JUDGMENT 1. The suit out of which this appeal arises is one brought upon a mortgage bond executed by the Defendant No. 1, as the executrix of her husband's estate, on the 18th December 1897 for a sum of Rs. 23,950, borrowed by her to pay off her husband's debts, from one Nobin Chundra Ganguly, a retired Subordinate Judge. The Plaintiff is the executor of Nobin Chunder Ganguly's estate. The Subordinate Judge has given the Plaintiff a decree. 2. The Defendants Nos. 15 and 16, who are purchasers of small portions of the property mortgaged, appeal. On their behalf have been raised the following contentions : (1) That the mortgage deed was not attested by two witnesses. (2) That there is no evidence that the nature of the transaction was explained to the Defendant No. 1. (3) That the registration is invalid. (4) That the Defendant No. 1 bad no authority to mortgage her husband's property. (5) That payment of the whole of the consideration money has not been proved. (6) That the payment of the putni rents made by the Plaintiff is not a charge on the properties purchased by Defendants Nos. 15 and 16, as it was not made in respect of these properties. (7) That such payment was not necessary for the protection of the property mortgaged, as the landlords in execution of whose decrees the putnies were about to be sold were fractional co-sharers. (8) That there is nothing to show that the Defendants Nos. 15 and 16 bought the properties before the payment of the putni rents was made, and (9) That the properties still owned by the mortgagor should be sold in the first instance. 3. The first of these pleas was not taken in the lower Court nor has it been raised in the memorandum of appeal. It has not been pressed before us. 4. We need say but little with regard to the second ground, except that we entirely agree with the Subordinate Judge in the view he takes of the evidence adduced to show that the nature of the transaction was fully explained to the Defendant No. 1. We have no doubt that it was fully explained to her and that she fully understood what she was doing. The transaction was for her benefit. We have no doubt that it was fully explained to her and that she fully understood what she was doing. The transaction was for her benefit. She had independent advice and four of her sons (two of them then of full age) were present at the execution of the deed. The plea that she did not understand the nature of the transaction is a frivolous plea. It is one which is now raised almost as a matter of course in any case in which a Hindu lady is concerned. The rulings cited by the Subordinate Judge afford litigants an irresistible inducement to raise this plea. 5. The contention that the registration of the mortgage deed is invalid is founded on the allegation that plot No. 7, said to be situated in the 24-Pergunnahs, has no existence. The onus of proving this plea is of course on the party who urges it, viz., the Defendants. They have not proved it. The late Babu Nobin Chandra Ganguly had an ancestral dwelling-house and a garden in the 24-Pergunnahs, He purchased in this district a considerable amount of property, which, apparently with the view of making a gift of to his wife, he declared in his Will he had bought with her stridhan. There is, therefore, as the Subordinate Judge says, every probability that he had property in the 24-Pergunnahs, and there is no evidence that plot No. 7 is an imaginary plot. We therefore see no reason to conclude that the registration of the mortgage deed by the Sub-Registrar of the 24-Pergunnahs was invalid. 6. Nor is there in our opinion any reason to conclude that the Defendant No. 1 had no power to mortgage the property. The Will of her husband gave her power to sell his property "to pay off debts incurred by him or if the property was a losing concern." There is no prohibition in the Will against her mortgaging it. Hence, under sec. 90 of the Probate and Administration Act, she as executrix had power to mortgage the property. The learned pleader for the Appellants contends that the power expressly given her to sell the property, implied a restriction on her disposing of it in any other way. We are unable to agree to this argument. Hence, under sec. 90 of the Probate and Administration Act, she as executrix had power to mortgage the property. The learned pleader for the Appellants contends that the power expressly given her to sell the property, implied a restriction on her disposing of it in any other way. We are unable to agree to this argument. The learned pleader cites the case of Kanti Chandra Chattopadhya v. Kristo Churn Acharjee 3 C. W. N. 515 (1895) in support of his contention, but this case in our opinion does not help him. It laid down no general rule, but dealt with the facts of the particular case it referred to. On the other hand, our attention has been called to the cases of In the goods of Nundo Lall Mullick I. L. R. 23 Cal. 908 (1896) and Rajani Nath Mukhopadhyaya v. Ramanath Mukherji 3 C. W. N. 483 (1898). They are entirely in favour of the view we take that an executor has power to mortgage property, unless prohibited from doing so by the testator. In the present case, to our minds it is clear that the husband of the Defendant No. 1 never prohibited or intended to prohibit her mortgaging the property in case of necessity. 7. There is satisfactory evidence of the payment of the whole of the consideration money. The Subordinate Judge has alluded to this evidence in his judgment, and has believed it. We consider it quite satisfactory. One of the witnesses who swear to the payment of the consideration money is an attorney of this Court, whose evidence there is no reason to discredit. The Plaintiff does not show that the whole of the consideration money was actually paid over to the creditors of the husband of the Defendant No. 1, but this is not necessary. 8. The plea that the money paid by the Plaintiff to protect certain of the properties from being sold in execution of decrees obtained by the putnidars for the putni rent is not a charge on the properties is met by a reference to cl. 3 of the mortgage deed, which expressly provides for the making of such a payment and its being a charge on the properties. The Appellants admittedly purchased after the execution of the mortgage. They took the properties subject to the mortgage and are bound by the terms of the mortgage deed. 3 of the mortgage deed, which expressly provides for the making of such a payment and its being a charge on the properties. The Appellants admittedly purchased after the execution of the mortgage. They took the properties subject to the mortgage and are bound by the terms of the mortgage deed. The further pleas raised that the putnidars were fractional co-sharers and could not avoid the tenures and that there is no evidence to show that the Appellants purchased after the payment of the putni rent were not taken in the lower Court, and hence there is no satisfactory evidence on these points. If these pleas had been taken, evidence might have been adduced and the dates of the Appellants' purchases determined. Further these pleas have not been expressly taken in the memorandum of appeal. The same observations apply to the Appellants' last plea, which raises the question of marshalling; such a plea was never raised in the Court below or in the memorandum of appeal, and there are no equitable grounds, we think, on which the Appellants are entitled to the marshalling they ask for. 9. For all these reasons we see no reason to disturb the findings of the lower Court, whose decision appears to us to be a just and proper one. We accordingly dismiss the appeal with costs. 10. There is one farther matter which we must deal with. A receiver has been appointed by the Original Side of the Court for the property of the late Nobin Chandra Ganguly. By an order of this Court in its Appellate jurisdiction, dated 29th May 1903, Mr. R. C. Sen was appointed receiver of the mortgaged properties. He was directed to pay over to the receiver appointed by the Original Side, viz., Mr. Chatterjee, sums which that gentleman has had to pay to save the property from sale, pending the hearing of this appeal. We accordingly now direct the discharge of the receiver, Mr. R. C. Sen, appointed on the 29th May last on his rendering and passing his accounts and direct that in making up the account due on the mortgage the payments made by Mr. Chatterjee to save the property from sale pending the hearing of this appeal be taken into account and added with interest at specified rate to the amount of the final decree drawn up against the Defendants. Chatterjee to save the property from sale pending the hearing of this appeal be taken into account and added with interest at specified rate to the amount of the final decree drawn up against the Defendants. If the Court-fee already paid should prove insufficient, the deficit amount must be paid before the decree is signed.