Romanath Paul vs Kanai Lal Dey

Sale, J.—The Plaintiff is entitled to a decree for Rs. 3,000 for principal and Rs. 219 for interest. The only point argued before me is as to whether the Plaintiff is also entitled to a decree against the Defendant as representing the estate of one Hurry Mohan Dutt. The evidence is that the executors borrowed the moneys secured by the promissory note in suit for the purposes of the estate and that as a matter of fact these moneys were utilized for the benefit of the estate. It is also shown that at the time the loan was incurred it was represented by the executor that the money was required for the purposes of the estate. Mr. Woodroffe relies on these facts as establishing a right on the part of the Plaintiff to a decree not merely against the executor personally but also against the estate. I think this contention goes a good deal further than is warranted by any of the decisions in this Court. I know of no case in which it has been held that in the absence of any special power given by the Will an executor can render the estate liable for moneys borrowed by him for the purposes of the estate. I am quite aware that under certain circumstances an executor in his capacity as manager has the power of pledging specific portions of the estate for purposes of necessity, but that power is quite distinct from the power now claimed which is obviously of a wider character. In England it is settled law as appears from the case of Farhall v. Farhall L.R. 7 Ch. 123 (1871) cited by Mr. Woodroffe that an executor has not the power of charging the estate in respect of loans contracted for the purposes of the estate. In the present case it is not suggested that there is any special power given to the executor to borrow, or to charge the estate for loans made to the executor for the benefit of the estate. I think I must hold therefore that the result of the dealings between the executor and the Plaintiff is not to charge the estate so as to make the decree obtained on the basis of the loan binding on the estate in the hands of the executor. The decree must therefore be in the usual personal form against the Defendant.