1. The answer to this reference seems to me afforded by the terms of Act XXVII of 1860. By that Act 'no debtor of any person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person, or any part thereof, except on production of a certificate, to be obtained in the manner hereinafter mentioned, or a probate or letters of administration, unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives, and not from any reasonable doubt as to the party entitled.'
2. The Act indicates the course to be taken by the heirs, and the debts should be collected by the administrator, and the assets distributed amongst the heirs.
3. The Court can permit an action to be brought by the heirs under the discretion allowed, but it can only properly do so when the party or parties suing are in a position to sue for the whole debt, for to permit one heir to realize his share would be to alter the nature of the contract, and to subject the debtor to inconveniences and hardships.
4. I would answer the reference in the negative.
Petheram, C.J. and Brodhurst, J.
6. I am of the same opinion as the learned Chief Justice and my learned brothers Oldfield and Brodhurst, but I wish to add a few words by way of explanation as to the way in which I have arrived at the conclusion stated.
7. There can, I think, be no doubt that when an obligation is contracted between A and B, then, in default of anything in the nature of the obligation, or of a special covenant to the contrary, the obligation passes to the representatives of the parties. How, then, does the obligation pass? European Jurisprudence would, I believe, say that, if the obligation is indivisible, it cannot be split up among the representatives according to their shares in the inheritance; but, if it be divisible, it can. This was, I take it, the Roman Law on the subject, and it is so stated to have been by Demangeat, who is perhaps the best authority on the point. The French Law, too, is formulated to the same effect in the Civil Code, Book III, Title III, Section V, paras. 1217 to 1221, But it would, in my judgment, lead to much inconvenience if we were to attempt to apply this canon in its entirety to the circumstances of this country, where the law of inheritance among Hindus and Muhammadans is complicated by variations, of which, as governing the particular case, one of the parties to the obligation might well have no knowledge.
8. Take, for instance, the case of a Hindu creditor on whose death the widow enters into possession and management of the estate, and thus obtains payment of a debt due to her husband. Presently three brothers of the deceased come forward and say,--and the fact is admitted by the widow,--that the creditor was living jointly with them, and that consequently the widow had no share in the debt. Or take again the case of a Muhammadan creditor who leaves a widow and ten sons and daughters. The sons and daughters claim, and are paid, their legal shares of the debt, but afterwards the widow comes forward and claims the entire debt, as due to her alone, on account of her dower, a first charge on the estate.
9. It was, I take it, to meet such difficulties that Act XXVII of 1860 was enacted, the preamble of which recites that it is expedient to consolidate certain Acts, and to remove all doubts as to the legal title to demand and receive debts payable in respect of the estates of deceased Hindus and Muhammadans. The Act then goes on to provide that no debtor of a deceased person shall be compelled to pay his debt to any person claiming to be entitled to any part of the effects of the deceased, except on the production of a certificate obtained under the Act, and that such certificate shall afford full indemnity to all debtors paying their debts to the person in whose favour the certificate has been granted.
10. The only cases which were quoted to us as answering this reference in the affirmative were decisions of the Court of Sadr Diwani Adalat of the Lower Provinces in Mahant Muddusudun Das v. Goverdhun Das S.D.A. Rep. 1847 p. 392 and in Shiu Din Misr v. Genda Debi S.D.A. Rep. L.P. vol. vii p. 829. The facts of the latter case are so different from those of the case now before us, that I do not think it can be held to throw light upon the point under discussion; and both the cases are of a date (1847) long prior to the enactment of Act XXVII of 1860. Under that Act the Calcutta High Court has held--Waselun Huq v. Gowhuroonissa Bibi 10 W.R. 105; and Srimati Amir-un-nissa Barkat v. Srimati Afiatt-un-nissa 3 B.L.R. 404 --that certificates to collect fractional parts of debts due to a deceased person cannot be granted to different heirs according to their respective shares in the inheritance. And this I take to be a very necessary rule, for we may not consider the convenience of one party to the obligation alone. 'We are bound to see that the debtors are not unduly harassed by representatives of a deceased creditor. If it be objected that unless a certificate be allowed for a share to the party entitled to such a share, it will be impossible for him, in case of difference between himself and his co-parceners, to proceed at all, I would reply, in the words of Mr. Justice Maekby in Srimati Amirunnissa Barkat's Case 3 B.L.R. 404, 'that if a shareholder could not, having established his right to a share, prevail upon his co-shareholders to consent to one certificate being granted, it would be within the competence of the Court, under Act XXVII of 1860, to select one or more of these co-sharers who would consent to act, and appoint him or them as the representatives of the deceased, taking, of course, proper security for the safe custody of the amount of debts that might be realized; and that even if this could not be done, and if there should be any difficulty in appointing one or more of the co-sharers,' there would be no difficulty in taking steps to have a receiver appointed under Section 503 of the Code of Civil Procedure.
11. My answer to the question put to the Full Bench must therefore be in the negative.
12. I regret that in this case I am unable to agree with the learned Chief Justice and the other members of the Court upon the question which has been referred to the Full Bench. It is due to the respect which I feel for my learned brethren that I should state the grounds upon which my own opinion is based at greater length than I should otherwise have considered necessary. The order of reference sets forth all the essential points of the case except one, namely, that the plaintiff, having fallen out with heirs of the deceased Shambhu Singh, had to bring a regular suit to establish his right to a 41/2 annas share in the bond which had been executed in Shambhu Singh's favour. His claim was decreed on the 20th March 1883; and the question which we now have to determine is, whether he is competent to maintain a separate suit for the recovery of his share of the money due on the bond, or whether the obligation which the bond creates can only be enforced as a whole.
13. It appears to me that the opinions expressed by my learned brothers Oldfield and Dutholt proceed, if with all deference I may say so, merely upon the construction which they place upon a particular section of Act XXVII of 1860. The object of that Act is best shown by the preamble, which runs thus: 'Whereas it is expedient to consolidate and amend certain Acts now in force, which provide greater security for persons paying to the representatives of deceased Hindus, Muhammadans, and others not usually designated as British subjects, debts which are payable in respect of the estates of such deceased persons, and which facilitate the collection of such debts by removing all doubts as to the legal title to demand and receive the same; it is enacted as follows.' Now, I confess that I am unable to hold that the language here used by the Legislature was designed to interfere in the smallest degree with the native laws which regulate the devolution of debts due to a deceased person. It relates not to substantive law, but to procedure, and aims at giving facilities for the removal of doubts and difficulties in the way of creditors and debtors. This brings me to the second point which I desire to notice. Section 2 of Act XXVII of 1860 is as follows: 'No debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person, or any part thereof, except on the production of a certificate to be obtained in manner hereinafter mentioned, or of a probate or letters of administration,'--and then come these important words--'unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives, and not from any reasonable doubt as to the party entitled.' Now, in the first place, I wish to say, as one of the Judges who have referred this case to the Full Bench, that the reasons which often make it desirable to apply the imperative part of Section 2 do not exist here The record shows that in the present case payment of the debt was withheld, not on the ground of reasonable doubt as to the person entitled to receive it, but upon an extremely technical plea; and we have to consider whether such a plea is warranted by the law or not. We are not concerned in Full Bench with the question whether payment was or was not withheld from vexatious motives. That is a question as to the merits of the case, and it is not for us, but for the Divisional Bench, to decide. It was not tried by the Subordinate Judge, and his judgment does not refer to it in any way. I therefore put Act XXVII of 1860 aside altogether in considering the present reference.
14. The question before us is a complicated and difficult one, involving closely connected considerations of substantive law and of procedure. I propose to deal first with that part of it which relates to the rights of the parties which are created by the substantive law; and secondly, with the procedure to be followed for the enforcement of those rights.
15. Upon the first point, I have no doubt that the facts as proved and admitted show that the plaintiff represents two of the nephews of Shambhu Singh: in other words, that he can claim all the rights which devolved upon those two nephews in the bond now in dispute. We have to consider whether, according to the Hindu Law, which undoubtedly applies to the case, the rights in the bond inherited by the nephews were joint or several. Under the Hindu Law, as I understand it, where a person dies leaving property, the devolution of rights in that property proceeds, so far as the present question is concerned, in the same manner, whether it consists of land or a bond, or anything else. I have no doubt that in a divided Hindu family the rights which a deceased creditor's heirs inherit are not joint but several, and that just as no one of them could maintain a suit for ejectment from a greater share of a zamindari village land than he himself had separately inherited, so also no single heir could sue for the recovery of more than his own share of the money due upon a bond.
16. It seems to me that the learned Judge's view proceeds upon the assumption that the specific shares in the bond which devolved by inheritance upon the various heirs of Shambhu Singh must be treated as one joint right which could not be enforced in parts by separate suits at the instance of each heir ; because the obligation correlative to the right continued to be single notwithstanding the death of the original obligee. Viewed in this light, the question belongs to the domain of substantive law, and not to that of procedure or adjective law. If the rights possessed by the various heirs of Shambhu Singh are to be regarded as constituting one joint right, it may be taken that it could not be enforced except as a whole. 'Where the subject-matter of the contract is entire, as if it be to pay a whole sum to several parties, it is solely joint, and no one can bring a separate action for his share. Nor will the mere fact that the share of each is stated, give a separate right of action, if the intention be to pay only one sum in solido.... So, also, where different sums of money are contributed by several persons, and the amount raised is advanced as one total sum, it has been held the action for repayment should be jointly brought.'--(Story on Contracts, Section 55). The reason of the rule is based upon fundamental principles of jurisprudence, regulating the nature and incidents of joint rights and joint obligations. The true notion of joint rights and joint obligations is fully applicable only to cases where any one of several persons entitled to a joint right can require performance to himself of the entire obligation correlative to the right, and where any one of the several persons under a joint obligation can be required to render full performance of the entire obligation.' If the right of the several persons thus entitled, or the duty of the several persons thus obliged is identical, and if the right or duty arises from a simultaneously combined expression of will, such persons are termed correi; those thus obliged being correi debendi, and those thus entitled being correi credendi.'-(Lindley on Jurisprudence, Section 117 A). When such a full correal relation exists, a joint creditor, by accepting full performance of the obligation, may extinguish it in toto, and entirely discharge the debtor. The reason of the rule is, that when money is jointly advanced by several persons, each of them authorises the other by necessary implication to act on his behaif. The question then in the present case is, whether the heirs of Shambhu Singh possessed any such joint right as would entitle each and every one of them to enforce performance to himself of the entire obligation created by the bond which they had inherited. In other words, could the plaintiff, who represents the interests of two of the nephews of the deceased creditor, maintain a suit for the whole amount due on the bond? I am of opinion that he could not, because the rights inherited by the heirs of the creditor cannot be regarded as correal or joint in their nature.' Parties are not said to be joint in law, merely because they are connected together in some obligation, or some interest which is common to them both. They must be so connected as to be in some measure identified. They have not several and respective shares, which, being united, make a whole; but these together constitute one whole, which, whether it be an interest or an obligation, belongs to all. Hence arises an implied authority to act for each other, which is in some cases carried very far. Thus, if several plaintiffs sue for a joint demand, and the defendant pleads in bar an accord and satisfaction with one of the plaintiffs, but without any allegation that the other plaintiffs had authorized the accord and satisfaction, the plea is nevertheless good. For a release of a debt, or of claim to damages, by one of many who hold this debt, or claim jointly, is a full discharge of it'--(Parsons on Contracts, vol. I, p. 21). The rule thus stated seems to me to be the test for decision of the point raised in this case. For it seems clear that if the plaintiff is not entitled to sue for the whole amount due on the bond, his only remedy is to sue for his own share. The other sharers in the bond may, as has actually happened in this case, be unwilling to join in the suit, and, if the view of the learned Judge were sound law, the plaintiff, who undoubtedly possesses a right, would be without a remedy.
17. We have in India an enactment dealing with the law of contracts. It can hardly be called a complete Code, but it may be taken as a kind of summary of the main principles which govern contracts. The only sections of the Contract Act which I need refer to are Sections 42 and 45. The former deals with the devolution of joint liabilities, but not with the devolution of joint rights. The latter does relate to joint rights, and it runs thus;--'When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.' I have read the section at length in order to show that it does not meet the present difficulty, for it deals only with cases in which the deceased himself is a joint obligee. And there is nothing in the Contract Act to show what happens to a single right when the owner of it dies, and several persons become entitled to it. It appears to me that, under such circumstances, the only rule which we have to guide us is the rule of justice, equity, and good conscience, and in applying it we must go back to those first principles of jurisprudence which are deeper and wider than any purely local laws. In connection with the matter before us, those principles have been so well stated by the eminent jurist Domat, that I cannot do better than read a passage from his work on Civil Law, which exactly expresses my own view:--'The solidity among several creditors hath not this effect, that every one of them may appropriate the whole debt to himself, and deprive the others of their shares; but it consists only in this, that every one of them has a right to demand and receive the whole, and the debtor remains quiet, with respect to them all, by paying the debt to any one of them. This solidity depends on the title which may give it, and on that which may show that what is owing to several persons is due to every one of them in the whole. Thus, when two persons lend a sum of money, or sell a house or land, they may treat in such a manner as that the payment may be made to any one of the two singly; and they will be creditors, each of them for the whole, either of the money lent, or of the price of the sale. But if it were only said that a debtor should owe a sum of money to two creditors, without mentioning anything of the solidity, in that case each creditor could demand no more than his own portion '(Part I, Book III, Title III, Section II, Articles 1, 2).
18. This explains the meaning of the term 'solidity' in connection with obligations of this nature, and shows that there is no solidity unless any one of the creditors is competent to obtain recovery of the whole debt. There is another passage in the same work, which is even more instructive: 'If a thing is due to two or more creditors solidly, that is, in such a manner that every one of them has full and ample right to receive the whole, the payment that is made to one of them will discharge the debtor from all the others. 'And then the author states the very question now before us: 'If there be no solidity among several creditors for one and the same thing, that is, if each of them has not a right to receive the whole thing, but only his portion of it, such as co-heirs, none of them can receive the whole for the others, unless they all consent to it'--(Part I, Book IV, Title I, Section III, Articles 7, 8).
19. In this case, all the co-heirs do not consent that one should receive payment of the whole for the others, and the plaintiff brought the suit in this form for that very reason. To my mind the authority of Domat seems sufficient; but the question is so important that I may refer to the opinion of a still greater jurist, namely Pothier, who, in his Treatise on Obligations, gives a separate chapter to this subject. The chapter is headed 'Of the effect of the indivisibility of obligations in dando aid in faciendo with respect to the heirs of the creditor.' It begins thus:
When the obligation is indivisible, each heir of the creditor being creditor of the whole thing, it follows that each of the heirs may demand the whole thing from the debtor. For instance, if any one has engaged in my favour to grant, or procure me for the use of my estate, a right of passage over his or over any other neighbouring estate, this right being indivisible, each of my heirs may institute a demand for the whole against the debtor. So if any one engages to make me a picture, or to build me a house, each of my heirs may demand of him to make the whole picture, and to build the whole house. But each of my heirs, although creditor of the whole thing, is not creditor totahter; if, upon the demand of the whole by one of my heirs, the debtor, for want of executing his obligation, is condemned in damages, the condemnation in favour of this heir will only extend to that proportion of the damages for which ho is heir; for although creditor of the whole, he is nevertheless only creditor as my heir for part; if he has a right to demand the whole thing, it is because the thing cannot be demanded in parts, not being susceptible of them; but the obligation of this indivisible thing being converted by the non-execution of it into an obligation of damages, which is divisible, my heir in part can claim no greater share of the damages than the part for which he is heir. In this respect, the heirs of the creditor of an indivisible debt differ from the creditors in solido, who are called correi credendi, each of the latter being creditors not only of the whole thing due, but also totaliter; if, upon thademand of the creditor, the debtor does not fulfil his obligation, he must be condemned to the creditor for the whole damages.
20. 'From this principle, that the heir in part of an indivisible debt, though creditor of the whole thing, is not so totaliter, it follows also that he cannot make an entire release of the debt which a creditor in solido might. Therefore, if the creditor of an indivisible debt has left two heirs, and one of them has made a release to the debtor so far as conoerns himself, the debtor will not be liberated as against the other.'--Pothier's Law of Contracts, (Vol. I, p. 197-8)
21. The jurisprudential conceptions upon which this passage proceeds appear tome to go to the root of the matter, and to show that although a particular right of the kind we are now considering may originally be single, the death of its owner may split it up, and make it enforceable by each of his heirs to the extent of his share, because they are not correi credendi, but hold severally. Lastly, to quote one of the more modern writers on Jurisprudence, J may translate the following observations in Demolombe's Traite des Contrats: 'This right which belongs to the creditor solidaire, does it belong in the same way to the heir of the creditor solidaire? Certainly. Yes, because it relates to an irrevocable mandate, which is not extinguished by death. Let us always observe that the deceased creditor has left several heirs, each of them can only demand from the debtor the share which falls to him, in consequence of his position as an heir in the credit solidaire. It is true the credit solidaire itself belongs to the succession. But the succession being divided among the heirs, with regard to their hereditary position, it follows that the credit solidaire necessarily undergoes the same division. The obligation solidaire is not, for the matter of that, indivisible'--(Vol. Ill, p. 117).
22. In other words, notwithstanding the fact that the right is, in the first instance, a 'solid' one, the owner's death makes it no longer subject to the rules relating to rights in solido.
23. Applying these principles to the present case, I am of opinion that, upon the death of Shambu Singh, although the obligation created by the bond continued to be single, the right correlative to that obligation was split up into the various shares which were inherited by the heirs of the creditor, and that the interest of each of them being limited to the extent of his share, cannot be regarded as constituting a joint right such as would render a separate action like the present unmaintainable. Such seems to have been the view of the law taken by three learned Judges of the Calcutta Sadr Diwani Adalat in Mahant Muddusuddun Das v. Govcrdhm Das S.D.A. Rep. 1847 p. 392 in which it was held that if the right to receive a, debt secured by bond devolve by inheritance upon more than one person, the heirs may bring separate actions to recover the proportion that each is entitled to. Similarly, in the case of Shiu Din Misr v. Genda Debi S.D.A. Rep. L.P. vol. vii p. 829 it was held that after the dissolution of a partnership, wherein the share of each partner had been ascertained, the sharers could sue separately for their shares of the debts due to the firm. These rulings are old, but the point does not appear to have been considered in any recent case, so far as I am aware. The former of these rulings, however, is exactly applicable to the present case, and for the reasons which I have already stated, I agree in the rule therein laid down. It has been said by my learned brother Duthoit, that the latter of the two rulings to which I have referred has no bearing upon the question now under consideration, and whilst interpreting the rules of jurisprudence as understood in Europe in the same manner as I have done, he has expressed the view that those rules would lead to much inconvenience if applied to the peculiar conditions of Indian life. With due deference to his opinion, I regret that I am unable to agree with him in either of these propositions. The case of Shiu Dm Misr v. Genda Debi S.D.A. Rep. L.P. vol. vii p. 829, to which he refers appears to me to proceed upon the same hypothesis as the other case, for in both cases a single right was held by the learned Judges to have been split up into several rights,--in the one case by reason of the death of the creditor, in the other by the dissolution of partnership. The ratio decidendi in both cases purported to proceed upon the same principle, and I have therefore cited them, though I must not be understood to say that the effect of dissolution of partnership is the same as that of the death of a creditor upon rights and obligations arising out of money-bonds. If anything the case of Shiu Din Misr S.D.A. Rep. L.P. vol. vii, p. 829, goes beyond my view, and it is unnecessary for me to express any opinion upon the rule therein laid down. As to the advisability of applying the rules of jurisprudence to this country, I have long entertained the opinion that jurisprudence, being a science, is and must be applicable to all conditions of life where society has sufficiently advanced to render the introduction of the rules of law necessary for defining rights and deciding disputes; and I cannot help feeling that the complications which the Hindu and the Muhammadan Law of inheritance produce in connection with the devolution of rights are not greater than those produced by the laws of Europe, where the principles of jurisprudence are of course kept in view in administering justice.
24. So far as the opinion of the learned Judge of the Small Cause Court is concerned with the question of procedure, I wish to observe that the practical inconvenience which he anticipates would apply equally to a case where the owner of immoveable property dies leaving numerous heirs whilst the property is in the possession of a trespasser. It is clear that so long as the original owne was alive, he could claim possession of the whole property only by one suit, and it is equally clear that upon his death each of the heirs could maintain a separate action for his share of the property. Although the case so contemplated would be one arising out of tort and not out of contract, yet so far as the limited question of procedure is concerned, the analogy seems very strong with the point now under consideration. In both cases the right to sue could, under the rules of procedure, be at one time enforced as a whole, in both cases the death of the holder of the right may split up the right and render it enforceable by every one of the heirs by separate actions co-extensive with their shares in the inheritance, and, if the argument of the learned Judge of the Small Cause Court were to be accepted in the case contemplated, no heir could sue the trespasser at all unless he sued not only for his own share, but also for the shares of the other heirs who may be unwilling to join in the suit. There is no provision in our law by which any person can be made a plaintiff against his will. Where the right is strictly joint, there arises, as I have already said, an implied authority by the joint holders of the right to act for each other, and such authority would enable any one or more holders of the joint right to maintain a suit in their own name for enforcing the whole right, and in case any of them refused to join in the suit, the proper course would be to implead them as pro formed defendants, and the Court having before it all persons interested in the matter could do justice between them. But no such implied authority can be understood to exist between the various heirs of a deceased person who dies leaving property which devolves in specific shares upon his heirs, whether such property consists of a money-bond or land. Any one of such heirs therefore cannot sue for more than his share, and the plaintiff was therefore entitled to maintain this suit. The other shareholders in the bond whom the plaintiff impleaded as pro formed defendants might have joined in the suit as plaintiffs under the provisions of Section 26 of the Civil Procedure Code, but that section cannot be understood to render such joinder imperative, and indeed in cases where dissensions exist among the heirs, such joinder is practically impossible. In the present case, therefore, the plaintiff could not sue for more than his share in the bond, and I hold that the learned Judge was wrong in law in throwing out the suit on the preliminary ground.
25. My answer to the question is therefore in the affirmative.