1. Their Lordships stated the facts as given above and continued:
To take the defendants' appeal first, it was contended on their behalf (1) that the Rs. 10,000 was not a legacy, but either a loan by plaintiff to the testator or a deposit repayable on demand, in either of which cases the suit was barred by limitation, (2) that as a fact the whole amount of the principal had been discharged and (3) that no interest' was stipulated for. The Subordinate Judge decided on the first point that the limitation bar for the recovery of the sum as a deposit was saved by acknowledgments, on the second point in favor of the defendants and on the third point that interest to run at 9 per cent, was intended by the parties.
2. We are unable to agree with the Subordinate Judge on the 1st question, for, in our opinion, the bequest of Rs. 10,000 was clearly a legacy meant as a satisfaction of the indebtedness of the testator to the plaintiff for money (as he expresses it) 'kept with' him' by the plaintiff. The mere fact that it finds place in a will not payable to the plaintiff till the testator's death and is a round sum without any provision for interest negatives the idea that it was a direction to the executors to pay a just and lawful debt. This they would have been bound to do, apart from the will, and the testator would probably have settled the amount in his lifetime if he considered that the money deposited with him was a debt pure and simple. We take it therefore that the Rs. 10,000 was a legacy, and consequently it is unnecessary for us to discuss the question whether treating it as a deposit the plaintiff's claim was or was not barred by limitation. The appellant's Vakil then urged that the suit, if taken to be as for a legacy, was also barred inasmuch as it involved an administration of the estate, and administration suits were governed by Article 120 of the second Schedule of the Limitation Act under which the limitation is six years. We cannot accept this contention, for though it is true the plaintiff prayed for an administration, it was only ancillary to his getting his legacy. When a suit for a legacy for which 12 years is specifically allowed under Article 123 entails administration of the testator's estate, it would be unreasonable to hold that that circumstance cuts down the period of limitation to six years under an indefinite article like 120, which does not refer to an administration or any particular suit but only to suits for which no other period of limitation is provided.
3. It was further urged that the plaintiff had no right to sue for the legacy as such, as his title thereto was not complete for want of the executor's assent (Section 112 of the Probate and Administration Act V of 1881), and the only suit he could therefore bring was one for administration which was clearly barred, but as regards this there is indubitable proof of one executor's express assent in Exhibit F and of the other executors in Exhibit B. The last contention is that the plaintiff is estopped from claiming the legacy under the will as tie has disputed the validity of the will, and has elected to take the Rs. 10,000 as a debt due to himself, and not as a legacy. What happened was that in a suit brought by a brother of the plaintiff claiming his share in the testator's estate as family property the plaintiff supported his brother and also claimed a share. It was then decided that the property was the sole property of the deceased, and that neither plaintiff nor his brother had a right to share therein. We do not see how the plaintiffs' right to the legacy is affected thereby. Having had to bow to the decision that he had no independent right in the testator's property he now seeks that he may recover what the testator gave him out of that property. There is no estoppel. And as to the alleged election, if he had agreed to accept the money as in repayment of a debt, and had actually so received it he could not of course-claim the same amount once again as a legacy. Having, however, failed to obtain it as a debt he is entitled to get it is a legacy. We accordingly decide on the first question that the suit as brought is maintainable, and is not barred by limitation.
4. The second question is the subject of the cross Appeal No. 125 by the plaintiff which may now be dealt with. The Subordinate Judge found that a sum of Rs. 4,000 paid by the testator to the plaintiff on the 30th of August 1887 was a part-payment towards the Rs. 10,000 bequeathed to him. There is really nothing to support this finding. The plaintiff asserts that this sum of Rs. 4,000 was paid to him on a different account, and the onus was on defendants to prove their allegation. [Here (heir Lordships give their reasons for differing from the Sub-judge.] We, therefore, find that it stands at Rs. 10,000.
5. The third and last question as to the rate of interest is easily solved by our finding that the amount claimed is a legacy. It becomes unnecessary to decide what the parties intended as to whether there should be any interest and if so, at what rate, because the law itself lays down what rate of interest shall be allowed and from what date it is to be computed. That rate is 6 per cent, per annum, and in this case it is to be calculated from the date of death of the testator first because the legacy was in satisfaction of a debt (see Exception 1 to Section 130 of the Probate and Administration Act V of 1881), and secondly because the testator so expressly directed in a codicil already referred to (see Section 136 of the same Act).
6. The result is that the defendants' appeal (No. 119) succeeds so far as the rate of interest is concerned and the plaintiff Js appeal (No. 125, so far as the principal sum of Es. 4,000 is concerned. The first defendant not being an executor will also be exonerated from the decree to be passed, and the 2nd antl 3rd defendants the two executors alone held liable to pay the amount adjudged put of the assets of the estate.
7. In lieu of the amounts decreed by the Subordinate Judge there will be a decree for plaintiff for Rs. 4,000 the balance of the legacy still unpaid with interest at 6 per cent, per annum on Rs. 10,000 the whole amount of the legacy from the 14th September 1888, the date of testator's death to the 27th January 1897 when the part-payment of Rs. 6,000 was made and on the remaining Rs. 4,000 at the same rate from the 27th January 1897 to the date of this decree. The parties will receive and pay proportionate costs on the total amount now decreed in both courts. The plaintiff will get subsequent interest at six per cent, per annum on the amount of this decree from this date to date of payment.