable mortgage created in his favour by the 1st defendant. The suit is brought against the two defendants, who are brothers-in-law, in their capacity as executors with probate of the will of Andalammal who died in January 1913. The 1st defendant borrowed from the plaintiff four sums of money, namely, Rs. 400, Rs. 1,200, Rs. 1,800 and Rs. 500 on the 26th of August, the 18th of October, the 5th of December, 1917, and the 9th of March, 1918, respectively. In respect of each of these sums, the 1st defendant executed a promissory note without describing himself as the executor of Andalammal. The plaintiff's case is that the 1st defendant represented to him that monies were required for the estate of the testatrix and deposited the title deeds of the suit house which belonged to her, intentding to create an equitable mortgage.
2. The pleas raised are these, firstly, that no mortgage was created, but the plaintiff, having obtained the title deeds in another connection, has fraudulently put forward this claim; secondly, that the monies were advanced to the 1st defendant personally and not in his capacity as executor, and thirdly, that the mortgage, having been made by only one of the two executors, is not binding upon the estate. I shall deal with these pleas in the order I have mentioned. It is impossible to take any serious notice of the first plea. The plaintiff keeps regular books of accounts and his day books for the years 1917 and 1918 have been filed. Not the slightest suspicion attaches to them and each of the four entries relating to the loans specifically mentions that the advance was made on the security of the property. In the first instance, only the day books were produced, but in cross-examination of the plaintiff, it was elicited that he maintained also rough chittah books. I thereupon directed him to have them produced and they were brought to Court after the luncheon interval. They confirmed and corroborated in every particular the entries in the regular day books and I must say that it is difficult to conceive of a more reckless plea than the books were fabricated for the purposes of this case.
3. Is there any substance in the second plea, that the 1st defendant entered into these transactions in his individual capacity? The plaintiff states on oath that this man represented to him that legacies had to be paid and repairs to the house had to be executed. The 1st defendant made a further representation at that time that the other executor was dead. The plaintiff then made enquiries of Mr. Vinayaka Mudaliar, retired Assistant Commissioner of Police, with whom the 1st defendant was associated in the management of a certain temple at Mylapore and the plaintiff was satisfied that the 1st defendant required monies and advanced the same to him. In the first place, among the documents deposited with the plaintiff, is the probate of the will. It is absurd to ask me to believe that the plaintiff, into whose hands was put this probate, could for a moment regard the 1st defendant as the owner of the property. Then, it is an important circumstance that, under the will, the disbursements to be made, including the sums to be paid as legacies, amounted to Rs. 3,800, whereas, the main item of property left by Andalammal was the suit house valued at Rs. 3,000. It is thus obvious that the provisions of the will could not be carried out, without the executors either selling the house or raising money upon its security. The plaintiff deposes that when the first sum of Rs. 400 and the last sum of Rs. 500 were advanced, it was represented to him that the amounts were required for repairing and improving the house. When the other two sums were lent, he was told that they were required for paying off the legacies mentioned in the will. It is admitted that the house was in need of repairs and, as a matter of fact, it is now said that repairs were executed, but it was the 2nd defendant who advanced the monies for the purpose. On the face of the will, there could be also no question that monies were really needed for payment of the legacies specified in it. 1 find no reason for disbelieving the plaintiff's evidence and I accept it as true. I am satisfied that he advanced monies to the 1st defendant on the representation made to him that they were required for the purposes of the estate. I am also satisfied that the 1st defendant borrowed these monies and mortgaged the property in his capacity as executor.
4. The 2nd defendant pretends that the legacies mentioned in the will were paid by himself out of his own funds within a year of Andalammal's death. I have not the slightest doubt that this evidence is utterly untrue. I do not believe that he spent a single pie of his money in connection with this estate. The defendants say that they were keeping accounts for their management of the estate from Ardalammal's death till 1919, but that those account books have been lost. This is a palpable falsehood. The 1st defendant has in his evidence made a reckless statement that he handed these account books to the plaintiff who is said to be suppressing them. In his affidavit of documents, the 1st defendant had previously stated that the books had been lost and he has no explanation to offer in regard to this glaring contradiction. He has deposed further that he mentioned to the 2nd defendant the fact of his having handed over the books to the plaintiff. The 2nd defendant, notwithstanding his anxiety to support his brother-in-law, has not ventured to confirm the story, as in his own affidavit of documents, he also previously stated that the account books had been lost. The net result is that the account books of Annapurani's estate have been wilfully withheld by the defendants, and one cannot help making1 the inference that if produced they would completely destroy the defendants' case. There is a further circumstance which shows that the case set up is utterly false. The 2nd defendant says that he was carrying on a business in yarn and that he found monies for paying legacies from the profits made in that business. He asks me to believe that he did not keep any accounts in respect of that business. Yesterday, while he was in the box, he said that he made notes in diaries showing that he made the payments. Not only were they not produced yesterday, but even to-day they are not forthcoming. Thus, we find that neither set of accounts is produced, the 2nd defendant's private accounts to show that he paid the monies, nor the estate accounts to show that the monies were received. Then, again, why should the 2nd defendant have paid the monies at all at that time? I pass over various contradictions, for, the final statement made is that the legacies were made before the probate was granted. The 2nd defendant was certainly not in such a position as to make a voluntary advance of his own money under no compulsion. There was no obligation on his part to pay his private monies before the house was sold and it is impossible to believe that he was so generous as to voluntarily disburse monies from his own pocket. He now produces ran account book, which, on his own showing, is worthless and stands thoroughly discredited. If any legacies were paid, I am sure that, in any event, it was not the 2nd defendant's money that was used in paying them.
5. I shall now deal with the third plea which raises a question of law. Under Section 307 of the Indian Succession Act, an executor has power to dispose of the property of the deceased in such manner as he thinks fit, this power being subject only to any restriction imposed by the will itself. Far from there being such a restriction in this will, the power to sell is implied, it being impossible to pay off the legacies without selling the house. As a matter of fact, it is conceded for the defence that this power is implied. It follows that if the executors could sell the house, they could exercise the lesser power of mortgaging it. Then we come to Section 311 of the Indian Succession Act. It says that where there are several executors, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will. Again, not only is there an absence of direction to the contrary, but there is a clause which says that any one of the two executors may perform all the functions of both. There is no substance therefore in the plea put forward.
6. Moreover, as ,a question of fact, it is not disputed that the 1st defendant was managing the estate till 1919. There are two rental agreements of the years 1917 and 1918, which show that the 1st defendant alone was managing the estate. In the register of the Corporation of Madras, the name of the owner of the house was very early changed from that of Andalammal to that of the 1st defendant. There was therefore nothing to prevent him from mortgaging a property belonging to the estate.
7. The law on the point i.: thus stated by Sterling, J., in In re Venn & Furze's Contract (1894) LR 2 Ch. 101:
It appears to me that I have the high authority of Lord Cairns and Lord Cranworth for saying that where a person who fills the position of an executor is found selling or mortgaging part of his testator's estate, he is to be presumed to be acting in the discharge of the duties imposed on him as executor, unless there is something in the transaction which shows the contrary; and further, that the. contrary is not made out merely from the circumstance that the conveyance or mortgage does not purport to be executed by him in that capacity.
This case shows that when an executor deals with a property of the estate, it must be presumed that he was acting in that capacity, notwithstanding that this fact does not appear on the face of the document. In Colyer v. Finch (1856) LR 5 HLC 905, Lord Cranworth observed thus:
It does not matter that the mortgage to Mr. Finch was not made avowedly--that is, on the face of it--for the purpose of raising money to pay debts; that is not at all necessary, nor could he be affected, unless it was apparent on the face of it that it was not, and could not have been, so, intended. I very much incline to think that when a parly, the devisee of real estate, charged with the payment of debts, sells, the purchaser has no need to inquire at all whether the money is applied in payment of debts, or even whether it is a sale for the purpose of enabling debts to be paid.
8. These observations apply to the facts of the present case, although I have given a finding that the mortgage was made expressly for the purpose of raising money for the benefit of the estate.
9. I may mention why and in what circumstances this defence has been raised. It was an ill-advised act of the plaintiff that suggested this false defence. Previous to the suit transaction, the 1st defendant in his personal capacity had borrowed from the plaintiff Rs. 3,000 on the mortgage of his own house, No. 39, Arundale Street. That house, the plaintiff believed, was worth more than the amount due to him. In this belief he filed a suit on the promissory notes mentioned above, against the 1st defendant personally without making any mention of the equitable mortgage in question, and, having obtained a personal decree, he went on to attach the 1st defendant's equity of redemption in 39 Arundale Street. Next he filed a suit on the mortgage of that property. In the course of that litigation the plaintiff mentioned the reason for adopting this strange course. He said that he was advised by some solicitor that the suit mortgage was invalid as it was created only by one of the two executors and that his remedy was to proceed against the 1st defendant personally, as, on the face of the promissory notes, he made himself personally liable. Having found that he was unable to realise his monies by the course he adopted (39, Arundale Street, did not fetch the amount expected), the plaintiff has now filed the present suit under the power given to him under Order 34, Rule 14, Code of Civil Procedure. This circumstance has led the defendants to put forward the plea that the mortgage was never created.
10. I pass a mortgage decree for Rs. 7,255-8-5, with interest on Rs. 3,900 at 12 per cent. per annum from the date of the plaint to the date fixed for sale and with further interest on the aggregate amount at 6 per cent. thereafter. Time for redemption is one month. The defendants shall pay personally the costs of the suit.
11. On behalf of the 2nd defendant, I was asked to adjourn the case on the ground that some of his witnesses had not come. This is a most frivolous application. The ex parte decree against the 2nd defendant was set aside by consent of the plaintiff and one of the conditions, on which the order was made in his favour, was, that the case was to be peremptorily taken up yesterday. It was done and the hearing was prolonged till to-day, and I have not the slightest doubt that the adjournment is asked for to gain time. No subpoenas have been taken out for these witnesses and it is impossible to accede to this request.
12. In the course of the trial, the 1st defendant impressed me as such a liar that I intended at the time to take proceedings against him under the Criminal Procedure Code at least in regard to one palpably false statement; but, on reflection, I have decided not to take any such action.