This is an appeal by some of the Defendants in a suit to enforce a mortgage security. The substantial question in controversy between the parties is, whether the mortgage is operative upon the property now in the hands of the Appellants. The circumstances under which the mortgage was created are not in dispute at this stage and may be briefly stated. The property formed part of the estate of one Durgadas Chatterjee who made a testamentary disposition on the 6th April 1885. The testator died in 1890, and on the 8th December of that year probate was granted to his eldest son Annoda Prasad Chatterjee who was named as the executor in the Will and figures as the first Defendant in this litigation. On the 20th February 1894 the widow of the testator and one of his grandsons who are the second and third Defendants respectively in this suit, applied to the Probate Court for removal of the executor on the ground of his misconduct and for revocation of the probate issued to him. On the 19th July 1894, the probate was revoked and the appointment of the first Defendant as executor was cancelled. On the 17th August 1894, the Probate Court appointed the widow and the grandson as joint administrators, and four days later issued to them letters of administration (inaccurately described in the order-sheet as “probate”) with copy of the Will annexed. On the 10th September 1894, the executor whose appointment had been revoked, lodged an appeal in this Court against the order of the District Judge. On the 31st July 1896, the appeal was allowed, and the order of the District Judge reversed on the ground that the alleged misconduct and mismanagement did not constitute a just cause fop removal of an executor under cl. 4 of sec. 50 of the Probate and Administration Act [Annoda Prosad v. Kali Krishna(1)]. Thereupon, the probate originally issued to him which had been recalled and cancelled, was reissued to him by the District Judge on the 19th February 1897, pursuant to an order made in that behalf on the 11th February 1897. Meanwhile on the 26th April 1895, in execution of a decree for money against the executor, the disputed property was sold and was purchased by Pitambar Chatterjee, now represented by the Appellants. The decree had been obtained by a co-proprietor of the estate in a suit for contribution in respect of revenue payable to Government by all the proprietors. The administrators, who-were in possession of the estate at the time of the sale, applied to the District Judge on the 4th May 1895 for permission to raise money by mortgage of part of the estate, with a view to have the sale set aside under sec. 310A of the Civil Procedure Code of 1882. They represented—and the accuracy of their statement has not been called in question—that the property was worth more than Rs. 1,000, and that if the sale, which had taken place for Rs. 495 only, was allowed to stand, serious loss would result to the estate. The District Judge sanctioned the mortgage, and directed that the very property, which would thus be saved, be given by way of security. The Plaintiff thereupon advanced Rs. 550 to the administrators who applied the money for cancellation of the sale, and on the 21st May 1895 executed in his favour the mortgage now sought to be enforced, by which they undertook to repay the loan on the 12th April 1896. On the 21st April 1898, i.e, after the executor had been restored to his office as the result of the appeal to this Court, the disputed property was sold in execution of a money decree against him as executor of the estate and was purchased by the decree-holders, who subsequently transferred the same to Pitambar Chatterjee, predecessor of the present Appellants, on the 29th December 1898. On the 9th April 1908, the Plaintiff commenced this litigation to enforce his security, and he joined as Defendants eleven persons, namely, the executor as the first Defendant, the administrators as the second and third Defendants, and the representatives of the purchaser as the remaining Defendants. The claim was contested by the last named Defendants only, on the ground that the mortgage was inoperative, because granted by administrators erroneously appointed as such. The Courts below have concurrently overruled this defence, and have decreed the suit. On the present appeal, the decree of the District Judge has been challenged on two grounds, namely, first, that the mortgage granted by the administrators does not bind the estate, and, secondly, that as the provision for payment of compound interest at a high rate was not sanctioned by the District Judge, the claim for interest cannot be sustained.

The first point taken on behalf of the Appellants raises the question of the effect of revocation of a probate or letters of administration, upon which there has been some divergence of judicial opinion. The effect of revocation of a grant of probate or letters of administration has been made to depend mainly upon whether the grant was void ad initio or merely voidable. In Abram v. Cunningham(2), it was decided that where administration is granted on concealment of a Will which appointed executors, the grant is void from its commencement, and all acts performed by the administrator in that character are equally void and cannot be made good, even though the executor should afterwards appear and renounce. But in Peckham's case(3) it was held that if the administrator had paid funeral expenses, debts, or legacies, which the law forced the executor to pay, the administrator, in an action against him by the executor, should recoup so much in damages, because he was compelled to pay it, and the true executor had no prejudice by it, for as much as he himself would have been bound to pay if. Again, from Gruysbrook v. Fox(4), it appears that in an action by the true executor against the purchaser of goods sold to him by the administrator, the sale is indefeasible, if made to discharge the funeral expenses or debts which the administrator or executor was compellable to pay. Where, however, the act in question is one which the administrator was not compellable to do, but is a voluntary act on his part, it has been sometimes said that it is simply void, and no title is thereby conferred on a purchaser [Hewson v. Shelly(5)] or mortgagee [Ellis v. Ellis(6)] from him, and the vendor is also liable in damages in an action by the true executor [Woolley v. Clark(7)]. In Boxall v. Boxall(8), it was held that where the Will does not appoint an executor, the repealed grant obtained by suppressing the Will, is not void ab initio, and, therefore, a sale under it was held to be a valid transaction. But wherever the grant of administration is voidable only, as where it has been granted to a party not next of kin, or, where the executor having acted and the Court not knowing it committed administration to another or without citing the necessary parties, all lawful acts done by the first administrator are deemed valid as against the subsequent administrator [Packman's case(9), Blackborrough v. Davis(10)].

It is worthy of note that the earlier cases to which we have referred were criticised by Lord Redesdale in Doyle v. Blake(11), and a view more favourable to the rights of the bonâ fide transferee for value without notice has been taken in modern decisions, to which we shall now refer. Thus in Debendra Nath v. Administrator-General, where the Judicial Committee affirmed the decision of the majority in Debendra Nath v. Administrator-General(13), Lord Macnaghten observed that so long as the letters of administration remained unrevoked, the person in whose favour the grant had been made was to all intents and purposes administrator, and his receipts were valid discharges for all moneys received by him as administrator. The full significance of this observation is appreciated when it is borne in mind that the letters of administration had been obtained by fraud and by suppression of the fact that the deceased had left a Will. A similar view had been previously indicated by Woodroffe, J., in Gopal Dass v. Budreedas(14) which may be difficult to reconcile with the obiter dictum in Prayrag v. Goukaran(15), and was subsequently adopted by Neville, J., in Crosier v. Thomas(16). It will be observed that in the case last mentioned, the administration had been granted notwithstanding the existence of Will which had been kept back from the Court, and it was thus precisely a case in which it might be argued with plausibility that the grant was void ab initio; yet the Court held that the grant was voidable and not void. Consequently, if the view is maintained that a grant of administration made by a competent Court, though erroneously is voidable, that is operative till it has been revoked by that Court or set aside by a superior tribunal, there is no room for controversy that the mortgage in suit is binding upon the estate. But even if we take a more restricted view, namely, that adopted by Walsh, J., in Graysbrook v. Fox, the mortgage is clearly indefeasible, because it was created to satisfy a debt of the estate which the executor himself was compellable to pay. The executor had failed to pay the Government revenue due, which had thereupon been satisfied by one of the joint proprietors of the estate. The executor thereafter did not re-imburse the co-proprietor who was consequently constrained to sue and to obtain a decree. Even then the executor did not satisfy the judgment debt, execution followed with the result that a valuable property was sold for an inadequate price. Under these circumstances, the administrators, with the sanction of the District Judge, raised a loan and saved the property which it was their paramount duty to do. They did nothing beyond what it would have been obviously incumbent upon the executor to do for the protection of the estate, if he had been in possession at the time, and we are unable to discover any conceivable principle of justice, equity and good conscience to support the contention that the mortgage was ab initio void, because granted by administrators erroneously appointed by the Probate Court. It may be added that the more liberal view indicated above has been adopted in the American Courts, where it has been ruled that all acts done by an executor or an administrator in the due and legal course of administration are valid and binding, even though the letters issued by the Court are afterwards revoked or the incumbent, discharged from his trust. [Bigelow v. Bigelow(17), Foster v. Brown(18), Fisher v. Bassett(19).] But reference has been made to a dictum in Boxall v. Boxall, that if a grant is reversed by a Court of Appeal, it must be deemed void ab initio, though revocation takes effect only from the time of the recall, and it has been argued that all intermediate acts of the executor or administrator pending an appeal which results in a reversal of the former sentence are void, because it is said on the strength of a dictum in Price v. Parker(20), the appeal suspends the former sentence, which on its reversal places all the parties in the position which they would have occupied if it had never existed. This contention does not appear to be well-founded on principles, and can-rot, at any rate, be applied to the Indian system of law which explicitly recognises the doctrine that an appeal does not operate as a stay of proceedings under the decree or order challenged by way of appeal (Or. 41, r. 5, of the Civil Procedure Code, 1908). It is worthy of remark that in the Courts of United States, although in some cases [State v. William(21), Muirhead v. Muirhead(22)] the view has been maintained that an appeal suspends the operation of a decree and leaves the executor or administrator in office as before, there is respectable authority for the contrary opinion that an appeal by an executor from an order revoking probate of the Will does not continue the powers of the executor pending the appeal [Harney v. Scott(23), Crozier's Estate(24), In re Marsh(25)]. But the Appellants are in a further difficulty in the present case. The executor was actually removed and the administrators were placed in possession long before the appeal was preferred. Consequently, there is no room for the application of the doctrine that the appeal suspended the operation of the order for revocation. We may add that in systems where the view is maintained that an appeal against an order of revocation suspends the operation of the order, practical difficulty in the management of the estate is avoided by the appointment of an administrator pendente lite, and plainly no question could arise as to the legality of the mortgage in suit, if the administrators here are deemed to have been, in essence at least, administrators pendente lite. We need not, however, have recourse to what might be called a fiction and, for the reasons previously assigned, we hold that the mortgage granted by the administrators with the sanction of the Probate Court bound the estate.

The second point taken on behalf of the Appellants raises the question of the validity of the claim for interest. In the application to the District Judge for sanction of the proposed mortgage, the principal amount required to be raised was stated as Rs. 550, but no mention was made about interest. When the deed was executed by the administrators, they covenanted, however, to pay compound interest at 30 per cent per annum with half-yearly rests. Under sec. 90 of the Probate and Administration Act, an administrator is authorised to grant a mortgage of the immoveable property vested in him, only with the previous permission of the Probate Court. This implies a sanction by the Court of all the essential elements of the mortgage transaction, and there is no room for doubt, that from the point of view of the burden imposed on the estate, the provision for payment of interest may be even more effective than the principal amount of the loan required to be raised [see Ganga Prosad v. Maharani Bibi(26), Thakur Prosad v. Gounpat Rai(27), which arose on the corresponding provisions of the Guardians and Wards Act, XL of 1858, see 18 and VIII of 1890, sec. 29, see also Abhiram Pal v. Makunda Lal Dutta(28), Roy Radha Kissen v. Nauratan Lal(29), Nimai Chand Addya v. Mir Golam Hussain(30)]. In the case before us, the clause for the payment of compound interest at a high rate was manifestly unreasonable, and the lender obviously made the best of the embarrassing situation in which the administrators found themselves. We accordingly reduce the interest to simple interest at 9 per cent per annum, and we do so partly in view of the fact that the mortgagee has waited till very nearly the last day of the period of limitation, clearly with the object that the claim for interest may reach the maximum possible amount. Such interest as we allow is recoverable from the date of the mortgage, and must be added to the mortgage money, as was done by the Judicial Committee in Chajmal v. Brij Bhukan. The decision in Moti Singh v. Ramohari(32) is clearly distinguishable, as there was no covenant at all for payment of interest post diem in that case, and the amount allowed, though added to the mortgage dues, was treated as damages, a distinction not always recognised [Gordillo v. Weguelin(33)].

The result is that this appeal is allowed in part, the decree of the District Judge discharged, and, in lieu thereof, the usual mortgage decree made in favour of the Plaintiff for Rs. 1,502-14-0, namely, Rs. 550 as principal and Rs. 952-14-0 as interest thereon at 9 per cent per annum from the 21st May 1895 to the 21st August 1914, which we fix as the date for redemption. The Plaintiff will also be allowed his costs in the Court of first instance on the sum now decreed, such costs to be ascertained in this Court and added to the mortgage dues. If the decretal amount is not paid on or before the 21st August 1914, it will carry interest at 6 per cent per annum from that date and the mortgage property will be sold in due course for realisation thereof. The Defendants will not be personally liable for any portion of the decretal amount. Each party will pay his own costs of the appeal to the District Judge as also of the appeal to this Court.

We are informed that the mortgaged property has been sold in execution of the decree now set aside, and has been purchased by the decree-holder. The effect of our order will be that the sale will stand annulled from this date, and the property will be re-sold, if occasion arises, in execution of the decree now made [Seth Umedmal v. Srinath Roy(34), Chandan Singh v. Ramdeni Singh(35)]. We do not, however, now determine what restitution the decree-holder may be liable to make, if he took possession of the property by virtue of his purchase at the sale now cancelled. That question must be determined by the Execution Court, if an appropriate application is made in that behalf by the party interested. [Raghu Singh v. Sheo Prosad(36), Beni Madho Singh v. Pran Singh(37).]

Appeal allowed in part.