Judgement Appeal from a decree of the High Court (April 14, 1905) varying a decree of Chandavarkar J. (August 23, 1904) and declaring that the properties in suit formed part of the estate of the testator Somji Parpia, and were, as such, available for the payment of the legacy and allowances of Rs.30,000 and Rs.125 per month and interest to the respondents, four sons of the testator by his second wife, in priority to the claim thereon of the appellants under a mortgage of the same properties, dated January 12, 1899, effected by his four elder sons by his first wife, who were the executors of and residuary legatees under his will. The testator was a Khoja Mahomedan inhabitant of Bombay who carried on business there as a furniture dealer. The will was dated February 13, 1885. The lst clause recited his property, and the 2nd that among his heirs were his four elder sons by his deceased wife, the four younger sons by his second wife then living, and certain other children and grandchildren therein named. The 3rd and 4th clauses gave all his property and goods to his four elder sons, directing them as regards his remaining heirs to duly give and act in accordance with what has been written below. " Clause 5. To my present surviving wife Labai and to her sons named Suleman, Gulam Ali, Mahomed and Habib, my said elder sons, four persons, to whom I entrust all my goods and property, shall within six years namely, six years after my decease duly make up and pay Rs.30,000 namely, thirty thousand to my surviving wife and to her sons. The same shall be paid (to them) in the following manner. The same shall be paid (to them) in the following manner. No interest on the said (sum of) money shall be paid up to the above mentioned period, and up to that period there shall duly be paid Rs.125 namely, one hundred and twenty five every month for household expenses, and before the above mentioned sum of Rs.30,000 namely thirty thousand is fully made up if the betrothal (or marriage, &c.) of any son or daughter should take place, then as to the proper (sum of) money that may be required for the expenses thereof the same shall truly be paid out of the (above mentioned) sum, and when the above mentioned sum of rupees thirty thousand shall have been fully made up (and paid) then from that day the aforesaid (sum) of rupees one hundred and twenty five, being the amount of the instalment payable every month for the expenses shall duly cease, that is to say, the same shall not be paid thereafter. Besides this my second surviving wife and her children shall have no manner of right or claim against four persons (namely my) sons by my first deceased wife or against my said goods and property in any way whatever. " Clause 6. As to the (sum of) rupees thirty thousand directed to be paid out of my above mentioned goods and property, as a share of inheritance by my above mentioned elder sons four persons to my surviving wife and her sons mentioned in the 5th clause, I appoint four persons as trustees in respect of the said (sum of) money. Their names are Jafar Somjee, Gulam Husein Somji, Jafar Ladhabhai Chatu, and my second surviving wife, I appoint these four persons (as trustees), and I direct them as follows —The said (sum of) money shall truly be appropriated in accordance with what is written below. Out of the above mentioned sum of rupees thirty thousand which my elder sons shall pay to my surviving wife and her sons, as a share of inheritance, the outlays on auspicious and inauspicious occasions, what-ever the same may come to, having been deducted as to whatever sum may remain over a good estate, or a house, shall be purchased therewith and given (to them). The same shall be purchased in the names of my surviving wife and her sons and given to them; or (the money) shall be deposited at interest, at a good place, and out of the income that may be realised therefrom (moneys) shall be paid to my surviving wife during her lifetime, for her and her childrens lodging, food and clothes and other expenses. And after the decease of my surviving wife when her youngest son shall come of age whatever proper by there may be (left out), of the said (sum of) rupees thirty thousand the same shall truly be divided and given in equal shares to her children." By clause 9 he recommended the four elder sons as follows If his said second surviving wife and her sons should live in peace and harmony with them the four elder sons should allow them to live in the moiety belonging to him of the said house, situated in Bhajipala Street. By clause 12 he nominated and appointed the four elder sons executors of that his will, and they should truly bring into force all the provisions of the said will. The testator died on February 15, 1885. He left him surviving his widow Labai (who died in 1893) and the four younger sons, of whom Suleman Somji attained eighteen in the lifetime of his father and the other s in 1897 and 1901. From the death of the testator down to the death of his widow she and the four younger sons, and from her death until after the institution of the suit the four younger sons, continued to occupy the said house in Bhajipala Street aforesaid or part thereof. The respondent No. 5 is the sole survivor of the four trustees of the said sum of Rs.30,000 bequeathed by the will of the testator. Divers sums were from time to time paid by the four elder sons in respect of the said sum of Rs.30,000 and the monthly allowance of Rs.125 respectively, but at the commencement of the suit large sums remained unpaid and owing. After the death of the testator the four elder sons carried on business at Bombay, Indore, and other places as contractors for the construction of roads, buildings and other works, as co-partners, under the style or firm of Somji Parpia & Co. After the death of the testator the four elder sons carried on business at Bombay, Indore, and other places as contractors for the construction of roads, buildings and other works, as co-partners, under the style or firm of Somji Parpia & Co. In the course of such business they had numerous financial dealings with the appellant bank, with the result that on January 12, 1899, the bank held thirteen bills of exchange, drawn on and accepted by the four elder sons, for amounts aggregating together Rs.52,000, five of which bills, for amounts aggregating Rs.18.500, were then overdue. The four younger sons in September, 1903, on discovering the mortgage of January 12, 1899, sued the bank and the four elder sons, claiming that they were entitled to a charge on the property comprised therein, in priori by to the banks mortgage, to secure the balance due to them in respect of their legacy. The trial judge held — (a) That the plaintiffs had a charge on the properties comprised in the mortgage; that actual notice of the will of Somji Parpia had not been proved, but that the bank had constructive notice of this will. (b) That according to Indian law there is no distinction between the powers of an executor over the real property and personal estate of a testator such as obtains in English law; that the bank did not know of the breach of trust on the part of the defendants 1 to 4 and was not a party to their fraud; and that the bank were bona fide transferees for value of the properties comprised in this mortgage. He decreed to the effect that the bank had a first charge and that the plaintiffs were entitled to a charge for their legacy ranking subsequently to the banks security. On the evidence he said “The truth of the matter appears to me to be this. Judging from the evidence and the surrounding circumstances neither Labai and her adult son plaintiff No, 1 nor defendants 1 to 4 had any idea that the legacy in favour of the former was a charge on the property. All the parties lived amicably in the same house and thought as defendants 1 to 4 had the property absolutely bequeathed to them under their fathers will, they had every right to alienate it. All the parties lived amicably in the same house and thought as defendants 1 to 4 had the property absolutely bequeathed to them under their fathers will, they had every right to alienate it. Defendants 1 to 4 began to trade on their own account and the parties thought that that would bring in more money to them and enable them to make up the legacy to Labai and her sons. It cannot be that Labai and plaintiff No. 1 were unaware of the fact that defendants 1 to 4 had deposited their deeds with the bank and were contracting debts. They hoped to share in the profits which defendants 1 to 4 were expected to make out of their trade by having their legacy pro-vided out of those profits. The bank were not informed of the legacy or the wil because the parties believed that the legacy had nothing to do with the property bequeathed to defendants 1 to 4." The Court of Appeal agreed with Chandavarkar J. in holding that the plaintiffs had a charge on the property, that the bank had constructive notice of the will, and that as regards the law involved there is according to Indian law no such distinction as there is in English law between movable and immovable property, but they held, without impeaching the bona fides of the bank, that notwithstanding the facts that the mortgage was executed nearly fourteen years after the death of the testator and that the first four defendants were residuary legatees as well as executors of the testators will, the banks mortgage was subject to the payment of the plaintiffs legacy of Rs.30,000. With regard to the rights of the plaintiffs as legatees as distinguished from the rights of creditors in similar circum-stances, the judgment contained the folio wing passage "In Graham v. Drummond ([ 1896] 1 Ch. With regard to the rights of the plaintiffs as legatees as distinguished from the rights of creditors in similar circum-stances, the judgment contained the folio wing passage "In Graham v. Drummond ([ 1896] 1 Ch. 968.) a second mortgagee from an executor and residuary legatee was held to have a title, which prevailed against creditors, and Romer J. (as he then was), in delivering judgment, said I think it is settled law that, if an executor who is also residuary legatee sells or mortgages an asset of the testator for valuable consideration to a person who has no notice of the existence of unsatisfied debts of the testator, or of any ground which rendered it improper for the executor so to deal with the asset, that persons purchase or mortgage is valid against any unsatisfied creditor of the testator. Later the learned judge said The chief reasons given are that unsatisfied creditors have no lien or charge on any asset, and that persons dealing with the executor in good faith are entitled to look to him alone, and are not bound to ascertain that all debts and liabilities have been discharged. For if they were so bound, they would never be safe in dealing for valuable consideration with any asset, even though a considerable time might have elapsed since the testators death (as happened in the case before me) and so a legatee whose legacy was assented to by the executor would be unfair by and unduly hampered in dealing with it. Further, the case of an executor who is a residuary legatee dealing with an asset is the same in principle as the case of a legatee who is not executor, but whose legacy has been assented to by the executor and who deals with his legacy for valuable consideration. In the last case unsatisfied creditors have the right to follow the legacy as against the legatee or volunteers claiming through him, but not as against purchasers from the legatee for valuable consideration. But in Graham v. Drummond ([ 1890] 1 Ch. 968.), as in Taylor v. Hawkins ((1803) 8 Ves. In the last case unsatisfied creditors have the right to follow the legacy as against the legatee or volunteers claiming through him, but not as against purchasers from the legatee for valuable consideration. But in Graham v. Drummond ([ 1890] 1 Ch. 968.), as in Taylor v. Hawkins ((1803) 8 Ves. 209.), it was a creditor who sought to impugn the alienation; here the plaintiffs are legatees." Sir R. Finlay, K.C., Levett, K.C., and Frank Russell, K.C., for the appellants, contended that a legatee has no greater right than a creditor against a bona fide purchaser or mortgagee of personal estate from an executor who is al so residuary legatee. The distinction taken by the Court of Appeal is erroneous. Reference was made to the Indian Probate Acts of 1881 and 1889—that is, to ss. 2, 4, 90, 113, 115, 116 of Act V. of 1881, and to s. 14 of the amending Act VI. of 1889, which substitutes a new section in lieu of s. 90 of the former Act; and it was con tended that the executors had power to dispose as they thought fit of all property, whether movable or immovable, vested in them as executors. The bank obtained this mortgage in good faith and for value, and it had been executed by executors who were also residuary legatees nearly fourteen years after the testators death. The bank was fully justified in believing that its mortgagors were competent to give a good title, and on the evidence it had no notice, actual or constructive, of any prior charge. Upon the true construction of Somji Parpias will no valid charge had been created on the property in the hands of the residuary legatees. Even if it had been created the bank was entitled to assume, after so long a lapse of time, that the estate had been fully administered, and that all legacies and charges had been satisfied, especially the legacy to the plaintiffs, which was directed to be paid to them six years after the testators death. Reference was made to Graham v. Drummond ([ 1896] 1 Ch. 968, 971, 974.); In re Whistler (( 1887) 35 Ch. D. 561.); Colyer v. Finch (( 1856) 5 H. L. C. 905.) ; In re Venn and Furzes Contract. ([ 1894] 2 Ch. Reference was made to Graham v. Drummond ([ 1896] 1 Ch. 968, 971, 974.); In re Whistler (( 1887) 35 Ch. D. 561.); Colyer v. Finch (( 1856) 5 H. L. C. 905.) ; In re Venn and Furzes Contract. ([ 1894] 2 Ch. 101, 111, 114.) The presumption that creditors of the testators estate had been satisfied is equally reasonable when applied to the case of legatees. After fourteen years had elapsed from the death of the testator the bank was entitled to assume, without inquiry, that the residuary legatees were beneficially entitled to the estate of which they were in possession and with which they were dealing. The two last cited cases shew that it was immaterial that the mortgagors purported to secure a debt due from themselves personally; the bank was entitled to deal with them as beneficial owners. With regard to In re Queales Estate (( 1886) 17 L. R. Ir. 361.), relied upon by the appellate Court, it was the case of an equitable mortgage, and there had been no long lapse of time, as in this case, to justify the presumption of the legacy having been satisfied see also Lewin on Trusts, 11th ed. p. 557. In short, the executors power to pledge the assets of the estate, to which they had also the title of residuary legatees, was absolute; and no assent by the plaintiffs as legatees was necessary to free the title of the mortgagee bank from the charge, if any, created in their favour by the terms of the will. Danckwerts, K.C., and P. S. Stokes, for the respondents, con-tended that the High Court was right in holding that the mortgaged property in suit was subject to a prior charge in favour of the plaintiffs to the extent of the unsatisfied legacies in their favour. The four elder sons had no right or power under the will, or under the law relating to executors, to create any charge upon the mortgaged properties in suit in priority to the claims of the plaintiffs. The mortgage granted by them was given to the know-ledge of the bank to secure a pre-existing debt by them incurred by borrowing money for their own personal ends, and not for purposes authorized by the will or within the scope of their duty and powers as executors. The mortgage granted by them was given to the know-ledge of the bank to secure a pre-existing debt by them incurred by borrowing money for their own personal ends, and not for purposes authorized by the will or within the scope of their duty and powers as executors. The bank was therefore guilty of negligence in not calling for and investigating the title of its mortgagors. It must be held to have taken the mortgage with notice of the will and its contents. Both Courts were right in finding that the bank had constructive notice of the will of the testator and the rights of the plaintiffs, even if the defect in the mortgagors title were not plain on the face of the documents. Reference was made to Agra Bank v. Barry (( 1874) L. R. 7 H. L. 135, 137.), and to Corser v. Cartright (( 1875) L. R. 7 H. L. 731.), where constructive notice through solicitors of intended misapplication of the mortgage money was either held or regarded as being fatal to the claim of the mortgagee see also Jackson v. Rowe ((1826) 2 S. & S. 472.); Jones v. Smith (( 1841) 1 Hare, 43.); Patman v. Harland (( 1881) 17 Ch. D. 353.); Wilson v. Hart (( 1866) L. R. 1 Ch. at pp. 463, 466, 467.); In re Whistler. (35 Ch. D. 561.) With regard to the effect of the executors mortgaging the testators assets for their own private purposes, it was plain that that was beyond their powers. The fact that they were residuary legatees as well as executors did not enlarge their powers as executors, and could not avail the bank unless they could shew that the estates had been duly administered, and that their mortgagors were entitled solely as residuary legatees free from any trust as executors on behalf of those entitled under the will. The bank could take whatever title their mortgagors had and no more see Roper on Legacies, p. 443; and, on the construction of the will, In re Kirk (( 1882) 21 Ch. D. 431, 437.) and Wigg v. Wigg. ((1739) 1 Atk . 382.) As to powers of executors under Indian law and under the will of a Mahomedan testator, see Shaik Moosa v. Shaik Essd (( 1884) I. L. R. 8 Bomb. D. 431, 437.) and Wigg v. Wigg. ((1739) 1 Atk . 382.) As to powers of executors under Indian law and under the will of a Mahomedan testator, see Shaik Moosa v. Shaik Essd (( 1884) I. L. R. 8 Bomb. 241.); the Indian Succession Act (X. of 1865), s. 271; and the Probate and Administration Act (V. of 1881), ss. 2, 4, 5, 12; 90. As regards the distinction between the rights of creditors and the rights of legatees with a specific charge on the testators estate, the passage in the judgment of the High Court was adopted and relied upon. Levett, K.C., replied, citing again Graham v. Drummond ([ 1896] 1 Ch. 968, 974.), Mead v. Lord Orrery ((1745) 3 Atk . 235, 241.), and Taylor v. Hawkins (8 Ves. 209.); Danckwerts, K.C., citing, with reference to the two last cases, In re Morgan (( 1881) 18 Ch. P, 93, 103,) and In re the Alms Corn Charity. ([ 1901] 2 Ch. 750, 762,) The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The facts relating to this appeal are not in dispute, and may be shortly stated. Somji Parpia died on February 15, 1885. He left eight sons, four by his first wife (hereafter called the elder sons) and four (hereafter called the younger sons) by his second wife Labai, who also survived him. By his will he left all his property to his elder sons, subject to a charge of Rs.30,000 in favour of his widow Labai and his younger sons. Both Courts in India have found that this legacy was charged upon the property in suit, and their Lordships agree with this decision. After their fathers death the elder sons entered upon large business transactions under the style of Somji Parpia & Co., and in the course of their business became indebted to the Bank of Bombay in respect of advances on bills drawn by the firm in Bombay upon a branch of the firm at Indore. After their fathers death the elder sons entered upon large business transactions under the style of Somji Parpia & Co., and in the course of their business became indebted to the Bank of Bombay in respect of advances on bills drawn by the firm in Bombay upon a branch of the firm at Indore. To secure these advances the elder sons, on September 1, 1890, deposited certain title deeds relating to the property in suit, by way of equitable mortgage, with the bank; and on January 12, 1899, the bank obtained from them a formal mortgage of the same property to secure the repayment of Rs.52,000 in respect of bills then due, or to become due, drawn by the firm on their Indore branch. It is not disputed that this debt was a debt of the four elder sons in respect of their own business, and that the legacy to the widow and the younger sons was at the time, and still is, unsatisfied. The property comprised in the mortgage consisted of a house in Bhaji Pala Street and a piece of land in the Falkland Road, in the city of Bombay, to both of which the mortgagors declared themselves to be en titled, but both of which had been specified by their father Somji Parpia, in his will, as subject to the charge of Rs.30,000 in favour of his widow and younger sons. This will was not among the documents of title deposited with the bank, but the root of the title to the house in Bhaji Pala Street, the more valuable of the two properties, was indicated in the will of Meenabai, widow of Somji Parpias father Dhunji Parpia, which was deposited. From this it appeared that the house had been the joint property of the two brothers, and if the banks legal advisers had made an investigation of title they must have inquired how Somjis share had come to the mortgagors, and in this way obtained cognizance of his will and of the charge on this portion of his estate. But they made no inquiry, and appear to have assumed that the mortgagors were the absolute owners of the property mortgaged. But they made no inquiry, and appear to have assumed that the mortgagors were the absolute owners of the property mortgaged. It is not suggested that the mortgagors practised any concealment of the real facts of the case; and if they had been asked about their fathers will, it is to be presumed that they would have given an honest answer. Nor is it suggested that the younger sons had any knowledge of the dealings of their elders with the bank. But when the bank advertised the properties for sale they filed this suit in order to establish the priority of their charge over the mortgage to the bank. And the only question in this appeal is whether they are entitled to such priority. Mr. Levett, in his able argument for the appellants, contended that, under the will of Somji Parpia, the mortgagors were residuary legatees as well as executors, and he relied upon a passage in the judgment of Romer J. in Graham v. Drummond ([ 1896] 1 Ch. 968, at p. 974.) in which that learned judge says " I think it is settled law that, if an executor who is also residuary legatee sells or mortgages an asset of the testator for valuable consideration to a person who has no notice of the existence of unsatisfied debts of the testator, or of any ground which rendered it improper for the executor so to deal with the asset, that persons purchase or mortgage is valid against any unsatisfied creditor of the testator." But this does not dispose of the present case. Here the plaintiffs are legatees, and the distinction between creditors and legatees is well pointed out in Spenees Equitable Jurisdiction, vol. 2, p. 376, where it is said " A mortgage by an executor who is also residuary legatee to secure his private debt may be set aside even at the suit of a pecuniary legatee, for the nature of the claims of legatees, they taking under the will, may be ascertained. But as to creditors it is different. 2, p. 376, where it is said " A mortgage by an executor who is also residuary legatee to secure his private debt may be set aside even at the suit of a pecuniary legatee, for the nature of the claims of legatees, they taking under the will, may be ascertained. But as to creditors it is different. If a reason-able time has elapsed since the death of the testator, and then the executor deals with the residue as his own, the purchaser may, in the absence of notice to the contrary, assume that the debts have been paid, or that there are other assets for payment of the debts, if any; therefore the mortgagee would be safe as against creditors." Moreover, in this case the mortgagee had constructive notice, and has only himself to thank if his position is not safe; for had he taken the slightest pains to investigate the title of the mortgagors he must certainly have discovered the charge created by the will of Somji in favour of the widow and her sons. It was also contended that by the terms of the will the legacy was to be made up and paid within six years after the testators. decease ; that this period would have expired in 1891, eight years before the .date of the mortgage ; and that, assuming notice of the will on the part of the bank, the bank was entitled to assume that the executors were acting with the consent of the legatees. Lapse of time is, no doubt, a circumstance that may be taken into consideration in cases of this kind; but having regard to the fact that in this case two of the younger sons were still minors when the title deeds were deposited with the bank, and that continued possession by the elder sons was not inconsistent with the purposes of the will, their Lordships agree with. the Court below in holding the rights of the parties unaffected by this circumstance. The case of In re Queales Estate (17 L. R, Ir. 361.) bears a strong resemblance, in its facts, to that now under consideration. There the testators son deposited with a bank three leases to secure his own overdrawn account. the Court below in holding the rights of the parties unaffected by this circumstance. The case of In re Queales Estate (17 L. R, Ir. 361.) bears a strong resemblance, in its facts, to that now under consideration. There the testators son deposited with a bank three leases to secure his own overdrawn account. The bank dealt with him as absolute owner, and eventually proceeded to sell the leaseholds; whereupon the testators daughters claimed to be placed on the schedule as incumbrancers in respect of unpaid legacies, and their claim was allowed. In delivering judgment FitzGibbon L.J. says " The bank dealt with him (the mortgagor) as and in his capacity of an individual owner, not an executor, but a person pledging his own property for his own debt, giving as security his own interest for his own purposes. Under such circum-stances the bank can, in my opinion, have no better title than that which its debtor really had in the capacity in which he was dealt with, namely, as beneficial owner, i.e., as residuary legatee." Their Lordships agree with the learned judges of the High Court of Bombay that the claim of the first four respondents (the younger sons of Somji Parpia) must prevail over the mort-gage to the bank and the title of its transferee, Dwarkadas Dharamsey, and they will humbly advise His Majesty that this appeal should be dismissed and the decree of the High Court of April 14, 1905, confirmed. The appellants must pay the costs of the appeal.