Marten, J.:— This appeal raises a short but important point on a Vendor and Purchaser Summons, viz., whether the executors of a Mahomedan will can validly sell and convey their testator's immoveable property without first taking out probate, or else obtaining the consent of all the heirs.

The testator was a Bombay, as opposed to a Kathiawar, Halai Memon. Consequently the succession to his estate is governed by Mahomedan law: Mahomed Haji Abu v. Khatubai: and that law is Sunni Mahomedan law. He made a will on the 5th November 1920 some twenty-four hours before his death. That will is exhibited to the joint affidavit of the three attesting witnesses sworn on the 30th September 1921 which we have admitted in evidence in this Court.

The will after appointing the appellants to be his executors and trustees and guardians of his two infant daughters directed his trustees to pay his debts and funeral and testamentary expenses and a certain sum for funeral and religious ceremonies. The testator further directed his trustees to collect and get in all his estate, and there out pay one-third to charity as therein mentioned, and divide the remaining two-thirds amongst his heirs according to Mahomedan law. The heirs of the testator are his above two daughters and his father.

On the 1st September 1921, certain Falkland Road property belonging to the testator's estate was sold by auction by the appellants to the respondent for Rs. 2,66,000 of which Rs. 66,500 was paid as deposit. The conditions of sale set out the position clearly and fairly, apart from the mortgage which I will mention later. They showed that the appellants were selling as executors of the will of a Halai Memon testator, and would convey as such. They expressly provided that the purchaser should not be entitled to call upon the vendors to apply for probate. They gave a list of the title-deeds other than the mortgage, and proper facilities for inspecting them. And they expressly provided that the purchaser should accept the vendor's title as disclosed by the said deeds and documents and should take the property with such title only as the vendors could give.

The purchaser signed the usual auction memorandum of sale and thereby agreed inter alia to complete the purchase according to the said conditions, and in all other respects fulfil the said conditions.

On the 17th September, the purchaser delivered some 13 requisitions, some of which at any rate were clearly barred by the conditions of sale. Requisition 1 for instance asked questions as to the title prior to the 4th July 1891 which were expressly barred by conditions 12 and 16. Requisitions 4 to 9 objected in effect that the vendors could not sell without the concurrence of the heirs or a grant of probate.

On the 24th September, the vendors replied stating that under condition 18, the purchaser was bound to accept the title and was not entitled to make any requisitions; and that accordingly they answered the requisitions without prejudice to their rights. Then followed full answers to the requisitions. Answer 12 stated that there was an outstanding mortgage for one lac which would be reconveyed prior to completion.

On the 26th September 1921, the purchaser took out the present Originating Summons to determine the main points in dispute. It was heard by the learned Chief Justice in Chambers on the 1st October, and decided in favour of the purchaser. Unfortunately we have no note of his judgment, if any. The note taken by the Judge's clerk runs as follows:

“P.C There is flaw in the title, which can be cured by all the heirs joining in the conveyance”.

“Question 1: Considering the provisions of Mahomedan law the property has not vested in the executors, and (one) cannot say whether this property is included in the one-third which the executors can dispose of without consent of heirs. If the heirs do not join, the plaintiff is entitled to his earnest money with interest at six per cent. Each party to pay his own costs”.

The formal order as drawn up follows that note, and from that order the present appeal is brought by the vendors. Under the Chancery practice such an appeal could not be presented against the decision of a Judge in Chambers unless either (a) he had certified that the case had been fully heard in Chambers, or (b) there had been a motion before him in Court to discharge his order made in Chambers. Unfortunately for the parties that practice does not prevail here, and accordingly we are deprived of the great advantage which we would otherwise have had of a reasoned judgment from the Chief Justice on a point which is of importance not only to the present litigants but also to the Mahomedan community at large.

Turning first to the facts we are of opinion that for the purposes of the present appeal the document Exhibit A to the joint affidavit I have referred to must be taken to be the last will of the testator. Not only is its execution deposed to in the joint affidavit. The purchaser's own plaint is founded on its being the last will; and so are the conditions of sale. Next it is clear that under that will the appellants are his executors.

Turning next to the Probate and Administration Act, 1881, section 2 provides that Chapters II to XII (inclusive) of that Act are to apply in the case of every Mahomedan such as the present testator. Chapter II opens with section 4 which enacts that the executor is “the legal representative for all purposes”, and that “all the property of the deceased person vests in him as such”. Section 90(1) and (2) in Chapter VI run as follows:—

“90(1) An executor or administrator has, subject to the provisions of this section, power to dispose, as he thinks fit, of all or any of the property for the time being vested in him under section 4.

(2) The power of an executor to dispose of immoveable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order”.

It will be observed that this section was substituted for the original section 90 by section 14 of the Probate and Administration Act VI of 1889.

Taking sections 4 and 90 alone it would seem clear that probate is unnecessary. In fact section 90(2) expressly contemplates that an executor may dispose of immoveable property without a grant of probate. But he is subject to any restriction imposed by the will, and that restriction he must comply with unless he obtains probate and gets an express order of the Court overriding it. It is not, however, contended, and could not be contended, that the present will contains any such restriction.

So, too, section 92 expressly provides for probate if only one of the executors is to act. It contains no such restriction when all the executors are acting as here.

What necessity is there then in the present case for the executors to take out probate? In the first place, the Probate and Administration Act contains no section corresponding to section 187 of the Indian Succession Act, 1865, which provides that no right as executor can be established in any Court unless probate be first granted. Nor was that an unintentional omission of the Legislature. That point was carefully considered and the history of the previous Legislation fully discussed in Shaik Moosa v. Shaik Essa, where the eventual finding of the Court was that the Probate and Administration Act enabled an executor of a Mahomedan will to establish his right in a Court of Justice without taking out probate.

If then he can do that, why cannot he sell under section 90? The respondent's answer is that under section 12, it is the probate which establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such, and that under section 59 it is the probate which is to be conclusive as to the representative title of the executor. Taking the Act, therefore, as a whole, they say it contemplates the necessity for probate.

To a large degree these arguments are concluded by the judgment and reasoning of Sir Charles Sargent in Shaik Moosa's case with which I respectfully concur. As regards section 12 it is a commonplace of English law that an executor derives his title from the will and not from the probate (see Halsbury, Vol, XIV, pp. 144, 145). Accordingly in Shaik Moosa's case the learned Judge says at p. 254:—

“The section appears to us to be intended to be a condensed statement of the English law, which regards probate as the authenticated evidence of the will itself from which the executor derives his title, and by virtue of which the property of the testator vests in him from the death of the testator”.

Then at p. 255 after quoting section 4, the learned Judge describes it as “a provision which enables the executor before probate to give a valid discharge to the debtor, and places him in the same position in that respect as an executor by English law”.

It is true that section 59 is not expressly mentioned, but in my judgment that section carries the matter very little further. It is of course of importance because it provides in effect that probate is to be conclusive evidence of the executor's title. But it does not negative his title in the absence of probate, for that title is, as I have said, derived from the will. Even under an open contract, I doubt whether the purchaser could require probate. For instance under English law prior to the Land Transfer Act, 1898, a purchaser from a devisee of real estate could not require the will to be proved in equity against the heirs at law, except under special circumstances (see Dart's Vendors and Purchasers, 7th Edn., Vol. I, p. 359). However that may be, — and I decide nothing as to that — the present case is not one of an open contract. The purchaser has bought subject to special conditions which expressly debar him from obtaining this best proof. He must, therefore, fall back upon an inferior proof, viz., that of the existing affidavit and be content with that.

Two other cases were cited to us, viz., Mirza Kurratulain Bahadur v. Peara Saheb and Sakina Bibee v. Mahomed Ishak. In the former case the whole point was whether probate estopped the heirs of a Mahomedan testatrix from claiming, as against a third party, moneys which he had obtained by undue influence from the testatrix, of whose will he was appointed executor. Their Lordships held that there was no such estoppel. The executor when he had realised the estate was a bare trustee for the heirs as to two-thirds, and an active trustee as to one-third for the purposes of the will. The heirs quoad those two-thirds were claiming not under the will but adversely to it, and consequently could not be estopped from claiming two-thirds of the money which the executor had improperly obtained from the testatrix in her life-time. Their Lordships had not to consider there the effect of an unproved will. Still less had they to consider an executor's power of sale. I decline, therefore, to regard the case as a decision that probate of a Mahomedan will is essential.

In Sakina Bibee's case the actual decision of Mr. Justice Pugh was that there is no provision in law rendering it obligatory in the case of a Mahomedan will to take out probate, and that accordingly it is admissible in evidence notwithstanding that no grant of probate has been obtained. In that decision I respectfully concur. But the learned Judge proceeded to consider what would be the position in law of such an executor, and the conclusion which he arrived at was that the executor would occupy the same position as that before the Probate and Administration Act, 1881, viz., that of a mere manager or agent. This conclusion seems to be obiter, for the only point for immediate decision was whether the will was admissible in evidence. But however this may be, and with all respect to the learned Judge, I am quite unable to agree with this conclusion. On the contrary, I think the position of a Mahomedan executor is governed by the Probate and Administration Act, 1881, whether or no he takes out probate. Thus as stated by Sir Charles Sargent in Shaik Moosa's case at p. 254 “the object seems to have been to frame an Act which would be applicable to all natives of this country, whilst leaving the existing law as to those Hindus, to whom the Hindu Wills Act applied, untouched”, and at p. 256 “since the passing of act v of 1881 the powers of Mahomedan executors in cases in which that Act applies are no longer determined by Mahomedan law, but by the provisions of that Act”.

In the result, therefore, I am of opinion that under section 4 the suit property vested in the appellants, and could be sold and conveyed by them under section 90, and that no grant of probate is necessary either under section 12 or section 59 or otherwise.

It remains to consider one further point. Assuming probate be granted, could the executors even then sell without the consent of the heirs? From the short note before us, this would seem to be the difficulty which was present to the mind of the learned Chamber Judge. The point has not been pressed before us and in my opinion the apparent difficulty disappears on investigation. The present is a case of testate succession and not of an intestacy. Executors have been appointed and consequently the right of the heirs is not to an aliquot two-thirds of all the testator's assets at his death. The debts and funeral expenses, & c, have first to be paid, and then the estate realised, and it is only to two-thirds of such net assets that the heirs are entitled (see Mirsa Kurratulain Bahadur v. Peara Saheb). Consequently until such two-thirds are ascertained, the executor is prima facie entitled to exercise his wide powers of disposition under section 90. In the present case the auction sale was effected within the executor's year. Further it is clear that there are some debts, for the answer to requisition 12 shows the existence of a mortgage of one lac.

Under English law a purchaser of leaseholds would get a good title from an executor and would not be entitled to ask for proof of debts (see In re, Venn & Furze's Contract). Nor would he if the executor was selling freeholds under a charge of debts and legacies unless over twenty years had elapsed from the testator's death (see In re, Tanqueray-Willaume and Landau). And now since the Land Transfer Act, 1898, has vested realty in executors, substantially the above rule as regards leaseholds applies also as regards freeholds, whether or no there is a charge of debts.

So, too, in the present case I have no doubt that the purchaser will get a good title from the executors, and cannot be disturbed by the heirs. If the heirs have any grievance their remedy should be against the executors, and not against the purchaser. But probably as an additional precaution an English conveyancer would advise the purchaser to have the existing mortgage kept alive rather than reconveyed (see Halsbury, Vol. XXI, p. 323 and Gokuldoss Gopaldoss v. Rambux Seochand). Under the above circumstances it is unnecessary to consider the effect of the special conditions of sale, nor whether on the face of those conditions the purchaser could in any event recover his deposit (see In re, Scott and Alvarez's Contract: Scott v. Alvarez).

In my judgment the respondent has been wrong throughout, and accordingly this appeal should be allowed with costs here and below. The formal questions in the Originating Summons should be answered as follows:— 1, 2 and 3, yes, subject to the mortgage referred to in the vendor's answer No. 12 being reconveyed or transferred. 4 and 5, no.

Fawcett, J.:— I agree and have very little to add. The view taken by this Court in Shaik Moosa v. Shaik Essa has been followed by the Calcutta and Madras High Courts in Sakina Bibee v. Mahomed Ishak and Ganapathi Aiyar v. Sivamalai Goundan respectively. section 90 of the Probate and Administration Act, 1881, is, in my opinion, conclusive as to the power of the executors to sell the immoveable property in question and give a good title to the purchaser.

It is interesting to notice that originally this section 90 gave much less extensive powers to executors to deal with the testator's property than those now conferred, and made the consent of the Court necessary to every disposition of property by him unless probate was taken out and the executor exempted by the Court from the necessity of obtaining such consent. The present section was substituted by the Amending Act VI of 1889, and the change was, therefore, deliberate. In the present case there is no restriction in the will on the power of the executors to dispose of the immoveable property, so it is quite unnecessary under the terms of that section for the executors to take out probate. I may further refer to Shri Beharilalji v. Bai Rajbai and In the Goods of Indra Chandra Singh(5) which lay down that, in the absence of any restriction in the will, section 90 gives full power to an executor to sell immoveable property as if he were the owner. I do not think this view is in any way weakened by the Privy Council decision in Kurrutulain Bahadur v. Nuzbat-ud-Dowla Abbas Hossein Khan(6), for in that case their Lordships recognised that an executor of a Mahomedan testator's will can realise the estate of the deceased under section 90 of the Probate and Administration Act, though the testator can only deal with one-third of the property and the remaining two-thirds passes to his heirs, whatever the terms of the will may be. They say (p. 128):

“Thus the executor, when he has realised the estate, is a bare trustee for the heirs as to two-thirds, and an active trustee as to one-third for the purposes of the will”.

The words “when he has realised the estate” clearly show that their Lordships did not take a different view as to the power of the executor to sell in order to realise the estate.

I agree, therefore, in the answers and the order proposed by my learned brother.

Solicitors for the appellants: Messrs. Captain & Vaidya.

Solicitors for the respondents: Messrs. Ardeshir, Hormusji, Dinshaw & Co.

Appeal allowed.

G.G.N