JUDGMENT 1. This appeal arises out of a suit brought by the Plaintiffs, the grandsons of Bakhtour Tewari, to have it declared that they have a right in 3/5th share of certain properties and that the Defendant No. 1 has no right to bring their share in the said properties to sale in satisfaction of the mortgage decree obtained by him on the 23rd February 1897, on the mortgage bond executed in his favour on the 23rd October 1891, by Defendant No. 2. The Plaintiffs are the grandsons of Bakhtour Tewari, being the sons of three of his sons Ganga Pershad, Nursingh Pershad and Bhirgun Pershad; the Defendant No. 2 is the widow of Bakhtour Tewari, and the Defendant No. 3 Kali Pershad and the Defendant No. 4 Sidhu Pershad are the sons of Bakhtour Tewari. Defendant No. 1 is the representative of the mortgagee under the mortgage bond executed by the widow on the 23rd October 1891. Defendant No. 1 alone contested the suit. It appears that Bakhtour Tewari died on the 23rd January 1888, and that, after his death, his widow Defendant No. 2 applied, on the 4th September 1888, for probate of a Will which purported to have been executed by him on the 18th January 1888, and obtained probate on the 4th May 1888. No executor was appointed under the Will, but the property of the deceased was bequeathed to the widow as universal legatee. Prior to his death, Bakhtour Tewari had incurred debts for which he had executed bonds and hundi, namely, Ex. A2, Ex. A9 and Ex. A4 to Ex. A8. These debts were consolidated and a mortgage bond of Rs. 4,000 was executed by Bakhtour Tewari in favour of Dalu Mal Wahi on the 29th November 1887. After obtaining probate the Defendant No. 2 executed a mortgage bond on the 4th September 1889 for Rs. 15,000 in favour of the Lala Saheb, the old family Mahajan, Daln Mal Wahi. The bond recites that Rs. 4,846-10-6 was to cover the debts incurred by Bakhtour Tewari; Rs. 5,964-10-6 to cover the debts incurred by her and her three sons Sidhu Pershad, Kali Pershad and Bhirgun Pershad under 5 hundis and the balance was for stamps, etc. This bond was attested by Kali Pershad, Defendant No. 3, one of the sons of Bakhtour Tewari. It was to run for four years. 5,964-10-6 to cover the debts incurred by her and her three sons Sidhu Pershad, Kali Pershad and Bhirgun Pershad under 5 hundis and the balance was for stamps, etc. This bond was attested by Kali Pershad, Defendant No. 3, one of the sons of Bakhtour Tewari. It was to run for four years. On the 23rd October 1891, however, before the due date of the previous bond, the widow, Defendant No. 2, executed another mortgage bond for Rs. 26,000 in favour of Pundit Amar Raj and another, the father and uncle of Defendant No. 1. That bond recited that Rs. 20,200 principal with interest under 5 hundis and 2 deeds "executed by me and my husband is found, due to Dalu Mal Wahi by me up to the 23rd October 1891, and besides this I owe money to other Mahajans for which they have been pressing me hard. At this time without borrowing some more money I do not find any other means of paying off the debts of the said Mahajans and of completing the construction of the temple Sri Mahadeo Ji at Benares." The balance of the money appears to have been received by her in cash. In this document, as well as in the preceding document, it was stated that she mortgaged and hypothecated the formerly mortgaged properties as well as other properties "purchased by and forming the estate of my husband which were held by him and which since his death under the probate of Will executed by my husband in my favour have been in my possession and occupation as a malik without the co-parcenership of any person or encroachment on the part of any other." Sidhu Pershad Tewari, Defendant No. 4, was a witness to this document. Both these documents were registered documents. On the 20th July 1892, Defendant No. 1 and his uncle, his father being then dead, brought a suit in the Civil Court at Benares on the last-mentioned mortgage and obtained a decree for partial relief on the 20th December 1894. An appeal was preferred to the High Court at Allahabad and a decree was given granting the full relief claimed on the 23rd February 1897. Execution of this decree has been sought by the sale, with others, of the properties in which the Plaintiffs in this suit claim 3/5th share. An appeal was preferred to the High Court at Allahabad and a decree was given granting the full relief claimed on the 23rd February 1897. Execution of this decree has been sought by the sale, with others, of the properties in which the Plaintiffs in this suit claim 3/5th share. On the 6th November 1892, an application was made by the present Plaintiffs for revocation of the probate which was refused by the District Judge of Chupra on the 10th June 1893. An appeal was preferred to this Court and on the 4th June 1894 the order of the District Judge was set aside and the case was sent back for trial on the evidence. On the 7th August 1895, the probate was revoked and, on the 26th June 1896 an appeal made to this Court was dismissed. The present suit was instituted on the 23rd December 1898. In the plaint it is set out that Defendants Nos. 3 and 4, in collusion with Defendant No. 1, got up the Will, dated the 18th January 1888, and obtained probate which was subsequently revoked; that Defendant No. 2 in collusion and concert with Defendants Nos. 3 and 4 executed the mortgage bond of the 23rd November 1891, and that Defendant No. 1 on the basis of this invalid bond instituted the suit and obtained a mortgage-decree and, in satisfaction of that decree, attached the properties in dispute in the present suit. It was prayed that the Plaintiffs' right to 3/5th share of the properties in suit be declared, and that it be further decreed that the Defendant No. 2 has no right to bring about the auction-sale of those lands and that Defendant No. 1 may be ordered to keep himself back from bringing about the auction-sale of the Plaintiffs' share in the said lands. The Defendant No. 1 contended that the family of the Plaintiffs Nos. The Defendant No. 1 contended that the family of the Plaintiffs Nos. 3 and 4 had all along been joint, that the mortgage bond of the 14th September 1889 was executed for paying off the debts created by the head members of the family and by Bakhtour Tewari himself and that the bond, dated the 23rd October 1891, was executed to pay off the money covered by the said bond and to meet the expenses of constructing the temple as well as to pay off the debts due to the mahajans, that the money covered by the hundis drawn by Bhirgun Tewari, the ancestor of Plaintiffs Nos. 5 to 7, was also included in the bond money, and that the Defendants Nos. 3 and 4, having failed in a regular suit which they caused to be instituted on behalf of their sons and nephews, which was dismissed on the 27th January 1899, have caused the present suit to be instituted. 2. The Subordinate Judge decreed the Plaintiffs' suit. He found that the Plaintiffs had proved their title as grandsons of Bakhtour Tewari to the 3/5th share of the properties in dispute; that the Will having been found to be a forgery and void, the mortgage deed executed by the widow under the title conferred on her by that Will, as also the decree obtained by Defendant No. 1 under the mortgage bond failed to bind the Plaintiffs and therefore they were entitled to the relief claimed. As regards the question whether, in spite of the mortgage failing, the property claimed was still liable to be sold in satisfaction of the debts of Bakhtour Tewari and of the joint family, the Subordinate Judge held that the mortgage bond was not executed to cover the debts of Bakhtour Tewari alone, that it was not proved that other debts were joint family debts, that the Defendant No. 1 in satisfaction of his decree could not proceed against the properties of the Plaintiffs in this suit but must bring another suit, properly framed, to have the legal liabilities of the Plaintiffs established. 3. The Defendant No. 1 has appealed to this Court and on his behalf four points have been taken by the learned Advocate-General. 3. The Defendant No. 1 has appealed to this Court and on his behalf four points have been taken by the learned Advocate-General. It has been first argued that the mortgage must be held to be a good mortgage binding on the estate of the deceased, as it was executed by the lady while the probate was in force and before it was revoked. It is urged that this is not a case in which the grant of probate has been set aside on appeal but one in which it has been revoked and, following the decision in the case of Boxall v. Boxall 27 Ch. Div. 220 (1884) the grant cannot be treated as void ab initio and the revocation takes effect only from the time of its recall. The next point taken is that the Defendant was entitled under the provisions of sec. 44 of the Evidence Act to prove in this suit that the judgment revoking the probate had been obtained from the Court of the District Judge by fraud and collusion and, following the principle laid down in the case of Priestman v. Thomas L.R. 9 P.D. 70, 210 (1884), the Defendant would be entitled to prove the other facts which it would be necessary for him to prove in order to show that the judgment was erroneous. It is contended that the evidence in this case shows that the judgment was obtained by concealment of the fact that since the death of Bakhtour Tewari and probate of his Will, his widow had been dealing with this property and that, therefore, the act of the widow in executing the mortgage cannot be affected by such judgment of revocation. Thirdly, it is contended that whether the Will be a forged will or not, the Plaintiffs are bound to pay the debts incurred by their grandfather and other debts contracted by themselves or their fathers and any debts contracted by their grandmother for the purposes of the joint family, and it was suggested that the completion of the building of the temple at Benares was a debt contracted for necessity. Lastly, it was contended that, as by the mortgage bonds of 14th September 1889 and 23rd October 1891, the debt due on the mortgage bond of the 29th September 1887 was discharged, it must be taken that the mortgagee in each case intended to keep alive the prior security for his benefit and, therefore, the present Defendant is entitled to require that, before the attachment of the properties in suit be set aside, the Plaintiffs be put on terms. 4. As to the first point, we would observe that under sec. 6 of the Probate and Administration Act, probate can be granted only to an executor appointed by the Will. As already noticed, no executor was appointed by the Will which was set up as the Will of Bakhtour Tewari and the widow, as universal legatee, would only be entitled under sec. 19 to a grant of letters of administration with the Will annexed. In such a case, she would only have had such powers as are given under the Act to an administrator and, under sec. 18 of the same Act, she could not, without the previous permission of the Court by which the letters of administration were granted, have mortgaged any immoveable property for the time being vested in her under sec. 4 of the Act. In this case then, the probate appears to have been granted to her by mistake and the grant itself was from the first invalid in law. She could not under such invalid grant be constituted an executor so as to be empowered to exercise any of the powers conferred on executors under the Act. It is not suggested in this case that she took the permission of the District Judge before she executed the mortgage in favour of Defendant No. 1 and, under these circumstances, we feel bound to hold that her act in executing the mortgage was invalid and that the principle laid down in the ruling relied on can have no possible application to the present case. She never professed to act as an administratrix of her husband's estate, and if she bad assumed that character she had no power to execute the mortgage without the consent of the District Judge. Further we must point out that, in fact, in the deeds in question, she did not deal with the property as executrix at all. She never professed to act as an administratrix of her husband's estate, and if she bad assumed that character she had no power to execute the mortgage without the consent of the District Judge. Further we must point out that, in fact, in the deeds in question, she did not deal with the property as executrix at all. In each instance she executed the mortgage as universal legatee under the Will, for, that is the only way in which we are able to interpret the passage in the bond which recites that she mortgaged the properties forming the estate of her husband which, on his death, came into her possession under the probate of the Will executed by him. In describing herself also at the commencement of each bond, she does not profess to execute the document as executrix but only in her personal character as the widow of Bakhtour Tewari. And lastly we must observe that in this case the Will having been declared to be a forgery, and therefore void ab initio, any acts done by the lady under any title created by that Will must be held to be in law void (see in this connection Williams on Executors, 9th Ed., p. 501). 5. As to the second point, we desire to point out that no allegation of fraud was made in the written statement and the Subordinate Judge in his judgment states that he (Defendant No. 1) does not plead fraud or collusion on behalf of his debtor with the Plaintiffs in this respect (that is to say, with reference to the application for revocation). Nor was any issue raised as to whether the revocation of probate had been obtained by fraud or not. Such being the case, we do not think that the Appellant is entitled at this stage to raise this question of fraud. We way, however, say that, even if the circumstances of the case may be held to create some suspicion of fraud, that suspicion is to a considerable extent disarmed by the judgment of the Criminal Court filed by the Defendants, dated the 10th January 1895, which shows that proceedings under sec. 107, Cr.P.C., had been taken between the sons and grandsons of Bakhtour Tewari in 1893 and an order was passed against the grandsons on the 6th February of that year. 107, Cr.P.C., had been taken between the sons and grandsons of Bakhtour Tewari in 1893 and an order was passed against the grandsons on the 6th February of that year. A similar order appears to have been passed against them on the 10th January 1895. This judgment, at least, goes to show that the parties were then at arm's length and to rebut any presumption that may be drawn that there was any collusion between them. 6. We have only to add that we can find nothing in the record to show that the grandsons (the Plaintiffs) ever allowed the widow to put herself forward as the representative of the family--though the sons Kali Pershad and Sidhu appear to have done so. Some at least of the grandsons appear to have been minors when the acts were done by the widow to which reference has been made and their case had all along been that the two sons were acting in concert with the widow at Benares to defraud them while they were in their home in Champaran. We are unable to accept the rather confused evidence of the witness Sheobaran Dobey as proof that the Plaintiffs Goukaran and Kedar Pershad assisted the widow in defending the suit brought against her on the mortgage bond by Defendant No. 1. On the contrary it appears to us that his subsequent statement was intended to modify preceding ones and to indicate that only Sidhu and his son assisted her and we can find no distinct evidence to prove that at the time of the application for revocation of probate the Plaintiffs were aware that the widow had been dealing with the estate as representing the family, or that they concealed any such circumstance from the Court which revoked the probate. At the time of the revocation of the probate the sons and grandsons were on bad terms as is proved by the copy of the decision of the Criminal Court, dated the 10th January 1896, filed by Defendant No. 1. 7. As to the third point, the question whether the Plaintiffs would be bound by the debts of their grandfather is covered by the last point. 7. As to the third point, the question whether the Plaintiffs would be bound by the debts of their grandfather is covered by the last point. As regards the debts contracted by themselves or their fathers, there is really only a recital in the bond of the 14th September 1889 to prove that any debts were contracted by Bhirgun, the father of the Plaintiffs Nos. 5, 6 and 7. We are unable to accept the suggestion of the learned Advocate-General that the evidence of the witness, Sanpath Pershad, with reference to the contents of this document was intended to give his own independent description of its contents. On the contrary, we are of opinion that he simply gave the substance of the terms of that bond after referring to it. We are unable to accept the mere recital in that document, in the absence of any other evidence, as sufficient to prove that the debts were contracted by Bhirgun. The hundis themselves have not been produced. There is no evidence whatever to show that any of the debts were contracted by the Plaintiffs themselves, and Plaintiff No. 2, Jitu Pershad Tewari, in his evidence distinctly asserted that the family had separated. The terms of the Will propounded by the widow, if they are of any value, would go to show that there were dissensions amongst the sons during the lifetime of Bakhtour Tewari and to support the view that the sons had then separated. There is nothing, therefore, on the record to show that the family was joint or that the debts covered by the mortgage deeds were contracted for the benefit of the joint family except as to the amount covered by the bond executed by the grandfather. As regards the building of the temple, there is no evidence whatever to show what sums, if any, out of the money borrowed were expended on the construction of that building. Whatever evidence there is on that subject is of a very vague character. 8. As regards the building of the temple, there is no evidence whatever to show what sums, if any, out of the money borrowed were expended on the construction of that building. Whatever evidence there is on that subject is of a very vague character. 8. As regards the last point we may observe that the learned pleader for the Respondent has expressed his willingness to accede to the view that, if it be possible for this Court in this appeal to determine how far the estate of the deceased Bakhtour Tewari which devolved on the Plaintiffs at his death can be held to be liable for debts contracted by him before his death, it is equitable that the Plaintiffs, who seek equitable relief in this case, should be put on terms and should be directed to discharge such liability before any order releasing their properties from attachment should be enforced. 9. We have already noticed that the materials on the record are not sufficient to enable us to determine how far the Plaintiffs or their property can be held to be liable for any debts covered by the mortgage bond of the 31st October 1891 other than the debts incurred by Bakhtour Tewari himself and in this we agree with the conclusion of the Subordinate Judge. 10. It is not, however, disputed that Bakhtour Tewari executed the mortgage bond of the 29th November 1887 for Rs. 4,000 to cover debts which had been incurred by him. From the recital in the bond of the 4th September 1889, the correctness of which has not been assailed, it would appear that the debt due on the prior mortgage bond executed by Bakhtour Tewari then amounted to Rs. 4,846-10-6 which debt was discharged by the later bond. That bond was again paid off by the bond of Defendant No. 1 of the 23rd October 1891. 11. It is not disputed that under the last bond the Defendant No. 1 would be entitled to the benefit of the securities created by the prior mortgages and to proceed, in execution of his decree obtained on his bond, to enforce his claim against the properties hypothecated by the bond of the 29th November 1887 executed by Bakhtour Tewari. 12. Furthermore under the second clause of sec. 12. Furthermore under the second clause of sec. 84 of the Probate and Administration Act (V of 1881) the widow would have been entitled to reimburse herself out of the assets of the estate of her deceased husband Bakhtour Tewari in respect of payments made by her while acting under the revoked probate, and this appears to be the law in England also [see Dowse v. Coxe 8 Bingham 20 (1825)]. 13. So far then as the mortgage debt covered by the bond of the 23rd October 1891, following the bond of the 13th September 1889, was contracted by the widow to pay off the debts of Bakhtour Tewari, to that extent the estate of Bakhtour Tewari would be liable and the mortgagee would be able to recover that sum with interest from such estate under his decree. 14. For both these reasons the Plaintiffs would be bound to discharge their share of those debts left by their grandfather in proportion to their share in the properties mortgaged. 15. We hold therefore that in this case the Plaintiffs should be put on terms so far only as the debts contracted by their grandfather before his death are concerned. The other grounds of appeal having failed, the only modification which we are prepared to make in the decree of the lower Court is as follows:--In lieu of the declaration made by that Court to the effect that the Plaintiffs' 3/5th share in the property covered by the mortgage decree is not liable to sale in satisfaction of the mortgage decree of the Defendant of the 20th December 1894, we direct that it be declared that on the Plaintiffs depositing within three months from this date a sum representing their 3/5th share in the sum of Rs. 4,000 with the interest due from the date of the execution by Bakhtour Tewari of the bond, dated the 29th November 1887, up to date under the mortgage bond their 3/5th share of the properties in suit shall be released from attachment and sale under the Defendant's decree of the 20th December 1894; but that, on their failure to deposit that sum within the period mentioned above, their 3/5th share in the properties in suit shall be separately put up for sale, and that out of the purchase-money the sum found to be due from them as their 3/5th share in the sum of Rs. 4,000 with interest thereon as mentioned above shall be paid over to the decree-holder Defendant No. 1 and the balance shall be paid to the Plaintiffs. Having regard to the result at which we have arrived we consider that each party should pay their own costs in all the Courts and order accordingly.