Ray, J.Miscellaneous Appeal No. 98 is directed against an order of the Subordinate Judge in miscellaneous case No. 7 arising out of execution case No. 207 started by one Manranjan Prasad Singh. Manrajan is said to have advanced Rs. 12,000 to the Raja, that is to say, the proprietor of Deo estate who was the husband of the appellant. The Raja died on 18-4-1934 leaving two widows, the senior being Rani Bishwanath Kumari and the junior Rani Brijraj Kumari the present appellant. After the death of the Raja, both the Ranis advanced rival claims of succession to the estate, the senior Rani claiming that the succession to this estate was governed by the rule of primogeniture and she alone was to succeed to the exclusion of the junior Rani; while Brijraj Kumari, the junior Rani, contended that there was no custom of primogeniture applying to this estate and, therefore, both of them were entitled to succeed. They fought their battle in the revenue Courts in the land registration proceedings in which both the Deputy Collector and the Collector had recorded both the Ranis as proprietress of the estate; but on 11-1-1987 the Board of Revenue came to the conclusion that the estate was governed by the rule of primogeniture in regard to the question of succession and, therefore, the senior Rani alone was entitled to possession and hence to be recorded.

2. Manranjan Prasad Singh, the respondent in this appeal started a suit on the handnote executed by the Raja for a loan of Rs. 12,000 as already stated, impleading both the Ranis as defendants. In the plaint the Ranis were described as the widows of Raja Jagarnath Prasad Singh malik of the estate of Deo Raj and in para. 2 of the plaint it was distinctly stated: "Accordingly the defendants as heirs and occupants of Rajreyasat Deo are bound to pay the aforesaid debts." The prayer was in the following terms:

A decree may be passed for Rs. 16,320 besides interest pendente lite and future till the date of realization in favour of the plaintiff against the defendants as heirs and occupants of Rajreyasat Deo.

3. The suit remained pending for some time. Then a petition of compromise was filed as between the plaintiff and the senior Rani in which) in para. 2 it was stated that

All the properties left by Raja Jagarnath Prasad Singh are in the occupation and possession of defendant 1 and she is the legal heir and representative of Raja Jagarnath Prasad Singh and she is bound to pay the debt of the said Raja and her own debts. Accordingly by the decision passed by the Board of Revenue on 11-1-1937 defendant 1 has been declared the heiress and occupant of the properties left by the Raja Sahib Raja Jagarnath Prasad Singh aforesaid. Hence, defendant 2 may be removed from the category of defendants and the decree may be passed in favour of the plaintiff against defendant 1 alone.

4. In the compromise petition there was some modification with regard to the interest and 26-1-1938 was fixed as the date by which the entire decretal amount will be paid and a default clause was added in the following terms: "In case of non-payment of the decretal amount and interest the plaintiff is and will be entitled to realize the decretal amount and interest at the aforesaid rate by taking out execution of decree. There neither is nor will be any objection to it. The plaintiff will not be entitled to take out execution before 26-1-1938."

5. On this compromise the Court passed a decree in the following terms:

The suit coming on this day for final disposal before Babu Brijbilas Prasad, Sub-Judge, first Court, Gaya, in the presence of Babu Sukhdeo Prasad pleader for the plaintiff and Babu Triloki Tewari pleader for defendant 1 and none for defendant 2, it is ordered that the defendants do pay to the plaintiff the sum of Rs. 14,320 with interest thereon at the rate of 6 per cent per annum from this date to the date of realization of the said sum according to the terms of compromise and do also pay Rs. 1441 the costs of this suit with interest thereon at the rate of 6 per cent. per annum from this date to the date of realization and according to the terms of compromise the defendant has to pay the full decree money by 26-1-1938, and in default the plaintiff will be entitled to realise the same by taking out execution and that the plaintiff is not entitled to execute the decree before 26-1-1988.

6. It appears that the petition of compromise was executed on 26-7-1937 and a decree was passed on 31-8-1937, when defendant 2s name was cut out and the decree was signed on 9-9-1937. From this it is clear that the word "defendants" in the terms of the decree as quoted above is a mistake and it should be "defendant" because by that time defendant 2s name had been expunged. In the decree only Rani Vishwanath Kumari is named as single defendant. Rani Vishwanath Kumari having died on 13-6-1939 the decree was sought to be executed on 28 8-1940 against the junior Rani, the present appellant, as her legal representative and the properties belonging to the Deo estate is said to be attached and sold in satisfaction of the decree. The appellant filed an objection objecting to the execution of the decree against her and against the properties of her husband in her hands. The basis of her objection is that the decree that was passed against the senior Rani was passed against her in her personal capacity and in any event she and the senior Rani both being entitled to the estate at the time the decree was passed as heirs of their husband, the senior Rani alone could not bind the testate by her own action, namely, by the petition of compromise, nor could she represent the estate as a whole in any litigation affecting the same, This objection was registered as Miscellaneous case No. 7 and there were certain other similar objections with regard to certain other decrees which were also put under execution and out of one of which Miscellaneous Appeal No. 314 which corresponds to Miscellaneous case No. 5 in the Court below, arises. They and certain other original suits, involving a common question of fact and law, namely, whether the estate was governed by the rule of primogeniture, were tried together.

7. The learned Subordinate Judge came to a finding that the succession prevailing in this estate was governed by the rule of primogeniture, and therefore the senior Rani alone was entitled to remain in possession of the estate so long as she lived. With regard to the decree in question, he came to the finding that the decree being for debts incurred by the last male holder of the family, and she being the sole widow and heir entitled to possession, she could represent the estate as a whole and the decree was binding against the estate, and is therefore executable against the appellant and against the assets of the Raj estate in her hands. Against this decision, the junior Rani has preferred this appeal. The real controversy in this appeal is whether the decree is one which was passed against the senior Rani as heir and legal representative of the original debtor, namely, the Raja of Deo estate and whether the decree was intended to bind the estate in her hands and whether it can-be executed against the estate of the Raja in the hands of the junior Rani. Before dealing with this question it has to be stated first of all whether the junior Rani is a legal representative of the senior Rani against whom the decree has been passed inasmuch as it is sought to be executed against the junior Rani as her legal representative. Legal representative as defined in Section 2(11)

Means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.

8. That the senior Rani Bishwanath Kumari was at least one of the legal representatives of her husband, there can be no doubt and from the last part of the definition quoted above it is clear that if the senior Rani was sued in a representative character, the junior Rani is the person on whom the estate has devolved on the death of the senior Rani who was so sued. It is contended that if the estate is not governed by the rule of primogeniture both the Ranis together can represent the estate and not one of them which question I shall deal presently, but with regard) to the fact that if we come to the decision that the senior Rani was sued in a representative character, then the estate which she was then representing having now devolved upon the junior Rani she can be called her legal representative and the execution can rightly be levied against her.

9. The question involved is one of deceptive simplicity; but if we confine ourselves only to the question of interpretation of the decree as it stands, and leave the matter, as to what the decree should have been in a case like this to the decision of proper Court, the question before us can be narrowed down within very short limits. Learned Counsel at the bar have canvassed at length various propositions of law which can be categorically stated in the following manner: (1) when and under what circumstances one heir can represent the entire estate in a suit even though the other heirs are excluded from the category of parties; (2) under what circumstances a decree should be taken to have been passed against the defendant in a representative capacity and is binding on the estate of the last holder in his or her hands; and (3) when can it properly be held that the rule of succession governing an estate is a rule of primogeniture. Learned Counsel for the appellant has cited the following cases, namely, Mahabir Singh v. Mt. Motirani Kuer AIR 1917 Pat. 432, Keshavasami Iyer v. Narayanan (13) 18 I.C. 632, Sri Gaja Pati Radhamani v. Sri Pusapati Alakjeswari (92) 19 I.A. 184 and Gouri Nath v. Mt. Gaya Kuer AIR 1928 P.C. 251 to establish that when there are several widows succeeding to the estate or several co-administrators administering the estate or several co-legatees entitled to the estate, they must all join together in order to affect the parent estate by any transaction of their own and if any one of them is omitted from the transaction concerned, the transaction does not bind the estate. He has also relied upon a decision of the Madras High Court in Rathnamal v. Sundaram Achari AIR 1933 Mad. 508 in which it was held that if a decree for a debt due to the deceased debtor is passed against one of her representatives having a life estate and the other representatives though originally impleaded are subsequently expunged or exonerated from the liability the decree passed against the representative with a limited interest cannot be executed against the others.

10. In reply the learned Counsel appearing for the respondent, Mr. Jha cites Muttyjan v. Ahmad Ali (82) 8 Cal. 370, Dinamoni v. Elahadut Khan 8 P.W.N. 843 and Mt. Daropdi v. Mt. Sada Kuer AIR 1914 Lah. 144 in which it has been held that some of the heirs may under certain circumstances represent the entire estate. In the view that I am going to take with regard to the interpretation of the decree as it stands it is not necessary for us to give any final opinion upon these respective propositions of law but in view of the length of argument advanced by learned Counsel at the bar, I feel constrained to say that the true rule consists in that where one or more heirs out of many is impleaded as being solely in possession of the properties of the deceased and it is so done bonafide without any elements of fraud or collusion, the estate can be held to have been sufficiently represented even though all the co-heirs are not brought on the record. Of course the decisions vary on account of the varying facts and circumstances in which the decree was passed. Learned Counsel for both sides have also cited a large number of authorities in order to help us to come to a decision as to whether the rule of primogeniture prevails in this estate. Learned Counsel for the appellant has cited Mt. Daropdi v. Mt. Sada Kuer AIR 1914 Lah. 144 a decision relating to this very estate in which this Court has come to the conclusion that the estate is not governed by the rule of primogeniture in matters of succession. He has also placed before us two unreported decisions which proceed on the same basis. It has been represented to us that the decision which has been reported in 1944 Brijraj Kumari v. Rambilas Singh 1944 C.W.N. 137 is now under appeal to the Privy Council.

11. As against that Mr. Jha appearing for the other side has cited Babu Ganesh Dutt Singh v. Moheshur Singh (1854) 6 M.I.A. 164, Fanindra Deb v. Rajeswar Das (86) 12 I.A. 72 and Martand Rao v. Malhar Rao AIR 1928 P.C. 10. He relies upon these decisions to show the futility of the logic and the reasoning advanced in the decision reported in Brijraj Kumari v. Rambilas Singh 1944 P.W.N. 137 in view of the observations of the Privy Council. He relies upon several passages which are to the effect that if for a large number of years--say 200 years--an estate has been handed down from generation to generation to a single heir that would be a circumstance furnishing a very cogent proof of impartibility and urges that in the face of this expression of opinion of the Privy Council it cannot be held to be correct that in this particular case the very circumstance of its descent to one single heir for a large number of generations is not sufficient to establish impartibility. The argument is no doubt fallacious. The mere fact of descent to a single person without more has never been held by the Judicial Committee to establish primogeniture beyond all reasonable doubt. There may be cases in which on such descent, the rival heirs might have been sufficiently compensated thereby preventing them from advancing their claims or some testamentary disposition may have intervened or there might be similar other circumstances preventing the estate from descending to more than one heir. Therefore, it will be difficult for us to come to any final decision on argument furnished on the basis of the authorities cited by Mr. Jha to pronounce that the decision reported in Brijraj Kumari v. Rambilas Singh 1944 P.W.N. 137 is not correct. At any rate it is not necessary for us to come to any decision because for the purposes of determining whether the decree binds the estate in the hands of the junior Rani we assume that the senior Rani did represent the estate at the time.

12. In Order to judge the nature of the decree which can be executed against the assets of a deceased debtor in the hands of his legal representatives, one has to keep in view the provisions of Sections 50 and 52, Civil P.C. Section SO provides that

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

Sub-section (2) is not material for the purpose of this case. Section 52(1) says:

Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

Sub-section (2) provides:

Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree has been against him personally.

13. On comparing both the sections it appears that Section 50 contemplates a case in which the decree has been passed against the debtor himself during his lifetime. This section, therefore, is not applicable to the facts of the present ease. Section 52 is the section which is just in point and this provides that the decree in order to be executed by attachment and sale of the property of a deceased person must bear the character of, one, having been passed against a party as the legal representative of the deceased person; and, secondly, that the decree must be for payment of money out of the property of the deceased. So far as the present decree is concerned which I have quoted above in extenso standing by itself does not contain a single word to show that it was passed against Rani Vishwanath Kumari as the legal representative of her husband and there is absolutely no reference to the fact that the decree is for payment of money out of the property of the deceased. If the matter stood there it could be predicated with an amount of certainty that this decree is by all means a personal decree against the senior Rani but there are circumstances which make the matter rather difficult of solution.

14. From the plaint it will appear that the creditor intended to bind the two co-widows in their representative capacity and to obtain the decree as against the assets of the deceased debtor in their hands. True, in the prayer portion there is no prayer expressly to the effect that the decree may be passed against the defendants and against the assets of the deceased debtor in their hands; but I should not attach much importance to the omission of such words in the plaint because reading the plaint as a whole it is clear that they were used and a decree was sought against them, because they were in possession and occupation of the estate of the deceased debtor and were his legal representatives. The position, however changed to a large extent by certain subsequent events, namely, the decision of the Board of Revenue in ruling out the claim of the junior Rani to be recorded with regard to the estate but at the same time the fact remains that according to Hindu law the inheritance devolved simultaneously on both the co-widows though in view of the custom of impartibility the possession was to go to the senior Rani alone. The position, therefore, is that the co-widows were the coheirs of the deceased. The junior Rani was not an heir of a different degree to succeed after the death of the senior Rani. She did succeed at the same time when the senior Rani succeeded; but on account of the impartibility of the estate it was held that the senior Rani alone was entitled to possess and therefore was entitled to the estate. This led the decree-holder to take recourse to a compromise in the form in which it has been made, namely, expunging defendant 2 from the category of the defendants and seeking a decree against defendant 1 alone.

15. It is curious enough that whatsoever be the reason, there are no words either in the petition of compromise or in the decree which is the formal expression of relief granted by Court suggesting that the creditor still intended to have the decree against defendant 1 in her capacity as a legal representative and to have the decretal amount out of the property of the deceased debtor in her hands. As it has been laid down in the cases referred to by the learned Subordinate Judge that the mere fact that the debts are for legal necessity are not quite enough to lead to the conclusion that the decree was binding against the estate. Various circumstances are easily conceivable under which a creditor may choose to rely upon the personal credit of the legal representative. The bare possibility of such a contingency cannot be absolutely ruled out in the context of certain circumstances. It may as well be that the deceaseds estate may be heavily encumbered and the creditor may prefer to have a personal decree against the legal representative of the deceased debtor, or in the case of a rivalry between several co-heirs one with a view to be recognised as the only heir may willingly undertake a personal liability to the satisfaction of the creditor. Therefore, in the circumstances of this case in the absence of express words either in the decree or in the petition of compromise we cannot hold that the decree as it stands is one which conforms to the provisions of Section 52, Civil P.C.

16. It has been very strenuously contended by Mr. Jha appearing for the respondent that the provisions of Section 52 are not at all imperative and any literal compliance with the said provisions is not necessary. His submission is that if from the nature of the suit the Court can come to the conclusion as to what was intended the Court should allow the decree to be executed against the property of the original debtor in the hands of his legal representative, whoever he may be, on the basis as if the decree has been passed in the form provided for in Section 52. In support of his contention he relied upon Ishan Chandra Mitter v. Buksh Ali Marsh Rep. 640. What happened in that case was that one Juggomohun had incurred certain debts. He died without satisfying the same. The creditor brought a suit against Juggomohans widow and obtained a decree. Juggomohun left a son. The decree was executed and Juggomohuns property was sold. Juggomohuns son instituted a suit saying that what was sold was the right, title and interest of the widow, his mother and therefore his interest in the property had not passed and it was held that as the debt was of Juggomohuns and the widow was sued in her capacity as his legal representative, what was intended to be sold was Juggomohuns property. From the report of the case it appears that in one of the columns of the sale proclamation it was stated the debtors property, as distinguished from the judgment-debtors property.

17. This case was followed in Lall Seeta Ram v. Ram Buksh (75) 24 W.R. 383 in which it was held that though the decree was not in the form of Section 203, Civil P.C., (corresponding to Section 52 of the Code of 1908) in which form it should have been passed, it does not make any difference in holding that it was not the right, title and interest of the judgment-debtor named in the sale proclamation, but it was the property of the deceased debtor that was sold. To the same effect are the decisions in Jotendra Mohan v. Jugal Kishore (81) 7 Cal. 357 and Jugal Kishore v. Jotindra Mohan (85) 11 I.A. 66. In all these cases what happened was that the executing Court considered the decree to be one against the legal representative executable against the-assets of the deceased debtor in the hands of the legal representatives, and accordingly executed the decrees and allowed the properties to be sold and it was held that the interest that was purchased by the auction-purchaser was the interest which could be conveyed in a properly framed decree. But here the question is different, namely, the executing Court has been called upon to decide whether the decree is a regular one and has been passed in accordance with law. There is a great deal of difference between the two. We are not to consider the effect of anything that has been done on the assumption that the decree had been passed in accordance with law. We have been called upon to judge whether the decree is one which conforms to the provisions of law and which can, therefore, be executed in the way in which the law requires a particular decree to be executed provided it is passed in a particular form. In any event I cannot agree that the provisions of Section 52 deal with mere matter of form.

18. I will invite attention to several modern cases in which a somewhat stricter view has been taken. In AIR 1938 7 (Privy Council) , it has been said that in order to attract the provisions of Section 53, Civil P.C., the decree must be passed in accordance with Section 52 of the Code. The facts of that case were that the plaintiff creditor sued the deceased debtors sons and grandsons for recovery of his debts out of the estate of debtor in their hands. The trial Judge passed a decree against the sons in exactly the form in which Section 52 would have it but dismissed the case against the grandsons. The decree was sought to be executed against the entire joint family property in the Lands of the sons and the grandsons, on the principle laid down in Section 53 of the Code Section 53 provides that:

For the purpose of Section 50 and Section 52, property in the bands of a son or other descendants which is liable under Hindu law for the payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

19. Though in this case the decree had been passed against the sons in their character as-legal representatives and though the decree mentioned that the money payable under it would be realized out of the property of the deceased debtor in their hands, yet because the decree was not passed against the grandsons in the same form, their Lordships of the Judicial Committee held that the provisions of Section 53 are not attracted to such a decree. In Madhaban Nair v. Choorapra Unnitha AIR 1934 Mad. 562 the creditors impleaded several persons as defendants in their character as legal representatives of the deceased debtor, and also prayed to have the decree against the assets of the deceased debtor in their hands; but the Court in passing the decree passed it against defendant 1 as the legal representative of the deceased debtor and directed the decretal amount to be recovered out of the deceased debtors property. The decree was sought to be executed against defendant 9 and their Lordships of the Madras-High Court held that the decree in order to be executed u/s 52 must contain two things, namely, it must be passed against the legal representative as such and it must be said that the decretal money should be realized by execution out of the property of the deceased debtor. In this case the terms indicated that the money should be paid out of the assets of the deceased debtor, there was no mention of defendant 9 as the legal representative. Therefore in accordance with the provisions of Section 52 the decree was not allowed to be executed against him. In another case of this Court in Baraboni Coal Concern Ltd. v. Ram Chandra AIR 1939 Pat. 580 it has also been observed that the decree should be in the form provided for in Section 52 of the Code in order to enforce it against the assets of the deceased debtor in the hands of his legal representative or in deserving cases to enforce personal liability against such representative within the provisions of Sub-section (2) of Section 52.

20. In my judgment, therefore, compliance of the provisions of Section 52 of the Code is not a mere matter of form but is a matter of sub-i stance. It may be that it would not always accord with justice to insist upon the actual words of the section being present in the decree; but the decree itself must bear sufficient materials to indicate that it was intended by the Court to be operative against the estate of a deceased debtor. In a case where the contested decree is passed by the Court in a suit which has been property framed, namely, in the sense that it has been framed against the legal representative as such and the relief sought is in substance that the decretal money should be realised out of the assets of the deceased debtor in his hands, the strictness or accuracy of the language in which the decree is couched may not be insisted upon; but the matter is quite different when the decree is based upon an agreement of one out of two parties defendants originally impleaded in the case. The compromise does not stand on a position higher than any private transaction entered into on the part of the senior Rani with the creditor, at least the Courts judicial vigilance is not alert to the circumstance that he is going to pass a decree binding on the deceased debtors estate which can be enforced not only against the judgment-debtor whose name appears on the record but also all succeeding judgment-debtors or legal representatives who may be in some cases very remote reversioners. I have already stated before that there may be circumstances in which the bare possibility of interpreting the decree as personal decree accepted as between the parties may not be ruled out. Therefore as an executing Court I do not consider it safe that this decree can be pronounced to be one against the senior Rani in her capacity as the legal representative and enabling the creditor to execute the decree as against the assets of the deceased debtor. In the interest of justice, however, I think it will be open to the decree-holder to approach the Court that passed the decree to amend it, if the circumstances permit, after due notice to the judgment-debtor and to bring it into the line and form prescribed in Section 52 of the Code. It will be then open to the junior Rani to place the circumstances before the Court which might help to come to a right conclusion as to whether the compromise with the senior Rani was bona fide and free from any fraud or collusion, and whether it was intended by the parties that the decree should be against the estate. With these observations I would allow Misc. Appeal No. 98 and the order of the lower Court is set aside. In the peculiar circumstances of this case, we make no order for costs.

21. M.A. No. 314. The question involved in this case is very simple. In this case the senior Rani herself incurred an oral loan for the purpose of performing the Gaya sradh of her husband. The suit that was filed by the appellant was not against her as legal representative of her deceased husband. She was herself the debtor and not a word was said either in the plaint or in the decree that the decree should be passed against the estate in her hands. The very marked contrast in which this plaint stands as against the plaint in the other case referred to in Misc. Appeal No. 98 will make it clear that the creditor never intended to have a decree against her in her representative capacity or against the estate. The learned Subordinate Judge after duly considering this circumstance has held that this decree is not executed against the estate in the hands of the junior Rani, nor the junior Rani is the personal representative of the senior Rani. Nothing has been urged before us which can lead us to hold that the judgment of the learned Subordinate Judge is wrong. I would, therefore, uphold the judgment of the learned Subordinate Judge and dismiss this appeal with costs.

Reuben, J.

22. I agree.