Judgement

Appeal from a judgment and decree of the High Court (January 25, 1910) reversing a judgment and decree of the High Court in its ordinary original jurisdiction (February 15, 1909).

The suit was brought by the respondent for a declaration of her title to an equal undivided half share of a house in Calcutta, and for recovery of the premises from the appellants.

The property in suit had formed part of the estate of a testator who died in 1886, and had been sold and conveyed in 1900 to the appellants by the sole surviving executor of the testator, who was beneficially interested in the estate, there being joined with him in the conveyance other persons so interested. The con veyance, which was dated December 12, 1900, did not purport to be made by the executor in that capacity, but it stated that there were sold and conveyed "all the estate, right, title, interest, claim and demand whatsoever of the vendors" in the property. The circumstances under which the sale was made and the terms of the conveyance appear from the judgment of their Lordships.

It was admitted that the respondent had been entitled to a half share in the property, which had been her mothers stridhan.

The suit was dismissed by the trial judge, Stephen J., he being of opinion that the terms of the conveyance passed the whole of the executors interest as executor.

On appeal to the High Court in its appellate jurisdiction this decision was reversed, and a decree made declaring the respondents right to a moiety of the house and premises. The learned judges (Jenkins

C.J. and Woodroffe J.) were of opinion that the conduct of the parties and the contents of the deed indicated that the intention of the conveyance was only to convey the beneficial interest of the executor and the other vendors. The case in the High Court is reported at I. L. R. 37 Calc. 362.

Sir R. Finlay, K.C., and Dube, for the appellants. The deed in terms conveys the whole title vested in the vendors, and the High Court was not entitled to infer from the circumstances or from the language of the deed that the intention was not to convey the entire title vested in the executor Preonath Karar

v. Surja Coomar Goswami (( 1891) I. L. R. 19 Calc. 26.); Probate and Administration Act (V. of 1881), s. 90. But even if the conduct of the parties and i he general language of the deed can validly be considered, they do not shew that the intention was to convey only the beneficial interest of the executor. [Maynes Hindu Law, 7th ed., p. 900, was referred to.]

De Gruyther, K.C., and Dunne, for the respondent. The executor did not by the conveyance purport to convey the property as executor. The executorship had in fact come to an end, and the executor retained possession of the property on behalf of himself and the other vendors as beneficiaries and the conveyance only passed their interests as beneficiaries. The evidence shews that the executor had assented to the legacy to Katyani Dassee, the respondents mother, and the property thereupon became vested in her.

Sir R. Finlay, K.C., in reply. The argument that the property had vested in Katyani Dassee is entirely inconsistent with the respondents pleading.

The judgment of their Lordships was delivered by

LORD MOULTON. This is an appeal in a suit brought by the respondent against the appellants for a declaration of her title to an equal undivided half part or share in a certain house and premises known as 8, Sobharam Bysacks Street, Calcutta, and for recovery of the premises from the appellants, in whose possession they were at the commencement of the suit, with an inquiry as to mesne profits. The facts of the case, so far as they are material, are not now in dispute, and are as follows The house and premises originally belonged to Prem Chand Bysack, who died on June 13, 1886, leaving a will dated October 25, 1884. By his will the said testator devised and bequeathed the said house and premises " to his daughter Katyani Dassee and her heirs absolutely," sub