1. In my opinion the learned Judge in the Court below has made a mistake in law. In point of fact he holds that au executor under a Hindu will, before the Hindu Wills Act came into force, is substantially in the same position as an English executor under an English Will, in the sense that the property vests in him; and that this is his view is clear from the fact that he relied upon the well-known case of In re Tanqueray Willaume, (1882) L.R., 20 Ch. D., 465, decided in the English Courts, which shows that he regarded the property under the will as vested in the executor. I think it is clear from the authorities that have been cited that an executor under a Hindu will is not in that position which the learned Judge in the Court below seems to think, but he practically holds the property as manager, as is stated by Mr. Justice Markby in the case of Kherodemoney Doasee v. Doorgamoney Dossee (1878) I.L.R. 4 Cal. 455 where he says: 'It has been frequently, held that, the mere appointment of a person as executor to a Hindu does not cause any property to vest in him at all; and that if as executor he is entitled to hold the property, he holds only as manager.' I think that view of the law is correct as applied to the executors appointed under the particular will in this case; bat that does not dispose of this point. Mr. Hill argued ingeniously that, having regard to the provisions of Sections 2 and 4 of the Probate and Administration Act V of 1881, the property vested in these executors under the effect of Section 2 of that Act, which says that Section 4, amongst others, is to apply to the case of every Hindu dying before the 1st April 1881, which is the date on which the Act came into operation. Admittedly, in this case, the testator did die before that date, and Mr. Hill's contention is that, having regard to the language of Sections 2 and 4, the effect of those sections is to vest in these executors, who were appointed, so far back as 1857, under a Hindu will, which it was then not obligatory to prove, the property of the testator. This argument does not commend itself to me as sound; one must look to the whole purview and intention of the Act. If we look to the preamble of the Act, it there stated that the Act is intended to provide for the grant of probates of wills and letters of administration to the estates of deceased persons, in cases to which the Indian Succession, Act does not apply; that is the object of the Act---the grant of probates of wills and letters of administration. The Act did not come into force until April 1881, and to my mind it would be a very strong conclusion to draw from the words of Section 2 'dying before the 1st April 1881' that it was intended--this Act having been passed for the purpose which I have stated above--that Section 4 should have a retrospective operation, so as to vest in an executor appointed under a Hindu will an estate which but for that section would admittedly not otherwise vest in him. I think Sections 2 and 4 read together mean that in the case of a Hindu dying before April 1881, where the estate is unadministered, if any one desire to come in and prove the will and get the benefit of the Act in that sense, he may have the opportunity of doing so, and the effect would be that the estate from that time would vest in such executor under Section 4. That view to my mind is strengthened by the consideration that Section 4 comes in under Chapter II of the Act, and the heading is 'of grant of Probate and Letters of Administration,' which to my mind indicates strongly that the vesting was only to follow upon the grant of probate of the will in the one case, or grant of letters of administration in the other. That view is further strengthened by the consideration that the section applies, not only to executors but to administrators who obtain letters of administration under the Act.
2. But assuming that view of Sections 2 and 4 of the Act to be wrong, it appears lo me chat Mr. Hill does not carry his case much further by reason of the provisions of Section 90 of the Act, which says that the 'power of an executor to dispose of immoveable property so vested in him' under the will I 'is subject to any restriction that may be imposed by the will appointing him.' Now, in this case, the will distinctly states that there was to be no sale and no alienation other than an alienation for the payment of debts. Mr. Hill tries to get out of this difficulty by contending that, once concede that the estate is vested in the executor, the cases in the English Courts show (amongst others that to which I have referred) that where an executor, in whom the estate is vested, has a power to sell for debts, the purchaser need not inquire as to the existence of those debts or the necessity for the sale. But I doubt if the principle of these English cases can apply in the face of the clear statutory provision of Section 90. However, as in my view no estate was vested in this II executor, the point becomes immaterial. I think the Judge was wrong on this w point of law.
3. That being so, it appears to me that we must remand the case, and must remand it because the Judge in the Court below has not, as a matter of fact, gone into the question of whether this sale was effected for the purpose of paying the testator's debts. I desire, however, to point out, I hope for the assistance of the learned Judge in the Court below when the case is retried on this remand, that it is not necessary, as a condition precedent to the validity of this transaction, that the defendants should make out the real existence of the necessity for raising this money, Beyond that he will doubtless give every due effect to the lapse of time, which has occurred in this case, for the sale is 30 years old, to the fact that the original vendee is dead, and can give no account of the transaction, to the long possession and enjoyment of which the defendants have had of this property, and to that which looks prima facie something like acquiescence on the part of the plaintiffs, and especially to the recital on the face of the kobala itself that according to the provisions of the will made by the deceased Tituram Haldar, we, to clear the debts and liabilities of his estate have sold to you the said land with buildings and all interests for a consideration of Rs. 3,000; you are vested this day with the right to dispose of the said property by sale or gift, etc.'
4. Now in the case of Hunoomanpersaud Panday v. Mundraj Koonweree (1856) 6 Moo. I.A. 393 (419)--the passage which I am about to read is at page 419--the Privy Council say: 'It is to he observed that the representations by the manager accompanying the loan as part of the res gestes and contemporaneous declarations of an agent, though not actually selected by the principal, have been held to be evidence against the heir; and as their Lordships are informed that such prima facie proof has been generally required in the Supreme Court of Calcutta between the lender and the heir, where the lender is enforcing his security against the heir, they think it reasonable and right that it should be required.' In the present case there was a clear representation by the executors that they were selling the property to clear the debts and liabilities of the estate, and that, in the opinion of the Privy Council, is prima facie evidence as to the necessity for the loan. It is, in fact an admission; it is an admission by a Hindu executor as to the object and necessity for which the money was being raised. We must, therefore, ask the learned Judge to consider whether on the face of these recitals there is not prima facie evidence in favour of the defendant's case, and, if so, that would-be sufficient to shift the onus and throw it upon the plaintiffs to show that there was no necessity for raising this loan. In remanding this case, we remand it upon the terms that neither party is to be allowed to go into fresh evidence, but the case is to be decided upon the evidence already adduced. Having regard to the length of time during which this case has been going on, we direct that the lower Court should dispose of this matter as soon as conveniently can be. The costs will abide the result.
1. I am of the same opinion. I only wish to add one word with reference to Mr. Hill's argument based upon Section 2 read with Section 4 of the Probate and Administration Act. It is quite true that Section 2 of that Act makes chapters II to XIII, both inclusive, applicable to the case of every Hindu dying before, on, or after, the first day of April 1881; and if the words of the section are to be taken in an unrestricted sense, Section 4, which occurs in chapter II of the Act, would apply to this case, and would have the effect of vesting in the executor in this case the property of the testator. But the provisions of the Act must be taken to be controlled by the preamble of the Act which is very significant, and which runs in these words: 'Whereas it is expedient to provide for the grant of probate of wills and letters of administration to the estates of deceased persons in cases to which the Indian Succession Act 1865 does not apply, it is hereby enacted as follows.' The Act then is passed with a view to provide for the grant of probates and letters of administration to the estates of deceased persons in cases to which the Indian Succession Act does not apply, and any provision of the Act which is said to be applicable to the case of a Hindu dying before the 1st September 1870, in which the taking of probate is optional [See Krishna Kinkur Roy v. Rai Mohun Roy (1886) I.L.R. 14 Cal. 37; and Moosa v. Essa (1884) I.L.R. 8 Bom., 241] must be taken to be applicable to his case only in the event of the Act being resorted to for the purpose of obtaining probate or letters of administration But where the Act is not availed of for the purpose of obtaining probate or letters of administration, for the granting of which it was passed, I do not think it would be right to hold that the provisions of the Act would apply to such a case.
2. Granting, however, that Section 4 of the Act was applicable to this case, and that the property of the testator was, therefore, vested in the executor, that would not affect the result, because by Sub-section 2 of Section 90 the power of the executor to dispose of immoveable property so vested in him is subject to the restriction imposed by the will. The question would still remain whether the power of sale was exercised in this case within the limits prescribed.