AI Structured Summary
Not yet generated for this judgment
Judgment
Subrahmania Aiyar, J.—The decree in execution of which the present question arises was obtained by the respondent on a promissory note
against the appellant as the son and heir and legal representative of his mother, the executant of the promissory note, the decree directing payment
from the estate of the deceased debtor. The respondent having attached certain jewels of the deceased in the possession of the officers of the
Court of Wards who were in charge of the estate of the appellant (a minor), a claim was put forward on behalf of the appellant to the effect that
the respondent as attaching creditor was entitled to only so much of the sale proceeds of the jewels as might exceed the sum of Rs. 1,562 due to
the appellant (made up of Rs. 361 paid after the death of the appellant''s mother for the redemption of two of said jewels from the creditor to
whom they had been pledged by her and of Rs. 1,091 also paid subsequent to the mother''s death to certain of her other creditors and Rs. 110
advanced to the mother out of the appellant''s own funds some time before her death), The District judge without going into the truth of the alleged
payments held that the claim was not legally sustainable.
The questions raised in the argument before us were whether it was the duty of the appellant and those entitled to act on his behalf in the matter
to pay his mother''s creditors rateably out of the assets left by her and whether the appellant is entitled to any and what portion of the sale proceeds
of the attached jewels which appear to have been sold with the consent of the parties subject to the decision of the appellant''s claim.
It is now settled that unsecured creditors of a Hindu have no charge or lien on the inheritance. No text or other Hindu Law authority has been
cited in support of the contention that an heir and representative such as the appellant was, in applying the ancestor''s assets in his hands towards
the discharge of the ancestor''s debts, bound to pay each and every creditor rateably. Nor is there any statutory provision to that effect. The effect
of Section 252 of the CPC is only that the representative can be proceeded against personally to the extent to which he has failed to apply the
assets duly. It is scarcely necessary to say that it does not follow from this that if payment is not made by the heir rate ably he has failed to apply
the assets duly. The cases cited for the appellant (Syed'' Jafer Hussain and Ors. v. Hingan 8 W.R. 161 Joogul Kishore Singh v. Kalee Chumsingh
25 W.R. 224 Kattala Uppi v. Thangara Varma Rajah of Kotlayatu Padiuhari Kovilagam 3 M.H.C.R. 161 proceed on the clear assumption that
every payment on account of a debt is a perfectly lawful payment irrespective of its effect upon the other creditors, and would be a due application
of the assets within the meaning of the section. That assumption is made for the obvious reason that the principle of distributing among the general
body of creditors the whole of the available assets rate ably is unknown to the law except where it has been introduced by express legislation. If in
the absence of adequate legislation on the point, we should hold that a legal representative such as the appellant is bound to distribute assets
coming to his hands rate ably only, we should be adopting a rule which though just in the abstract would yet, as is obvious, be attended with
serious difficulties in its practical application. This is a consideration which ought not to be overlooked, for whether it is workable is, in the language
of Lord Robertson in Janson v. Driefontein Consolidated Mines Co., Limited 1902 A.C. 505one of the tests of any legal doctrine.
It is hardly necessary to say that there is no analogy whatever between the case of an executor who is governed by the special provisions of the
Indian Succession Act and that of the appellant as a legal representative under the Hindu Law, with reference to the question of the distribution of
the assets among creditors ; nor has the passage cited from Domat (Volume II, page 107) any bearing on the present case as the heir referred to
therein seems to be subject to a rule peculiar to the Roman Law. In my opinion, therefore, the answer to the question under consideration should
be in the negative.
As to the next question, it was urged on behalf of the respondent that as the jewels themselves are still in the hands of the appellant, respondent
is entitled to proceed against them as assets undisposed of, without reference to any payments made by him or on his behalf to other creditors.
Now, supposing that the Court of Wards had caused the jewels to be sold by auction and purchased them with the minor''s other funds in their
hands and paid the sale proceeds to the mother''s creditors it would be impossible to contend that the jewels were still undisposed of assets on the
ground that they still remained in the possession of the minor. In cases like the present the thing to be considered is the real effect of what has been
clone and not whether the property which originally belonged to the deceased is still with the representative. Ram Gulam Dobey v. Ayma Begum
12 W.R. 117 relied on by the appellant is a clear authority in favour of this view. There Loch and Macpherson, JJ. held that when a defendant
against whom a decree had been passed in his representative capacity had made payments m satisfaction of the decree to the full value of the
property of the deceased which had come or which might have come to his hands, the decree could no longer be executed even though the
defendant had still in his possession property which originally belonged to the deceased.
The good sense of the reasoning on which this decision rests, even were the question res integra, would induce one to adopt the same view. It
may be added that the present is eminently a case for raising the presumption that the payment was made on behalf of the appellant as
representative of his mother inasmuch as he himself is incapacitated and the persons making the payment are public servants bound to proceed in
the matter according to the provisions of Section 17 of Regulation V of 1804 with the sanction of the Court of Wards. To hold otherwise would be
to unjustly mulct the appellant to the extent of the payments already made.
Apart from this ground so far as the sum of Rs. 361 said to have been paid for the redemption of the two jewels is concerned, the appellant is in
my opinion entitled to a lien on those jewels for the amounts so paid.
This payment if true was not a payment by a new stranger. It was one made in the course of getting possession of the deceased''s assets which
the appellant had to dispose of in accordance with the law. In Sheldon On Subrogations it is stated on the authority of certain decisions in America
(where under the initial guidance of Chancellor Kent the doctrine of Subrogation derived from the Civil Law has been developed more fully than in
England) that the wife and children of a deceased who pay valid demands against his estate have been held not to be mere valunteers and may be
subrogated (See second edition page 368.) The reason for the application of the principle to such cases would seem to be well expressed in the
following passage quoted by the author referred to at pp. 368 and 369 from a judgment of Thompson, C.J. : ""I regard the doctrine as applicable in
all cases where a payment has been made under a legitimate and fair effort to protect the ascertained interests of the party paying, and where
intervening rights are not thereby jeopardized or defeated, such payments, whatever their effect may be at law in extinguishing the indebtedness to
which they apply will not be so regarded in equity, if contrary to equity to regard them so.
Here no right of the respondent has been jeopardised or defeated by the payment made for redeeming the jewels and it is but equitable that
creditors like the respondent who wish to take advantage of the redemption should do so only subject to the condition of paying what they would
have had to pay. were they themselves redeeming the property.
In regard to the Rs. 110 said to have been advanced to the mother in her lifetime, the appellant has a right to pay himself out of the assets as he
cannot sue himself.
It follows that the appellant is entitled to be paid out of the sale-proceeds the sums which he proves he is entitled to, in the view of the law
stated above and that the respondent is only entitled to the remainder.
1 would, therefore, set aside the order of the District Judge and would remand the case for enquiry into the truth of the allegations made on
behalf of the appellant and for disposal on the merits.
Costs in this Court should abide the result.
Davies, J.
I conour.