KATREDDI RAMIAH Vs. KADIYALA VENKATA SUBBAMMA

JUDGEMENT

(1.) M. Subbanna executed a will on 22nd September, 1914, and died more than two years afterwards on 5 January, 1917, leaving no sons but a daughter, a daughter's son and a widow.

(2.) He appointed his wife executrix of his will authorizing her to pay his debts out of the proceeds of 1,000 bags of paddy that he had in store in 1914, to recover sums owed to him by others, to sell a certain house and site, to carry out certain charitable and religious dispositions, to adopt a son and to manage the adopted son's one-third share of immoveable property till He attained majority, etc., and then follows a general clause: "I authorize my wife to conduct all the remaining affairs in my stead? Respondent's vakil attempted to argue that 1 defendant was only an executrix for a limited purpose (of Section 35 of Probate and Administration Act), and that the intention of the testator was to empower her to transact only those affairs which he specifically mentioned in the will, The use of the Telegu words (yavattu) and (tatimma) in this passage is to my mind consistent only with one meaning and that is that the testator intended his wife to be his general executrix. He provided in his will that his entire immoveable property (excluding certain purchases of land which he had dedicated to temple worship) should be divided into three shares, and one share given to his daughter's son (2nd plaintiff), one to his adopted son (16 defendant), and one to his widow (1st defendant) for life, and that after her death her share should be divided between his daughter's son and the son adopted by his widow. The genuineness of the will is not disputed. Owing to the lapse of time between the making of the will and the testator's death, and the expense of law suits which he engaged in during his life, the paddy mentioned in the will as a fund for discharging debts was not available to the executrix, and she consequently had to sell 23 acres 68 cents of wet land under Ex. 1 to the 2nd defendant for the purpose of paying certain promissory notes and decree debts left owing by her husband when he died in 1917, and she further entered into a mortgage in favour of the 15 defendant for a similar purpose during the pendency of the present suit, which was instituted by deceased's daughter and daughter's son to obtain possession of the properties allotted to them under a family settlement alleged to have been arranged 13 days after the testator's death, or in the alternative to recover their legacies under the will, unencumbered by the sale, leases and mortgages to 2nd, 3rd, 6 and 15th defendants, respectively, and mesne profits for two years. The Subordinate Judge found for the plaintiffs and accordingly granted them a preliminary decree subject to the condition of their paying to 1 defendant Rs. 1,946 as their share of the debts amounting to Rs. 5,000 for which the testator was liable at the date of his death. The purchaser and the mortgagee (defendants 2 and 15) from the widow appeal. The argument put forward on their behalf was that, as the estate vested in the executrix from the date of the testator's death by virtue of the will, she could sell or mortgage his property to pay off his debts and could give the purchaser or mortgagee a good title.

(3.) As the will, with which we are concerned, was not executed by a Hindu within the City of Madras and does not relate to immoveable property situate within this Court's Original Side jurisdiction, the Hindu Wills Act has no application to it, and conseqently it was not made imperative by Section 187 of the Succession Act that the executrix should take out probate in order to establish her right to deal with the deceased's estate. Section 179, which speaks of vesting, does not apply to the will of a Hindu, but Section 4, which is the corresponding provision of the Probate and Administration Act, applies. Section 12 of that Act states that probate of a will, when granted, establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such, thus implying that they are not valid until probate is granted. I take this to mean that the executor of a Hindu will may do all acts which the will enjoins or permits him to do without any risk of having his authority to act qua executor questioned, but that if he exceeds his authority and does acts which the will does not expressly authorize him to do, such as the disposal of immoveable property requiring the permission of Court which can only be given under Section 90(2) , such acts are voidable at the instance of any person interested, unless and until the executor obtains probate or letters of administration and gets an order of Court to validate what he has done in the interval between the testator's death and the issue of probate or letters of administration. what acts an executor can under English Law do before obtaining probate are set out in Williams on Executors, Vol. I, at p. 213 to 215. They include the payment of debts owing by the deceased and the disposal of the testator's goods and chattels and real estate. An executor could always sell personalty in order to pay debts, and since 1897 he can sell, lease, or mortgage reality for that purpose (vide pages 693 to 704). His power of disposal is absolute, but as he cannot maintain an action before probate though he can be sued if he has intermeddled with the estate, it becomes necessary for probate or letters of administration (if he dies first) to be obtained in order to justify his actions as executor.