TMI Blog1922 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ayan Salgram. My heirs or representatives shall not have any claim, demand; or right to or on all those properties; neither shall all those properties be sold for the debt of any one (of them) and no one shall be entitled to give away or sell the same and mortgage the same and none shall have any objection. Only from the income of the said properties, the sheba and other ceremonies on the festival occasions of the said idol shall be performed for ever, according to the rules introduced by me. If for any reason the said idol disappears, not being found out, then any; one of the shebaits named below fin the Will: in whose time the said Uri to ward event shall take place, shall, on consecrating another Narayan Idol, perform such sheba, festivities and other acts, And for the performance of all those acts, I appoint Srimati Brajamati Dasi, my eldest wife, and Srimati Dwarika Sundari Dasi, my youngest wife, and Sriman Hiranmoy Pramanik, my Damusyayan adopted son, these three persons, as sheba its executrixes and, executor. Of these three persons, first my eldest wife Srimati Brajamati Dasi, and on her death my youngest wife Srimati Dwarika Sundari Dasi for her life time, and on their de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umati, the wife of Hiranmoy, applied for Probate on behalf of her infant sons, Narendra and Dhirendra. On the 14th March 1906 the District Judge held on the evidence that the Will had been executed as alleged, but he refused Probate on the ground that the original Will was not produced before the Court and the application was not made by the persons named therein as executor and executrixes. On appeal to this Court, this order was confirmed on the 27th February. 1908 by Sir Brands Maclean, C.J., and Doss, J. Of the 26th June 1916 an application was made for Letters of Administration with copy of the Will annexed by one Nahus Chandra Kundu and the two sons, of Hiranmoy, mmely, Narendra and Dhirandra. The application recited that the persons named' as executor and executrixes had wasted the estate, contrary to the provisions of, the Wilt, and were consequently not likely to apply for Probate. The applicants accordingly sought, to establish the Will so that the religious trust might be, carried; out, and they prayed; that fetters of Administration with copy of the Will annexed might be issued to them, limited under Section 41 of the Probate and Administration Act, to the debuttar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. The Subordinate Judge has negative these contentions and has decreed the suit. The points urged on behalf of the defendants in the Court below have been reiterated in this Court in support of the appeal. 5. As regards the first point, the Subordinate Judge has held that the defendants have not acquired a title operative against the debuttar created by the Will. In cur opinion, this, position cannot be seriously controverted. Section 4 of the Probate and Administration Act provides that the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. Section 12 provides 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. Section 14 prescribes that letters of Administration entitle the administrator to all rights belonging to the inter state as effectually as if the administration has been granted at the moment after his death. Section 15 provides that Letters of Administration do not render valid any intermediate act of the administrator tending to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flower. (1735) 3 P. Wms. 360 : E.R. 1105 , is thus no escape from the position that when Letters of Administration with copy of the Will annexed were granted, on the 30th July 1917 the Will of Pramanik was established from the 29th April if 1894 when the testator dies; and with effect from that very date, the disputed properties became absolutely vested, as debuttar, in the deity, Iswar Ivakshmi Narayan. As the: Subordinate Judge has pointed out, the dedication was of the strictest character. The, debuttar was perfect and absolute; in other words, as Sir Arthur Wilson observed in Jagadindra Nath Roy v. Hemanta Kumari Debi 31 I.A. 203 : 32 C. 129 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : A.L.J. 765 : A.I.R. 585 : 8 Sar. P.C.J. 689 (P.C.) the dedication was of the complete kind known to the law. The properties were made expressly inalienable and not liable to seizure for the personal debts of the heirs of the testators. The devolution, of the sheba it ship was, at the same time, carefully prescribed. The eldest wife, Braja. Sundari, the junior wife, Dwarika Suhdariv the adopted son, Hiranmoy, and :his lineal descendants, were success that acts sheba its. In the absence of all of them, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohn (1898) 2 Ch. 573 at P. 576 : 67 L.J. Ch. 616 : 79 L.T. 362 : 47 W.R. 52 : 14 T.L.R. 583 relied on by the appellant, do not assist his contention, for, in cases of real estate coming within the operation of the Land Transfer, Act. 1897, in the absence of and until the constitution of a personal representative of the, deceased, the legal estate devolves on the heir-at-law, and upon administration being taken out the grant has the effect of vesting the land, in the administrator by relation, so as to enable him to bring actions in respect of that property for matters affecting the same, subsequent to the death of the interstate: In the Goods of Pryse (1904) P. 301 : 73 L.J.P. 84 : 90 L.T. 747 Nor can the appellant successfully invoke the aid of the familiar doctrine that if a trustee having the legal estate in fee simple, conveys trust property to a purchaser for value without notice of the trust, the, beneficiary has copyright in equity against such purchaser, as the right of the beneficiary to the land is lost immediately on such conveyance; Maniklal Atmaram v. Manchershi Dinsha I.B. 269 : I Ind. Dec. 179 Here there was plainly no conveyance, of trust property by a trustee with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Judicial Committee held that so long as the compliance with the section, was prior to decree, the fact that it was after the, institution of the suits made no difference, and the Court was fully competent to deal with the suit. The same view was adopted by the Judicial Committee in Soona Mayna Kena Roona Meyappa Chetty v. Soona Navena Suppramaman Chetty 35 Ind. Cas. 323 : 43 I.A. 113 : 20 C.W.N. 833 : (1016) 1 M.W.N. 455 : 18 Bom. L.R. 642 : (1916) 1 A.C. 603 : 85 L.J.P.C. 179 : 114 L.T. 1002 (P.C.) A similar view had been adopted before these decisions of the Judicial Committee in the cases of Baroda Prosad Banerji v Gajendra Nath Banerji 1 Ind. Cas. 289 : 9 C.I.J. 383 : 3 C.W.N. 557. Cham Chandra v. Sarat Chandra Singh 8 Ind. Cas. 87 : 12 C.I.J. 537 and Jamsetji Nassarwanji v. Hirjibhai Navroji 19 Ind. Cas. 406 : 37 B. 158 : 15 Bom L.R. 192. Reference tnvyalsobe made in this connection to Pattan v. Pattan (1833) 1 Alc. Nap. 493; Easton v. Carter (1850) 5 Ex. 8 : 1 I.M. . P. 222 : 19 I.J. Ex. 173 : 155 B.R. 4.; Webb v. Adkins (1854) 14 C.B. 401 : 2 Com. L.R. 202; J.H.J.C.P. 96 : 2 W.R. 225 : 23 : 60 139 E.R 165 : 98 R.R 674; Newton y. Metropolitan by. Co., (1861) 1 Dr. Sm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continued in possession as before. We need not consequently discuss whether the mortgage of the 18th September 1901 could be treated, in the circumstances of this case, as transfer by a trustee within the meaning of Article, 134. It is, further plain that the purchase by the appellant, who bought at the execution sale on the 9th March 1905 can in no sense by treated as a transfer; by the trustee under Article 134; for it is well settled that the Article does not apply to forced sales in execution of decrees: A Hamed Kutti v. Raman Nambud i 25 M. 99 : 11 M.L.J. 323 ; Kalidas Mulick v. Kimhaya Lal 11 I.A. 218 : 11 C. 121 : 8 Ind. Jur 638 : 4 Sar. P.C.J. 578 : 5 Ind. Dec. 839 ; Sheo Nath Singh v. Muhipal Singh 2 A.L.J. 234 : (1995) A.W.N. 56; Kanrtiisami Thanjiraydn v. Muthusami Pillai 38 Ind. Cas. 194 : (1917) M.W.N. 515 L.W. 250. It is also worthy of note that if the purchase by the appellant as the execution sale could be treated as a transfer governed by Article 134, the suit would not be barred, as the execution sale took place on the 9th March 1905 and the suit was instituted on the 6th March 1917. There is thus no escape from the conclusion that Article 134 cannot be applied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. The sale certificate, dated the 19th September 1905 was not produced in this litigation, but was exhibited in the Probate proceeding instituted on the 27th June 1905 which ultimately came up to this Court and was heard by Maclean, C.J., and Doss, J. The sale Certificate was then produced by the present appellant as his title deed, and we have been referred to its terms from the paper book in the appeal preferred to the High Court on that occasion. The certificate which was granted under Section 316 of the Code of Civil Procedure, 1882, recites that the sale was held on the 9th March 1905, and became absolute on the 16th September 1905. Under Section 316 of the Code of 1882, which differs in this particular from Section 65 of the Code of 1908, title vested in the purchaser, as between parties to the suit, from the date of the certificate and not before, that is, from the 19th September 1905. The purchaser, we may assume, was put in possession by the Execution Court; on a subsequent date under Section 318 of the Code of 1882. As this suit was instituted on the 6th March 1917 the possession of the appellant himself could not, on that date, have been adverse to the plaintiff fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 235 which affirmed the decision in Manohar Mookerjee v. Peary Mohan Mookerjee (1821) 5 B. Ald. 204 : 24 R.R. 325 : 106 E.R. 116 and explained the nature of the relationship of the shebait to the idol, and his duty to ensure that the estate be safe-guarded and kept in proper custody. The adverse possession of a person so situated in relation to the debuttar estate is fundamentally different in quality from the hostile holding of a stranger claimant, and it would obviously be unsound on principle to tack together the possession of persons who stand in entirely different categories. From this stand point, it is not necessary to rely upon the principle enunciated in an attractive form by Abbot, C. J., in Murray v. East India Co. (1821) 5 B. Ald. 204 : 24 R.R. 325 : 106 E.R. 116, namely, that there is no cause of action until there is a party capable of suing, so that the Statute of limitations begins to run from the time of granting the Letters of Administration. A similar view was in essence indicated by Bosanqttet, J., in Jewun Doss Sahoo v. Shah Kubeer-ood-deen 2 M.I.A. 390 : 6 W.R. 3 (P.C) 1 Suth. P.C.J. 100 : 1 Sar. P.C.J. 206 : 18 E.R. 348 It may be difficult to fit this view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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