Authored By : Beverley, C.H. Hill

Beverley and C.H. Hill, JJ.

1. This is a suit on a roka for the recovery of a sum of Rs.2,607-5-8. The plaintiffs are the representatives of the payee of the roka whois now dead. The defendants are the widow of the maker of the roka and a personwho is sued in the character of a surety for its repayment. As against thelatter, however, the suit has been dismissed and he is not concerned in thisappeal. The maker of the roka was a Mahomedan, and the first defendant, hiswidow, is sued as being in possession of his estate, the relief claimed beingthat a decree for Rs. 2,607-5-8 principal with interest be passed first againstthe estate left by Yusuf Hossain Khan (that is, the maker of the roka) and heldand possessed by defendant No. 1, and in the event of non-realization, thenagainst the person of the second defendant. There is a prayer also for suchfurther relief as in the opinion of the Court the plaintiff may be entitled to.

2. The pleas of the first defendant so far as they are nowmaterial were directed in the first place to the frame of the suit. It waspleaded that the suit was bad for non-joinder of all the legal heirs of thedeceased who are named, and then that the first defendant was not in possessionof any property of the deceased in the capacity of his heir. She did not, it isto be observed, deny her possession, save in this qualified manner; and theCourt of First Instance has found that there is some evidence, though it hasrefrained from expressing an opinion as to its value, that after the death ofher husband the first defendant disposed of an elephant, horses, and carriagebelonging to his estate. That Court has, however, refused to give effect tothis evidence apparently on the ground only that there was no evidence to showwhat the value of the property in question amounted to. On the question ofparties it found that the suit had been properly brought against the widow ofthe deceased to the exclusion of the other heirs of her husband, as she alonehad been granted a "certificate of heirship," by which presumably isintended a certificate for the collection of debts, by the District Judge. But sucha certificate would not, it may be remarked, constitute her the representativeof her late husbands estate in the sense understood by the Subordinate Judge.In the result the Subordinate Judge passed a decree in favour of the plaintifffor the amount claimed with interest to be realized "from the propertiesleft by the deceased Yusuf Hossain Khan."

3. Against this decree the first defendant appealed to theCourt of the District Judge, and there, it is said by the learned Judge in hisjudgment, two points were argued, one as to the correctness of the decision ofthe Court of First Instance on a question relative to the stamp borne by theroka in suit, and the other as to the necessity for adding the other heirs ofYusuf Hossain Khan. On the first point the learned Judge found against theappellant, but on the second in her favour; and was accordingly, it appears,about to dismiss the suit, but thought it better, on consideration, to give therespondents the opportunity of withdrawing the suit in its then form, withliberty, if they chose to avail themselves of it, to bring a fresh suit againstall the heirs of the deceased, and so held his hand. The respondents did not,however, see fit to avail themselves of the liberty thus given them, theiravowed reason being that any fresh suit which might then be brought by themagainst the other heirs of the deceased on the roka would be barred bylimitation. This difficulty they brought to the notice of the learned Judge,and they urged also that even if they were not entitled to treat the appellantas sole heir, by which probably they meant as the legal representative of theestate of the deceased, they were nevertheless entitled to get a "partialdecree" as against her proportionate to the assets actually held by her,and the learned Judge, actuated by reasons which can hardly be called inquestion, set down the appeal for further argument on this point. The result ofthis further argument was that the learned Judge, to use the language of hisjudgment, allowed the decree of the lower Court to stand--"made a littlemore clear in the expression of it, as in the nature of a partial decree."It is not very easy to follow the learned Judge in the interpretationwhich he places upon the decree of the Court of First Instance, since, as hasbeen seen, that Court made the claim realizable from the properties of YusufHossain Khan without limitation, its view being apparently that the estate wasfully represented by the widow by virtue of her "certificate ofheirship." But, be this as it may, the learned Judge gave effect to hisunderstanding of the matter in his own decree, which after dealing with thecosts of the lower Court proceeds: "In all other respects it (i.e, theappeal) is dismissed with the declaration that the debt due by the deceased tothe plaintiffs is recoverable only from such assets of the deceased as can beshown to have been in the hands of the principal defendant at the time at whichthis suit was filed against her."

4. From this decree the first defendant has now appealed tothis Court on several grounds. The first is that the Lower Appellate Court oughtto have dismissed the suit, because the plaintiffs having based their claim onthe ground that the appellant was the sole heir in possession of all theassets, they had failed in the opinion of that Court to prove their case. Thisplea, if we understand it aright, seems to us to proceed on a misconception ofthe nature of the suit. There is no allegation or suggestion in the plaint thatthe appellant represented the estate of her late husband. She is sued merely asbeing the person in possession of it, and consequently the failure to prove theallegation of exclusive possession on her part does not involve a failure toestablish her representative capacity. The theory of representation is notknown to the Mahomedan law. Under its provisions the estate of a deceasedperson devolves immediately on his death upon his heirs, charged however withhis debts, and they are the persons through whose medium the property oughtordinarily to be reached. The plaintiffs seem to have assumed that theappellant was the sole heir of her husband, and that she was, probably as anatural consequence, in exclusive possession of his property, the fact ofpossession being the basis upon which their suit was founded. In bothassumptions no doubt they appear to have been mistaken, but it does not followthat because they failed in establishing that she was possessed of the whole,they are precluded from showing that she is in possession of a part, There isno question here in fact of a change of the capacity in which the lady was sued;and we think that had it been shown that she was in fact in possession of apart of the assets of the deceased, relief might, notwithstanding theallegation that she was in possession of the whole estate, have been obtainedagainst her.

5. The next plea in appeal calls in question the proprietyof the action of the Court below in passing a decree in the plaintiffs favour,notwithstanding that at one stage of the proceedings it was of opinion that thesuit ought to be dismissed. We do not think, however, that this plea isentitled to much consideration. The Judge did no doubt at one time entertainthe opinion referred to, but before he had completed his judgment he thought itadvisable to hear further argument, and it was on the further argument that hecame to a different conclusion. In taking this course he has not, so far as weare aware, transgressed any legal principle, or done more than Judges notunfrequently find themselves constrained to do.

6. The next plea is in effect a repetition of that withwhich we have first dealt above, and what we have there said sufficientlydisposes of it.

7. The next raises a question of a somewhat more seriouskind, and one with respect to which it cannot be said that the law isadministered with complete uniformity. It asserts that a creditor has no rightto sue only one of the heirs of a deceased debtor and recover the entire amountof the debt from the assets which may have come to the hands of that heir. Theproposition is somewhat more widely stated than was probably intended, for wedid not understand the learned pleader who appeared for the appellant tocontend that it would be applicable to a case in which it appeared that asingle heir had possessed himself of the whole of the property of the deceased.If we rightly apprehended his argument it was directed to this, that the amountdecreed ought to be proportionate to the interest in the estate of theparticular heir, and that when it is sought to recover the whole of the debtall the heirs ought to be before the Court. Stated in that form the propositionis one of which there is much in favour. An individual heir cannot be said withstrict propriety to represent his co-heirs in a suit brought by a creditor toenforce his claim against the property of the deceased proprietor. The right ofeach heir is several and distinct, and arises, as has been said, immediately onthe death of the person whose heir he is. There is no intermediate vesting inanyone, and no rule of Mahomedan law by which an individual heir, as such, maybe taken to represent either the estate of the deceased or the heirs generally;and it has been held by the High Court at Allahabad that a sale made under adecree obtained by a creditor of a deceased Mahomedan in a suit to which asingle heir only was a party might on this principle be set aside at theinstance of the other heirs to the extent of their interests, contingently,however, on their paying their proportionate share of their ancestors debt:(see Jafri Begam v. Amir Muhammad Khan I.L.R All. 822 and Muhammad Awais v.Harsahai I.L.R. All. 716 and in another case in the same Court, it was heldthat a decree ought not to be passed against some only of the heirs of aMahomedan for the whole amount of his debt, but ought to be confined to anamount proportionate to their shares in the property of the deceased [PirthiPal Singh v. Husaini Jan I.L.R. All. 361].

8. On the other hand, however, it has been held in thisCourt in the case of Mutty Jan v. Ahmed Ally I.L.R. Cal. 370 where certain heirsof a deceased Mahomedan sued to set aside a sale in execution of a decreepassed in a creditors suit to which they were not parties, that a creditorssuit is in the nature of an administration suit, and as such, an heir inpossession is bound to account for any assets that may have come into hishands, and to that extent is liable to pay the creditors. The principle of thiscase has never, so far as we are aware, been since dissented from in thisCourt, though it was undoubtedly subjected to unfavourable criticism in thecase of Jafri Begam v. Amir Muhammad Khan I.L.R. All. 822 referred to above.And we think that apart from the consideration that it is an authority of thisCourt which has remained unquestioned now for several years, it embodies a salutaryrule and one to which effect ought to be given. If the creditor of a deceasedMahomedan is to be confined to the recovery of a fractional portion of hisclaim, notwithstanding that the assets may be wholly in the possession of theperson through whom it is sought to enforce it, or is to be postponed until theestate has found its way into the hands of all the persons who are entitled toshare in it, as might frequently be the case, we can conceive that very graveinjustice might in many cases, be perpetrated, and a method sanctioned by whichit would be easy to place obstacles in the way of the realization of the justobligations cast upon the estate. And the technical difficulties whichinfluenced the decisions to which reference has been made in the AllahabadCourt, unless they are insuperable, which, in our opinion, they are not, oughtnot, we think, to be allowed to override such considerations as these. InEngland, where rules of practice would probably be enforced with greaterstringency than in this country, it has been held by a Judge of much experiencethat, when a person possesses himself of the assets of an intestate withouthaving administered, a bill for an account of the specific assets he hasreceived would lie against him as executor de son tort, though there be nolegal personal representative--Coote v. Whittingtan IL.R. 16 Eq. 534 and seealso Rayner v. Cochler IL.R. 14 Eq. 262 and In re Lovett IL.R. 3 Ch. D. 198.And though the analogy may not be complete between the Mahomedan heir, who isin possession of more than his share of the inheritance, and the executor deson tort of English law, it is yet sufficiently close to sustain acomparison." If, "it is said in the last of the cases just referredto," you cannot sue a person as executor de son tort, then any person mayenter upon and take possession of the property of a deceased, and he cannot besued for doing so"--a conclusion which the learned Judge who tried thecase refused to accept.

9. In our opinion, then, the suit was properly broughtagainst the appellant, and her liability, we think, is to be measured, not bythe extent of her interest in her late husbands property, but by the assetswhich have come to her hands, and which she has not disbursed duly in thedischarge of the liabilities to which the estate was subject at her husbandsdeath.

10. The next point taken in the pleas of appeal is that theplaintiffs, having failed to prove that the appellant was in possession of anyof the assets of the deceased, were not entitled to the judgment of the Court.If the premises here asserted were true the conclusion might no doubt follow;but we do not understand the learned Judge to have arrived at any suchconclusion. He has found no doubt that the appellant was not in possession of allthe property of the deceased, but his decree would be unintelligible, had hisopinion been that none of the deceaseds property had come to her hands. Hisdecree is indeed erroneous in that he confines the enquiry to the assets, whichcan be shown to have been in the hands of the appellant at the time of theinstitution of the suit, and in that it makes no provision for the allowance ofsums duly disbursed by her; but it cannot, we think, be impugned on the groundnow in question.

11. Lastly, exception is taken to the allowance of intereston the roka after due date, as well as to the rate allowed, but we think thatin neither of those particulars is the decree incorrect,

12. We think, however, that the decree ought to be amendedin the respects which we have mentioned above, namely, that the enquiry shouldbe as to the assets received by the appellant since her husbands death, andthat allowance should be made her for such sums as she may have paid thereoutin discharging the liabilities of the estate. Subject to these amendments, thedecree will stand, and the case will go back to the lower Court in order thatthe inquiries now directed may be carried out. We make no order as to costs.

.

Baij Nath Singh and Ors. vs. Amir Dulhin (03.01.1894 -CALHC)