UPENDRA NATH BISWAS Vs. SHIB KUMARI DEBI

JUDGEMENT

(1.) This appeal arises out of a suit upon a mortgage-bond executed by defendants Nos. 1 and 2 for selves, as executors to the estate of their father and as certificated guardians of their four minor brothers, the defendants Nos. 3 to 6. The suit has been decreed by both the Courts below against the defendants, and defendants Nos. 3 to 6 have appealed to this Court.

(2.) It is contended on behalf of defendants Nos. 3 to 6 that they were minors at the date of the mortgage bond, that defendants Nos. 1 and 2 who had obtained a certificate of guardianship did not obtain sanction of the Court for the mortgage and that, therefore, the mortgage was not binding upon them.

(3.) Before dealing with this contention, we have to consider the powers of the defendants Nos. 1 and 2 under the Will, as they executed the mortgage bond not only as certificated guardians of the minors, but also as executors. By the Will it was provided that all the brothers would be "entitled to what remained after performing the obsequial ceremony." The two elder brothers (the defendants Nos. 1 and 2) were appointed guardian? of the minors, and they were directed to manage the estate during the minority of the younger brothers and were given the power of transferring the two Mahals specified in the Will for paying off debts. The mortgage was executed 10 years after the death of the testator, and before the date of the mortgage the defendants Nos. 1 and 2 had taken a certificate of guardianship in respect of the property of the minors, thus treating the estate to have been absolutely vested in the brothers. We think that in these circumstances the real position of the defendants Nos. 1 and 2 at the date of the mortgage was that of guardians and managers and not that of executors. But even assuming that the position was that of executors, we are of opinion that the Will imposed a restriction on their power to mortgage. Under Section 90. Sub-section (2) of the Probate and Administration Act, the power of an executor to dispose of immoveable property 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 immoveable property specified in the order in a manner permitted by the order." In the second paragraph of the Will the executors were authorised to grant a permanent settlement of or sell two Mahals specified in the Will for the purpose of liquidating the testator s debts. There is no express restriction on their power to mortgage, but the restriction need not be express and the question is whether having regard to the terms of the Will there was my implied restriction on the power of the executors to mortgage the property. The testator in the second paragraph of the Will states that ha had debts amounting to about Rs. 9,000, that the annual interest payable thereon exceeded the income of his property, that there was little means of paying off the debts and that, therefore, the executors should save him from the sin of debt by granting some permanent settlement of or by sale of the two Mahals specified in the Will.