AMMALU AMMAL ALIAS PARVATHI AMMAL Vs. NAMAGIRI AMMAL

JUDGEMENT

(1.) The plaintiff who is the appellant sued to recover Es. 4,534-13-3 alleged to be due on a promissory note executed by the deceased Kothai Ammal, the widow and executrix under the will of one Narasimhachari who died leaving another widow, two daughters and a daughter s son (defendants 1 to 4 respectively). The case for the plaintiff is that the promissory note sued on was executed in respect of moneys borrowed by the executrix to pay the legacy due to the 3rd defendant and that defendants 1 to 4 who have taken the testator s property and defendants 2 to 4 who have succeeded to Kothai Ammal s properties are liable. Various defences were raised but it is only necessary to consider the plea that the executrix had no power or necessity to borrow so as to bind the estate of the testator and the plaintiff can only proceed against Kothai Ammal s heirs and the assets in their hands.

(2.) The Subordinate Judge held that under the terms of the will the proceeds of the life policy (referred to in paragraph 8 of the will) were specified as the fund out of which the legacy was to be paid, that there was no necessity to borrow and that the estate of the testator was not bound to satisfy the amount due on the promissory note. He passed a decree against Kothai Ammal s legal representatives. On appeal the District Judge confirmed the decree on the ground that plaintiff did not prove any necessity for the loan.

(3.) It is argued for the appellant that both Courts were wrong in viewing the case solely from the standpoint of necessity that the powers of an executor to borrow monies for the purposes of administration of the estate are wider than those of an administrator, that the indication of a fund in the will out of which the legacy was to be paid does not prevent it from being otherwise discharged, if the fund is not immediately available and that so long as the executor borrows money bona fide in the due course of administration he is entitled to a right of retainer which can be availed of by the creditor whose loan has been applied to the payment of sums payable out of the estate. It is also argued that the creditor has a direct right to proceed against the estate as he cannot be in a worse position than the creditor who has lent moneys to the managing member of a joint family or to a trustee of a temple or the guardian of a minor for necessary and binding purposes.