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Marie Penheiro and anr. Vs. Jotindra Mohan Sen - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.289
AppellantMarie Penheiro and anr.
RespondentJotindra Mohan Sen
Excerpt:
succession act (x of 1865), sections 269, 293 - executor, power of, to deal with property of deceased--legacy--assent of executor, effect of. - .....ex parte and the learned district judge reversed the order of the first court and dismissed the suit.2. the plaintiffs have now. preferred this appeal, and two arguments have been advanced. the first is that the mortgage is entirely void and the second is that, at any rate, it is void with regard to the two thirds, share inherited by the minors from their father.3. so far as the second point is concerned, it seems to me quite clear that the decision of the learned judge was wrong. the first court found that polacoo was not the guardian of the minors and the document itself does not pretend to show that he was acting as their guardian. the first court also found that there was no necessity for the mortgage. that being so, it is quite clear with regard to the two-thirds inherited from.....
Judgment:

Walmsley, J.

1. This appeal is preferred by the plaintiffs, who are minors represented by a guardian. They inherited two thirds of their ancestral homestead from their father. The remaining one-third was bequeathed to them by their grandmother or step grandmother Isabella Penheiro. One Mdcdonald Polaooo was appointed executor by the Will of Isabella Penheiro and he took out Probate. About a year after the grant of Probate he executed a lease in respect of one-third of the homestead and in the following December, i.e., 18 months after the Probate was on anted ha mortgaged the entire homestead to the defendant No. 2 in the name of defendant No 3. We are not now concerned with the lease. The suit out of which the present appeal arises was brought by the plaintiffs for a declaration that the mortgage executed by this Macdonald Polacco was inoperative. The first Court granted the plaintiffs a decree. An appeal was preferred by defendant No. A. It was beard ex parte and the learned District Judge reversed the order of the first Court and dismissed the suit.

2. The plaintiffs have now. preferred this appeal, and two arguments have been advanced. The first is that the mortgage is entirely void and the second is that, at any rate, it is void with regard to the two thirds, share inherited by the minors from their father.

3. So far as the second point is concerned, it seems to me quite clear that the decision of the learned Judge was wrong. The first Court found that Polacoo was not the guardian of the minors and the document itself does not pretend to show that he was acting as their guardian. The first Court also found that there was no necessity for the mortgage. That being so, it is quite clear with regard to the two-thirds inherited from the father that the mortgage was inoperative.

4. The first point relates to the entire mortgage and I think it is equally strong. The executor appears to have given his assent to the legacy and, having done that, he was not competent, as the learned Munsif, Slid, to deal further with the property as provided by Section 293 of the Succession, Act. It may also be said that an executor although he has the power to dispose of the property of the deceased in such manner as he thinks fit under Section 269, must be able to give reasons for doing so; and in the present case the finding of the first Court that there was no necessity for the mortgage at all has not been displaced by the learned District Judge. It appears to me, therefore, that the decision of the lower Appellate Court is wrong and must be reversed and the suit decreed with costs in all Courts. The costs of this Court will be on the ex parte scale, a3 nobody appears on behalf of the defendant-respondent.

Panton, J.

5. I agree.


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