1. These appeals arise out of a suit, C.S. No. 300 of 1927, filed by one Namberumal Chettiar against four defendants. The 1st defendant is Veeraperumal Pillai, nephew and executor of the estate of P. Appasami Pillai, who died on the 4th of October, 1921. The 2nd defendant is Kanthammal, the illegitimate daughter of Appasami Pillai. The 3rd defendant is the Official Assignee in whom the property of the 1st defendant is now vested on account of insolvency. The 4th defendant is Mr. S. G. Satagopa Mudaliar, an Advocate of this Court, who was in 1923 the Receiver of another estate which was the subject of a litigation and who in the capacity of such Receiver advanced a loan of 2 1/2 lakhs to the 1st defendant-executor on a deed of mortgage, dated the 10th of April, 1923; and he is impleaded in this suit as such mortgagee.
2. The suit was for the administration of the estate of the deceased Appasami Pillai and for the recovery of the balance of legacy of Rs. 15,000 with further interest and of a sum of Rs. 15,000 due on a promissory note with further interest. The suit came on for trial before Beasley, J., as he then was, and he dismissed the suit for the legacy but gave a decree for the balance of the money due on the promissory note after crediting the admitted payments towards that note, the decree being executable against the assets, if any, of the deceased Appasami Pillai now in the hands of the 1st defendant personally. The plaintiff files these two appeals separately, one in respect of the legacy and the other in respect of the promissory note.
3. The further facts necessary for understanding the points arising in these appeals are as follows :
4. Appasami Pillai was for nearly thirty years before his death keeping one Aparanji Ammal and she was living with him in his house as his wife. He had by her a daughter Kan-thammal, 2nd defendant, already mentioned. On the 11th of August, 1915, he executed a will, Ex. A-5, under which he devised two of his properties (items 9 and 10) to his elder brother's son-in-law, Srinivasa Pillai, and all the rest of his properties to his elder brother's son, Veeraperuinal Pillai, 1st defendant in the suit, whom he named as executor to the will. About a year before his death, that is on the 19th of October, 1920, he addressed to his nephew (1st defendant) a letter Ex. A-6 containing testamentary dispositions. This letter shows that it was written at his residence known as 'Winning Post' near the Guindy Race Course, Guindy, outside the Original Side Jurisdiction of Madras. In this letter he says:
If I should depart this life you will pay to my beloved second wife M. Aparanji Ammal the sum of Rs. 15,000 and you will take the whole of my property both moveable and immoveable I am possessed of.
5. Three days afterwards, that is, on the 22nd of October, he and the executor, that is, the 1st defendant, executed a promissory, note, Ex. A-l, for Rs. 15,000 in favour of the said Aparanji Ammal with interest at 4 per cent, per annum. He died, as I have already mentioned, in October, 1921. In December, 1921, the executor applied for a probate of the will, Ex. A-5 and of the letter, Ex. A-6. This application was numbered as T.O.S. No. 1 of 1922, the affidavit of assets filed with it, dated the 1st of December, 1921, being Ex. A-4. A brother of the 1st defendant, named Sethurama Pillai, filed a caveat; but probate was ordered. There was an appeal by Sethurama Pillai (O.S.A. No. 67 of 1922). The matter was compromised. The 1st defendant promised to pay Rs. 50,000 to Sethurama Pillai and the latter withdrew his appeal. Soon after the withdrawal, the 1st defendant applied for a loan of 2 1/2 lakhs to the 4th defendant. Ex. A-3 is the deed of mortgage for the amount. It recites that the purpose of the mortgage was to pay off the following sums of money:(1) a sum of Rs. 29,015 due to Shah Agarchand Manmal on two mortgage deeds of 1921 executed by the testator and renewed by the 1st defendant after his death (2) a sum of Rs. 41,600 due to the Secretary of the Sri Madhava Mohanji Temple, on a mortgage executed by the testator (3) a sum of Rs. 15,000 directed to be paid to Aparanji Animal under the will (4) the cost of taking out probate, etc., estimated at Rs. 15,000 (5) a sum of Rs. 38,773-14-6 due from the 1st defendant to Messrs. Gillanders Arbuthnot & Co, in connection with his timber trade and (6) a sum of Rs. 1,05,000 due to Kannailal on a deed of mortgage, dated the 2nd of March, 1922, executed by the 1st defendant for. himself and on behalf of his minor son. The total of these items come to about Rs. 2,44,000. It will be seen from the above description that two of the items amounting to about Rs. 1,43,000 representing the private and personal debts of the mortgagors, the 1st defendant and his son, and the small balance of Rs. 6,000 was also utilised by them personally. The other four items amounting to Rs. 1,00,615 represent debts for purposes binding on the estate. It will be observed that the 1st defendant in executing the above mortgage apparently thought that the will, Ex.. A-5, and the letter, Ex. A-6, both refer to the same sum of Rs. 15,000 and that he has only to pay a sum of Rs. 15,000 to Aparanji Ammal. It is true that he does not say so in so many words. But as he does not provide for the payment of Rs. 30,000 to Aparanji Ammal, that must have been his understanding of the transactions. The probate was never taken. Some years afterwards the 1st defendant became an insolvent. , Immediately after the mortgage, Rs. 2,000 was paid to Aparanji, Ammal. Five months afterwards another Rs. 1,000 was paid. In September, 1924, a sum of Rs. 1,000 was paid. In September, 1924, a sum of Rs. 600 and in June, 1925, another Rs. 400 was paid to Kanthammal, daughter oi Aparanji Ammal, who must have died some time before September, 1924. Kanthammal, who succeeded to Aparanji Animal's right to the legacy and in the promissory note as her daughter assigned her right to the present plaintiff, Namberumal Chetti. He filed the suit on the 30th of May, 1927. The learned Trial Judge held that, as no probate was actually taken of Exhibits A-5 and A-6, the plaintiff's claim to the legacy fails, that the consideration for the promissory note was 30 years' past cohabitation of Aparanji Ammal with the testator, it was not illegal and bad consideration as it was for past immoral services. He, therefore, gave judgment for the balance due on the promissory note.
6. One of the questions argued in appeal is whether Ex. A-6 should be called a will or codicil and whether the plaintiff's claim cannot be established unless a probate is taken out for it. As will be seen, the first part of this question is really immaterial. It matters little whether you call Ex. A-6. an independent will or codicil. Seeing that, between Exs. A-5 and A-6, items 9 and 10 originally mentioned in Ex. A-5 have ceased to be the testator's property, there could be no legacy of these items to Srinivasa Pillai; and as the disposition of the rest of the property to the 1st defendant was repeated in Ex. A-6, it seems to me that Ex. A-6 is a complete and independent will by itself. The only need to refer to Ex. A-5 is to find out the executor of the deceased's estate. Ex. A-6 may, therefore, be regarded as a complete will and not supplemental to some other will which it adds to or modified. But it is unnecessary to pursue this question any further. As to which or any of these two documents requires a probate, the law is contained in Sections 57 and 213 of the Indian Succession Act (XXXIX of 1925) as amended by Act XXXVII of 1926. The provisions of Part VI, that is from Section 57 to Section 191, apply (1) to all Hindu wills executed in Bengal and within the local limits of the Ordinary Original Civil Jurisdiction of the High Courts of Judicature at Madras and Bombay, and (2) to all wills and codicils made outside these territories and limits so far as relates to immoveable property situate within those territories or limits. When we remember that Section 57 is a re-enactment of the Hindu Wills Act of 1870, Section 57(1) shows that, in the case of wills executed outside Madras, probate must be taken of them only in so far as they relate to immoveable properties situated within Madras. Ex. A-6 was written at Guindy, that is outside Madras; and, though part of it relates to immoyeable property situated within Madras, so far as the legacy of Rs. 15,000 given to Aparanji Ammal is concerned, that disposition does not relate to immoveable property within Madras. To that extent Part VI of the Succession Act does not apply to the will and therefore no probate has to be taken. Clause (2) of Section 57 shows that, even in respect of such Hindu wills, the provisions of Section 63 apply showing that in the case of wills executed outside Madras, some provisions of Part VI do not apply. If the contention of Mr. Radhakrishnayya for the respondents that probate must be taken for the whole of Ex. A-6 is correct, sub-clause (b) would have been worded 'to all wills and codicils made outside those territories containing any disposition of immoveable property situated within those limits'. The words 'so far as' are limiting words, cutting down what is indefinite to definite limits. I am of opinion that in so far as the plaintiff has got to establish a right to the legacy of Rs. 15,000 no probate need be taken of Ex. A-6 whether we regard it as a separate or independent will or whether it be regarded as a codicil supplementary to the will, Ex. A-5. In either case, to the extent that the plaintiff's right to the legacy is sought to be established no probate need be taken of it. From the point of view of the executor, what is now sought is not to establish any right of his but only to fix an obligation on him. Vide Williams on Executors, page 219. It must be remembered that the 1st defendant actually entered upon his duties as executor, applied for probate and got an order in his favour but for some reasons did not actually take out a probate. He would now be estopped from saying that he is not under any obligation as executor, vide Munisami Chetti v. Maruthammal I.L.R. (1910) M. 211 : 20 M.L.J. 687 which applies the principle of Srinivasa Moorthy v. Venkata Varada Aiyangar .
7. The next question is whether the plaintiff has any rights over the estate of the deceased Appaswami Pillai. On this part of the case the contesting defendant is the 4th defendant. He has got a mortgage for 2 1/2 lakhs and he claims priority in respect of his mortgage over the plaintiff's legacy. It must be observed that the mortgage was, as already pointed out, so far as the items binding on the estate and amounting to Rs. 1,00,615 are concerned, is a mortgage properly executed by the executor and binding on the estate and, therefore, binding on the legatees also. The question is, whether, in respect of the other items, the mortgage has priority over the plaintiff's legacy. It is true that under Section 307 of the Act an executor has power to dispose of the property for all purposes binding upon the estate and, even where the executor deals with the property for purposes not strictly binding on the estate, the alienations such as a sale or mortgage cannot be questioned so as to defeat the bona fide alienee who had no notice of the fact that the executor was using his powers for purposes not binding upon the estate. This principle has been well established and it is clear from Lord Thurlow's oft-quoted dictum. Vide Williams on Executors, pages 697 and 698; but where the alienation is made for purposes not binding on the estate and the alienee has notice of the fact, the principle does not apply. See footnote (n) in Williams on Executors, page 697 and Bank of Bombay v. Suleman Somji . In this last case their Lordships of the Privy Council after distinguishing the English cases of Graham v. Drummond (1896) 1 Ch. 968 and Taylor v. Hawkins (1803) 8 Ves. Jun. 209: 32 E.R. 334 held that an alienee with notice of the fact that the executor was using it for his own purposes will not be protected. We think that the decision applies to the present case. The decision in Henson In re; Chester v. Heinson (1908) 2 Ch. 356 does not help the respondent. That decision only shows that the purchaser or mortgagee is not bound to see to the application of the mortgage money and that the executor need not expressly describe himself as executor in the instrument. This is perfectly true; but in this case the purpose for which the document was executed was partly not for the benefit of the estate and on the face of the document this was known to the mortgagee. I am, therefore, of opinion that the plaintiff is entitled to recover the amount of the legacy from the estate subject to the mortgage, Ex. A-3, to the extent of Rs. 1,00,615 and its interest and but without being subject to the mortgage for the rest of the amount.
8. The next question that arises is whether the plaintiff can recover any amount on the promissory note. It is said that the promissory note is for an immoral consideration. On this point I am inclined to agree with the view of the Trial Judge and not with the Bombay cases such as Husseinali v. Dinbai : AIR1924Bom135 and Kisondas v. Dhoridu I.L.R. (1919) B. 542 relied on by Mr. Radhakrishnayya. In the English Law past immoral consideration is good consideration if the document is under seal not because of the immorality but because in English Law past consideration is no consideration. In Indian Law past consideration is good consideration and as there is nothing immoral in temunerating a woman who has rendered services for such past services, the consideration is good. Vide Lakshminarayana Reddiar v. Subhadri Ammal (1902) 13 M.L.J. 7 per Bhashyam Aiyangar, J., with whose judgment I agree. I am unable to agree with the judgment of Sundaram Chetty, J., in Ganapati Chetti v. Sundararaja Pillai (1929) M.W.N. 828. Whether such consideration can act as a motive both for legacy and for any number of promises may perhaps be doubted; but it is unnecessary to pursue this matter further as I am of opinion that in the circumstances of this case that the promissory note was not intended to give an additional sum of Rs. 15,000 besides the sum of Rs. 15,000 given by the letter, Ex. A-6, Mr. Varada-chariar, the learned Advocate for the appellant, relied on Horlock v. Wiggins; Wiggins v. Horlock (1888) 39 Ch.D. 142. In that case the first deed was recited in the will as the argument of Mr. Stokes shows. The facts of the present case are different. It looks as if the promissory note was executed by the testator with a view to make the executor also a consenting party so that he might not afterwards throw obstacles in the way of the legatee. The whole evidence shows that the 1st. defendant never borrowed from Aparanji Animal. Paragraph 3 of the written statement raised the question that the promissory note has no consideration and issue 2, though it is clumsily framed, relates to this point. It cannot be said, therefore, that the question was not raised. The evidence is very clear and in the circumstances I think that the promissory note was not intended to give an additional sum of Rs. 15,000. It is true that seasons 177 and 179 do not apply to this will, but the principles or these sections as embodying the general equitable principles may apply. Vide Hassonally Moledina v. Popatlal Parbhudas I.L.R. (1912) B. 211. But even if so, we have nothing to do with Section 177 in this case, nor can Section 179 help the appellant for nobody suggests that the bequest adeemed. It is conceded that the legacy stands. The only question is whether the promissory note is valid as for another additional sum. On the facts we find that it has no consideration and from the surrounding circumstances we think it refers to the same sum as the legacy. So that, even if Sections 177 and 179 are actually applicable they do not help the appellant. The result is that in modification of the decree the plaintiff's suit so far as it relates to the promissory note and Appeal No. 125 of 1928 are dismissed as against 4th defendant with his proportionate costs but the decree as against the 1st defendant and Official Assignee will stand as it has not been appealed against. In Appeal No. 66 of 1928 a decree will be given as indicated above with interest at 6 per cent. which is the interest provided for in the Act. The plaintiff will have proportionate costs in the suit and in appeal on the amount decreed.
9. In A. S. No. 66 there will be a preliminary decree for administration on the above lines and this Court will as far as possible try to satisfy the claim of plaintiff out of properties not included in the mortgage of the 4th defendant.
10. There can, I think, be no doubt that the letter, Ex. A-6, is a testamentary instrument. It says:
My dear Doray, My present state of health seems to me uncertain, if I should depart this life you will pay to my beloved second wife M. Aparanji Ammal the sum of Rupees Fifteen thousand and you will take the whole of my property both moveable and immoveable I am possessed of.
11. The words are informal but they clearly express the writer's wishes as to the disposal of his property on the event of his death. It has been contended that as the testator gives the whole of his property to defendant 1, the 'Doray' to whom Ex. A-6 is written, the direction with regard to the payment of Rs. 15,000 to Aparanji Ammal cannot be read as giving her a legacy. But if the testator's intention was to make a bequest to her, as I think it was, it cannot signify whether the testator instead of giving the bequest of Rs. 15,000 directly to Apara directed the defendant, his executor, to pay this sum to her. The question, then, is whether Ex. A-6 is to be regarded as a codicil to the earlier will, Ex. A-5, which the testator made in Madras on the 11th August, 1915, and of which defendant 1 was the executor and residuary legatee. 'Codicil' is defined by Section 2(b), Indian Succession Act, as meaning 'an instrument made in relation to a will and explaining, altering or adding to its disposition and is considered as forming an additional part of the will.' Ex. A-6 does not in terms refer to the will, but is addressed to the person who was appointed executor of the will; it directs him to pay a legacy which had not been given by the will, and it confirms the residuary bequest made to him by the will. It revokes nothing in the will. The legacy given to M. Srinivasa Pillai by the earlier will appears to have been adeemed; at all events, the properties bequeathed to Srinivasa Pillai no longer formed part of the testator's estate at the time of his death. In these circumstances I am of opinion that Ex. A-6 must be regarded as 'an instrument made in relation to a will and adding to its disposition' and consequently a codicil to the will. It is also to be noted that the testator's signature to the document is attested by two witnesses in conformity with the requirements of a valid will governed by the Indian Succession Act.
12. The codicil was made at Guindy, outside the limits of the High Court's Original Civil Jurisdiction and, in addition to the pecuniary legacy given to Aparanji, it confirmed by repetition the residuary bequest given to defendant 1 by the will comprising immoveable property within the High Court limits. The executor (defendant 1) applied for probate of the will and codicil, and a grant was ordered, but no grant has been issued because the executor has not paid the appropriate Court-fee for the grant. Does the failure to produce probate prevent the plaintiff, who derives his title to the legacy as administrator of Aparanji's estate, from establishing his claim to the legacy?
13. Section 213 (1), Indian Succession Act, 1925, says:
No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in British India has granted probate of the will under which the right is claimed.
But Sub-section (2) provides:
This section shall not apply in the case of wills made by ...any Hindu where such wills are of the class specified in Section 57.
14. Now, the class of the will specified in Section 57(1) comprises (a) all wills and codicils made by any Hindu on or after September 1, 1870, within the local limits of the High Court's Ordinary Original Civil Jurisdiction, and (b) all such wills and codicils made outside those limits 'so far as relates to immove-able property situate within those limits.' The classification is taken from the Hindu Wills Act (XXI of 1870) now repealed. This Act applied to these classes of wills and codicils certain sections of the Indian Succession Act, 1865, corresponding to the sections set out in Schedule III of the Indian Succession Act, 1925, which have now been made applicable to such wills and codicils. The purpose, as explained in the preamble to the Hindu Wills Act, was 'to provide rules for the execution, attestation, revocation, revival, interpretation and probate of the wills of Hindus within the territories subject to the Lieutenant-Governor of Bengal, and in the towns of Madras and Bombay.' By a later amendment of Act XXI of 1870, Section 187 of the 1865 Act (which corresponds with Section 213(1) of the 1925 Act) was made applicable to these classes of wills and codicils. Section 187 adopts the English rule that the probate is the only legal evidence of the will in any question respecting a right to property under the will, or, as it has been said, it is only when the will has been proved that the Court has the legal optics through which to look at it: Johnson v. Warwick (1856) 17 C.B. 516. As a general rule, no doubt, if probate of a will is necessary, any codicil is included in the probate, because the codicil is part of the will. But it is obvious from the classification of wills and codicils in Section 57(1), clauses (a) and (b), that a will and codicil may have to be treated as separate instruments for the purpose of the application of Section 213(1) and the other relevant sections of the Indian Succession Act. A will or a codicil made within the prescribed limits comes within Clause (a) and is governed by the applied sections of the Indian Succession Act, but a will or a codicil made outside the prescribed limits comes within Clause (b) and is governed by those sections 'so far as relates to immoveable property situate within those limits.' The plain meaning of these words is that in respect of a will or of a codicil coming within Clause (b), Section 213(1) applies only to the extent of the will or codicil disposing of immoveable property within the prescribed limits, but does not otherwise apply to ' the instrument. There is nothing very strange in such an exception being made when it is remembered that in England formerly, the Court of Probate had no jurisdiction to authenticate a will so far as it related to real estate and that the probate was no evidence at all of the validity or contents of a will as to such property. (See Williams on Executors, Vol. I, page 440 (10th Edition), and Burn's Ecclesiastical Law, Vol. IV, pp. 332, 335). Upon this construction, probate of a will or of a codicil within the category of Section 57(1), Clause (b) of the Indian Succession Act, is not required as evidence of the will or codicil so far as any right to moveable property is concerned. It follows that the plaintiff's claim to the pecuniary legacy under the codicil was maintainable without probate.
15. The next question is whether the plaintiff can claim, in addition to the legacy, a sum of Rs. 15,000 due under a promissory note jointly executed in favour of Aparanji by the testator and the executor. The date of the codicil is 19th October, 1920, and the rate of the pro-note is the 22nd October, 1920. The two instruments are, therefore, practically contemporaneous. Reference has been made to Horlock v. Wiggins; Wiggins v. Horlock (1888) 39 Ch.D.142 where a husband by a separation deed, dated 7th September, 1844, covenanted that his executors or administrators should, on his decease, pay to his wife 100 if she survived him; and by his will executed on the 9th September, 1844, he gave his wife 100 after payment of all his just debts. In holding that there was no presumption that one gift was intended to be in satisfaction of the other, Cotton, L.J., said:
In my opinion no such presumption arises in this case. The direction to pay the legacy is given after payment of all the testator's just debts, and the instrument creating an obligation to pay the 100, which would be a debt, is so nearly connected in point of time with the execution of the will that they must be treated as contemporaneous. . I do not say that in no case can a presumption of satisfaction arise where the documents are contemporaneous.
16. And Bowen, L.J., said:
Then, again, the two documents, as regarded the testator's mind, were contemporaneous, which is a circumstance to be considered, for the presumption arises not on the will, but on the circumstances of the case.
17. Looking at the circumstances in which the pronote was executed and particularly to the fact that the note was executed by the testator and his executor, the latter being under no obligation of any sort to Aparanji when he executed the note, it seems to me that the proper inference is that the note was intended to be no more than an additional security to Aparanji for the payment of the legacy, and the testator did not intend her to have both the legacy and the amount covered by the pro-note. In this view it becomes unnecessary to consider the question whether the note is supported by consideration. The result is the same as that arrived at by the learned Trial Judge except that the plaintiff is entitled to the balance of Rs. 15,000 as legacy and not as payable under the pronote. The rate of interest payable on a legacy when the testator is a Hindu is fixed by Section 353, Indian Succession Act, at 6 per cent, and under Section 351 interest begins to run from the expiration of one year from the testator's death. I agree, for the reasons given by my learned brother, that the mortgage in favour of 4th defendant to the extent to which it was raised for paying off the testator's liabilities has priority over payment of the legacy, but that the legacy has priority over the mortgage to the extent of the amount ' borrowed by defendant 1 for the' satisfaction of his present debts.