(1) Subject to the provisions of sub-section (2), and executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in suchmanner as he may think fit.
Illustrations:
(i) The deceased has made a specific bequest of part of his property. The executor, not having assented to the bequest, sells the subject of it. The sale is valid.
(ii) The executor in the exercise of his discretion mortgages a part of the immoveable estate of the deceased. The mortgage is valid.
(2) If the deceased was a Hindu, Muhammad an, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by sub-section (1) shall be subject to the following restrictions and conditions, namely:-
(i) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the Will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.
(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,-
(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be, is voidable at the instance of any other person interested in the property.
(3) Before any probate or letters of administration is or are granted in such a case, there shall be endorsed thereon or annexed thereto a copy of sub-section (1) and clauses (i) and (iii) of sub-section (2) or of sub-section (1) and clauses (ii) and (iii) of sub-section (2), as the case may be.
(4) A probate or letters of administration shall not be rendered invalid by reason of the endorsement or annexure required by sub-section (3) not having been made thereon or attached thereto, nor shall the absence of such an endorsement or annexure authorise an executor or administrator to act otherwise than in accordance with the provisions of this section.
Legal Commentary & Landmark Judgments: Section 307
Section 307 regulates the power of an executor or administrator to dispose of estate property, conferring broad powers of sale and mortgage subject to will restrictions and mandatory court permission for administrators.
However, this broad administrative power is subjected to two rigorous statutory checks:
(1) Executors - Sub-section (2)(i): The power of an executor to dispose of immovable property is subject to any restriction or condition imposed by the will. If the will prohibits the sale of a house or requires the consent of a named beneficiary, the executor cannot sell without that consent or without obtaining the express permission of the High Court or District Judge.
(2) Administrators - Sub-section (2)(ii): An administrator cannot mortgage, charge, or transfer by sale, gift, exchange, or otherwise any immovable property, nor lease it for a term exceeding five years, without the prior permission of the Court that granted the administration. Any alienation made without court permission is voidable at the instance of any interested person under sub-section (3).
Section 307 is a critical due diligence checkpoint for property buyers and lenders. When purchasing land from an executor, counsel must examine the will: if the will contains any restriction on sale, court permission is mandatory. When purchasing from an administrator, court permission under Section 307(2)(ii) is an absolute non-negotiable statutory requirement; buying without court permission exposes the purchaser to having the sale set aside under Section 307(3).