1. In this second appeal the question arises as to whether a person called Guruswami Mudaliar had power to sell a certain house to the plaintiff, which he purported to do by Ex. A in 1914. He purported to sell as executor of one Thandavaroya Mudaliar who died in September 1881, having executed a will by which he appointed Guruswami Mudaliar and his widow executor and executrix respectively. At the time of his death it is not suggested that the testator had not full disposing power over the property in question. The will, however, contained an authority to the widow to adopt. The widow, in pursuance of the authority, adopted a boy five days after her husband's death on the 9th September 1881. The adopted son died in 1884. The question is: Does not the fact of a boy having been adopted to the deceased testator change the course of devolution of this property so as to put it out of the power of the executor to include it among the assets over which he had an administrative capacity? In other words, Does not the matter as regards this house fall within Section 4, Probate and Administration Act? Both the lower Courts have held that the adoption put an end to the disposing power of the present executor, Guruswami Mudaliar.
2. Mr. C.S. Venkatachariar, for the appellant, has first attempted to found an argument on res judicata with respect to certain proceedings in the Chingleput Court in O. S. No. 28 of 1899 on the 10th April 1901, where defendant 1's father brought a suit to practically upset the will. This point has not been raised in either of the lower Courts or in the issues raised. I am, therefore, unable to allow it to be raised here.
3. The second point raised is, as indicated above, whether, in spite of the fact that the executor had no real capacity with regard to this house, the fact that the probate invests him with authority is sufficient to give him the power of disposition over the suit property; in other words whether a probate is good until it is revoked by an act of the Court. Reliance for this is placed on an old case of Allen v. Dundas  3 T. R. 125 but I think all that was decided there was really that a Court of Common Law had no jurisdiction to impugn the grant of probate by the ecclesiastical Court which, in those days (1789), had exclusive jurisdiction in the matter of granting probate. Really, what it comes to is this: that the testator, after the adoption made by his widow, had no disposing power over the suit property. At the time of his death no doubt he had. But the executor would, as pointed out in Bal Gangadhar Tilak v. Sakwarbai  26 Bom. 792 only have power to represent his testator and in no respect does a grant of probate decide any question as to the disposing power of the testator, or the existence of any disposable property. I am, therefore, clearly of opinion that in 1914, when this sale took place, the executor, though he may still have represented the testator with regard to the property in the power of the testator to dispose of, did not and could not represent the testator with regard to the property in which the adopted son had by his adoption in 1881, acquired an interest under Hindu Law. The fact of adoption changed the whole course of devolution of this property, and the fact, that the adopted son died a few years afterwards, can, of course, make no difference in this respect.
4. The third point argued was that, even if the executor had no such authority under the will, he had power to sell the suit property to re-imburse himself for certain costs incurred in the probate proceedings. An executor, of course, has a right of retainer but apparently this executor has preferred to go to the Court to have his rights ascertained there. The Court gave him leave to sell through Court certain property of the testator in the Chingleput and Tanjore districts. It is said that this house was one of those that were contemplated to be sold at some time but for some reason remained unsold till 1914. I think the executor clearly surrendered any rights that he had as executor when he submitted to this decree which is set out in Ex. 1-a, namely that he should pay himself by sale of the property through Court. It has not, as far as I can see, been pressed in either of the lower Courts that he was entitled to sell on his own account and independently of the order of the Court. I think the contention that the man was selling 27 years after the order in pursuance of that order, or that, having waited so long, he was selling in pursuance of rights as executor to re-imburse himself, cannot be upheld. I therefore think the lower Courts were right in deciding this preliminary point.
5. The second appeal must be dismissed with costs.