Judgement

Appeal (No. 91 of 1936) from a judgment and decree of the High Court in its appellate jurisdiction (December 7, 1934) affirming a judgment and decree of the High Court in its ordinary original civil jurisdiction (February 15, 1932).

The only question for decision in this appeal was whether a deed of mortgage, executed on April 11, 1927, by the respondents, Dhirendra Chandra Kerr and Narendra Chandra Kerr, as executors of the will of their father, Thakur Das Kerr, in favour of Sreemutty Indira Ghosh, now represented by the respondents, Prabas Chandra Mullick and Dulal Chand Aich, was a valid mortgage binding on the estate of Thakur Das Kerr and on the properties which were the subject of the mortgage.

Thakur Das Kerr, who died on October 5, 1919, had carried on a publishing and printing business under the name of R. Cambray & Co., and by his will, dated December 16, 1917, he appointed two of his sons to be executors (the above-named respondents) and authorized them to carry on his business. He died possessed of zemindary properties outside Calcutta, house property in Calcutta, Government promissory notes, War Stock, and shares in railways, banks and various companies, all of which he had acquired out of the profits of his business.

On April 11, 1927, the executors executed a mortgage in favour of Sreemutty Indira Ghosh of Nos. 11A, 11/1, Halder Lane, and Nos. 3, 5 and 6, Halder Lane, Calcutta, to secure a sum of Rs.65,000, with interest at nine per cent. The money so borrowed was to be used for the purposes of the business. In 1929 the mortgagee brought a suit on her mortgage in the High Court, and on July 5, 1929, she obtained a preliminary decree, and on August 18, 1930, a final decree.

In the meantime—namely, on August 31, 1929, the appellant, Sunil Kumar Kerr, and the respondents, Sisir Kumar Kerr and Sasadhar Kumar Kerr, who were all grandsons of the testator, being the sons of Narendra Chandra Kerr, one of the executors, as plaintiffs instituted in the High Court the suit out of which this appeal arose against their father and uncle, the two executors, the mortgagee, a puisne mortgagee, and various unsecured creditors and other members of the family, asking for (inter alia) construction of the will of Thakur Das Kerr, administration of his estate, and a declaration that the mortgage was invalid and not binding on the estate.

The facts and the terms of the will appear from the judgment of the Judicial Committee.

Ameer Ali J., who heard the suit, dismissed it as regards the declaration claimed.

On appeal by the appellant to the Appellate Bench of the High Court (Lort-Williams and Jack JJ.) the judgment of the Court was delivered by Jack J., who said that one of the points to be decided was whether the executors had authority to mortgage the immovable properties of the testators estate for the purpose of the business, and he considered that in the circumstances it was difficult to hold that the Calcutta house properties which were the subject of the mortgage could be regarded as quite unconnected with the business so as not to be available in order to raise funds for the business when required, and he therefore concluded that the trial judge was right in holding that the executors were authorized to execute the mortgage in question. The appeal is reported at ( 1934) I. L. R. 62 C. 552.

1939. Oct. 26, 27. L. P. E. Pugh K.C. and S. P. Khambatta for the appellant. When a testator simply states in his will that his business is to be carried on by his executors, they can only resort to whatever part of his estate was engaged in that business at the time of his death. In order, therefore, that a mortgage effected by the executors can operate to take away property from the legatees under the will, it must be shown that the testator had actively engaged that particular property in the business. The testator in the present case had never mortgaged his immovable property at all. It must be admitted that the property which wa