1. In this case we see no reason to differ from the findings of the learned Subordinate Judge. The mortgage in suit appears to have been properly executed. The consideration is proved to have been paid. The lady was known to one of the witnesses and there is no question about her proper identification. There was evidence that the document was read over to her; it was a Bengali document read over to a Bengali lady. There is no further necessity for proving that the document was explained. She knew that she was borrowing money on mortgage. The mortgage was executed by Nabi Buksh and Samiran Bibi in her personal capacity and also as the guardian of her three sons who were minors at that time. Nabi Buksh and Samiran Bibi are dead. One of the three minor sons, namely Rahim Buksh, is also dead. The two defendants Kader Buksh and Hiatu Buksh are representatives and heirs of Haji Alum, Nabi Buksh and Samiran Bibi.
2. The learned Subordinate Judge has held that there is no reliable proof to show that:
“the loan evidenced by the mortgage bond was taken for any legal necessity; or that it operated to protect the interest of the minors in any way; or that they were benefited thereby.”
3. He has therefore rightly held that the mortgage did not bind or affect the interests of the minors in the mortgaged property. It however binds the interests of Nabi Buksh and Samiran Bibi. He has, accordingly, decreed the suit to the extent of 5-annas 10-gandas share of the mortgaged property, in which he is right. Before the Subordinate Judge, although the order for grant of letters of administration was proved, the actual letters of administration were not produced. They have now been produced before us. The order is dated 30th September 1896. The actual date of the grant is the 12th February 1897. That was over a month after the execution of this deed. The deed was not executed by Nabi Buksh as administrator but as heir, and the fact that the executing parties are named there who were the heirs of Haji Alum shows that it was not the intention of the parties to execute the deed except as heirs of Haji Alum, the former owner of the mortgaged property.
4. It is clear law that the administrator gets his title from the grant. An administrator has no power to administer the estate until the letters are granted to him. The distinction between the effect of a probate and the effect of the letters of administration is clearly shown by a reference to Sections 12, 14 and 15 of the Probate and Administration Act; while the probate of a will renders valid all intermediate acts of the executor as such, letters of administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate's estate, although they entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. In this connexion, amongst others, the case of Chuni Lal Bose v. Osmond Beeby (1) may be referred to. We are not concerned with defendant 5 who has not appeared before us, and the learned Subordinate Judge was quite right in considering that it was not necessary to determine her alleged title to these properties. The appeal is therefore dismissed with costs.
V.B/R.K
5. Appeal dismissed.