The executor's powers were regulated by rules relating to an executor, not a guardian, and obtaining Probate or Letters of Administration was not necessary for the executor to exercise powers under the Probate and Administration Act.

1. The plaintiff as legatee under a will sues to recover certain properties which were sold by the first defendant, his natural father and the executor under the will, to the second 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 first 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 second defendant has not contended that the sale was made by the first defendant in his capacity as guardian. We are of opinion that the finding on the question of limitation cannot be upheld. The first 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. Article 44 of the Limitation Act must therefore be held to be inapplicable. Mr. Govindaraghava Ayyar contends that Article 91 must govern the case. We cannot agree with him; we do not think that the plaintiff 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 hold it is not applicable. 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 second 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 second defendants conduct disentitled him to the protection which alienees from executors are entitled to under the law, If, therefore, the first defendant was at the date of the sale entitled to exercise the powers of an executor, the sale must be upheld, But it was argued by Mr. T.M. Krishnaswami Ayyar for the appellant that as Probate had not been obtained of the will or Letters of Administration taken out with the will annexed, the first defendant could not exercise the powers of an executor. He urges that the property of the deceased testator would vest in the first 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 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 ex