PUNIT NARAYAN SINGH Vs. RAJKUMARI GODABARI KOERI

JUDGEMENT

(1.) This is an appeal by the decree-holders against an order which decides that they are not entitled, in execution of a decree for money obtained by them against Rani Sundar Koer on the 10th May, 1911, to proceed against the estate of her husband, now in the hands of his two daughters. The facts material for the determination of this question are not in controversy. On the 20th February, 1903, Rani Sundar Koer executed a usufructuary mortgage in favour of Punit Narain Singh for a loan of Rs. 25,000. The mortgagee paid Rs. 1,500 in cash and retained the balance for payment of a decree obtained by one Baldeo Lal against the mortgagor on the 18th February, 1903. The usufructuary mortgagee was subsequently deprived of possession of the hypothecated properties as the result of a dispute between the mortgagor and her brother-in-law, which culminated in the Court of Wards taking charge of the entire estate. The usufructuary mortgagee was consequently driven to institute a suit on the 2nd January, 1911, against the mortgagor Rani Sundar Koer for recovery of the money advanced by him. He claimed only Rs. 17,500 as the principal amount, namely, Rs. 1,500 paid in cash to the lady and Rs. 16,000 paid to the decree-holder, Baldeo Lal, in satisfaction of his claim. On the 10th May, 1911, the mortgagor confessed judgment and a decree was made against her for the amount claimed together with interest and costs. Before this decree could be executed Rani Sundar Koer died on the 27th March, 1913. Execution was then taken out against such portion of the estate of the husband as had come into the hands of his two daughters by virtue of his testamentary disposition. The terms of this disposition are not known to the Court as the Will mentioned is not on the record. The daughters contended that the decree obtained against their mother could not be executed against the estate of their father, which, upon her death, had passed into their hands. The Subordinate Judge has given effect to this objection and has dismissed the application for execution as against the daughters. We have been invited by the decree holders to hold that this view is erroneous.

(2.) The principle applicable to cases of this description is well settled. Where a suit against a female heir is founded upon a purely personal debt or contract of her own, the decree can only be against her own personal property and a sale in execution of such a decree can only convey her own interest in the property: Jugal Kishore v. Jotindra Mohun Tagore 11 I.A. 66; 10 C. 985. The position is different when the foundation of the decree is a liability which might bind the estate in the hands of the reversioners. But in order that the decree may operate against the estate, the suit must be so framed as to show that it is not merely a personal demand upon the female in possession, but that it is intended to bind the entire estate and the interests of all those who come after her. The reason is obvious. Although in a suit brought to recover or charge an estate of which a Hindu female is the proprietress she will as defendant represent and protect the estate, as well in respect of her own as of the reversionary interest, still, and on this very account, the plaintiff is bound to give notice that he is seeking so large a remedy, in order to put those who may be ultimately affected upon their guard and to enable them to protect themselves. If the suit is so framed as only to claim a personal decree against the heiress, the decree can only be executed against the female holder personally and against her limited interest in the land, notwithstanding that the debt was one which might have been enforced against the estate in a suit properly framed for that purpose: Nugender chunder Ghose v. Sreemutty Kaminee Dossee 11 M.I.A. 241; 8 W.R. (P.C.) 17; 2 Suth. P.C.J. 77; 2 Sar. P.C.J. 275; Baijun Doobey v. Brij Bhookun Lall Awusti 2 I.A. 275; 1 C. 133; 14 W.R. 306. The test consequently is not merely whether the female heir could have been sued, but whether she was in fact sued, in a representative capacity. If the reversioners have been joined as parties, that fact would afford clear indication that the creditor in ended to make the inheritance liable and not to restrict his remedy to the qualified interest of the female heir: Nagender chunder Ghose v. Sreemutty Kaminee Dossee 11 M.I.A. 241; 8 W.R. (P.C.) 17; 2 Suth. P.C.J. 77; 2 Sar. P.C.J. 275; Mohima Chunder Roy Chowdhry v. Ram Kishore Acharjee Chowdhry 15 B.L.R. 142; 23 W.R. 174; Srinath Dass v. Hari Pada Mitter 3 C.W.N. 637; Bhagirathi Dass v. Balesuar Bagarti 19 Ind. Cas. 686; 17 C.W.N. 877; 41 C. 09; 19 C.L.J. 155; Rameswar Mandal v. Provabati Debi 25 Ind. Cas.84; 19 C.W.N. 313; 20 C.L.J. 23. But it is not essential that the reversioners should be joined; the frame of the suit, the judgment and the decree may show that the proceeding was not against the female heir personally but against her as the representative of the estate of the last full owner: Jugal Kishore v. Jotindra Mohun Tagore 11 I.A. 66; 10 C. 985; Court of Wards v. Maharaja Coomar Ramaput Singh 14 M.I.A. 605; 10 B.L.R. (P.C.) 294; 17 W.R. 459; 2 Suth. P.C.J. 575; 3 Sar P.C.J. 117; Ram Lal Shookool v. Akhoy Charan Mitter 7 C.W.N. 619; Roy Radha Kissen v. Nauratan Lall 6 C.L.J. 490; Brojo Nath Lal v. Jaggeswar Bagchi 1 Ind. Cas. 62; 9 C.L.J. 346; Kisto Moyee Dossee v. Prosunno Narain Chowdhry 6 W.R. 304; Bisto Behari Sahoy v. Lala Baijnath Prasad 16 W.R. 49; 7 B.L.R. 213; Bireswar Das Dey v. Kamal Kumar Dutt 16 Ind. Cas. 37; 17 C.W.N. 337; Mohamed Sadut Ali v. Hara Sundari Debya 15 Ind. Cas. 351; 16 C.W.N. 1071; Trilochan Hazra v. Bakkheshwar 14 Ind Cas. 839, 15 C.L.J. 423; Rameswar Mandal v. Provabati Debi 25 Ind. Cas.84; 19 C.W.N. 313; 20 C.L.J. 23; Veerabadra Aiyar v. Marugandas Nachiar 8 Ind. Cas. 1072; (1910) M.W.N. 799; 34 M. 188; 9 M.L.T. 235; 21 M.L.J. 320. Tested in the light of these principles, what is the position of the decree-holders in the case before us? There is no indication whatever that in the suit for recovery of the money, they intended to obtain a decree which would operate against the inheritance. The claim was in form personally against the widow. The decree on the face of it was personally against her. That decree cannot after her death be executed against the estate of her husband in the hands of his daughters who have taken it under his testamentary disposition. In this view, it is needless to determine whether the loan was in whole or in part for purposes which made it binding upon the reversionary heirs to the estate of her husband.

(3.) The result is that the order of the Subordinate Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at five gold mohurs.