1. The 1st respondent was the concubine of one Chinna Venkata Gopalam Garu, who died on the 14th September 1888, leaving him surviving a minor son named Rajamannar. The deceased left a will and a codicil on the 27th April 1887, and on the 25th July 1887, respectively. The will recites (paragraph 10) that 1st respondent had been looking to the testator for protection and depending on him for a long time and that she had deposited with him monies to the extent of Rs. 2,000, and directs that Rs. 3,000 be added to the Rs. 2,000, and that the total sum of Rs. 5,000 be paid to her. It then goes on to state that interest should continue to be paid to her at the rate at which it is paid on Government bonds and that if it is not acceptable to her, the principal amount should be paid in cash. The appellants are executors of the will and guardians of the minor son. The plaint stated that although 1st respondent had often demanded payment of the Rs. 5,000, subsequent to the testator's death, appellants had put her off with promises and improperly withheld payment, and it prayed for a decree for payment of Rs. 5,000, and of Rs. 1342,700 as compensation for loss of interest due on Rs. 2,000 at 12 per cent, per annum from the date of the will and Rs. 642, as compensation due at the same rate in respect of Rs. 3,000 from the date of the testator's death together with subsequent interest and costs.
2. As regards the claim to Rs. 5,000, appellants contended that the property left by the testator had not yet come into their possession, and that the suit was premature. As regards the claim to compensation for loss of interest, they resisted it on the ground that none was due, and that the rate mentioned in the plaint was excessive. Another ground of defence was that the testator's brother had instituted a suit, which was pending, to recover a share of the property comprised in the will. This brother was allowed to intervene as supplemental 3rd defendant, but he did not appear at the first hearing and was therefore declared ex parte on the 25th October 1890.
3. Two issues were then recorded for determination, viz:
(1) Whether any and what assets of the testator had come into the hands of the defendants (appellants).
(2) Whether plaintiff (1st respondent) was entitled to any and what interest on the amount claimed.
4. The Subordinate Judge determined the first issue in the negative and held with, reference to the second issue that the respondent was entitled to interest at the rate claimed only on the debt of Rs. 2,000. He passed a decree in the respondent's favor for the payment of Rs. 5,000 and of interest at 9 per cent, per annum on Rs. 2,000 from the date of the testator's death to the date of decree and at 6 per cent, per annum on Rs. 5,000 from the date of decree to that of payment. On 3rd November 1890, the 3rd defendant applied for the ex parte order being set aside, but as he did not appear on the 7th idem, the day before judgment, when his petition was taken up for disposal, it was dismissed. In the written statement he tendered, he denied the validity of the will and alleged that the testator was his undivided brother, and had no testamentary power over their joint property. He also denied the alleged deposit of Rs. 2,000. From the decree of the Subordinate Judge, the 1st and 2nd defendants preferred this appeal. They did not however, make the 3rd defendant a party to it, but he applied for intervening as 2nd respondent, and his application was granted by Mr. Justice Parker.
5. The principal question for determination in this appeal is whether the decree can be supported without further enquiry upon the facts disclosed by the pleadings and the evidence. It is not alleged that the executors consented to pay the legacy, and the suit, therefore, can only be treated as being in the nature of an administration suit, so far as it relates to the legacy. During the examination of the 1st defendant as plaintiff's 1st witness, he stated that there was a sum of Rs. 32,000, which belonged to the estate, and in which he had no interest. There was however no enquiry as to the liabilities of the testator, and from the mere possession of assets, the law does not imply a promise or a duty to pay a, general legacy. The Subordinate Judge ought to have raised a distinct issue as to what were the assets and liabilities of the testator, and whether there was a residue, from which the legacy claimed by 1st respondent might be paid by the executors, and recorded a finding upon it, after hearing the evidence, which either party had to adduce, and taking an account. Before disposing of this appeal the Subordinate Judge must be directed to do so. Again in a suit like the one before us, it is also necessary to ascertain whether any and what assets might have been realized with ordinary diligence, and what are the terms, if any, subject to which, payment of the amount claimed should be decreed to 1st respondent. The Subordinate Judge should be asked to raise another issue to the effect indicated above and to come to a finding upon it.
6. As regards the compensation claimed for loss of interest the plaintiff has preferred no appeal. All we have to consider is whether the interest awarded on the Rs. 2000 at 9 per cent, is excessive. The rate claimed in the plaint is 12 percent, per annum and that mentioned in the will is the rate at which interest is paid on Government Securities. The Subordinate Judge must be ordered to reconsider the finding upon the 2nd issue and to submit a revised finding in the light which may be thrown by the finding he may come to on the issue indicated in the last preceding paragraph.
7. As regards the 2nd respondent, he did not appear at the first hearing and he again failed to appear when his application for setting aside the ex parte order was called on for disposal. Neither did he prefer an appeal from the decree of the Subordinate Judge who raised no issue with reference to the averments in his written statement. Nothing is urged before us sufficient for excusing his default. He has instituted a suit for setting aside the will and for recovering his alleged share in the property left by the testator and it is open to him to prove his allegations in that suit and to seek, if necessary, interim protection against any decree which the 1st respondent may obtain against the executors. Under these circumstances it does not appear to us that he was a necessary party to the present suit. We direct that his name be removed from the defendants in this case and that he do bear his own costs.
8. The Subordinate Judge will try the issues already indicated as between the appellants and the 1st respondent, and submit his findings thereon, and a revised finding on the second issue, within one month from date of the reopening of the Subordinate Court after recess, and seven days after the posting of the finding in this Court will be allowed for filing objections.
9. Both parties are at liberty to adduce fresh evidence.
[Upon receipt of the finding of the Subordinate Judge and after hearing the objections of the parties, the court delivered the following]
10. Though no amount had been realised by the executors at the date of the suit, it is found that a sum of Rs. 38,628-5-11 has been since realised, whereas the liabilities amount to only Rs. 14,560, thus leaving more than sufficient to pay the amount claimed. Though the suit was premature, we consider it desirable, in order to avoid further litigation, to pass a decree for the amount now found to be due to plaintiffs as the executor's Vakil does not object to this being done provided their costs are directed to be paid by the plaintiff. To the finding as to the rate of interest on the debt of Rs. 3.600 no objection has been taken : we therefore accept it.
11. We modify the lower court's decree accordingly by reducing the rate of interest on the debt of Rs. 3000 from 9 to 3 per cent, and by directing plaintiff to pay defendant's costs throughout and to pay her own costs on the amount of the legacy. We further direct that the amount of the legacy and interest thereon be not paid to plaintiff, unless she executes a bond undertaking to indemnify the executors for any loss, which may arise, in consequence of the payment of the legacy being declared void in the suit of the 3rd defendant, which is now pending. In other respects, the lower court's decree is confirmed. Appellants will pay respondents' costs of the appeal on the Rs. 2000 debt.