Asutosh Mookerjee, J.
1. The facts material for the determination of the questions in controversy in this appeal in a mortgage suit lie in a narrow compass and may be briefly recited. On the nth April 1908 four brothers, Makhanlal, Khagendranath, Kumudindu and Mohanlal, members of the family of Mookerjee's of Janai, in the District of Hoogly, executed a Mortgage-bond in favour of the plaintiff to secure a loan of Es. 15,000 which was to carry interest at Q per cent, per annum with annual rests, and was made re-payable on the 31st March 1912. The relationship of the members of the family of the mortgagors may be gathered from the following pedigree:
CHANDRA KANT MOOKERJEE,
Parbati Charan Harendra Krishna,
| died 1896
| | |
Surendra- Gopal Chandra. |
| | | |
Makhan Khagendra Kumu- Mohan
Lal Nath, dindn, Lal,
W. Sarat Defendent Defendant Defendant
Kumari No. 1. No. 2. No. 3
No. 4. No. 4a.
2. On the 15th April 1912 the mortgagee commenced this litigation against five defendants; the first three were the three surviving mortgagors; the fourth group included the two infant sons of the deceased mortgagor, represented by their mother as certificated guardian; the fifth defendant was one Bhattacharjya, who had been appointed by the mortgagors on the 12th June 1907 as trustee of their estate. The defendants resisted the claim on a variety of grounds; two of these only have been pressed in this Court and need be mentioned here, namely, first, that the mortgage was void and unenforceable in respect of one of the properties which had been received by the mortgagors as legacy under the Will of their paternal grandmother, inasmuch as, at the date of the mortgage, the executor had not assented to the legacy; secondly, that the alleged consideration had not been paid by the mortgagee to the mortgagors. The Trial Court found in favour of the plaintiff and the suit was decreed ex parte on the 22nd July 1912. The trustee defendant applied to set aside the ex parte decree, but the application was rejected on the 16th February 1914. The second defendant then applied to have the decree vacated, and his effort was successful. The suit was restored on the 18th July 1914, and was ultimately decreed on the 19th June 1915 on contest against the second defendant and ex part, against the other defendants. On the 6th July 1918, the first defendant applied to have the ex parte decree set aside, and the suit was restored on the 31st August 1918. On re-trial, the suit was again decreed on the 16th September 1919. The present appeal is directed against that decree and has been attempted to be supported, on the two grounds previously mentioned.
3. As regards the first point, it is not disputed that Kiranmoyi Debi, the paternal grandmother of the mortgagors, made a testamentary disposition of her properties on the 8th August 1894. The Will was proved in due course in this Court, and on the 13th April 1896 Probate was granted to the sole surviving executor, Parbati Charan Mookerjee. In 1900, a suit was instituted against the executor by the grandsons of the testatrix for construction of the Will, for ascertainment of the rights of the parties there under, for account and administration of the estate, and for incidental reliefs. A preliminary decree was made in this administration suit on the 3rd September, 1902; but no final decree, we were informed, had been made at the date of the commencement of the present litigation. The testatrix by her Will directed the executor to divide her estate in the manner following, namely, six annas in equal halves to the two grandsons by her son Parbati Charan, and ten annas in equal shares to her four grandsons by her son Harendra Krishna. After providing for the payment of annuities to various relations, the testatrix proceeded to direct that the grandsons 'shall become the absolute owners of the surplus of my estate left after payment of the moneys in the preceding paragraphs.' The proper ties thus received by the grandsons admittedly included Sarasamuri which was given by way of security to the plaintiff on the nth April 1908. The mortgagors now contend that, at the date of the mortgage, their title as legatees was still inchoate as the executor had not assented thereto. Section 112 of the Probate and Administration Act, which corresponds to Section 292 of the Indian Succession Act, provides that the assent of the executor is necessary to complete a legatee's title to his legacy. Section 116 of the Probate and Administration Act, which corresponds to Section 296 of the Indian Succession Act, lays down that the assent of the executor to a legacy gives effect to it from the death of the testator. The reason for this rule is best stated in the words of the fifth note by Serjeant Williams to Duppa v. Mayo (1670) 1 Saunders 275 : 85 E.R. 336; Williams on Saunders, Volume 1, page 427: 'if a man devises his chattels, real or personal, or gives any specific legacy, the legatee cannot either enter into the land if it be a chattel real, or take the legacy without the consent of the exedutor. For, the personal estate being liable in the hands of the executor to the payment of the testator's debts, he must take care to satisfy the debts before he pays the legacies. The law, therefore, requires the assent of the executor to such legacies, otherwise he may be guilty of a devastavit and liable de bonis propriis without any fault in him. The legatees have no property in the legacies by the devise until the assent, though they have an interest in them.' The authority mentioned in support of these propositions is the case of Eeles v. Lambert (1646) Style 37, 54, 73 : Aleyn 38 : 82 E.R. 512, 525, 540, 904 which was repeatedly argued before the Court of the King's Bench. The essence of the matter is that, as a protection to the executor, the law ordains that every legatee, whether general or specific, and whether of chattels real or personal, must obtain the executor's assent to the legacy before his title as legatee can be complete and perfect; before such assent, however, the legatee has an inchoate right to the legacy such as is transmissible to his own personal representatives in case of his death before it be paid or delivered; and in the case of the outlawry of the legatee it is subject to the forfeiture. This is stated explicitly in the classical work on 'Office and Duty of Executors,' which bears the name of Thomas Wentworth, but is attributed to Mr. Justice Dodderidge, and was the leading authority on the subject during the seventeenth and eighteenth centuries (14th Edition, page 69). It was also treated as good law by Sir Samuel Toller in his work on the Law of Executors and Administrators, 5th Edition (1822), page 307. The substance of the matter is put tersely in Bacon's Abridgment (1832),Volume III, p. 520 in the following statement, 'and as the law makes it a devastavit in the executor to pay legacies before debts, so it prohibits the legatee from meddling with the legacy without the assent of the executor; and, therefore, it hath been holden, that if a legatee takes possession of the thing devised without the assent of the executor, then he may have an action of trespass against him. But, as it is the Will of the testator which gives the interest to the legatee, so this matter of assent seems only a perfecting act for the security of the executor, and therefore, the law does not require any exact form in which it is to be made.' In other words, though on the assent of the executor, the full title passes to the legatee, the assent creates no new title; it merely perfects the title acquired under the Will, and hence if the legacy is void, the assent avails nothing; see Crist v. Crist (1849) 1 Ind. 570 : Am. Dec. 481 and the notes thereon; see also Williams on Executors, Part III, Book III. Chapter IV, section III. Redfield on Wills, Volume II, page 461. The position cannot consequently be maintained that, till the executor has signified his assent, express or implied, the legatee, has no interest whatever in the subject-matter of the legacy, and hence the view was supported by Sir Samuel Toller (Executors, page 311) that the assent of an executor shall have relation to the time of the testator's death and such assent shall by relation confirm an intermediate giant by the legatee of his legacy. The same view was adopted in Brock v. Sims (1842) 1 Speers. S.C. 49, Moore v. Barry (1830) 1 Bailey S.C. 504; see also Wentworth on Office of Executor, 69, 445, and the remark of 'Gibbs, C. J. in Doe v. Sturges (1816) 7 Taunt 217 : 2 Marsh. 505 : 17 R.R. 491 : 129 E.R. 87. We need not here discuss the question raised in Rex v. Commissioners for Special Purposes of Income Tax (1929) 1 K.B. 468 : 89 L.J.K.B. 194 : 122 L.T. 389 : 64 S.J. 267 : 36 T.L.R. 123 how far the doctrine of relation back of the executor's assent to the testator's death applies to the case of a residuary bequest. This, at any rate, is plain that where, as in the case before us, the Will creates a vested interest in the legatee in the subject-matter of the legacy (cf. Section 106 of the Succession Act), he has a transmissible interest, subject to the reservation that the legacy, whether in his hands or in the hands of his transferee, may be imperiled to the extent necessary for the due administration of the estate by the executor. A more extended interpretation of Section 112 of the Probate, and Administration Act, as Beaman, J., pointed out in Hasanalli Moledina v. Popatlal Parbhudas 17 Ind. Cas. 17 : 37 B. 211 : 1 Bom. L.R. 782, would be absurd even though it might be defended as strictly logical. When we are invited to interpret Section 112, we cannot overlook that it is a provision inserted in a Statute enacted for the grant of Probate of Wills and letters of Administration to the estate of deceased persons, and that the object of these statutory provisions is to facilitate the performance of their duties by executors and administrators. In such circumstances, it would be an unreasonable construction of the Statute to hold that, notwithstanding the express provisions of the Will, the legatee has no interest in the subject-matter of the legacy. From this standpoint, no ireful analogy can be drawn from the long series of decisions of the Judicial Committee reviewed in Annada Mohan Roy v. Gour Mohan Mallik 65 Ind. Cas. 271 : 48 C. 536 : 25 C.W.N. 496 : 33 C.L.J. 457, which affirm the well known proposition that the interest of a Hindu reversioner expectant on the death of a limited owner is not a vested interest but is a mere spes succession which cannot be sold, mortgaged or otherwise assigned. In our opinion, the interest taken by the mortgagors in the present case in the estate of their paternal grandmother could form the subject-matter of a valid mortgage. This view accords with that adopted by a Full Bench of the Court of Appeals of New York in Drake v. Page (1891) 127 N.Y. 562. In that case, a Will devised the residue of the testator's estate to four persons, share and share alike. A subsequent clause empowered the executors to sell a portion or all of the land for the payment of debts, in case the personally should prove insufficient, and also authorized them to partition the land among the four devisees after the payment of all such debts and expenses. Parker, J., held that the land vested in the devisees, subject to the execution of the power by the executors, and that consequently a mortgage executed by one of the devisees before partition, on the undivided one-fourth interest, was valid. The principle applied was that the assignee would only acquire the right to succeed to that to which his assignors would become entitled on the distribution. To the same effect is the decision in Davis v. Wilson (1903) 115 Ky. 639 where, in similar circumstances, Barker, J., held that the interest of the legatee could be alienated because it was unquestionable that every kind of interest in real estate might be mortgaged, if it was subject to sale and assignment. Reference was made to the decision in Overton v. Means 2 Ky. L.R. 211, where the doctrine had been recognised that ' whether an interest by devise in lands was vested or contingent, it was vendible, subject to sale for the satisfaction of debts.' We hold accordingly that the appellant cannot successfully impeach the validity of the mortgage created by himself in favour of the plaintiff, who is entitled to cut off the equity of redemption in the present litigation. We are not concerned with the question, how far the mortgagee or the purchaser at the sale in execution of the mortgage-decree, may be affected by orders in the administration suit which was commenced twenty years ago and has not yet resulted in a final judgment.
4. As regards the second question the Subordinate Judge has held that there is conclusive evidence of payment of consideration. The mortgage-deed recites the payment of consideration by means of a cheque drawn on the Chartered Bank of India, Australia and China. The cheque was drawn in favour of Babu Taraprosanna Chatterjee, at that time a Vakil of this Court and now a member of the Judicial Service. He acted as the agent of the plaintiff in the transaction. He endorsed the cheque in favour of Babu Monmotha Nath Ganguli who acted as the Solicitor of the mortgagors. The cheque was cashed, and the amount has been traced in the account-books of the trustee defendant, who spent the money on account of the other defendants. These books are proved to bear their signatures, notwithstanding their assertion to the contrary. It is by no means easy to imagine a more idle defence than that put forward by the defendants.
5. The result is that the decree made by the Subordinate Judge is affirmed and this appeal dismissed with costs.