UMAMOYI DASSYA Vs. RAJA JANKI BALLAV SEN

JUDGEMENT

(1.) The, appellants in this case are the daughter and daughter's son of one Nil Chandra Shall a who died in. 1881, having made a Will of which the 1 defendant, one Bhairab Chandra Shaha, was appointed executor, and took probate. The suit was brought on a mortgage bond, dated the 12 December, 1903. and executed by Bhairab Shaha, both for plaintiff and as executor of the Will of Nil Shaha. The Subordinate Judge of Rangpur has decreed the suit. The 1 defendant, who contested the suit in the Lower Court, has not appealed. The appellants are the heirs of Nil Shaha who were made parties to the suit at their own request.

(2.) The execution of the bond, for consideration is not denied, but for various reasons it is contended that it is not binding on the heirs of Nil Shaha. Several points were taken by the learned pleader for the appellants, but it will not be necessary to deal with them seriatim, as our decisions on the principal points will conclude the appeal. The first question that arises for decision is whether the 1 defendant at the time he executed the bond in suit, was still executor or not. On this question in our opinion there is no room for doubt. The estate has clearly not been completely administered, and one debt at any rate was still unpaid when the suit was instituted. Reliance is placed, however, on certain proceedings taken by the widow of Nil Shaha against the executor. According to the Will the executor was to make over the estate to the two sons of the testator on their attaining majority. No provision was made for the contingency of their dying before coming of age. After one of the sons died the mother applied for revocation of the probate because it had become inoperative with respect to the share that would have gone to the son that died. This was refused. She then sued for accounts and obtained a decree for half the net profits, which the Court considered that the executor must have received. It is argued that this decree was equivalent to reducing the estate into the possession of the legatees, so far as the share of the deceased son was concerned. We are unable, however, to accept this contention. Probate is granted of the whole Will, and administration of the whole estate of the testator; and no authority has been shown us for supposing that they became ineffectual by degrees, as the various legatees die, or obtain their legacies. Until the estate has been administered and the Will carried into effect, it would seem that the administration must be regarded as incomplete and the executor as clothed with the powers given him by the law. 2. In the second place we are unable to regard the decree for an account, and thereafter for certain moneys found to be due, as reducing the legacy left to the second deceased son into possession. The executor continued to be in possession of the property and to deal with it as before. His position with respect to it remained unchanged and we see no reason for supposing that it was converted from that of an executor to one of a guardian manager of the deceased son's heirs.

(3.) We think, therefore, that at the time that the bond was executed the 1 defendant was in the position of an executor. We have next to decide whether his acts are binding on the estate.