HASANALLI MOLEDINA Vs. POPATLAL PARBHUDAS

JUDGEMENT

(1.) This suit was brought by the plaintiff to recover a deposit of Rs. 9000 from the estate of the deceased Karmali Moledina and a legacy of equal amount given to him by clause 8 of the will. The suit was brought against the executors, who resisted the plaintiff s claim on two main grounds : (1) availing themselves of the old and as far as this country is concerned exploded doctrine of satisfaction that the legacy in the will was no more than a payment of the deposit or debt and, therefore, the plaintiff could not have both the debt and the legacy; (2) that inasmuch as the executors had not given their assent to the legacy, the plaintiff could not sue them directly as upon a complete title for that amount, nor as a creditor of the estate could he sue the executors without asking for an administration of the whole estate.

(2.) In order to avoid as much as possible unnecessary difficulties arising out of technical defences of that kind, the plaintiff was allowed to amend his plaint so as to ask in the first instance for a declaration that he was entitled to his debt and his legacy; in the next, if necessary, for an administration of the estate. To the plaint so amended the executors have put in a supple- mental written statement, reiterating their defence based upon the doctrine of satisfaction, and further claiming that all parties interested in the estate ought to be joined in this suit. As to that, they will be able to come in in the administration suit if they desire to do so. The executors were asked whether they admitted that they held sufficient assets of the deceased to meet all claims upon the estate, for, if they did, it would probably be unnecessary to make the usual administration decree. They do not admit that they hold sufficient assets to meet all claims; and where that is so, the usual and proper course no doubt would be, where either a legatee or a creditor is suing, to have the whole estate administered.

(3.) Before dealing with the substantial objection taken by the executors, I should like to observe in passing upon their defence under Section 112 of the Probate and Administration Act that that section appears to me to be unfortunately worded. If it really means what it says, the practical consequences of applying it strictly logically would be absurd, for, however" just a legatee s claim may be, no Court could decree it upon an incomplete title. Therefore, as long as the executors chose to withhold their assent, it is difficult to and any remedy of which the legatee might effectually avail himself. The executors appear to have thought that while this objection would be fatal to a suit brought directly against them, it could be obviated as soon as the form of the suit was changed and administration of the estate granted. Merely as a matter of academical logic, I do not see how that in any way affects the position. I cannot bring myself, however, to believe that the law really meant to leave legatees -thus completely at the mercy of perverse or capricious executors ; and it certainly does appear to me that the Legislature might with advantage alter or add to the words of this section and the section which corresponds with it in the Indian Succession Act.