This is an appeal on behalf of the first three Defendants in a suit for construction of the last Will of Bishambhar Banerjee, for partition of his estate, for accounts, and for other incidental reliefs. Bishambhar Banerjee died on the 28th of August 1883 and left an estate of considerable value. The relationship between his descendants who are parties to the present litigation is indicated in the following genealogical table.

On the 6th of January 1886, three of his grandsons, Baroda, Kishori and Kunjabehari who were at the time infants, applied through their mother and certificated guardian, Binodini, for probate of a Will alleged to have been executed by him on the 21 St of December 1882. This application was opposed by four other grandsons, viz., Bama Churn, Nemai Churn, Bejoy and Shosi, the last two then infants represented by their mother and guardian Manmotha. These latter persons on the 31st of March 1886 made an application for letters of administration to the estate of the deceased testator on the basis of a Will alleged to have been executed by him on the 25th of August 1883. The first suit for probate of the Will of the 21st of December 1882 was numbered suit No. 9 of 1886 of the Court of the District Judge of Hughly; the second suit was numbered suit No. 10. On the 27th of August 1887, the District Judge dismissed with costs suit No. 10. An appeal against his decision, preferred to this Court, was dismissed with costs on the 28th of December 1888. The result consequently was that Baroda, Kishori and Kunja became entitled to a large sum of money from Nemai Churn as costs of the litigation which had terminated in their favour. Nemai Churn did not amicably pay up this sum, and in 1899, Binodini, on behalf of her infant sons, took out execution of the decrees for costs. On the 16th of February 1899, some properties of Nemai Churn to which he had become entitled under the Will of his grandfather, Bishambar, were sold in execution, and purchased by the decree-holders. This sale was confirmed on the 15th of December 1899. We are informed that an application was made to set aside these sales on the ground of fraud under sec. 244 of the. Code of Civil Procedure, but the attempt proved infructuous, as the fraud alleged was not established. It is now necessary to go back for a moment to the proceedings in suit; No. 9 of 1886, in which Binodini, on behalf of her infant sons, Baroda, Kishori and Kunja, applied for probate of the Will of the 21st of December 1882. In the course of this suit Nemai Churn applied on the 19th of February 1886 to be appointed administrator pendente lite An order was made in his favour, but he failed to avail himself of the benefit of it, and on the 7th of August 1886, the District Judge revoked his appointment and cancelled the certificate previously issued to him. Subsequently, Benodini herself was appointed administratrix pendente lite, and she acted in that capacity from the 5th of September 1886 to the 21st of May 1888. Meanwhile, on the 30th of August 1887, that is, three days after the Will of the 25th of August 1883 had been pronounced invalid by the District Judge, an order had been made for issue of letters of administration to Binodini to continue during the minority of her sons who were executors under the Will of the 21st of December 1882. After enquiry into the value of the estate and approval of the security bond, letters of administration were issued to Binodini on the 22nd of May 1888, and she continued to act in that capacity till her death on the 5th of November 1901. We have called for, at the instance of the parties, the records of both the previous suits, one of which alone, as already stated, came: up to this Court and was finally disposed of on the 28th of December 1888. From the record of the other suit in which Binodini obtained letters of administration, we find that on the 4th of July 1890, she filed an inventory of the estate which had come into her hands, and also a statement of accounts from the 5th of September 1886, that is, the date when she was first appointed administratrix pendente lite, to the 12th of April 1890. On the 12th of August 1892, she filed a statement of accounts for the year 13th of April 1890 to 12th of April 1891. On the 5th of July 1900, she again filed statements of accounts from the 13th of April 1898 to the 12th of April 1899. These inventories and accounts are all on the record and: are duly verified by Binodini herself. No accounts appear to have been filed by her for the period which intervened between the 13th of April 1899 and 5th of November 1901 when she died. Immediately upon her death, her three sons, who had then attained majority, applied, for issue of probate to themselves as executors. An order was made in their favour on the 21st of December 1901, and on the 4th of January 1902 the probate was issued to them. On the 30th of April 1903, the District Judge called upon them to submit a full and true inventory as also the accounts of the estate as required by sec. 98 of the Probate and Administration Act. On the 29th of May 1903, the executors filed an inventory as also statements of accounts for the period which intervened between the 4th of January 1902 and the 12th of April 1903, So far as we can gather, the executors do not appear to have filed a statement of accounts for any subsequent period.

The present action was commenced by the son of Bama Churn on the 10th of December 1906 for construction of the Will of Bishambhar, for determination of the rights of the parties thereunder, for accounts, for partition of the properties and also for ad interim administration, or in the alternative, for the appointment of a receiver. The executors, who were the first three Defendants, denied liability to render accounts for the period during which their mother was administratrix and also challenged the validity of the construction placed by the Plaintiff upon various provisions of the Will and of the legal effect attributed by him to various transactions which took place during the time of the administratrix. The other Defendants took up an independent position, and upon some points challenged the views put forward by the Plaintiff as well as those of the Defendants executors. The learned Subordinate Judge framed twelve issues, and after decision on the merits, made a preliminary decree for partition and settlement of accounts.

The executors, Defendants, have now appealed to this Court, and the other Defendants who are the representatives of Nemai Churn have preferred a memorandum of cross-objections under sec. 561 of the Code of Civil Procedure. On behalf of the Appellant the decision of the learned Sub-Judge has been challenged substantially, on five grounds namely, first, that the learned Sub-Judge has taken an erroneous view of the validity of the purchase made by Binodini on behalf of her infant sons at, the execution sales held on the 16th February, and 13th of November 1899 on the basis of the decrees for costs, secondly, that the learned Sub-Judge has taken anerroneous view of the effect of the provisions of the Will as regards the right of the executors to perform the Durgotshab, Kalipuja and Dolejatra, thirdly, that the learned Sub-Judge has erroneougly held in favour of the Plaintiff that plot No. 30 of the plaint is not the exclusive property of the first three Defendants, fourthly, that the learned Sub-Judge has erroneously held that there was no valid gift by the testator in favour of Jadugopal Chatterjee in respect of plots Nos. 29 and 43 of the plaint, and, fifthly, that the learned Sub-Judge has taken an erroneous view of the extent of the liability of the executors Defendants to render an account of the estate in respect of the period during which their mother was administratrix.

On behalf of the Defendants Nos. 4 to 8 objection has been taken to the judgment of the Sub-Judge under four heads, namely, first, that the Sub-Judge has taken an erroneous view of the effect of the execution sales of the 16th of February and 13th of November 1899, which should have been treated as inoperative so that the execution purchaser did not acquire the interest of Nemai Churn either for her personal benefit or for the benefit of the estate of the testator; secondly, that the executors Defendants have not acquired any valid title under the conveyance they took from Usabati, the widow of Sasibhusan, on the 24th of March 1904; thirdly, that the executors Defendants did not acquire any title under the conveyance they took from Kheroda, the widow of Bejoy, on the 24th of March 1899; and, fourthly, that in any event, the shares of Bejoy and Shosi should be separately allotted and the question of the title thereto kept open to be determined upon the death of Usabati.

In support of the first ground taken on behalf of the Appellants, it was contended that the effect of the execution sales was to transfer absolutely to them the right, title and interest of the then judgment-debtor Nemai Chum in the properties mentioned in the sale certificates. It was argued by the learned vakil for the Appellants that the view taken by the Court below was based upon an assumption for which there was no foundation in fact or in law. The learned Sub-Judge had held that Binodini on behalf of her three infant sons was entitled under sec. 102 of the Probate and Administration Act (1881), to be paid out of the estate the costs incurred by her in resisting suit No. 16 for the establishment of the Will of the 25th of August 1883, that she must be presumed to have received these costs from the funds of the estate which subsequently came into her hands as administratrix, that the amounts realisable under the decrees for costs must therefore be deemed in law to be property which she held for the benefit of the estate, and that as on the face of the sale certificates the consideration for the purchases was set off against the decretal amounts, the properties acquired must be deemed to be part and parcel of the estate. This view, in our opinion, is obviously fallacious. When Benodini defended suit No. 10 as the certificated guardian of her infant sons, she did so in her character of guardian, of the infants, who were beneficiaries of the estate and who had consequently an interest therein sufficient to entitle them to enter a caveat, but this did not entitle them to claim as a matter of right that in the event of success they should be paid their costs of the litigation out of the estate. Sec. 102 of the Probate and Administration Act, upon which the learned Sub-Judge relied, has no application to the matter in hand. That section merely provides that the expenses of obtaining probate or letters of administration, including the costs incurred for or in respect of any judicial proceedings that may be necessary for administering the estate, are to be paid next after the funeral expenses and death bed charges. This provision does not justify the inference, that, if one beneficiary sets up a false Will and another beneficiary successfully resists his application, the latter is entitled as a matter of right to be paid his costs out of the estate. As is pointed out in Williams on Executors, 19th Ed., Vol. I, p. 286, it does not follow that a party is entitled to his costs out of the estate, because there is justa causa litigandi [Barwick v. Mullings(1)]. The costs are in the discretion of the Court, and may be directed to be paid out of the estate of the deceased in a suitable case, for instance, as was ruled by Sir. J.P Wilde in Mitchell v. Gard(2), the costs may be properly paid out of the estate, if the course of litigation takes its origin in the fault of the testator or of those interested in the residue, or, if there be a sufficient and probable ground to question either the execution of the Will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent. Again, the decision in Davies v. Gregory(3) indicates some of the circumstances in which each party may be made to pay his own costs; for instance, in cases, where neither the testator by his own conduct nor the executors or persons interested under the Will by their conduct have brought about the litigation as to its validity but the opponents of the Will, after due enquiry into the facts, entertain a belief in the existence of a state of things, which, if it did exist, would justify the litigation, and the opposition is unsuccessful, each party must pay his own costs [Prinsep v. Dyce Sombre(4)]. That the successful objectors in such a case would nob be entitled, as a matter of right, to get their costs out of the estate is evident from the decision in Nash v. Yelloly(5). In that case, the Plaintiff propounded a Will under which he claimed to be one of the executors. The Defendant who was the heir-at-law of the deceased contested the validity of the Will on the ground of undue influence the opposition was successful, and the Court condemned the executor Plaintiff in costs. The Defendant then applied that he might get such of his costs out of the estate as he might fail to realise from the Plaintiff. Sir C. Cresswell declined to extend the practice of ordering costs out of the estate, and held that the Defendant must rely on the party condemned in costs for payment. It is not necessary for our present purposes to consider whether the learned Judge of the Court of Probate should or should not have made an order for payment of the costs of Binodini out of the estate. It is sufficient to Hold that no such order was made and further that she was not entitled ex debito jastitim to pay herself the costs out of the estate in her hands. In this view of the matter, the assumption upon which the decision of the Sub-Judge upon this point entirely rests, completely disappears. The learned vakil for the Defendants other than the executors; Defendants has, however, argued that, although the view taken by the Sub-Judge cannot be supported, the purchases by Benodini at the execution sales may be successfully attacked on another ground. He contended that under sec. 91 of the Probate and Administration Act, if an executor or administrator purchases either directly or indirectly any part of the property of the deceased, the sale is voidable at the instance of any other persons interested in the property sold. With reference to this provision of the law, he suggested that in 1899, when Binodini took out execution of the decree for costs made in her favour as the certificated guardian of her infant sons, her position was that of an administratrix durante minoritate and, that Consequently, she was not entitled to purchase at the execution sales any part of the property of the deceased testator. It was further contended that it was not necessary for Nemai Churn to bring a separate suit to avoid the sale, but that when, as Defendant, he found his interest liable to be affected on the basis of the sale, he could elect to avoid it, with the result that thereupon the property must be treated for the purposes of partition as his property and neither the property of the execution purchaser, as contended by the Appellants, nor part of the assets of the estate as contended by the Plaintiff-Respondent. It may be assumed that, if sec. 91 of the Probate and Administration Act has any application to the case, the Defendant is entitled to avoid the sales without recourse to another suit; for, as observed by this Court in the case of Eastern Mortgage and Agency Co. v. Rebati Kumar Ray(6), it is not necessary for the injured party to bring an action to set aside the transaction and it is sufficient for him to declare his will to rescind by way of defence when an action is brought to enforce the transaction as against him [Clough v. L. & N.W Ry. Co.(7)]. It may also very well be that, if a suit were now brought to avoid the sale, the judgment-debtor Nemai Churn would find himself barred by Art. 120 if not by Art. 12, cl. (a) of the Second Schedule to the Limitation Act, but that would not necessarily extinguish his title to the property, as sec. 28 of the Limitation Act is not in terms applicable to any suit Other than a suit for possession. If we make, therefore, the most favourable assumption in favour of Nemai Churn, we have still to consider whether sec. 91 of the Probate and Administration Act has any application to the case. The learned vakil who appeared in support of the cross-objections contended that sec. 91 is applicable to all cases of purchase, either direct or indirect, made by an executor, of any part of the property of the deceased. The learned, vakil for the Appellants, on the other hand, contended that the present case was not governed by that principle, inasmuch as this was a purchase of the property of one of the beneficiaries of the estate. Now, there can be no doubt but that the rule embodied in sec. 91 of the Probate and Administration Act is based upon the principle explained by Lord Eldon in Cook v. Collingridge. “One of the most firmly established rules is that persons dealing as trustees and executors must put their own interest entirely out of question and this is so difficult to do in a transaction in which they are dealing with themselves that the Court will not enquire whether it has been done or not, but at once say that such a transaction cannot stand.” To the same effect are the decisions in Wedderburn v. Wedderburn(9), Willett v. Blanford(10), Portlock v. Gardner(11). In other words, as put by Sir Barnes Peacock in De Cordova v. De Cordova(12), such a purchase is treated as a breach of trust without enquiry whether the transaction was beneficial or not. As a general rule, therefore, an executor cannot be allowed, either immediately or by means of a trustee, to be a purchaser from himself, of any part of the assets but is considered trustee for the persons interested in the estate, and must account to the utmost extent of advantage made by him of the subject so purchased [Hall v. Hallett(13), Watson v. Toom(14)]. The position, however, is somewhat different when an executor or administrator purchases the interest of a legatee. The executor stands in the position of a trustee, and the legatee in the position of a cestui que trust. A case like this is to be tested by principles applicable to cases where a trustee has entered into dealings with the cestui que trust, dealings which may be legitimate, but which, on the other hand, are open to examination when they are complained of. As observed by Lord Cairns in Thomson v. Eastwood there is no rule of law which says that a trustee shall not buy a trust property from a cestui que trust, but it is a well known doctrine of equity that, if a transaction of that kind is challenged in proper time, a Court of Equity will examine into it, will ascertain the value that was paid by the trustee, and will throw upon the trustee the onus of proving that he gave full value and that all information was laid before the cestui que trust when it was sold. The doctrine enunciated in this dictum of Lord Cairns had been previously stated by Lord Chancellor Sugden in Barton v. Hassard(16), and has been recently affirmed by the House of Lords in Dougan v. Macpherson(17). In the first of these cases, an executor purchased some legacies for sums considerably less in amount. In the second case, a trustee purchased the interest of one of the beneficiaries at an undervaluation and never informed him of the true valuation, the material for which he had in his possession. In each instance, the Court declined to uphold the purchase and held that the benefit of the purchase must belong to the persons who assigned. No doubt, a purchase by a trustee of the interest of his cestui que trust is at all times a transaction of great nicety which the Court will watch with the utmost jealousy and will set aside if the consideration was insufficient [Coles v. Trecoihick(18), Exp. Lacey(19)]. There is, however, a well-defined distinction between a purchase by a trustee from himself and a purchase by a trustee from a cestui que trust, although as Lord Erskine observed in Motse v. Royal(20), “the exception runs, so near the verge of the rule that it might as well have been included within it.” If we test the case before us in the light of the principles we have Just explained, what is the position of the parties? Binodini on behalf of her infant sons had obtained decrees for costs against Nemai Churn; she took out execution of these decrees which remained unsatisfied for nearly 12 years. The parties were at arms' length. The execution proceedings were taken fairly and the sale was held by the Court. An endeavour was made to set aside the sales on the ground of fraud, but it was unsuccessful. No suggestion has been made, much less has foundation been laid for any possible suggestion, that the properties were sold for undervalue. Inspite of these sales, which were brought about fairly and honestly as far back as in 1899, Nemai Churn did not take any steps to avoid them as he might have done, and objection was taken by his sons for the first time in their written statement in this, suit. They did not even then suggest that they had retained their exclusive interests in these properties as legatees under the Will of Bishambhar. Their suggestion rather was that the properties still continued to be part of the estate of the testator, presumably on the ground that the administratrix could not purchase directly or indirectly any: part of the property of the deceased. In these circumstances, we must hold that the execution sales were perfectly; fair and valid, and that no grounds have been established on which we can conclude that the sales ought to be avoided on equitable principles. The first ground taken on behalf of the Appellants must prevail and the first ground taken in support of the cross-objections, must consequently be overruled.

The second ground taken on behalf of the Appellants raises the question of the exclusive right of the executors to perform the Durgotshab, Kalipuja and Dolejatra ceremonies. The learned Subordinate Judge has held upon the construction of the Will of the testator that the executors are exclusively entitled to perform the Athithi Sheba only, but that the Durgotshab, Kalipuja and Dolejatra are to be performed by all the parties in rotation, according to the amount of their respective contributions. It is argued on behalf of the Appellants that this view is erroneous, and that there is no distinction upon this point between the four ceremonies named. In our opinion, this contention is well-founded. In paragraph (gha) of the Will it is provided that Rs. 600 are to be paid in certain proportions towards the expenses of Durgotshab, Shyamapuja, Dolejatra and the feeding of Athithis. It is also provided that, if the amount remains unpaid for a period of one year and the puja, etc., are not performed, any surviving member of the family of the testator, or his sister's son, Jadugopal Chatterjee, Mohun Lal Chatterjee, successively, whosoever he may be, will be entitled to realise the said money amicably or with the aid of Court and to spend the same in performing the puja, etc., according to the usual practice at the rates mentioned. Paragraph (ja) then lays down that Jadugopal Chatterjee, Sama Churn Banerjee and the present Appellants, Baroda, Kunja and Kishen, are to be the executors of the Will, and that they are to carry out the terms of the Will, manage all the affairs, and perform the pujas, etc. Paragraph (jha) refers to Athiti Sheba, and provides that Jadugopal, Bama Churn and the three Appellants are to be managers, and are to feed the mendicants and other guests, and be very watchful and diligent to see that they do not go away unattended to. In paragraph (inya) the testator then dedicates the residue of his estate to the family idol and also for the purpose of Durgotshab, Kalipuja, Dolejatra and Athithi Sheba. It appears to us to be quite clear from paragraph (ja) that the performance of the puja was entrusted to, the executors exclusively in the first instance, and from paragraph (gha), it appears that any surviving member of the family of the testator would be entitled to perform the pujas only in the event of the amounts payable in respect thereof remaining unpaid for a period of one year and the pujas not being performed for that reason. Now it so happened that, of the persons named as executors, the present Appellants alone took out probate of the Will, while Jadugopal Chatterjee, the sister's son of the testator, declined to act, and his grandson Bama Churn set up a false Will and did not take out probate of the Will upon which the rights of the parties must now be based. But, even if Bama Churn had joined in the application for probate, upon his death his right as executor would not have been transmitted to his heirs. Under sec. 11 of the Probate and Administration Act, the entire representation of the testators would upon his death have accrued to the surviving executor or executors, which is consistent with the rule which prevails in England [Flanders v. Clarke(21), Jacomb v. Harwood(22)]. We must consequently hold that the right to perform the three pujas is vested in the Appellants as executors, and so long as any of them is alive, the other members of the family are not entitled to perform them. In this respect, the performance of the pujas stands on the same footing as the Athithi Sheba, and it is worthy of note that the Plaintiff himself took the same view of the matter; as appears from para. 6 of the plaint in which he stated that under the Will the executors were to perform Durgotshab, etc., and Athithi Sheba. The second ground upon which the judgment of the Subordinate Judge is challenged must consequently be decided in favour of the Appellants.

The third ground taken on behalf of the Appellants raises the question, whether the plot No. 30 of the plaint is the exclusive property of the Appellants. The learned Subordinate Judge, with reference to this point, observes, that the Will shows that the plot in dispute is not their exclusive property. On a reference to the Will, however, it appears that there are two properties mentioned as the tenancy of Kailash Chandra Mukerjee. One is described as lakhiraj land purchased of Kailash Chandra Mukerjee, and covers 10 cattahs in area. This is declared to be the property of Rash Behari Banerji. The other is described as Brahmottar land covering an area of 2 bighas, the tenancy of Kailash Chandra Mukerjee. This latter is included in the schedule of the properties of the testator. The case for the Appellants is that the two plots are identical and the real evidence produced on their behalf undoubtedly tends to support this position. Baroda Prosad in his evidence says that there is only one jote land known as Kailash Chandra Mukerjee's jote land, that the land belonged exclusively to himself and his brothers, that they did not possess it as executors, neither did their mother do so. This is confirmed by another statement made in cross-examination, and is supported by the deposition of Kishori Mohon. This oral evidence stands wholly uncontradieted, and upon a comparison of the boundaries given by witnesses with those set out in the Will, we are satisfied that there is only one plot of land known as Kailash Chandra Mukerjee's land; there is, however, some divergence as to its true area. The Will in one place describes it as ten cottahs, and in another place as two bighas and the witnesses place the area between five and ten cottahs. The Appellants contend that under the Will they are entitled as representatives of Rash Behary to ten cottahs and if there is anything left in excess of the 10 cottahs they are quite agreeable to have the excess treated as part of the estate of the testator. This position is perfectly unassailable and is not seriously contested by the Respondents. Upon the third ground therefore we must hold in favour of the Appellants that they are entitled to possession of 10 cottahs out of the jote of Kailash Mukerjee as their exclusive property, and if any thing remains over, the excess will be treated as part of the estate of the testator to be dealt with under the provisions of the Will.

The fourth ground taken on behalf of the Appellants raises the question of the validity of the alleged gift by the testator in favour of his nephew, Jadugopal, in respect of the plots Nos. 29 and 43 of the plaint. With regard to these plots, the learned Subordinate Judge came to the conclusion that, as no registered deed of gift was produced and as none of the representatives of Jadugopal was examined, he could not treat the gift as established. Against this it has been contended on behalf of the Appellants that the evidence is entirely uncontradicted, and it is sufficient to prove that Jadugopal and his heirs have been in possession of these plots either under a deed of gift or by adverse possession for such a length of time as to have acquired a good statutory title. It has further been suggested that, if the other parties to the litigation insist upon maintaining the view that these plots still form part of the estate of the testator, they may be allotted to them at their risk. In these circumstances, it is impossible to determine conclusively whether the representatives of Jadugopal, who are not parties to this litigation, have a valid title to these lands. The only reasonable course to adopt, therefore, is to direct that these plots may be left joint, so that none of the parties may be prejudiced in any way. To this extent therefore this ground must be decided in favour of the Appellants.

Before we deal with the fifth and last point taken on behalf of the Appellants we shall consider the second, third and fourth points urged in support of the cross-objections taken by the Defendants Nos. 4 to 8, as they all raise questions regarding the title to different parcels originally included in the estate of the testator. The second ground urged on behalf of the cross-Appellants is that the learned Subordinate Judge has taken an erroneous view of the effect of their purchase of the 44th March 1899 from Khiroda, the widow of Bejoy. It has been argued that; as the Defendants-Appellants were executors, although they did not take out probate till the 4th January 1902, their purchase of what must be treated as part of the estate of the testator was voidable under sec. 91 of the Probate and Administration Act. In our opinion, there is no force in this contention of Upon the principles explained in our decision of the first question raised on behalf of the Appellants, it is obvious that sec. 91 of the Probate and Administration Act has no application. The purchase must be treated as one made by the Appellants from one of the beneficiaries of the estate. There is not the remotest suggestion that the transaction was not perfectly fair or that adequate consideration was not paid for the properties conveyed. Apart from this however, there is the additional circumstance that at the time when the Appellants made the purchase, they were not executors. As was pointed out by their Lordships of the Judicial Committee in Clark v. Clark a sale is not to be avoided merely because when entered upon, the purchaser had the power to become the trustee of the properties, purchased, as for instance by proving the Will which relates thereto. No doubt, there is this feature distinguishing the case before the Judicial Committee from the one before us that in that case the purchaser did not, in point of fact, subsequently become the trustee, whereas here the purchasers, subsequently took out probate as executors. The true test, however, to be applied in cases of this description is, has the purchaser used his position in such a way as to render it inequitable that the sale should be upheld? Not the remotest attempt has been made to lay the foundations for any such case. So far, therefore, as the transfer by Khiroda to the Appellants is concerned, it must be treated as valid. It should be understood, however, that this does not affect the question which may have to be subsequently tried out in a separate litigation when the occasion arises, whether the transer, made as it was by a Hindu widow, was effected in circumstances such as to make it binding upon the reversionary heirs of her husband. The second point urged in support of the cross-objections therefore fails.

The third ground urged on behalf of the cross-Appellants is that the executors Defendants did not acquire any title under the conveyance they took from Ushangini, the widow of Sasi, on the 24th March 1904. In support of this ground it has been urged, as in the case of the second ground, that the sale is Voidable under sec. 91 of the Probate and Administration Act, and it has been suggested that the case is much stronger here, as on the date of the execution for the conveyance, the transferees had already taken out probate of the Will in the character of executors. In our opinion, there is no force in this contention, for upon the principles explained in our decision of the first question raised on behalf of the Appellants, it is obvious that the transfer must be treated as one made by a beneficiary in favour of the executors. Sec. 91 therefore has no direct application, nor has any foundation been laid for the suggestion that the transfer by Ushangini was not perfectly fair and supported by good consideration. It is to be observed that upon the death of Khiroda in 1900, Shosibhusan and Nemai Churn, who were at the time the reversionary heirs of her husband. Bejoy, became entitled to succeed to the share of Khiroda, in other words, to call in question the validity of the transfer effected by Khiroda in favour of the Appellants on the 24th March 1899. Upon the death of Nemai in 1904, his right was transmitted to Defendants Nos. 4 to 8, and the right of Shosibhusan was transmitted to his widow Ushabala or Ushangini. The latter, however, in the conveyance of the 24th March 1904 professed to deal only with the ⅓ share of her husband Shosibhusan, and not that half of the share of Bejoy to which her husband had become entitled as his reversionary heir. The present ground, therefore, covers the share of Shosibhusan alone, and so far as that share is concerned, we hold that no ground has been established for challenging the validity of the transfer. The question, however, whether the transfer, made as it was by a Hindu widow, was effected in such circumstances as to bind the reversionary heirs of Shosibhusan, must be left open to be tried out in a separate litigation appropriately framed for the purpose, if and when the occasion arises. The third point urged in support of the cross-objections therefore fails.

The fourth ground urged on behalf of the cross-Appellants is to the effect that, in any event, the shares of Bejoy and Shosi should be separately allotted, and the question of the title thereto kept open to be determined upon the death of Ushangini, subject to any question of limitation. This position has not been contested by the other parties to the appeal. Separate allotments, therefore, will be made at the time of the partition to represent the shares of Khiroda and Ushangini. Both will be given to the Appellants on the basis of the conveyance of the 24th March 1899, and the 24th March 1904, respectively. So far as the former share is concerned, Defendants Nos. 4 to 8 will be at liberty to question the binding character of the alienation in a separate suit, A similar remark applies to the share of Ushangini, with this difference that, in the latter case, the question can be decided in a suit properly framed for the purpose only upon her death. The fourth point urged in support of the cross-objections must be decided to this extent in favour of the cross-Appellants.

The fifth and last point urged on behalf of the Appellants raises the question of the extent of their liability to render an account. They do not contest the position that so far as the period of their executorship is concerned, which commenced on the 4th January 1902, they are liable to render the usual accounts. It has been argued, however, on their behalf that they are not liable to render account for the period during which their mother acted as administratrix durante minoritate, and that, in any event, the claim for accounts for any period antecedent to six years before the date of the institution of this suit, is barred by limitation. This argument, therefore, raises two questions of great importance, namely, first, are the Appellants as executors or in any other capacity liable to render an account of the estate for the period during which it was in charge of the administratrix durante minoritate, and, secondly, if they are so liable, is any portion of the claim for accounts barred by limitation?

In support of the position that the Appellants are liable to render accounts only for the period of their executorship, reliance has been placed by their learned vakil upon a passage from Williams on Executors, Vol. II, p. 1482, in which it is stated that an executor or administrator must account for all profits which have accrued in his own time, either spontaneously or by his acts, out of the estate of the deceased. It has been argued, on the other hand, on behalf of the Respondents, Plaintiff as well as Defendants, that it is the duty of an executor when he comes of age to take the accounts of the administrator durante minoritate, and that the beneficiaries are entitled to call upon the executor to render an account not only for the period of his executorship but also for the period during which the estate was in charge of the administrator durante minoritate. In support of this position, reliance has been placed upon a passage from Williams on Executors, Vol. I, p. 395, and also upon secs. 146 and 147 of the Probate and Administration Act. After a careful examination of the arguments addressed to us on both sides and of the authorities to which we shall presently refer, we have come to the conclusion that the contention of the Respondents ought to prevail, on the ground that when the administration, determines by reason of the cessation of the minority of the executors, the administrator durante minoritate may be and ought to be called upon to account by the executor, and that it is the duty of the latter to get the whole of the estate of the testator into his possession. It is pointed out in Walsner on Administration, Vol. II, sec. 352, that, during one period of English history, administrators as well as executors became the owners of the residuum of all estates in their charge [Patten v. Smith(24)]. At that time, it was very important to cut off the possibility that such residuum should go to a subsequent administrator by converting the estate so that on the death or removal of the executor or administrator, there would be no residuum for the administrator de bonis non. Under this condition of things, conversion whether rightful or wrongful, constituted administration, in the sense of changing the executor's or administrator's title, because that which he first held in autre dtoit, by the conversion was made his in proptio jure. He took the same title as any purchaser from the executor or administrator would obtain at a sale of the effects, so that neither a creditor, heir or legatee nor an administrator de bonis non could further follow it. Thus became the rule at common law that for a wrongful conversion whereby the creditors, legatees or distributees of the deceased were prejudiced in their rights, they had an action against the wrong-doer for damages, for which he and his sureties and, in some instances, his personal representatives were liable. This rule, whatever may be its origin, obviously destroys any right in the administrator de bonis non to property already converted, as well as all right of action against the predecessor for a wrongful conversion, since that is given to other parties [Young v. Kimball(25), Bliss v. Seaman(26)]. Gradually, however, this common law rule has been changed, and a rule more consistent with the true position of an executor or an administrator has been adopted in England as well as in America. Administration, in its proper sense, consists in the legal proceedings necessary to satisfy the claim of creditors, next of kin, legatees, or whatever other parties may have any claim to the property of the deceased person. Until all such claims, whether of creditors or heirs or legatees, are satisfied administration is not complete. Executors and administrators are the functionaries appointed by law to accomplish this purpose, and are invested with the legal ownership of the property of the testator until it is accomplished. Stripped of extraneous elements and considerations, this is the office of administration and the scope of power of executors and administrators is commensurate therewith. Two principles follow from this view, which are inconsistent with the original common law rule just referred to, namely, first that the conversion of property from the form in which the deceased left it into some other form, for example, changing it into money by a sale, does not exhaust the authority of the executor or administrator over it in its changed form, but it still remains to be administered; and, secondly, upon the death, removal or resignation of the administrator before the administration has been fully completed, all the authority vested in him must pass to an administrator de bonis non so that the purpose of the law demanding administration may be accomplished. This necessarily includes the power to call the former administrator or his representative to account for any balance of money, bonds, notes, etc., belonging to the estate which he had in possession at the time of his removal or death, because this is unadministered property and may be lawfully administered only by the successor in administration. It must, with the same necessity, include the power to call the predecessor to account and respond in damages for any devastavit, mismanagement or breach of duty whereby any property of the deceased was diverted from due course of administration, because the wrongful acts of an administrator, not being within the scope of his lawful authority, render him liable, as for trespass, and it is the duty of the lawful representative of the estate to recover whatever may be due to it. On these principles, the inference is irresistible that upon the death, removal or resignation of an administrator or executor, the successor may sue for and recover against him, his sureties and representatives all property, of whatever nature, of the deceased in his hands, and demand an account of any property converted or squandered, whether the debts have been paid or not, so long as any duty remains to be performed by an administrator. It is unnecessary for our present purpose to consider whether the executor or administrator alone is vested with this right, or whether the demand may also be enforced by beneficiaries, creditors and other persons interested in the estate, though it must be observed that there is weighty authority in support of the former alternative. It is sufficient to hold for our present purpose that it is the duty of the successor in administration to recover the whole estate, to take possession of it and to demand accounts from the person who has preceded him in the administration. In support of this view, reference may be made to the decisions in Fotherby v. Pale(27), Brooking v. Jennings(28) and Taylor v. Newton(29). In the first of these cases it was ruled by Lord Hardwicke that, as an administrator durante minoritate represents the testator whilst his administration subsists, and when determined has nothing more to do, such administrator cannot sue upon determination of his authority nor can he be called upon to an account except by the executor, so that whatever he may do during his administration, he is not answerable to any other person. In the second case it was ruled by Vaughan, C.J, that when an infant executor comes of age, the power of an executor durante minoritate ceases, and the new executor is then liable to all actions, while if the former executor wasted, the new one has his remedy against him but he is not liable to any other man's suit. In the third case, after the termination of the authority of an administrator pendente minoritate a second administrator was appointed who called upon his predecessor to account. Sir George Lee overruled the objection of the first administrator, decreed him to give an inventory and accounts by a day specified and condemned him in costs. The same question has been frequently raised in the American Courts and, although there has been some divergence of judicial opinion, there is a large preponderance of authority in favour of the view taken by us. At one time, there was a tendency in some jurisdictions to follow the rule of the common law that the administrator de bonis non is not responsible for any devastavit or mal-administration of his predecessor, nor had he any right to recover from him for such devastavit or mal-administration, and that the sole remedy of the beneficiaries was to proceed against the personal representatives of the first administrator whose authority had ceased. But in the case of Villard v. Robert(30), Chancellor Johnston after reviewing numerous English and American cases, came to the conclusion that the authorities do not sustain the proposition that the administrator de bonis non cannot require an accounting from the original administrator; and there are a large number of Cases of great authority in which the rule has been adopted that the successor in administration is entitled to recover against his predecessor or predecessor's representatives for any devastavit or mal-administration, and that it is not merely within the scope of his authority, but it is his duty, to require a settlement of his predecessor's account. Smith v. Billing(31), Todd v. Willis(32), Nevitt v. Woodburn(33), Donaldson v. Lukus(34), Neagle v. Stall(35), Banks v. Pears(36). In the last but one of these cases it was held that the right of action against the sureties of an administrator for a devastavit could be maintained only by his successor in the administration, who on his failing to use proper diligence to recover such assets and protect the estate against loss, would render himself accountable for the loss to those entitled to the estate. In the last of the cases referred to, it was similarly ruled that one of the beneficiaries of the estate could not sue the legal representatives of the administrator who had died without making his final accounts, such action being maintainable only by the successor in administration to the estate of the intestate. These decisions appear to us to be based upon sound principles of equity, justice and good conscience, and not merely upon doctrines peculiar to English or American jurisprudence. We must consequently hold that upon the death or termination of authority by operation of law of an administrator durante minoritate, it is the duty of the executor or other person who succeeds him in the administration, to recover and take possession of the unadministered assets of the estate of the deceased to call upon the personal representative of his predecessor in office to render accounts of the estate, and to recover damages, if necessary, for waste and misappropriation by his predecessor, and if required, by the institution of appropriate judicial proceedings. If he fails to do so, he must be held liable to the extent to which the estate would have been benefited if he had faithfully performed his duty. In the present case, therefore, we must hold that the Appellants, who came in as executors on the 4th January 1902, are liable to be called upon to render accounts for the period during which their mother acted as administratrix durante minoritate. It was their duty upon the death of their mother to take account from her legal representatives, and so far as we can judge from the materials on the record, they themselves would be some, if not all, of such representatives. This would be an additional reason why they should be called upon to render accounts for the period during which their mother acted as administratrix. Our decision, however, cannot be rested on this latter ground alone, because as was rightly contended by the learned vakil for the Appellants, the Plaintiff did not in his plaint seek to make them liable in their character as representatives of their mother, but sought to impose the liability to account on them on the ground that they were executors in possession of the estate. It is worthy of note, however, that the extent of liability upon one principle would be different from what it would be upon the other. If the Appellants are held liable on the ground that they are executors and that it was their duty to take accounts from the personal re preventatives of their predecessor in the administration and to recover from her sureties for any devastavit that might be established by the evidence, they would be liable to the extent of whatever might have been recovered by them for the benefit of the estate if they had performed their duty. On the other hand, if they are made liable only on the ground that they are the personal representatives of their predecessor in administration, any possible decree against them can be executed only to the extent of any personal assets of their predecessor in their hands. We, therefore, rest our decision on the ground that the Appellants as executors are liable to render accounts, for the period of administration by their predecessor in office. We further observe that the learned Subordinate Judge gave it as an additional reason for imposing liability upon the Defendants, that upon the evidence they must be taken to have managed the estate during their mother's time. We are not prepared to rest our decision on this last ground. The evidence does not show that any of the Appellants could be treated as an executor de son tort, and no liability can consequently be imposed upon them on that footing. But besides this circumstance, it is not clear upon the evidence that all the three brothers managed the estate during the whole of the time that their mother acted as administratrix. Kishori Mohan, the youngest of the three brothers, appears to have been born about 1879, and during a part, at any rate, of the period during which the mother acted as administratrix, he was not of full age. On the other hand, Baroda, the eldest of the three brothers, appears to have spent a considerable time every year at Simla, away from his native village. In these circumstances it would be difficult to render all the three brothers jointly liable for the accounts of the whole period, and we do not in support of our conclusion that the Appellants are liable to render accounts, desire to place any reliance upon the fact that one or other of the brothers assisted their mother in the administration of the estate. On the whole, therefore, upon the first branch of the question raised in the fifth ground, we must hold that the Defendants-Appellants are liable, subject to the question of limitation, to render accounts for the period during which the estate was in custody of their mother as administratrix.

The second branch of the fifth ground raises another important question, namely, whether any portion of the claim for accounts is barred by limitation. It will be observed that the Plaintiff seeks accounts of the estate from the 5th September 1886 when Binodini was first appointed administratrix pendente lite. As the present action was commenced on the 10th December 1906, the claim in substance is for account of the estate for over 20 years. The learned vakil for the Appellants has contended that Art. 120 of the Second Schedule of the Limitation. Act is applicable to a suit of this description and that the Plaintiff is not entitled to accounts for any period beyond 6 years prior to the institution of the suit. It has been argued, on the other hand, by the learned vakil for the Respondents, Plaintiff as well as Defendants, that sec. 10 of the Limitation Act governs the matter and that consequently no portion of the claim is barred by limitation. Sec. 10 upon which reliance is placed provides that no suit against a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assignees (not being assignees for valuable consideration), for the purpose of following in his or their hands such property, shall be barred by any length of time. In order to make this section applicable, it has to be established in the first place that the executor was a person in whom property had become vested in trust for any specific purpose; for it has been held that an executor as such is not an express trustee even for a legatee. [Evans v. Moore]. It has to be seen therefore whether the provisions of the Will are such that the executor must be treated as trustee [Ramdhan…(Original Defendant) v. Manibai…(Original Plaintiff) .*]. If we examine the provisions of the Will in the present case, it is difficult to say that the properties of the testator became vested in the executors in trust for a specific purpose. Various properties were left to legatees under different provisions of the Will and the residue of the ancestral and self-acquired properties of the testator were dedicated to his ancestral idol and for the performance of certain ceremonies. The executors were, no doubt, directed to carry out the provisions of the Will and to distribute the properties among the legatees, but we are unable to hold that any property was vested in them in trust for any specific purpose. In the second place, in order to make the section applicable the scope and character of the suit have to be considered. It must be a suit for the purpose of following, in the hands of the trustee or of his legal representatives, property which had become vested in them for a specific purpose. It is impossible to say, when regard is had to the frame of this suit, that it is one of this description. Apart from the authorities, therefore, we should be inclined to hold that sec. 10 has no application to this case. But the view we take is also supported by the decisions in Saroda v. Brojonath, Hemangini v. Nobin(40), Shapurji v. Bhikaji(41), and Rangapai v. Baba(42). The decisions in Hurro v. Tarini(43), Nistarini v. Nundolal(44), and Thackersey v. Hurbhum(45), in which the contrary view was apparently adopted are, upon close examination, found to be distinguishable. In each case, upon the terms of the Will, it must be determined whether there was a trust under which the property had become vested in the executors for a specific purpose: and it must also be determined, with reference to the frame and Scope of the suit, whether its purpose was to follow in the hands of the trustee or his legal, representatives the property which had become so vested in trust for a specific purpose. No doubt as observed by their Lordships of the Judicial Committee in Balwant Rdoi v. Purun Mal(46), the expression used by the Legislature “for the purpose of following in his or their hands such property” means for the purpose of recovering such property for the trust in question. But this by no means concludes the fundamental question which must arise in every case to which the provisions of sec. 10 are sought to be made applicable. A suit for accounts pure and simple of the description now before us cannot, in our opinion, be treated as a suit against a trustee for the purpose of following a trust property. To use the language of Mr. Justice White in the case of Satoda v. Brojonath, the object of the suit is not to recover any property in specie, but merely to have an account of the stewardship of the Defendants and of their predecessor in the administration, which means an account of the money received and disbursed by them on behalf of the beneficiaries, and to obtain any balance which may be found due on the taking of the accounts. We must, therefore, hold that sec. 10 has no application and the only provision applicable is Art. 120 which provides for a period of six years from the date when the right to sue accrues. Now, when did the right to sue accrue in the present case? So far as an executor or administrator is concerned his obligation to account may be treated as continuous; and the person who is entitled to call for an account has the right to demand an account at every moment of the time during which the administrator acts as such: in other words, his right to demand on account runs with the duty of the administrator and may be asserted so long as it remains unperformed. In this view of the matter the Plaintiff would be entitled to an account for 6 years prior to the institution of the suit. The claim for account in respect of any period antecedent to that must be treated as barred by limitation under Art. 120. We may add that the result of this decision is consistent with the manifest justice of the case. From an examination of the records of Probate Suit No. 9 of 1886, in which administration was granted to Binodini, it appears that Binodini had from time to time filed the accounts of the estate before the District Judge. As previously stated on the 4th July 1890 she filed an inventory and also an account of the estate from the 5th September 1886 to the 12th April 1889. On the 12th August 1892 she filed the accounts for another year, and on the 5th July 1900 she filed the accounts from 1891 to 1898. These accounts were not challenged by any of beneficiaries, and so long as Binodini was alive, not the remotest suggestion was made that the duly verified accounts filed on her behalf were open to any objection. On what principle, then, can the Plaintiff or the other beneficiaries of the estate now call upon the successors in administration to render accounts for the whole period which has intervened between the 5th September 1886 and the date of the institution of this suit? It is a well-settled rule that if a person, entitled to an accounting, delays for a great length of time, his right may be barred by the presumption that the estate has been fully administered or by the rule of equity which discountenances state claims. No doubt, the effect of the lapse of time may be obviated either by the facts of the case or by the evidence showing a subsisting right in the Petitioner and a corresponding obligation on the part of the executor or administrator, for instance, lapse of time may not bar an accounting, if it is proved that there are assets in the hands of the executor or administrator or if no account has ever been filed. But what has been the conduct of the parties in this case? The administratrix did, from time to time, file before the District Judge a detailed statement of the accounts of the estate. No objection was ever taken to the correctness of these accounts. She was in possession of the estate from 1886 to 1901, and her sons as executors have now been in possession for at least five years prior to the institution of the suit. The beneficiaries come forward after this lapse of time and call upon the executors to render accounts, not only for the time that they themselves have been in charge of the estate, but also for the 15 years during which their mother as administratrix was in occupation. The legitimate inference is that, if the party interested has been content to let the estate rest for such a length of time it is, to use the language of decision in Thomson v. Thomson(47), not very unreasonable to infer that he has been satisfied with what he supposed to be the course of the administrator. The whole policy of the law is against the enforcement of state demands when from the mere fact of acquiescence, the party responsible for the discharge of a trust may have been led into a less careful preservation of vouchers and accounts than would otherwise have been the case, had the duty of accounting been insisted upon at an earlier period. To the same effect are the decisions in Scurrah v. Scurrah(48), Weatherford v. Fate(49), Lupton v. Janney(50). If any other view were taken an executor who had regularly furnished his accounts to which no objection had ever been taken might after the lapse of any length of time be called upon to prove his account, when all the witnesses conversant with his acts as executor were dead and the records and other evidence of the administration had been lost or destroyed. In the present case, the last account filed on behalf of Binodini ended with the period which terminated on the 12th April 1899. According to the view which we take of the question of limitation the Plaintiff will be entitled to have an account from the 10th December 1900; in other words, the Plaintiff will have an account of the whole of the period during which the Defendants-Appellants have themselves acted as executors and also for the greater portion of the antecedent period for which Binodini had not filed any accounts. For all these reasons, we must hold that the fifth ground taken on behalf of the Appellants must be allowed in part. The Defendants executors will be called upon to account only for the period commencing from the 10th December 1900.

The result therefore is that this appeal must be allowed, and the decree of the Subordinate Judge modified in the following particulars: (1) the properties covered by the sale certificates of the 14th June 1899, and 15th December 1899 must be treated as the exclusive properties of Defendants Nos. 1 to 3, and not as part of the estate of Bishambhar Banerjee: (2) the Defendants executors will be declared exclusively entitled to perform the Durgotshab, Kalipuja and Dolejatra ceremonies: (3) out of the property known as the land of Kailash Mukerjee (plot No. 30 of the plaint) 10 cottahs are to be treated as the exclusive property of Defendants Nos. 1 to 3; the remainder alone, if any, will be liable to be partitioned: (4) plots Nos. 29 and 43 of the plaint, which are alleged to be the properties of Jadugopal Chatterjee, are to be treated as joint and not allotted to the share of any of the parties at the time of partition: (5) a separate allotment will be made to represent what would have been the share of Bejoy if he had been alive now; and it is to be given under the decree for partition to Defendants Nos. 1 to 3. The question, however, will be left open for decision in a future suit as to whether the transfer by the widow of Bejoy was effected in circumstances which made the alienation binding upon the reversionary heirs of her husband: (6) a separate allotment is to be made of what would have been the share of Shosi if he had been alive now, and it is to be awarded to Defendants Nos. 1 to 3 under the partition decree. The question, however, will be kept open as to whether the transfer effected by the widow of Shosi was made in circumstances which made it binding upon the reversionary heirs of her husband: and (7) Defendants Nos. 1 to 3 will be called upon to render an account of the estate of Bishambhar Banerjee from the 10th December 1900, but not for any antecedent period.

The Appellants are entitled to the costs of this appeal; but, as they have succeeded only partially in their contentions, we fix the hearing fee at Rs. 200.

N.G