JUDGMENT
Kanhaiya Singh, J.
1. These two appeals have been heard together, as the facts in both the cases are common and the contesting parties are the same. In both these appeals, Srimati Chandrakala Devi, widow of Sri Bhagwati Saran Singh of Anapur, is the appellant. First Appeal No. 118 of 1951 arises out of a suit instituted by the three daughters of Sri
Bhagwati Saran Singh for a declaration that the
sale of Mirapore Uchauli, Pargana Sonout, tauzi No. 3151, in the district of Gaya, including 7.65 acres of bakast land in the said village by virtue of a sale deed executed by their father on the 17th August, 1937, in favour of Keshwar Singh (defendant No. 1 is void, and for recovery of possession of the said property with mesne profits. First Appeal No. 263 of 1955 arises out of a suit filed by Keshwar Singh and others for a decree for a sum of Rs. 28,545-6-0 together with interest up-till the date of realisation and pendente lite.
2. It is necessary to set out in some details the introductory facts which are not in dispute. Sri Rameshwar Prasad Singh of village Chainpur in the district of Saran succeeded to the estate of Raja Kotal Narain Singh of Maksudpur as his daughter’s son. On the 26th of November, 1902, Raja Rameshwar Prasad Narain Singh executed a Will by which he gave a life estate to his wife, Rani Sunder Kuer, and absolute estate to his two daughters, namely, Srimati Godawari Kuer and Srimati Muratmati Kuer. That very year he died. In the year 1903, a litigation cropped up between Sri Chandreshwar Prasad Narain Singh, brother of Raja Rameshwar Prasad Narain Singh, and Rani Sunder Kuer (Title Suit No. 50 of 1905).
That case was ultimately compromised on the 17th January, 1909 and according to the terms of the compromise, the entire Maksudpur estate except the sixteen villages which were the self-acquired property of Raja Rameshwar Prasad Narain Singh, went to his brother, Sri Chandreshwar Prasad Narain Singh, and in the sixteen villages aforesaid, Rani Sunder Kuer, widow of Raja Rameshwar Prasad Narain Singh, got a life estate and the remainder went to the daughters. The debts of the late Raja were also divided. In accordance with the terms of the compromise, a sum of Rs. 14,00,000/- was made payable by Sri Chandreshwar Prasad Narain Singh, and a sum of Rs. 2,87,000/- and odd was made payable by the widow. On the 28th of November, 1910, Rani Sunder Kuer surrendered her life estate in the sixteen mouzas in favour of her daughters by a deed making them responsible for the payment of the outstanding debt which amounted to Rs. 2,18,000/- and odd. On the 27th of April, 1912, Rani Sunder Kuer died and her two daughters became the absolute owners of the said sixteen villages. On the 16th of April, 1917, Srimati Godawari Kuer executed a Will by which she gave the life estate of her interest in the 16 villages to her husband, Sri Bhagwati Saran Singh, and the remainder to her three daughters. On that very day she died.
On the 3rd of July 1917, Sri Bhagwati Saran Singh appplied for probate of the Will on the ground that he was the executor. Ultimately, probate of the Will was granted to him and he started managing the property as the executor. It appears that on the 21st of December, 1917, he filed an application before the District Judge of Gaya for permission to transfer some of the properties of the testator. The application was, however, rejected on the ground that under the terms of the Will he had wide powers to transfer
and alienate the properties in every way and as
such no permission was necessary. Amongst the creditors was one Rai Shyam Krishnajee of Banaras. He filed an execution case for a sum of Rs. 1,09,000/- and odd. At that time, the Maksud-pur estate was under the Court of Wards. In the execution case filed by Rai Shyaro Krishnajee, an objection was filed by the Court of Wards to the effect that the estate of Rani Sunder Kuer should be sold first. As a result of the said objection, one of the sixteen villages was sold for Rs. 35,300/-. The balance of Rs. 74,506/11!- remained unpaid. The said amount having not been paid by 1919, it went up to Rs. 78,8o3/7/-including interest. In that year, the decree-holder again applied for execution and made a prayer that the properties of Raja Chandreshwar Prasad Narain Singh should be sold.
The Court of Wards, however, paid the entire decretal amount. It appears that on an application filed by Sri Bhagwati Saran Singh under Order 21, Rule 90 of the Code of Civil Procedure the sale of one of the sixteen villages, which had taken place in execution of the decree of Rai Shri Krishnajee of Banaras, was set aside sometime in the year 1921. In 1923, Sri Bhagwati Saran Singh executed a sale deed for Rs. 17,000/- in favour of the Mahant of Bodh Gaya and the entire amount was paid to the Court of Wards. When the sale was set aside, the creditor levied a fresh execution for Rs. 40,000/- and odd. One of the villages was sold and a sum of Rs. 13,700/- was realised leaving a balance of Rs. 36,000/- and odd. In 1926, there was adjustment of account between the parties and a sum of Rs. 40,000/- was liable to be paid half and half by Srimati Muratmati Kuer and Sri Bhagwati Saran Singh. Sri Bhagwati Saran Singh deposited a sum of Rs. 500/- payable by Srimati Godawari Kuer and Srimati Muratmati Kuer and took time to pay the balance sum. As the balance of the decretal amount was not paid, two villages, namely, villages Uchouli and Khairi, were sold on the 22nd April, 1926, for a sum of Rs. 36,000/- and were purchased by one Jangi Lal. On the 7th May. 1926, Sri Bhagwati Saran Singh deposited a sum of Rs. 35,385/-, which was the balance of the decretal amount, along with a sum of Rs. 1,810/-as statutory compensation at the rate of five per cent. on the decretal amount and the sale was set aside.
On the 12th September, 1926, Sri Bhagwati Saran Singh brought a suit against Srimati Muratmati Kuer for realisation of half of the amount paid by him in Court and also for interest on the said amount. The matter ultimately came to the High Court and Sri Bhagwati Saran Singh got a decree. On the 17th of August, 1937, Sri Bhagwati Saran Singh executed a sale deed in favour of Keshwar Singh for a sum of Rs. 22,000/-whereby he sold his eight annas mokarrari interest in village Mirapore Uchauli, Pargana Sonout, district Gaya. On the same day, he executed a security bond in favour of Keshwar Singh. On the 21st of January, 1945, Sri Bhagwati Saran Singh executed a Will in respect of his properties and made Srimati Chandrakala
Devi, his second wife, the executrix. On the 2nd
of March, 1945, Sri Bhagwati Saran Singh died.
3. On the 22nd of January, 1949, Srimati Ramratan Kuer and Srimati Vidyavati Kuer, two daughters of Sri Bhagwati Saran Singh, filed Title Suit No. 7 of 1949 in the Court of the and Subordinate Judge, Gaya, giving rise to First Appeal No. 118 of 1951. Srimati Lokeshwari Kuer, the third daughter of Sri Bhagwati Saran Singh, was later added as a co-plaintiff. The plaintiffs challenged the validity of the sale of village Mirapore Uchauli, Pargana Sonout, tauzi No. 3151, in favour of Keshwar Singh (defendant No. 1) by their father on the 17th of August, 1937, mainly on the grounds that under the terms of the Will their father, Sri Bhagwati Saran Singh, had no power to sell any portion of their absolute estate and as such the sale effected in favour of defendant No. 1 could not enure beyond the lifetime of Sri Bhagwati Saran Singh, who had only a life interest in the property of Srimati Godawari Kuer.
The main allegations made in the plaint were that in order to pay off a major and substantial portion of the debts due to Rai Shyam Krishnajee and others some of the villages out of the sixty villages were sold by Srimati Godawari Kuer and Srimati Muratmati Kuer to Sri Bhagwati Saran Singh for a consideration of Rs. 1,05,000/- under the sale deed dated the 23rd February, 1917, and the entire consideration money was left with Bhagwati Saran Singh for payment of the dues of Rai Shyam Krishnaji and others; that Srimati Godawari Kuer executed a Will on the 16th of April, 1917, giving a life interest to her husband, Sri Bhagwati Saran Singh, on conditions that he) would pay all the debts due from her and from Raja Rameshwar Prasad Narain Singh and would marry her three daughters, the plaintiffs, in a proper manner; that under the influence of the second wife, Sri Bhagwati Saran Singh lost all interest in the plaintiffs and began to commit various acts of waste in respect of the estate of Srimati Godawari Kuer; that he began to mix the income of the estate with his own fund and committed a serious breach of trust by failing to pay the debts of Sri Shyam Krishnaji and others which he had undertaken to do by the sale deed dated the 23rd of February, 1917, executed by Srimati Godawari Kuer and Srimati Muratmati Kuer; that when the plaintiffs came in possession of their share in the estate after the death of Sri Bhagwati Saran Singh, they learnt on enquiry that their father had executed a sale deed in respect of the eight annas share of village Mirapore Uchauli, Tauzi No. 3151, including 7.65 acres of bakast land in the said village in favour of defendants first party for a consideration of Rs. 22,000/-; that the recitals in the sale deed were incorrect inasmuch as Sri Bhagwati Saran Singh had taken no loan for the marriage expenses of the plaintiffs, nor was the property sold for payment of any debt of Srimati Godawari Kuer, or for payment of the decree of Rai Shyam Krishnaji; and that when the plaintiffs asked the defendants first party to give up possession of the property in dispute, they refused to do so.
4. The suit was contested by the defendants first party as well as by Srimati Chandrakala
Devi (defendant No. 7). In their written statement, defendants 1 and 2 of the defendants first party alleged that the debt of Rai Shyam Krishnaji was much in excess of Rs. 1,05,000/-, which was the consideration money of the sale deed in favour of Sri Bhagwati Saran Singh and only a part of the decree of Rai Shyam Krishnaji was payable by Sri Bhagwati Saran Singh personally. It was denied that the bequest of life estate in favour of Sri Bhagwati Singh by the Will of Srimati Godawari Kuer was of onerous character. It was alleged that the sale deed was executed for payment of the just liabilities of the estate of Srimati Godawari Kuer by Sri Bhagwati Saran Singh, the executor of the Will, who under the terms of the Will had full power of alienation and his character as an executor had been already determined by a Court of competent jurisdiction. In substance, defendants Nos. 1 and 2 took the plea that the sale was binding on the plaintiffs inasmuch as under the terms of the Will itself Sri Bhagwati Saran Singh could sell the properties of the estate for discharging the liabilities for which the sale in favour of these defendants took place. The other allegations in the plaint were denied. Defendant No. 7 (the appellant) fully supported the case put forward by defendants first party.
5. The learned Subordinate Judge held that Sri Bhagwati Saran Singh had exceeded his powers in selling the village in suit; that the said sale could not enure beyond his lifetime; that the plaintiffs were not bound by the same; that the suit was not barred by limitation; and that the plaintiffs were not entitled to mesne profits. Accordingly, by his judgment dated the 22nd December, 1950, the learned Subordinate Judge decreed the suit of the plaintiffs in part with proportionate costs against defendants 1, 2 and 7 in terms that the plaintiffs were entitled to the declaration that the sale deed was not binding on them and that they were entitled to possession of the property in suit. He disallowed the claim for mesne profits. It is against this judgment and decree that Srimati Chandrakala Devi has come up in appeal to this Court which has been numbered as First Appeal 118 of 1951.
6. The defendants first party did not prefer any appeal against the judgment and decree of the learned Subordinate Judge. On the 3rd of May, 1952, they, however, filed Mortgage Suit No. 25/52 –in the Court of the 2nd Subordinate Judge 33/54
Gaya, giving rise to First Appeal No. 263 of 1955, on the basis of the security bond dated the 17th August, 1937, executed by Sri Bhagwati Saran Singh in their favour. Originally, they wanted to enforce the bond against two villages which were given in security. Later on, after the vesting of the estate in the State of Bihar, the plaint was amended and they sought to enforce the personal covenant and accordingly prayed for a decree for a sum of Rs. 28,545-6-0 together with pendente lite interest and interest up-till the date of realisation. It was alleged in the plaint that they were dispossessed on the 28th of March, 1951, from the properties conveyed to them under the sale deed dated the 17th August, 1937.
7. The suit was contested by all the defendants including Srimati Chandrakala Devi (defendant No. 1). It is not necessary to set out in detail the various pleas taken in the written statement filed by the defendants. It appears that at the time of the hearing, the defendants contested the suit only on two grounds, namely, (1) that the suit was premature inasmuch as an appeal was pending in the High Court against the judgment and decree of the trial Court in Title Suit No. 7 of 1949 setting aside the sale, and (2) that Sri Bhagwati Saran Singh, by his Will which was duly probated, having given his entire estate to his daughter’s son, defendant) No. 6, and having given only a life estate to defendant No. 1, no part of the estate of Sri Bhagwati Saran Singh was in possession of the defendants as heirs and as such the plaintiffs were not entitled to enforce the personal covenant against them.
8. The learned Subordinate Judge held that the suit was not premature, that it was not barred under Section 4(d) or under any other provisions of the Bihar Land Reforms Act, that defendant No. 1, being the executrix under the Will, was alone the legal representative of the deceased and she was bound to fulfil the obligations of Sri Bhagwati Saran Singh and as such the plaintiffs were entitled to enforce the personal covenant against her to the extent of the assets of the deceased in her hands, and that Section 68 of the Transfer of Property Act was no bar to the maintainability of the suit. Accordingly, tha learned Subordinate Judge by his judgment dated the 12th August, 1955, decreed the suit in part with proportionate costs holding that the plaintiffs were entitled to enforce the personal covenant against defendant No. 1, the legal representative of late Sri Bhagwati Saran Singh, and they were entitled to recover a sum of Rs. 22,000/-, besides interest at one per cent per month, the liability of defendant No. 1 being limited to the extent of the assets of late Sri Bhagwati Saran Singh in her hands.
9. Mr. Mahabir Prasad, the learned Advocate General, appearing for the appellant in the two appeals, raised the following contentions:
(1) That the Will in question did not put any restriction on the powers of the executor as such to dispose of the property of the testator; on the contrary, it conferred on the executor, in express terms, wide powers to alienate the property and full discretion in the matter of the administration of the estate. Hence the executor, Sri Bhagwati Saran Singh, was competent under section 307 (1) of the Indian Succession Act to dispose of the property of the testator vested in him under Section 211 of the said Act in such manner as he thought fit.
(2) That the purchaser, namely, defendant No. 1, from Sri Bhagwati Saran Singh, the executor, being satisfied by reading the Will that the executor was fully competent to sell the property of the testator for the purposes mentioned in the sale deed in question, had a right to infer that the latter was acting fairly and he was not bound to enquire beyond the Will and to
ascertain whether the executor was discreetly exercising his power.
(3) That the sale deed in favour of the purchaser, defendant No. 1, could not be impugned as there is no allegation, far from there being any proof, that the purchaser in any way colluded with the executor, or had any notice, actual or constructive, that the executor was acting in breach of trust.
(4) That the purchaser had no cause of
action for instituting Mortgage Suit No. 25/52
______
33/54
on the 3rd May, 1952, inasmuch as an appeal had already been filed in the High Court against, the judgment and decree in Title Suit No. 7 of 1949 on the 14/th March, 1951.
(5) That the defendants first party were not dispossessed from village Mirapore Uchauli by the daughters of Sri Bhagwati Saran Singh but by the decree of the Court, and as such, under the terms of the security bond, they (the defendants first party) are not entitled to enforce tho covenant of the security bond for realisation of the consideration money with interest thereon. Apart from the aforesaid main contentions, the learned Advocate General also argued on the point of limitation and contended that the sale being voidable. Title Suit No. 7 of 1949 is barred by limitation, inasmuch as it was instituted beyond three years of the date of sale.
10. Mr. Lalnarayan Sinha, appearing for the defendants first party in both the appeals, contended :
(1) That under the Will, the executor, Sri Bhagwati Saran Singh, had no power to alienate the property of the testator for the purposes mentioned in the sale deed.
(2) That on the 28th of March, 1951, the daughters of Sri Bhagwati Saran Singh, plaintiffs of Title Suit No. 7 of 1949, not only dispossessed the defendants first party from the properties conveyed to them under the sale deed dated 17-8-1937, but actually took possession of the same. That being so, there was an act of dispossession by the daughters, and the defendants first party, under the express terms of the deed, were entitled to claim for the return of the consideration money with interest at the rate of 2 per cent per month, from the date of dispossession up-till the date of realisation.
(3) That the cause of action for instituting the suit to enforce the security bond arose as soon as the defendants first party were dispossessed from the property covered by the sale deed dated 17-8-1937, and in law there was no supersession of the cause of action merely because an appeal had been preferred against the judgment and decree in Title Suit No. 7 of 1949.
On the point of limitation, the learned Government Advocate submitted that the learned Subordinate Judge was right in applying Article 140 of the Limitation Act and in holding that the suit was not barred as the suit had been filed by
the daughters for possession of the properties covered by the sale deed without there being any prayer for cancellation of the deed.
11. Before dealing with the main contentions raised on behalf of the parties, I would like to dispose of one point which was faintly suggested by the learned Advocate General. In course of his argument, the learned Advocate General submitted that there was a collusion between the purchasers, defendants first party, and the daughters of Sri Bhagwati Saran Singh by his first wife, as a result of which the daughters brought Title Suit No. 7 of 1949 with the sole object of harassing the appellant, who is the second wife of Sri Bhagwati Saran Singh, and putting her to loss, as her husband had given her some properties in Allahabad district. There appears to be hardly any foundation for such an argument. There can be no doubt that the defendants first party resisted the claim of the daughters and hotly contested Title Suit No. 7 of 1949 in the trial Court. In all probability, they did not prefer an appeal against the judgment and decree of the trial Court because of the abolition of the zamindary and preferred to institute a fresh suit for enforcement of the security bond.
Although in her written statement the appellant made a specific allegation that the plaintiffs had brought the suit in collusion with the defendants first party, no evidence was led, nor was any issue struck, on this point. It is, therefore, not possible to hold that the daughters of Sri Bhagwati Saran Singh instituted Title Suit No, 7 of 1949 in collusion with the defendants first party. In my opinion, the contentions of the learned Advocate General, except the one regarding the prematurity and incompetency of Mortgage Suit No. 25/33 of 1952/54, are well-founded and must be accepted as correct.
12. To take up First Appeal No. 118 of 1951, the outcome of this litigation depends on the validity or otherwise of the sale deed dated the 17th August, 1937, executed by Bhagwati Saran Singh in favour of Keshwar Singh, and this involves the question whether Bhagwati Saran Singh had powers under the Will to transfer the properties for the marriage of the daughters. The power of the executor or administrator to dispose of the property of the deceased is derived from section 307 of the Indian Succession Act, which, to reproduce the relevant portions, provides as follows :
“307(1) Subject to the provisions of Sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under Section 211, either wholly or in part, in such manner as he may think fit.
(2) If the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by Sub-section (1) shall be subject to the following restrictions and conditions, namely;
(i) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court
which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.
(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,–
(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immoveable property for the time being vested in him under section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in contravention of clause (i) or Clause (ii), as the case may be, is voidable at the instance of any other persons interested in the property.”
It will be observed that subject to the restrictions mentioned in Sub-section (2), the powers of disposal conferred upon the executor or administrator by Sub-section (1) are very wide and comprehensive. In fact in cases not falling under Sub-section (2), the powers of the executor are unfettered and are not conditioned by such considerations as apply to a case of transfer by a karta or manager of a joint Mitakshara family or a shebait. It is now well-settled that the powers of the executor in India under Section 307 of the said Act are at least as extensive as those enjoyed by the executor in England before 1926. The principles governing the powers of sale have been laid down in paragraph 659 of Williams on Executors and Administrators, Fourteenth Edition, at page 387, which runs thus :
“It is a general rule of law and equity that a personal representative has an absolute power of disposition over all the personal estate of his testator or intestate; and that such estate when so disposed of cannot be followed by creditors, much less by legatees, either general or specific. This rule is based on the principle that the executor or administrator is, in many cases, driven to realise the assets, in order to perform his duty in paying debts and distributing the estate; and no one would deal with an executor or administrator if liable afterwards to be called to account …..”
The purchasers, thus enjoy complete protection and it is not obligatory upon them to travel beyond the express provisions of the Will and enquire whether or not the executor had powers to effect transfers. To quote from the aforesaid book :
“Even under the old law a purchaser or mortgagee, though he knew that he was dealing with a personal representative, was not bound to see that the purchase or mortgage money was properly applied. It is of great consequence that ao rules should be laid down here, which may impede executors in their administration or render their disposition of the testator’s effect unsafe, or uncertain to the purchaser; his title is complete by sale and delivery; what becomes of the price is no concern of the purchaser : ‘This observation applies equally to mortgages or pledges, and even to the present instance, where assignable bonds were merely pledged, without assignment’ …..” vide paragraph 674 at
page 396 of the aforesaid book.
13. Under the English law, the personal representative has the power even to prefer one creditor to another among the creditors ranking in the same order of precedence. He has also the power to retain for a debt due to him from the deceased in preference to all other creditors of equal degree. The same principle is enacted in Section 307 of the Indian Succession Act, and under the Indian Law also the powers of the executor or administrator are absolute, and a purchaser enjoys the same immunity, subject of course to the restrictions and conditions laid down by Sub-section (2) of Section 307, and this principle has received judicial recognition in the case of Sunil Kumar v. Sisir Kumar, AIR 1940 PC 30. Their Lordships of the Privy Council observed as follows :
“But, the question must be whether the proposed lenders had a duty to enquire into facts outside the will as they existed immediately prior to the testator’s death. Their Lordships are unable to hold that the mortgagees had any such duty, and the nature of the enquiry held in the present case and the decisions below, show how impracticable it would be for any such enquiry to be made by an intending lender. In their Lordships’ opinion, much of the usefulness of the statutory power conferred by Section 307 on executors in India would be nullified, if such a duty of enquiry was imposed on parties dealing with executors.”
It is manifest, therefore, that even in India a lender of an executor has no duty to enquire into the facts outside the Will existing immediately prior to the testator’s death. The law does not impose any duty on the lender to enquire into the necessity of the transfer so long as the power of transfer for those necessities is conferred by the Will. The position, however, becomes different if he makes an enquiry and knows the real situation. The purchaser has in fact no duty to enquire whether or not the necessities for the transfer existed, but if upon enquiry he knew the real position, and there were no necessities at all for the transfer, the sale will not be upheld. Further, on general principle, a transfer cannot be sustained if the purchaser was in collusion with the executor or the administrator. Thus, there are two exceptions to the general power of transfer conferred upon the executor or administrator under Section 307 of the Indian Succession Act : (1) where upon enquiry necessities were found to be non-existent and (2) there was fraud or collusion between the executor or administrator and the purchaser.
The leading authority on this point is Watkins v. Cheek, (1825) 2 Sun and St. 199 : 57 ER 321. As was pointed out by Sir John Leach, V. C., the general power of the executor having wide and unrestricted discretion will not be attracted when a transferee, whether a mortgagee or a purchaser comes to know from the nature of the transaction that the executor was not acting in the execution of his duty but is committing a breach of trust as when the consideration of the mortgage or sale is a personal debt due to the
executor. This has been clearly brought out in G.F.F. Foulkes v. A.S. Suppan Chettiar, AIR 1951 Mad 296. Their Lordships have made the following pregnant observations in that case :
“In our opinion, on the findings of the learned trial judge that the sales were for adequate consideration, that the sales were not nominal transactions and that they were not vitiated by fraud or other similar defect, it must be held that the sales, as such, in favour of the several alienees must stand unless the purchasers were privy to a breach of trust committed by the administrator. Under Section 307 (1), Succession Act, an executor or administrator has power to dispose of the property of the deceased, vested in him under Section 211, either wholly or in part, in such matter as he may think fit. The restrictions and the conditions to which this general power is subject under Sub-section (2) do not apply to the present case as the deceased did not belong to the class of persons enumerated in that Sub-section. It is a general rule of law and equity in England — and that rule is followed in India–that an executor may dispose of the testator’s assets over which he has an absolute power and they cannot be followed either by the creditors or by the legatees into the hands of the alienee. But neither jurisdiction will permit the rule to be observed so as to protect a disposition founded on fraud or a transaction amounting to a breach of trust, concerted between the executor or administrator and the purchaser. There is no duty cast on the purchaser to see to the application of the purchase) money. He is not obliged to ascertain whether the executor is discreetly exercising his power, but the purchaser will not be protected if he is privy to a breach of trust and if the transaction of sale is in its nature incompatible with the legitimate administration of the testator’s estate. A purchaser would not have the benefit of the general rule protecting a purchaser from an executor, if the purchaser concurs in any act which manifests from the transaction itself that it is not the legitimate mode of administering the estate. If the nature of the transactions imports notice to him that the executor is dealing with the assets otherwise than in due course of administration, then, he would have participated with the administrator in an improper conversion and application of the estate of the deceased and the sale in his favour would be invalid.”
The same principle has been laid down by a Bench of the Bombay High Court in Ahronee Shemail v. Ahmad Omer, AIR 1931 Bom 533. Their Lordships of the Bombay High Court have observed that under the law it is the duty of the executor to pay the debts of the deceased and that it is only the question of intention to be gathered from the grant itself. Their Lordships have further laid down that if the transfer 3s valid, the purchaser or mortgagee is not bound to see the application of the money nor he is bound to enquire as to the necessity of the loan. In a suit brought to enforce a mortgage effected by an executor or to set aside the sale effected by an executor, the only point for consideration is whether the power of the executor to dispose of the property is in any way circumscribed by any limitation imposed by the Will itself.
In Geetaranee De v. Narendrakrishna De, ILR 60 Cal 394 : (AIR 1933 Cal 429), it has been laid down that a transfer by an executor, as such, is valid unless it is established that the transferee had notice that the executor was acting in breach of trust. It has further been observed that the mere failure to scrutinise the Will does not amount to constructive notice that the money was not required for purposes of administration. These principles are based upon the following observations of the Judicial Committee in the case of Graham v. Drummond, (1896) 1 Ch. 968 :
“I will consider, in the first instance, how the position of John William Queale, as executor independent of his position as residuary legatee, affects the case. The power of an executor to deal with personal estate is, I need hardly say well-known. He has full power to sell and mortgage it, not only as against pecuniary legatees, but also as against specific and residuary legatees; and dealing with the property qua executor, a bona fide purchaser and mortgagee is not under any obligation, and has no right, to require the executor to show that what he is doing is required for the purposes of administration. But the case is different where the purchaser knows that the executor is abusing his position; and if an executor, being merely executor, mortgages for his own private debt, such a transaction, being mala fide, cannot stand. In the present case, I do not see how the bank can be considered as having dealt with John William Queale as executor. If they did, the fact of the debt secured, being the private debt of Queale to the bank, would destroy their title.”
It is thus well-settled that an executor or administrator has full authority to transfer by sale or mortgage the property of the testator in due course of administration and confer a complete title upon the purchaser or mortgagee. Such a purchaser or mortgagee is not under any legal obligation to enquire whether the transfer was justified by proper necessity, and he acquires a valid and perfect title unless he had notice, express or constructive, that the executor was acting in breach of the trust or that he was in collusion with the executor. The main object is that the executors should not be hampered in their administration. It will be indeed difficult for them to effectively administer the estate if the dispositions of the testator’s properties were made unsafe or uncertain by placing the purchaser under an obligation to enquire beyond what is contained in the Will itself.
14. Applying these principles to the present case, there is no allegation, much less proof, that the purchaser in any way colluded with the executor or that he had notice, actual or constructive, that the executor was acting in breach of trust. There is no allegation of fraud either. The only question for consideration is whether any restriction is placed upon the power of the executor by the Will itself. The relevant provisions of the Will (Exhibit 15) are as follows :
“I the executant, am liable to pay the proportionate share in the debt due from Raja Rameshwar Prasad Narain Singh and also by (illeg.) Khas debt. If I, the executant, the without making payment of the said debts, then it is incumbent upon Babu Bhagwati Saran Singh and he is competent to make payment of the said debts by selling, or mortgaging or by letting out in Ijara or Zarpeshgi or thika any property, or take whatever steps he may deem proper for the payment of the same. To this, nobody shall have any right to raise objection. Of the three daughters of me, the executant, tilak ceremony of the first daughter has been performed, while the second and third daughters are still minors. If, I, the executant, die without performing the marriage of my daughters, then it is incumbent upon Babu Bhagwati Saran Singh and he is competent to perform the marriage of the first daughter keeping in view the name and fame of the family of me, the executant, and perform the marriages of the second and third daughters too in a good family keeping in view the name and fame of the family of me, the executant, and money should be spent properly over the marriages of all the three daughters. If there arises necessity for taking loan, he should incur loan, by mortgaging the property or take whatever steps he may deem proper. I, the executant, am and shall remain in possession of the property as an absolute owner during her lifetime.”
15. The contention of the learned Government Advocate appearing for the purchaser is that the testatrix of the Will did not empower the executant, Bhagwati Saran Singh, to convey any of the properties covered by the Will for the purposes of the marriages of the daughters. A great stress is laid upon the provision of the Will regarding liquidation of the prior debts. It is urged that Bhagwati Saran Singh has been specifically enjoined, to discharge the debts.
“by selling or mortgaging or by letting out in ijara or zarpesgi or thika any property or take whatever steps he may deem proper for the payment of the same”.
It is pointed out that no such power has been given to Bhagwati Saran Singh to raise money for the purposes of the marriages of the daughters of the testatrix. His submission is that the authority given to Bhagwati Saran Singh by the Will is restricted to only mortgage; he has no power of sale. It is true that the power of transfer has not been explicitly conferred upon Bhagwati Saran Singh in respect of the marriages of the daughters. It would not, however, be correct to say that there was absolute lack of power to transfer the properties for the said purposes. He has been authorised to raise money for the marriages of the daughters “by mortgaging the property or take whatever steps he may deem proper”. He has been, therefore, given wide discretion to take whatever steps he considered feasible or reasonable in order to raise money for the purposes of the marriages. The expression “take whatever steps he may deem proper” is comprehensive enough to include a general power to raise money by any means. By contrast with the powers of transfer etc. for discharge of the debts, it cannot be legitimately inferred that for the marriages of the daughters he had no power to transfer any of the willed properties.
It is plain that the marriage of a daughter is a great social obligation which has to be discharged at any cost. One may defer payment of debts, but not marriage of daughters, and, therefore, it seems unreasonable to assume that in case of performance of this great social work the executor had less power than for repayment of debts. I am, therefore, not inclined to put a narrow construction on the expression “take whatever steps he may deem proper”. It seems to me that while the powers in matter of satisfaction of prior debts were explicitly specified, it was not considered necessary to circumscribe the powers in respect of the marriages of the daughters. It is true that the subsequent power had been prefaced with the word “marriage”. It does not, however, necessarily connote that other kinds of transfer were altogether prohibited. It is, I think, undeniable that mortgage is preferable to sale, and, therefore, mortgage was emphasised. This does not, however, mean that when nobody was prepared to advance loans on mortgage, the executor had no power to transfer lands by sale for the purposes of the marriages. To place such a limitation upon the prima facie wide powers of the executor in respect of loan for marriages would bring about a complete stalemate. The inevitable consequence would be that the marriage may have to be stopped or postponed. Could the testatrix have contemplated such a contingency? I think, not.
Thus, it is difficult to accept the contention that there was total prohibition of transfer by sales to raise money for the marriage of the daughters of the testatrix. In my opinion, the powers of the executor were as wide in respect of marriages as for the payment of the debts, though in the former case the power of sale was not| specifically mentioned. 16. Whatever doubt there might have been with regard to sale of the properties by the executor is removed by the fact that a similar construction was put on the will by the District Judge. It appears that on the 21st December 1917, the executor made an application to the District Judge of Gaya for permission to transfer some of the properties of the testatrix. The District Judge rejected the application, because, in his view, no such permission was necessary as "the Will itself far from limiting his powers authorises him to transfer and alienate properties in every way".
If the District Judge, in his judgment, considered that the executor had wide powers of alienation under the will, the purchaser cannot be blamed if he also thought likewise. It is interesting to note that the purchaser had pleaded in his written statement that the executor had unfettered powers of alienation. Now, contrary to the stand taken by him in his written defence, he is challenging the powers of the executor to make any transfer for the marriage of the daughters.
The reason is not far to seek. Soon after the decree of the learned Subordinate Judge invalidating the sale, he brought a separate suit (Title-Mortgage Suit No. 7/49) to enforce the security bond dated the 17th August 1937 (Ext. 1) and recover from the plaintiffs of the other suit a sum of Rs. 28,545/6/- in cash, because in view of the vesting of the estates in the State, it was more profitable to recover cash money on the strength of the security bond than to have precarious compensation for the property which had already passed to and vested in the State. In my opinion, the narrow construction put by the learned Subordinate Judge is not warranted on the plain language of the Will. I think the executor had powers under the will to transfer the property for the marriage of the daughters.
17. Even assuming that the will imposed restriction on the power of the executor to dispose of the properties of the deceased for the purposes of the marriages of the daughters the sale cannot be invalidated on that score. The pro-bate of the will in the present case has already been granted. Accordingly, notwithstanding this restriction, the executor, by virtue of the provisions of Sub-section (2) of Section 307, could have transferred the properties with the permission of the court which granted the probate. In this
case, however, the question of obtaining permission of the court did not arise. As pointed out earlier, the executor could not have approached the court for such permission, because on an earlier occasion the District Judge, who granted the probate, had interpreted the Will so as to embrace powers to dispose of the immovable property vested in the executor under the will by
sale or otherwise and had also refused permission
on that ground. To take a different view now will be to penalise the purchaser for no fault of his. In my considered judgment, the sale deed (Ext. A) must be maintained, firstly, because
the executor had power of disposal under the will, and, secondly, because even if he had no such powers, there was assent of the District Judge to the transfer, because the District Judge, on an interpretation of the Will thought that the executor had such a power. Thus, taking any view of the case, the sale appears to be beyond challenge.
18. It was contended, however, that in fact no marriage was performed in 1937, and the necessities of the sale was wrongly recited in the sale deed (Ext. A). Here also, the purchaser is
amply protected by virtue of the powers conferred on the executor under Sub-section (1) of Section 307
of the Act. As observed before, it is not incumbent upon the lender to travel beyond the express provisions of the Will and enquire whether or not the necessities in fact existed. The purchaser in the instant case had no duty to enquire whether or not the marriages were to be performed . The Will empowered the executor to transfer the immoveable property vested under the Will for the purpose of the marriage, and this was enough to protect the purchaser. The learn-ed Subordinate Judge was, therefore, wrong in thinking that the power of the executor was restricted to mortgage only.
19. On the question of limitation, the argument of the learned Advocate General is plainly wrong. It is a suit not for cancellation of the instrument of sale so as to attract Article 91 of the Limitation Act, which prescribes a period of three years. It is a suit by a devisee for possession of immoveable property in consequence of invalidation of the sale deed, and, therefore, it is covered by Article 140 of the Act, which prescribes a period of twelve years. Hence the suit is not barred by limitation.
20. Accordingly, the decision of the learned Subordinate Judge in Title Suit No. No. 7/49
_____
23/50
giving
rise to F.A. No. 118 of 1951, cannot be maintained.
21. Coming to the other appeal, namely, First Appeal 263 of 1955, which arises out of the suit filed by Keshwar Singh and others, the transferees, for enforcement of the security bond and to recover from the plaintiff of the other suit a sum of Rs. 28,545/6/-, it must, in consequence, fail. This suit was brought on the grounds that the sale had been held by the court to be invalid and the purchasers were entitled to enforce the security bond. In view of the above decision, the very foundation of the suit disappears.
22. The learned Advocate General urged
two more points in bar of the suit, first, that since an appeal had been filed from the judgment of the learned Subordinate Judge being F.A. 118 of 1951, the institution of this suit was premature. This contention, in my opinion, is not valid. The purchasers could not await till the final disposal of that suit. The moment the court found, rightly or wrongly, the sale to be invalid, the cause of action for the purchasers to obtain, in the alternative, money from the transferees, (sic) arose. The pendency of the appeal will not protect the purchasers and will not save the suit, if in the meantime the period of limitation had run out. In such cases, the cause of action arises when it is found that the sale was invalid and conveyed no good title, and, once the period of limitation has started, it cannot be arrested by the appeal from the judgment, nor can the time taken by the appeal be excluded from computation of the period of limitation (see the case of Martand Mahadev v. Dhondo Moreshwar, ILR 45 Bom 582: (AIR 1921 Bom 184). (Hence it cannot be said that the suit was premature.
23. The second contention of the learned Advocate General was that the purchasers had no cause of action for the suit because they were dispossessed not by the daughters of Bhagwati Saran Singh, but by the decree of the court. In reply to this the learned Government Advocate urged that no delivery of possession was effected through the court. His submission is that the daughters of Bhagwati Saran Singh took possession of the properties on 28th March 1951 and 20th March 1951, and, that being so, this was an act of dispossession by the daughters and consequently, the purchasers were entitled under the express terms of the deed to claim the consideration money. I am not inclined to accept the contention of the learned Government Advocate as correct.
The daughters of Bhagwati Saran Singh took possession not in their own right, but by virtue of the right given to them under the decree. Whether the possession was taken through the court or without the intervention of the court, it
is wholly immaterial so long as the foundation of the resumption of possession was the decree of the court itself. If they dispossessed the purchasers armed with the decree of the court, it was indeed dispossession through the court, and it cannot be said that they dispossessed the plaintiffs in their own right independent of the decree.
There is no law prohibiting possession by the decree-holder except through the court. The assistance of the court is necessary only when the judgment-debtors do not deliver possession peacefully, as they ought to as honest citizens. Where, however, the judgment-debtors give up possession pursuant to the decree, it is simply futile for the decree-holder to levy execution for possession. He can straightway take possession of the lands in suit. Nevertheless, it is possession by virtue of the decree. The right to claim back the consideration money under security bond arises only when the dispossession is effected by the daughters in their own right, but do not qua decree-holders. I think, therefore, that the contention of the learned Advocate General is correct.
24. Another contention is that this was, in fact, a suit to recover money, the payment of which was secured by a charge on the property. It was urged that since the property consisted of zamindari interest and since this interest has now passed to and become vested in the State under the provisions of the Bihar Land Reforms Act, the purchasers could not bring a suit to enforce the security bond and that their remedy was to prefer a claim, as provided under Section 14 of the Bihar Land Reforms Act. This contention also appears to be sound. It was laid down in the case of Raghubir Saran v. Kaviraj Basudevanand, 1953 BLJR 563 that where money is secured by a mortgage or is a charge on estates, the suit is barred under Section 4 (d) of the Act. It has been further laid down by a Full Bench of this court in Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Pat 630 that Section 4 (d) bars a suit in the Civil Court for recovery of any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on such estate or tenure. From this point of view also, the suit mast fail. Any way, the suit fails on the main ground that the sale being valid and legal, the purchasers had no cause of action for the suit to obtain refund of the consideration money. Therefore, this appeal also succeeds.
25. In the result, both the appeals are allowed and both the suits are dismissed. In the circumstances of the case, the parties will bear their own costs throughout.
S.N.P. Singh, J.
26. I agree.
