The executor had the power to sell the estate for administration purposes, and the limitation under Article 44 of the Limitation Act was not applicable.

1. The plaintiff, as legatee under a Will, sues to recover certain properties which were sold by the 1st defendant, his natural father and executor under the Will, to the 2nd defendant in 1897. The suit was instituted in 1908. The plaint alleged that the sale was not binding on the plaintiff. The second defendant contended that the 1st defendant had authority to sell and that the sale was made for discharging certain debts due by the deceased testatrix. The District Munsif held that the sale was not binding on the plaintiff and gave a decree in his favour. On appeal, the District Judge disposed of the case on the question of limitation, He held the suit barred as it was instituted by the plaintiff more than three years after the date of his attaining majority; he regarded the suit as, one to set aside an alienation made by a guardian and applied Article 44 of the Limitation Act. The 2nd defendant has not contended that the sale was made by the 1st defendant in his capacity as guardian. We are of opinion that the finding on the question of limitation, cannot be upheld. The 1st defendant was executor and he had the powers of an executor. His right to deal with the estate must be regulated by rules relating to the powers and duties of an executor subject to any express provisions that may be contained in the Will. There are in the Will in this case no provisions either restricting or extending the scope of the executors powers. The act cannot be regarded as having been done by the executor as a guardian when his powers were regulated by the rules relating to an executor.

2. Article 44 of the Limitation Act must, therefore, be held to be inapplicable. Mr. Govindaraghava Iyer contends that Article 91 must govern the case. We cannot agree with him. We do not think that the plain, tiff could not succeed in recovering the property without setting aside the alienation. The alienation was not one made by him or by any one from Whom he claims the property as heir. The executors alienation would be binding on the plaintiff if it was valid; if it was not, it would have no effect as against him. It cannot be held to be a transaction binding on him until he set it aside, although, no doubt, he could ratify the act done by the executor. No authority has been cited in support of the application of Article 91 in such a case. We bold it is not applicable.

3. The District Judge has not recorded any finding on the merits of the case, that is, on the question whether the alienation is binding on the plaintiff. We propose to decide the question ourselves instead of remanding the case for decision by the Appellate Court. The plaint does not contain any allegation that the 2nd defendant was aware that the sale was not a proper act of administration and was not required for the purpose of discharging debts of the deceased. Undoubtedly, the plaintiff was bound to allege it and the onus would be on him to show that the 2nd defendants conduct disentitled him to the protection which alienees from executors are entitled under the law. If, therefore, the 1st defendant was, at the date of the sale, entitled to exercise the powers of executor, the sale must be upheld. But it was argued by Mr. T.M. Krishnasami Iyer for the appellant that as Probate had not been obtained of the Will or Letters of Administration taken out with the Will annexed, the 1st defendant could not exercise the powers of an executor. He urges that the property of the deceased testator would vest in the 1st defendant only if and when he took out Probate or Letters of Administration and as he never did so, he never became possessed of the status and powers of an executor. We are unable to uphold this contention. There is no provision in the Probate and the Administration Act, which requires a person appointed as executor under a Will to take out Probate or Letters of Administration. Section 187 of the Indian Succession Act which provides that no right as legatee or executor under a Wil