Brett and Mitra, JJ.
1. This suit was brought by the Court of Wards on behalf of Ramratan Tewari, a ward of the Court, to recover from the defendant the amount due on a mortgage bond executed in favour of the guardian of the minor, Gauri Debi, who was also the executrix of the will of the minor's father, Shib Lal Tewari. This bond bears date 7th April 1888.
2. In his defence the defendant pleaded that the suit could not be brought by the Court of Wards, first because Ramratan Tewari was a major, and secondly because Gauri Debi having taken out probate of the will and being the executrix appointed under the will was the only person legally entitled to sue. A third point was taken that by an agreement made by Gauri Debi with the defendant on 29th Falgoon, 1253 Maghi, whereby it was agreed that she should purchase certain landed property belonging to defendant for Rs. 40,000, and that the money due on mortgage bond in suit and certain other moneys should be accepted as earnest money for the purchase, the right to sue on the mortgage bond had been extinguished. Both lower Courts held that the document which contained the alleged agreement, not being registered, was inadmissible in evidence, and the first Court went so for as to hold that it was not genuine.
3. Both Courts further held that Ramratan Tewari was a minor, that the Court of Wards had power to bring the suit on his behalf, and decreed the plaintiff's claim with costs. Defendant has appealed.
4. Neither in this Court in support of the appeal, nor in the lower Courts, is there any denial that the money lent to defendant on the mortgage was money belonging to the minor, and that the money has not been repaid.
5. The defence set up is that the Court of Wards had no authority to sue on behalf of the minor, and that; no suit would lie on the mortgage bond.
6. In support of the appeal it has been argued that Gauri Debi is the only person who could bring the suit, and she could only bring it as executrix under the will of Shib Lal Tewari.
7. The will itself has not been translated, but it is hot disputed, on behalf of the plaintiff that Gauri Debi, was appointed executrix under it. There is a further clause, that she being executrix, should remain in charge of the property during the minority of Ramratan Tewari. On these terms in the will the argument has been advanced that Gauri Debi haying once taken out probate of the will, and the estate of the deceased having vested in her, she could not divest herself of the estate, nor could she hand over the property to the Court of Wards on behalf of the minor till the terms of the will had been fulfilled and the minor had attained majority; she was therefore the only person who could sue to recover the debt in suit. It has also been contended that the Court of Wards had no power to proceed under the provisions of Sections 6, 27 and 35 of the Court of Wards Act to take over the estate as the property of the minor.
8. We have heard the learned vakil at great length in support of his contentions, but we are unable to accept them as valid. No doubt, after Gauri Debi had taken out probate of the will the estate of the deceased would under the law vest in her as executrix for the purpose of carrying out her duties as such, and those duties would be generally to collect the debts due to the estate to pay the debts due from the estate, to pay off legacies and other bequests, etc., and then to make over the property to the residuary legatee It would be no part of her duties as executrix-to manage the property for the benefit of the minor till; he attained majority. The position and duties of an executor in this country are not very well understood, and considerable confusion exists as to duties of the executor in administering the estate. The duties of the executor are to administer the estate of the deceased only so far and so long as to enable him to carry out the terms of the will of which he is executor. After the property, has ceased to be the estate of the deceased and has become the property of the residuary legatee under the will, the executor sis such has no an authority to manage the estate on his behalf. Under the win the beneficial interest in the property vested in the minor as soon as the testator died, and Gauri Debi was appointed as executrix to manage the property till the minor attained majority. In describing her as executrix for this purpose there has in our opinion been a confusion or misinterpretation of, the term 'executrix.' What was intended appears to us to be that she should as executrix administer the estate and see that the terms of the will were carried out, and, this being done, that she should manage the property covered by the will, not as executrix under the will and administratrix of the deceased's estate, but as manager for the minor till he attained majority. The intention clearly was to appoint her to be manager of the minor's estate. We think that in interpreting the will we must have regard not merely to the words used but to the evident intention of the testator.
9. It has been suggested that she could not as executrix make over the property to herself as manager of the infant without an administration suit or without the will being revoked. We cannot accept this contention as correct. It is opposed to the ordinary practice and there is no authority to support it.
10. We hold, therefore, that Gauri Debi had ceased to manage the property as executrix of the will of the deceased Shib Nath Tewari, and that she was managing it as manager of the infant Ramratan Tewari before she applied to the Court of Wards to take over the estate. We accordingly hold that the Court of Wards had full authority to act under the provisions of Sections 6, 27 and 35 of the Court of Wards Act, 1879, and to take possession of the property as guardian of the minor. And such being the case, the manager under the Court of Wards had full power to institute this suit, and the objection raised disputing his power fails.
11. The only other point taken on behalf of the appellant is that, after the execution by Gauri Debi of the alleged agreement to purchase certain landed property from the defendant far Rs. 40,000, and after she had agreed that the money under the present mortgage bond should be taken as part of the earnest money for the purchase, no suit on the mortgage bond Would lie. Both lower Courts have rejected the document which purport to evidence this agreement as inadmissible in evidence for want of registration, and the very subtle arguments which have been advanced by the learned vakil to controvert this conclusion have failed to convince us that this view is incorrect. Obviously the whole object in offering as evidence the document in question was to prove that the mortgage debt had been paid off and the mortgage extinguished by the agreement set out therein, and? we fail to understand the argument of the learned vakil that if the result of the agreement was to extinguish the mortgage debt and to convert the lien under the mortgage bond to one under that document, the document was one of which, under the terms of Clause (b) or (c) of Section 17 of the Registration Act (III of 1877), registration was not compulsory. We agree with the lower Courts that the registration of the document was necessary under Clause (c) of Section 17 of the Act, and that the document, not having been registered, was inadmissible in evidence. We do not think it necessary to follow farther the arguments of the learned vakil in support of the appeal, as we are against him on these points.
12. We accordingly confirm the judgment and decree of the lower Court and dismiss the appeal with costs.