K N PARTHASARATHY NAIDU Vs. PMUKUNDAMMAL

JUDGEMENT

(1.) IN this case the mortgagees brought a suit to enforce the mortgage. The mortgage was executed by an executor under a will. That will gave the executor express power to sell any part of the estate, moveable or immoveable as the executor might wish for purposes of paying off debts. It was contended before the learned Judge that, this power being an express power of sale, he had no power to mortgage. The learned Judge with regret, came to the conclusion that that was the proper construction of the will and that he was bound by Haldenby v. Spofforth 1 Reaven 390 and INdian Cases following that case, so to hold. On a careful examination of that case, so far from being authority in favour of the proposition that the executor with power of sale cannot mortgage, it is in my judgment direct authority for the proposition that he can except in cases such as the case there where a prohibition against mortgage can be inferred. The Master of the Rolls, Lord Langdale referring to a case of Ivy v. Gilbert 2 P. Wms. 13 said thus: "Lord Macclesfield also observed that the Court had decreed, that the trusts declared concerning the term, empowered, the trustees to sell the premises and a power to sell implied a power to mortgage which was a conditional sale. This I conceive to mean, that where it is intended to preserve the estate, there, under a direction for sale, a mortgage will sufficiently answer the purpose." The facts of Haldenby V/s. Spopforth 1 Reaven 390 were that the direction there was not to preserve the estate but to convert the whole estate into money. Turning to the authorities in this country it is sufficient to quote Purna Chandra Bakshi V/s. Nobin Chandra Gangopadhyaya 8 C.W.N. 362 which is a direct authority for the proposition that, where by a will power is given to sell the property to pay off debts, that power includes the power to mortgage. By Section 90 of the Probate and Administration Act, 1881, the power of an executor to dispose of immoveable property is subject to any restrictions which may be imposed by the will. But in my judgment the power of sale is not a restriction imposed by the will and the power of mortgage so far from being inconsistent with it, is, as pointed out in the English case, included in it unless there be some reason to be gathered from the terms of the will itself why it should be excluded. We are then asked to remand the case so that further evidence may be given. The learned Judge held, as I understand his judgment, that the onus was on the defendant to show, if it was open to him to show, that there were no debts and that the executor was not mortgaging for the purpose of paying off debts. No evidence of that kind was tendered and it is therefore unnecessary to consider whether, if it had been tendered, it would have been admissible. IN my judgment it was a perfectly proper ruling that it was not upon the mortgagee to prove as part of his case that the executor with power of sale was acting properly in effecting the mortgage. On those grounds I think the judgment must be reversed and judgment must be entered for the plaintiffs as prayed for with costs here and below. Wallace, J.

(2.) I agree. I just wish to say a few words on the second point. I agree with the trying Judge that, where an executor has power to mortgage, the mortgagees cannot be called upon to show the reality of the testator's debts for which their money was borrowed and, as the defendant here merely does not admit that there were debts other than the mortgage debt of 24 February, 1918, and does not assert that there were no other debts, there seems to me no sound ground for remand for proof of the reality of the debts for which the mortgage was taken. I agree that the second mortgage is binding on the defendant.