1. This appeal arises under the following circumstances--One Musammat Shib Kali Debia of Benares made a Will on the 11th of January, 1891, and thereby bequeathed her property for certain purposes and appointed six persons executors, the died on the 8th of April, 1897, and thereupon an application for probate was made by one of the executors, Durga Shanker, now deceased, and probate was granted to him on the 12th of June, 1899. On the 21st of June, 1899, an administration bond was executed by Durga Shanker and the defendants, Saiyid Al-i-Nabi and Saiyid Shah Tasadduk Husain, as his sureties for the due administration of the estate of Musammat Shib Kali Debia. In this bond the executants undertook responsibility for the due administration of the estate by Durga Shanker, and it was provided by it that the obligation under the bond was to remain in force until Durga Shanker had discharged the duties of the administration of the estate. Durga Shanker did not administer the assets as he had undertaken to do, but misappropriated them and in consequence the plaintiff, who is the step-son of Musammat Shib Kali Debia applied for letters of administration of her estate with the Will annexed, and such letters were granted to him on the 16th of August, 1904. He further applied to the District Judge for an assignment of the administration bond executed by Durga Shanker and his sureties, and this bond was transferred to him on the 10th of April, 1907.
2. The suit out of which this appeal has arisen was then instituted by this plaintiff to recover from the representatives of Durga Shanker, including his widow, and also from the sureties the amount of the assets which had been misappropriated by Durga Shanker.
3. A defence to the suit was filed by both the sureties and also by Bishno Shanker, one of the brothers of Durga Shanker.
4. The Court below decreed the plaintiff's claim as against the sureties and also as against the widow of Durgar Shanker to the extent of Rs. 4,891-8-0. The decree was passed against the defendants Nos. 1 and 2 as sureties only and as against the widow of Durga Shanker as his heir. The claim was dismissed as against the defendants Nos. 3 to 6, who are three of the brothers and a nephew of Durga Shanker.
5. This appeal has been preferred by the plaintiff and the contention put forward on his behalf is, that the Court below was wrong in dismissing the suit as against the defendants Nos. 3 to 6. These defendants, as we have said, are the brothers and a nephew of Durga Shanker, and liability is sought to be fixed on them by reason of the following facts, Prior to the 11th of October, 1890, Durga Shanker and his brothers and a nephew had disputes in regard to family property. They entered into a compromise whereby the ancestral property was divided between them and this compromise was subsequently embodied in a decree. One of the terms of the compromise was that if Durga Shanker or any of his brothers should die without leaving male issue, then the surviving brother would by division in equal shares take possession of and enjoy and appropriate the share of the person so dying. Durga Shanker having died without male issue, the allegation of the plaintiff is that his share of the property comprised in the aforesaid compromise and decree passed to his brother and nephews and that the defendants, the brothers and one of the nephews of Durga Shanker, are actually in possession of Durga Shanker's share of the family property.
6. In the written statement of Bishno Shanker it is denied by him.' that he is in possession of any property left by Durga Shanker. He states that after the death of Durga Shanker he, along with the other members of the family, paid debts due by Durga Shanker and had been paying Rs. 25 per mensem to the widow of Durga Shanker, namely, the defendant, Musammat Sarojini Debia, for her maintenance; and he put forward the defence that if any portion of the property possessed by him were considered to be of the estate of Durga Shanker, having regard to the above facts, he could in no wise be held responsible to pay the amount claimed.
7. The surely Al-i-Nabi was examined, and he in his evidence, which has not been controverted, alleged that the property which belonged to Durga Shanker was still in the possession of his heirs, namely, Bhikari Shanker Bishttu Shanker, Sarat Shanker and Addiya Shanker his brothers, and musammat Sarojini Debi, his widow. This evidence was, as we have said, not controverted, and it shows that property of Durga Shanker did pass under the compromise upon his death into the hands of his brothers.
8. The question then for our determination is whether or not the Court below was right in exempting the brothers and nephew, defendants Nos. 3 to 6, from the operation of the decree. It is contended on their behalf that the provision in the compromise which provided that on the death of any brother without male issue his share shall go to the other brothers is repugnant to Hindu Law being repugnant to the ordinary rule of' succession to property and that the defendants Nos. 3 to 6 have not been properly sued, inasmuch as they do not represent Durga Shanker's estate. It is said that the parties are governed by the Dayabhaga School of law and that the widow of Durga Shanker is his heir, and, as such, entitled to the estate of Durga Shanker. It is further contended that the provision to which we have referred above purports to be a transfer of a mere expectancy and is in contravention of Section 6(a) of the Transfer of Property Act. We are of opinion that there is no force in this contention. Durga Shanker was not dealing with an expectant interest in property. He and the other parties to the agreement of compromise were dealing with the property, which at the time belonged to them, and we are unable to hold that a provision, whereby upon a family settlement such as this was, brothers agreed that upon the death of any of them without male issue the share to which he should be entitled, should go to the other brothers, is in contravention of Hindu Law, or obnoxious to the provisions of the Transfer of Property Act.
9. This case is very similar to the case of Ram Nirunjan Singh v. Prayag Singh 8 C. 138 : 10 C.L.R. 66. In that case two of four brothers had disputes in regard to the property of their father. They entered into a compromise for themselves, and one of them also as guardian of his two minor brothers, whereby it was agreed that, with the exception of certain trust property, the estate of then father should be divided equally between the four brothers, with this provision super added that if any of the brothers, should die without any issue, then the surviving brothers should succeed to his heritage in equal shares, none of them having any claim or contention against the other on the score of commensality or joint tenancy.' It was contended in that case that this provision was repugnant to Hindu Law and could not, therefore, be enforced. Mitter and Maclean, J.J., held that there was nothing in the Hindu Law which made such an agreement illegal. The provision in the present case is similar to that which was considered in case just cited, and we see no good, reason for disagreement with the views of the learned Judge who decided it defendants Nos. 3-6 ought not, therefore, to have been exempted from liability as representatives of Durga Shanker.
10. It may be that they have not received any portion of the assets of Durga Shanker, and it may by be that they will not recover any portion of his assets; but this if be so they will not be damnified by the decree which we propose to pass against them. These defendants are representatives of the deceased Durga Shanker within the meaning attached to that term by the Code of Civil Procedure. A representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of a deceased person. Section 52 of the Code prescribes the mode of execution of a decree against such a representative. A plaintiff has a right to sue the representatives of his deceased debtor and of obtaining a decree against them, although it is not proved that assets have come into their hands. It is sufficient to prove that there are assets of which they may become possessed, in this case the existence of assets is not denied. We, therefore, upon this question, overrule the decision of the Court below.
11. The only remaining question is raised in the connected cross appeal. It is an appeal on the part of one of the sureties, Saiyid Al-i-Nabi, and the only ground of appeal which has been pressed before us in argument is the first, namely, that the suit is time-barred. The contention of this defendant is that one of the provisions of the bond was that an inventory should be exhibited within a certain time, and that on a breach of this condition of the bond time began to run as against the sureties and the suit is time-barred. We do not think that the date on which one of the conditions of the bond was broken is the starting point from which limitation is to be calculated in a case such as the present in which the plaintiff's case is that Durga Shanker in his life-time failed to administer the assets of the deceased. The bond itself, as we have pointed out, expressly provides that the obligation undertaken in it was to remain in force until Durga Shanker fulfilled the duties of the administration of the estate, probate of which had been granted to him. Durga Shanker died on the 12th of July 1903. Time did not begin to, run against the plaintiff until his death and six years did not elapse between the date of the death of Durga Shanker and the bringing of the suit.
12. The appeal, therefore, of Saiyid Al-i-Nabi must be dismissed. We vary the decree of the Court below and we give a decree to the plaintiff for Rs. 4,891-8-0 against the defendants Nos. 1 and 2 as sureties, to be satisfied by them jointly and severally, and against the defendants Nos. 3 to 7, to be satisfied out of any assets of Durga Shanker which have come to or may here after come to their hands. The costs of this appeal will be borne by the defendants Nos. 3 to 6. Those defendants and defendant No. 7 will bear their own costs in both Courts. In other respects we affirm the decree of the Court below.