Walter Salis Schwabe, K.C., C.J.
1. This case is an instance of the appallingly protracted litigation in this country which has been recently described by the Privy Council 'as a disgrace to any civilised community'. The money in dispute was left by will by a large] number of legacies, some of them of small amounts, to persons in humble positions. The plaintiff sues as assignee of some of the larger legacies. The testatrix died in in 1899 and, assuming the money in dispute to have been disposable by will by the testatrix, there was enough to pay all legatees, but up to now nothing has been paid to any of them; and those who are still alive and can be traced are now told that they will not receive anything until this case has been once more to the Privy Council, for the case has been brought before us with documents prepared in the form of a Privy Council appeal, and we have been told by the defendants that our views on the subject are only being taken in passing. I venture to hope that other counsels may prevail and this litigation has at last come to an end, for, in my view, the defendants have no sort of merits on their side and no sort of defence to the action.
2. The facts are fully set out in the judgment of the Subordinate Judge, but I think it is necessary for me to recapitulate them shortly so far as they are relevant to the present dispute. In 1892, the boy known as the Medur minor, whose father had died in 1888 but whose mother, Venkayamma, known as the Medur Rani, the testatrix, was still alive, was adopted by Papamma Row, the widowed Rani of Nidadavole. The Medur minor died in 1895, still a minor and unmarried. Litigation at once began between his mother and his adoptive mother as to whether the adoption was legal or illegal, each claiming a widow's estate in the Medur property, which up to the time of his death was being administered by the Court of Wards, and after his death either by the Court of Wards or by Court Receivers. A large sum of money representing the income of the Medur Estate, and including the income arising between the death of the minor and the death of the testatrix which took place in March 1899, was paid into a Bank to the credit of the Subordinate Judge in whose Court the litigation between the widows was then pending. Shortly before the testatrix's death she made a will in favour of some of the plaintiffs and persons who have assigned their rights to the first plaintiff and others. An executor was named in the will but he did not act and died shortly after the testatrix. The pending litigation was continued by the fathers of the present defendants who were the paternal uncles of the Medur minor and claimed, on the basis that the adoption was bad, to succeed to the testatrix as the heirs of the Medur minor and his father. On December 2, 1899, the Subordinate Judge held that the adoption was good and that, therefore, Papamma Row succeeded to him. On December 5, 1899, Papamma Row died. Her heirs were the 1st plaintiff and the two uncles of the Medur minor referred to above, who happened to be closely related to the Nidadavole Rajah as well as to the Medur Raja. On the death of Papamma Row, the 1st plaintiff filed a suit for partition and he claimed, on the basis that the adoption was valid, one-third of the Medur estate, and he also became a party to the pending appeal as a representative of Papamma Row. But the uncles on the other hand, on the basis that the adoption was bad, claimed half each. It is to be remembered that, if their contention was right, the testatrix had a Hindu widow's estate in the Medur property from the time of the death of the minor until her own death. In 1903 the District Judge held the adoption to be invalid. Everyone appealed and the cases were heard together and in November 1905 the High Court of Madras held that the adoption was valid, The position then was that the testatrix had no interest in the money in Court and the 1st plaintiff and the two uncles divided the Medur property including the money in Court as heirs of Papamma Row. The uncles and the 1st plaintiff then applied to the Court for payment out of the money and, notice having been given of appeal to the Privy Council, they, all being men of position and means, were allowed to take the money out giving bonds that they would return it if the Court so ordered. Owing to what seems to be most unreasonable delay on the part of the parties, it took no less than 9 years before the case was disposed of by the Privy Council. Their Lordships reversed the decision of the High Court and held that the adoption was invalid, and the present appellants, who are the sons and representatives of the uncles, who had meanwhile died, were held entitled to divide the Medur Estate. They had said nothing to the Privy Council about the testatrix's will and so they got a decree for the whole estate including the money in Court. They knew perfectly well all about the will all the while; in fact, their fathers had been litigating about some jewellery which was the private property of the testatrix and had been disposed of by her under that will and had themselves put forward the will, which they said they disputed, as one ground why neither of them should have the custody of the whole of that private property; and execution proceedings in that suit were being continued against the present defendants as late as 1916.
3. As between the parties to the Privy Council appeal, the defendants were entitled to the money, and that is all their Lordships had before them and all that their Lordships decided or intended to decide. There is no reason to think that the defendants were acting in any way improperly or dishonestly in saying nothing about the will, and, in my view, they must be held to have taken what was given by the judgment on the terms that they would hold so much of it as passed under the will of the testatrix as her representatives, if the will was good and the property hers but would take it for themselves if, as they were about to allege, either the will was invalid or she had no power of disposal over the money.
4. The money in question was the income of the Medur estate during the period the testatrix was entitled to a Hindu widow's estate in it. After judgment the defendants applied for payment to them by the 1st plaintiff of the one-third he had had out of Court and to be allowed to retain the two-, thirds which their father's had got on the terms of the security bunds referred to above. And it was in due course ordered that the 1st plaintiff should repay his share to them and that they might retain their shares, In my judgment, the date of this order, viz., January 3Cth, 1915, is the date on which they first became possessed of any of the moneys in dispute. Before that their fathers had had a part and they had had that part only on terms that they should hold it at the disposal of the Court and they could have resisted any claim for payment of it by any one else. The one-third which had been in the possession of the 1st plaintiff was, in fact, repaid between 1914 and 1916 and received by the defendants in 1917 and that one-third, we are told, and it has not been contradicted, was in itself sufficient to satisfy all the claims in this case. This suit was filed in April 1915. The defences raised were that the will was not genuine, that the testatrix had no right to dispose of the property, and Limitation Act. The first failed and 'has disappeared from the suit. The second failed but it is one of the grounds of appeal. The law is that a Hindu widow is entitled to the income of the estate and can dispose by will of accumulation of it, at any rate when she does anything to show that she claims it as her own, and does not intend such accumulation to form part of her deceased husband's estate. It has been held, and in my judgment rightly held, that she had clone all that was necessary. She could not handle the money as it was in Court; but she sued for it as hers and she left it specifically by the will. There remains the question of the Limitation Act, which, if intended to simplify the law of limitations of actions in this country, seems, as far as my short experience goes, to have signally failed in its object. For it seems almost common form to raise the statutes as a defence in litigation here, and a very large amount of judicial time is occupied in deciding difficult points under that statute. The Article which was relied on by the appellants was Article 62 barring suits for money had and received in three years, and, failing that, Article 120 barring suits not otherwise provided for in 6 years. It is contended that the defendants or their fathers received the money in 1905 to the use of the legatee, or, at any rate, could have been sued for it more than 6 years before action. The respondents, on the other hand, say that, if any Article applies, it is Article 123 barring suits for legacies in 12 years. But, in my judgment, the short answer to this defence is that, as stated above, the dafendants or their fathers did not receive any money which could be considered as available for the legacies until 1915 and, further, as regards that part which they received from the 1st plaintiff and which is, we arc told, enough to satisfy these claims, they did not receive it until 1917.
5. Further, on the proper construction of the will in my judgment, the legacies could not be sued for until the termination of the litigation which did not occur until the decision of the Privy Council in 1913, that is, within 3 years of the commencement of the suit. By the will the testatrix purports to leave Government promissory notes and cash relating to the Medur estate then in the custody of the Court and interest accruing thereon till payment. She recognised that the money was not then available for the legacies and could not become available until the Court had released it, and this the Court never did - until after the Privy Council decision; for a temporary release to the defendants or to their fathers and the 1st plaintiff on the terms stated above is, in my judgment, for this purpose not a release at all; and the money must be treated as having remained in Court. If that is right, those legacies did not become payable till 1913. Further, by the law of India, as by the law of England, the legacies are not payable until there are available assets to pay them and, therefore under the statutes of limitation time does not begin to run until there are available assets. See Lord v. Lord (1867) L.R. Ch. A. 782 , In re Johnson Sly v. Blake (1885) 29 Ch. D. 964 , Adams v. Barry (1845) 2 Col. 285, Rameshvar Singh v. Homeshvar Singh (1920) M.L.J. 1, Nandlal v. Gopilal : (1907)9BOMLR316 .
6. In this case there were none available until after the Privy Council decision. Even if there had been available assets before that, the earliest date on which it has been suggested that they were available is 1905. In my judgment, the Article that applies is Article 123 and the action is in time. But it is contended that this Article only applies to actions against executors and administrators and that neither the defendants nor their fathers were either. But, in my judgment, this Article applies to any one in possession of the estate and bound to pay legacies. If the defendants or their fathers did not take this money as representatives of the testatrix they took it as executors de son fort, for their fathers intermeddled with the estate and had possession of it or part of it in 1905, and they themselves intermeddled after their respective father's deaths, and as do part after the decision of the Privy Council in 1913. An executor de son tort takes all the liabilities of an executor, and it would be a curious thing if claims to legacies against an executor were not barred until the lapse of 12 years but claims against executors de son tort were barred in a shorter period. That this Article applies to persons other than the executors in possession of an estate has been decided in several cases. In Khetramani Dasee v. Dhireudra Nath Roy I.L.R. (1931) Cal. 271 it was held to apply to a case of a son of the executor in possession of an estate. In Maung Tun Tha v. Ma Tint (1916) I.L.R. 44 Cal. 379 (P.C.), the Privy Council held that Article 123 applied to a case of a claim to a share of the estate against co-heirs in possession of an estate where there was intestacy. See also the observations of Macleod, J in Shirinbai v. Ratanbai I.L.R(1918) . 43 Bom. 845 , where he points out that this section applies to any one who is the executor of a will or otherwise represents the estate of the testator. In ray view, Article 123 applies to suits for legacies against any person rightly or wrongly in possession of the estate under such circumstances that he is bound to deal with it as the estate of the deceased.
7. It is argued finally that an executor de son tort cannot be sued by a legatee at any rate, in the absence of the legal personal representative. But, in any view, this rule, if it be a rule, applies only where there is any legal representative. In England there would seem to have been some difference of opinion between Malins, V.C., and Jessel, M.R. on the point, and if it was necessary for me to express an opinion, I should say that I prefer the reasoning on this point of the former See Coote v. Whittington (1874) L.R. 16 Eq. 534, Rowsell v. Morris (1874) 17 Eq. C. 20, In re Lovett : Ambler v. Lindsay (1876) L.R. 3 Ch. D. 198. Nor do I think that when a representative of the deceased or a person in possession of the estate is proved, as in this case to have received enough to pay all demands against the estate in full, any such rule can apply. In my judgment, this action for the legacies lies against the defendants.
8. The question arises as between the other legatees and the residuary legatee as to the date from which the legacies bear interest. The rule is stated by Lord Cairns in Lord v. Lord (1867) L.R. Ch. A. 782 thus: 'A legacy payable at a future day carries interest only from the time fixed for its payment. On the other hand, where no time for payment is fixed, the legacy is payable at, and therefore bears interest from, the end of a year after the testator's death, even though it be expressly made payable out of a particular fund which is not got in until after a longer interval'. In the same case, Romilly, M.R put this instance: 'If the testatrix had said, 'I give 2,000 to my brother,' and had then directed that this should be paid to him when the litigation was over, and when the money was received, he would have been entitled to receive that 2,000 with interest from one year after the death of the testatrix; but it is quite a different thing where the payment of the money is part of certain trusts which are to arise at a future period.' This rule as stated by Lord Cairns is approved by the House of Lords in Walford v. Walford 1912 A.C. 658.
9. In my view, the true construction of this will is that the legacies are intended to be given to the legatees as from the testatrix's death and to become due at once, but that it was recognised by the testatrix that they would not in fact be paid until the determination of the litigation as the funds would not be available for their payment until then, and, in my view, these legqcies come within the first part of the rule enunciated by Lord Cairns and within the instance given by Lord Romilly above. In Walford v. Walford 1912 A.C. 658 . Lord Haldane referring to the will in that case says: 'There is not to be found a direction in the will that the legacies are not to be paid till the fund falls in.' In this case there is no direction to be found that the legacies are not to be paid until the determination of the litigation though, no doubt, as I have pointed out, it was recognised that they would not be; but as the funds were invested and bearing interest, I can see no reason for holding that the testatrix's intention as expressed in the will was that the legatees should not get interest, but that the interest should accumulate for the sole benefit of the residuary legatee. It follows that, in my judgment, these legacies bear interest at the rate of 6 per cent, from one year after the death of the testatrix.
10. The plaintiff in this case claims legacies of Rs. 80,000 and Rs. 40,000 and interest thereon and also as residuary legatee. To arrive at the amount, due to him as residuary legatee, an account will have to be taken and, for that purpose, the case will have to be remanded; he is entitled now to a declaration that he is entitled to the amounts claimed for the two specific legacies and interest thereon at 6 per cent, from one year after the death of the testatrix and to a declaration that he is entitled to receive from the defendants whatever amount is found on taking an account to be the residue of the estate.
P.A. No. 26 of 1921.
11. The plaintiff is entitled to a declaration that she is entitled to her legacy of Rs. 40,000 and interest at 6 per cent, from one year after the death of the testatrix.
L.P.A. No. 24 of 1921.
12. The plaintiff is entitled to a declaration that he is entitled to the legacy of Rs. 2,000, and interest at 6 per cent, from one year after the death of the testatrix.
13. Accounts will have to be taken and the judgment of the Court will be in the form proposed by Kumaraswami Sastri, J. The respondents must pay the costs of the appeal; those in the lower Court are provided for in the judgment of Kumaraswami Sastri, J.
Coutts Trotter, J.
14. I am of the same opinion.
15. The facts of this case are extremely complicated and it is no doubt that complication which has led to so much litigation and to such divergences of judicial opinion. But, when the facts are once understood and marshalled, it seems to me that the points that emerge as sufficient for the determination of this case are comparatively simple and it is not necessary to refer to much of the vast record that has been piled up. I need not go over again the task of analysing those facts which my Lord has fully done.
16. The only plea urged before us is that of limitation. Two questions arise, 'when were the legacies actually payable?' and 'when were these assets available for the purpose in the hands of those whom it is sought to make responsible for that payment?'
17. As to the first question, I confess I feel no difficulty whatever It arises on the construction of the will of Venkayamma. At the time when she made that will, by common consent she was not in possession of the properties of which she purported to dispose, and to her knowledge they were the subject of litigation which was still in progress. Apart from the express reference to the litigation in the will, it appears to me that, as a matter of construction, to ascertain her intention, it must be supposed that she did not intend her executors to pay the legacies until they had effectual possession of the assets. That principle is recognised expressly by Lord Justice Turner in Lord v. Lord (1867) 2 Ch. App. 782 though, no doubt, in that case there were also express words in the will. It seems to me a most unreasonable construction to suppose that the testatrix gave a mandate to her executors which ex hypothesi they would be unable to carry out until the happening of events, which to the knowledge of the testatrix might never happen at all, So much for the construction of the will.
18. Apart altogether from the intention of the testatrix, there is no obligation on the executors to pay the legacies until they have effective possession of the assets of the testatrix. It seems to me clear that they never obtained effective possession of the assets until the fructifying of the final decision of the Privy Council in 1913, which was not till some years after the judgment. I am utterly unable to appreciate the argument that the taking out of the actual money from Court in 1905 on deposit of security was, in any sense, an effective possession of the assets such as, in my opinion, the law Requires. The money which they were taking out was taken on condition of its being returned in a certain event and its place was taken in Court by an obligation to repay and the deposit of security which the. Court, for practical convenience and to prevent the cash being tied up uselessly, agreed to treat as the equivalent of the cash originally deposited. It seems to me that the assets were throughout in cuslodia legis and that, if the executors had been called upon to pay the legacies when they took it out, it would have been a complete answer for them to say, that they had only conditional possession of the assets and that they could not be compelled to pay away sums of money which they might never be able to recover, and which in certain contingencies they were personally bound to account for and replace in Court. I agree, further, with my Lord in thinking that Article 123 applies to such a case as the present even where the person sued is not an executor but a person who is, in fact, in possession of the estate in circumstances which render him accountable in equity to those having claims upon the estate. This is in accordance with the observations of Macleod, J. in Shirinibai v. Ratanbai I.L.R(1918) . 43 Bom. 845 and, although there is no record of any argument on the point, it is clear that the decision in Maung Tun Jha v. Ma. Tint I.L.R. (1916) Cal. 379, could not have taken the form it did, if the construction contended for by the respondents was sound.
19. As regards the relief to be given, I am a little more doubtful. Assuming the decision of Sir George Jessel, M.R. to be right and that of Malins, V.C., in Cootc v. Whittiugton (1874) L.R. 16 Eq. C. 534 to be wrong, I do not 'think that that involves more than that the executor, if such exists, is a necessary party to a suit against an executor de son tort. But I agree with the form of order proposed by Kumaraswami Sastri, J., which follows the usual form of order in these suits on the original side of this Court. With regard to the date from which interest should be calculated, I agree that we should apply the doctrine of Lord v. Lord (1867) L.R. 2 Ch. A. 782 and treat this bequest as deb Hum in praesenti, solvendum in futuro. I do not do so merely out of respect for the authority of that case; there are many English rules as to the construction of wills and administration of estates which I should hesitate to apply to this country, where large dispositions of property are made without any recourse to professional assistance. But m this case, the testatrix may well be supposed to have contemplated that if and when the assets come to hand, they would come increased by an award of interest - as in tact they did.
Kumaraswami Sastri, J.
20. These appeals arise out of a will executed by the Rani of Medur. The appellant in Letters Patent Appeal No. 20 of 1921 represents the residuary legatee under the will and the appellants in Letters Patent Appeals Nos. 24 and 26 of 1921 arc two of the pecuniary legatees. The respondents who are the same in all the appeals are the persons who have been declared by the decree of the Privy Council to be entitled to the Medur Estate. In order to understand the contentions of the parties, it is necessary to refer to the litigation in connection with the Medur and Nidadavole estates which originally formed part of the Nuzvid Zamindari.
21. In 1890 the Medur estate was held by Narayya Appa Rao who was a minor and the Court of Wards was in management. He was adopted on the 27th of December 1890 by Papamma Rao who succeeded to the Nidadavole estate on the death of her husband, but the Court of Wards continued to hold possession of the estate in spite of the adoption. On the 4th of August 1895 the adopted son died a minor and unmarried, and disputes arose as to the succession to the Medur estate. The natural mother of the Medur minor claimed to succeed to the estate as his heir on the grounds inter alia that the adoption of her minor son by the proprietrix of the Nidadavole estate was invalid and that assuming to be valid the adoption divested the minor of his right to the Medur estate. The contention of Papamma Rao, the adoptive mother, was that the adoption was valid and that on the death of the adopted son she became entitled to the Meclur estate. On the 21st of October 1895, Venkayamma, the natural mother of the minor, hied Original Suit No. 35 of 1895 on the file of the Ellore Sub-Court against Papamma Rao and the Court of Wards claiming the Medur estate and the accumulations in connection with that estate which were in the possession of the Court of Wards, and subsequent mesne profits. Various defences were raised which it is unnecessary to consider for the purpose of these appeals. During the pendency of this suit on the 30th of January 1899, Venkayarama executed the will marked Exhibit A whereby she disposed of her Stridhanam jewels and other moveable properties belonging to her and also the Government promissory notes and cash relating to the Medur estate which were in the custody of Court as well as the interest accruing thereon. After providing for certain pecuniary legacies set out in the will she bequeathed the residue of the Government promissory notes and cash to her two brothers. The appellant in Letters Patent Appeal No. 20 of 1.921. who is the Rajah of Bhadrachalam got an assignment of two legacies of Rs. 80,000 and Rs. 40,000, which were bequeathed to the sister-in-law of the Medur Ranee and also of the residue which was bequeathed to her brothers. The Appellant in Letters Patent Appeal No. 26 of 1921 got a legacy of Rs. 40,000, and Bapayya, whose legal representative is the Appellant in Letters Patent Appeal No. 24 of 1921 got a legacy of Rs, 2,000. Venkayyamma, the testatrix, died on the 9th of March 1899, and Rangayya Appa Rao and Venkata Narasimha Appa Rao, two of the paternal uncles of the last male-holder who were the reversionary heirs to the Medur estate, were brought on record as her legal representatives. Under Hindu Law they would also be the legal representatives of the deceased testatrix and in the absence of a will they would thus be not only the heirs of her husband but also of her deceased son and her own stridhanam heirs. They applied to be brought on record on the ground that they became entitled to the Medur estate and to continue the suit as laid by her, and on the 20th of July 1899 they were brought on record-On the 2nd of December 1899, the suit was dismissed, the Subordinate Judge holding that the adoption was valid and that in consequence of the adoption Venkayamma was not entitled to succeed to her son, the Medur estate having passed, by reason of the adoption and on the death of the adopted boy, to Papamma Rao. The two legal representatives who were brought on record as reversioners filed Appeals Nos. 122 and 123 of 1900 in the High Court against the decree of the Subordinate Judge of Ellore. Before the appeals were filed, Papamma Rao died on the 5th of December 1899. So far as the Nidadavole estate was concerned, the reversionary heirs to that estate on the death of Papamma Rao were the reversioners to the Medur estate and also Parthasarathi Appa Rao, the Rajah of Bhadrachalam. So that the position was that if the decision of the Subordinate Judge with regard to the Medur estate was right, both the Medur and I Nidadavole estates would be divided into three shares between the two reversioners claiming the Medur estate and Parthasarathi Appa Rao, whereas, if the appeal was successful and the contentions of Venkayamma were upheld, the Medur estate would be divided into two shares between the two reversionary heirs of Venkayamma and the Nidadavole estate would be divided into three shares between the three reversionary heirs to the Nidadavole estate, two of whom also happened to be the reversionary heirs to the Medur estate. On the death of Papamma Rao, Parthasarathi Appa Rao, the Rajah of Bhadrachalam, filed Original Suit No. 44 of 1899 on the file of the District Court of Godavari for a partition of both the Nidadavole and Medur estates, claiming one-thir d share in each, against Rangayya Appa Rao and Venkata Narasimha Appa Rao. In this suit the contention was raised by the defendants that Papamma Rao was coerced into adopting the Medur minor, that she had no authority to make the adoption, and that consequently the plaintiff had no right to any share in the Medur estate. The District Judge dismissed the suit as regards the Medur estate and gave a decree to the plaintiff for a third share in the Nidadavole estate. An appeal was hied against this decree of the District Court. The appeals filed against the decree of the Subordinate Judge's Court, Ellore, in the suit filed by the Medur Ranee and the appeal filed against the decree of the Godavari District Court in the suit filed by Parthasarathi Appa Rao were heard together in the High Court, and judgment was pronounced on the 20th of November 1905. The High Court, while confirming the decision of the Subordinate Judge of Ellore in egard to the Medur estate and holding that the adoption was valid, negatived the title of Venkayamma to the Mcdur estate. It also held that the Nidadavole estate was partible and passed a decree dividing both the Nidadavole and Medur estates into three shares, giving a third to each of the three claimants. An appeal was filed to the Privy Council against the decree of the High Court and, on the 10th of December 1913, their Lordships of the Privy Council held that the adoption by Papamma Rao was invalid for want of authority to adopt, that Venkayamma consequently succeeded to her son as his natural mother and that after her death the Medur estate went to the two reversioners. The consequence of the decree of the Privy Council was that the Medur estate was divided into two shares and the Nidadavole estate into three shares. The result also was that Venkayamma, the natural mother of the minor whose adoption was held to be invalid, became entitled absolutely to the income of the Medur estate which had accumulated from the death of her son on the 4th of August 1895 to her own death on the 9th of March 1899 and she got disposing power over the accumulations. During the pendency of this long litigation, the Medur estate was for sometime under the Court of Wards and afterwards under a Receiver and the income from the estate, after meeting the necessary expenses, was being deposited in Court under orders passed from time to time. In January 1899, Mr. V.L. Narasimham who was the Receiver, deposited, in pursuance of the orders of the High Court, all the Government papers and accumulations in his hands in the Bank of Madras to the credit of the suit in the Ellore Sub-Court. A Receiver was also appointed to the Nidadavole estate by the District Judge of Godavari in the liti. gation in his Court but he had no control over the Medur funds which were deposited in Court by Mr. Narasimham and which remained to the credit of the suit in the Kllore Sub-Court, After the disposal of the Medur suit in the Sub-Court of Ellore, Rangayya Appa Rao applied on the 9th of February 1904 that he may be paid a third of the monies deposited in the Bank of Madras and an order was passed directing payment to him on giving security. Venkata Narasimha Appa Rao also applied for the payment of one-third share to him and got a similar order from the High Court. Security bonds were executed by both these persons whereby they undertook to return the money'if they were ultimately found not to be entitled to it. The balance of one-third continued to remain in the. Sub-Court of Ellore and after the appeals were disposed of, holding that both the estates were divisible into three shares, the Rajah of Bhadrachelam applied for payment to him of a third share which amounted to Rs. 7,78,000 odd, to which he was entitled under the decree of the High Court, and, on the 14th of February 1907, he obtained an order for payment on giving security. On the reversal of the decrees of the Madras High Court by the Privy Council in 1913 the Medur estate became divisible into two shares and not into three, and the Rajah of Bhadrachalam who was declared to have no right to the Medur estate had to return the money which he drew under the orders of the High Court in 1907, Proceedings were thereupon instituted by the reversionary heirs to the Medur estate against the Rajah of Bhadrachalam and orders were passed, the upshot of which was that the Rajah of Bhadrachalam had to refund the money. Proceedings went on from 1914 to 1916, and the Medur reversioners recovered the money from the Rajah of Bhadrachalam in execution in 1917.
22. I have so far dealt with the litigation relating to the Medur estate. As regards the personal property belonging to Venkayamma, it was taken possession of by Rangayya Appa Rao, one of the two heirs to her personal property under Hindu Law, and the other heir Venkata Narasimha Appa Rao filed on the 10th of March 1902, O.S. No. 8 of 1.902 on the file of the Sub-Court, Kistna, against Rangayya Appa Rao, claiming one half of the personal property. The value of the property was stated to be Rs. 10,589-0-10, and the plaintiff claimed Rs. 5,294-8-5 being the half share. No reference was made to the will, fn the written statement filed by the defendant he stated that he heard that Venkayamma had executed a will leaving certain legacies, that the legatees had brought a suit, and that, unless it can be proved that the will was not genuine or the provisions thereof were not valid, the entire property in the suit would have to pass to the legatees. It was also pleaded that, in view of the contingency of the suit by the legatees succeeding, the plaintiff should execute an agreement undertaking to give one half of the property to them. Although the will was set up in this suit, the Subordinate Judge decreed a partition on the ground that the plaintiff and the defendant were the Stridhanam heirs of Venkayamma and that the pendency of a suit by the legatees under the will was no ground for refusing relief. The suit by (he two legatees, to whom, under the terms of the will of Ven-kayamma, her jewels and moveable properties were bequeathed, was tiled on the 10th of March 1902 against Rangayya Appa Rap and Venkata Narasimha Appa Rao and was numbered as O.S. No. 15 of 1902. The plaint set out the will, and alleged that the executor who was appointed under the will died without making any arrangement regarding the property, that the 1st defendant took possession of the moveables and that the 2nd defendant was also laying claim to the same. The defendants filed a written statement pleading that they were not aware of the execution of the will, the burden1 of proving which was on the plaintiffs, that the testatrix was not in a position to execute the will and that, even if the will was genuine, the properties specified in the will pertained to the Medur estate which the testatrix had no power to will away. They stated that, if the will was genuine and the testatrix had disposin g power, they had no objection to the properties disposed of being decreed to the plaintiffs. A decree was passed on the 30th of March 1904 holding the will to be genuine and that the testatrix had power of disposition over the moveables claimed in the suit and decreeing the claim of the two legatees. Execution proceedings went on till 1916 and the decree was executed. The present suits were brought in 1916 to recover the residuary legacies and also the four pecuniary legacies bequeathed under' the will. The Subordinate Judge dismissed the suits as barred by limitation. An appeal was held to the High Court Mr. Justice Sadasiva Aiyar held that the decision of the Subordinate Judge was right, while Mr. Justice Phillips held that the suits were not barred by limitation, and hence these Letters Patent Appeals against]the decision of Sadasiva Aiyar, J. dismissing the suits as barred.
23. The main contentions raised by the defendants before us are (1) that the Medur Rani had no disposing power over the profits of the Medur Estate which were deposited in Court, (2) that, even if she had, the plaintiffs have no cause of action against the present defendants, and (3) that the suit is barred by limitation.
24. Before proceeding further, it is necessary to consider the terms of the will, as to the genuineness of which there is no dispute. Paragraphs 1 to 4 relate to the jewels and other moveable properties which belonged to the testatrix and which were in her possession. She states that she had to sell the major portion of them for litigation and for personal expenses and that she had in addition to borrow money from her two brothers. She directs that her jewels, vessels, utensils, etc, which are specified in paragraphs 2 and 3 should be divided between her two brothers, her elder brother getting one share and her younger brother getting two shares; she gives two silver maces to her brother-in-law, Venkata Narasimha Appa Rao (who was one of the reversioners to the Medur Estate and brought himself on record as such). Paragraphs 5 and 6, which are material to the present suit, run as follows: '5. The Government promissory notes and cash relating to the Medur Estate which have been in the custody of Court till this day as well as the interest accruing thereon till payment (or more correctly realization) of the amount, shall be divided into four shares, and, out of them, one share shall be given to my elder brother, Buchi Tharnmayya Garu, and three shares to my younger brother, Chinna Rao; 6. Out of the Government promissory notes and cash of the Medur Estate which are remaining in deposit in Court and the jewels, etc., the amounts, specified hereunder shall be first expended and, only out of the remaining amount, one share shall, as stated in paragraph S, be paid to my elder brother and three shares to my younger brother.' Then follow under the heading, 'Particulars of the expenses to be incurred', the 27 pecuniary legacies. The first and second legacies of Rs. 80,000 and Rs. 40,000 have been assigned over by the legatees to the Rajah of Bhadrachalam who in addition has got an assignment from the residuary legatees under paragraphs 5 and 6 of the will, of the residue which will go to them. The third legacy of Rs. 40,000 is given to Seetayamma, the appellant in L.P.A. No. 26 of 1921, and the legacy of Rs. 2,000 (item 24) is given to Papayya whose legal representative is the appellant in Letters Patent Appeal No. 24 of 1921.
25. As regards the disposing power of Venkayyamma, I have little hesitation in holding that she had power to dispose of the income which arose from the Medur estate from the 4th of August 1895, the date of the death of her son, to the 9th of March 1899, the date of her death. It has now been settled that a Hindu widow has absolute control over the income of the property which she inherits from her husband, subject of course to the payment of the debts left by him, and that, unless it can be shown that she intended to make the savings part of the estate of her husband, she would have full power of disposal over it. In Saodamini Dasi v. The Administrator-General of Bengal I.L.R. (1892) Cal. 433 it was held that a widow was entitled to dispose of the income which accumulated during her tenure as widow of her husband's estate. Dealing with the contention that the savings of a Hindu widow should be presumed to have been made for the benefit of her husband's estate, their Lordships observed on the facts of that case that the widow never got her husband's estate in her possession, that there was no room for any such presumption, and that she did nothing to indicate an intention to make the fund received or interest on it part of her husband's estate, or to justify the inference that she wished it to revert to her husband's heirs. These remarks apply with equal force to the present case where Venkayamma was never in possession of her son's estate as heir, it having remained in the possession of the Court of Wards from the dale of her son's death, when her title accrued, to the date of her own death in 1899. The estate was under litigation and the income of the estate was being deposited in Court subject to the result of the suit which she had filed. There was therefore nothing to raise any presumption that she intended the income to be an accretion to the estate. All that was held in Isri Dutt Koer v. Hansbutti Koerain I.L.R.(1883) Cal. 324, is that where a widow has made no attempt to dispose of her savings in her lifetime, those savings will follow the estate from which they arose, but that where a widow who might have spent the income as it accrued has in fact saved it and has not added it to the estate, she is entitled to dispose of the savings as she pleases. The question depends upon her intention which is evidenced by her conduct in dealing with the after-purchases. In Akkanua v. Venkayya I.L.R.(1901) Mad. 351, it was held that the presumption is that the acquirer of property intends to retain dominion over it and that in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husband's property, was at her absolute disposal. A similar view was taken in Subhramainan Chetti v. Arunachelam Chetti I.L.R(1904) . Mad. 1, Veerarghava Reddi v. Koti Reddi (1916) 31 M.L.J. 465 : : (1916)31MLJ465 and Keshav v. Maruti I.L.R(1921) . 46 Bom. 37.
26. It has been argued for the respondents that as the testatrix deals in the will not only with the income derived from the property between the date of her son's death and her own but also with the accumulations that were in the hands of the Court of Wards during the minority of her son and called them 'Government promissory notes and cash relating to the Medur estate ' in her will, she must be taken to have treated the income during the period to which she was entitled to the estate, as an accretion to the estate. I do not think that the will can be read so as to indicate any, such intention. She clearly wanted to treat the property as property over which she had absolute dominion and the fact that she purported to deal with properties to which she had no such right along with properties over which she had a right of disposal would not indicate an intention on her part to treat one as an accretion to the other. That she purported to act beyond her powers as regards some of the items cannot defeat her right to dispose of items over which she had absolute disposing power.
27. It was also argued that the income of the estate between the period of her son's death and her own was in the nature of mesne profits which in law she had no power to assign, and reliance was placed on Section 6, Clause (e), of the Transfer of Property Act. The Transfer of Property Act applies only to alienations inter vivos and has no application to disposal of property by will. Reference has been made to Shyam Chand Koondoo v. The Land Mortgage Bank of India I.L.R.(1883) Cal. 695, Durga Chunder Roy v. Koilas Chunder Roy (1897) 2 C.W.N. 43, Sridar Chattopadhya v. Kalipada Chukerbutty (1911) 16 C.W.N. 106, Seetamma v. Venkataramayya : (1913)25MLJ410 , Govindaswami Pillai v. Ramaswami Aiyar : (1916)30MLJ492 . I do not think that these cases have any application. On the date of the will, the income arising from the estate was in the Bank of Madras to the credit of the suit and held for the successful litigant. The monies were collected and the case is not one where there is an assignment of the right to recover mesne profits. What the testatrix does is to dispose of property which, in the event of her success in the suit, would belong to her and which was in court. There is no authority for holding that a fundlin Court to which the testatrix has laid claim and to which she will be entitled, if successful, cannot be disposed of by will. I am therefore of opinion that Venkayamma had absolute disposing power over the income that accrued during the period when she held the estate and that the will executed by her is valid.
28. The next question is whether the legatees have a right of action against defendants. Though, under the will of Venkayamma, Gopalakrishnamma was appointed executor, it is found that he did not accept the office and that he died without doing anything in connection with the estate. The exact date of his death does not appear, but it is common ground that he died soon after the testatrix. As he did not accept office, there was no person to assent to the legacies given by the testatrix in her will and consequently Section 112 of the Probate and Administration Act which requires the assent of the executor to complete the legatee's title to his legacy can have no application. As the will in question was executed by a Hindu outside Madras and as it does not comprise any immoveable properties in Madras, the Hindu Wills Act does not apply to the will and consequently Section 187 of the Succession Act which enacts that no right as executor or legatee can be established in any Court of justice unless a Court of competent jurisdiction within the province shall have granted probate of the will under which the right is claimed or shall have granted letters of administration and which is made applicable under the Hindu Wills Act to wills to which that1 Act applies, does not govern the present case. There was therefore no necessity to take out probate or letters of administration for the purpose of enabling the legatees under the will to claim the bequests given to them. So far as the decisions of Courts in India go, a right of suit has always been given to the legatee direct against an executor or administrator or the heirs of the deceased or the person in possession of assets out of which the legacy is to be paid even though there has been no assent to the legacy. In Khetramani Dasee v. Dhirendra Nath Roy I.L.R. (1913) Cal 271, a suit by a residuary legatee against the heir of an executor for the recovery of a legacy due to her and for an account was held to lie. Jenkins, C.J. in reversing the decree of Richardson, J., and sending the case back for the determination of the question whether the plaintiff is entitled to the legacy claimed and for the purpose of taking accounts if such accounts were necessary, observed: It is true that the executor is dead, but his estate which would be liable at least to the extent to which it was enriched, is represented by the presence before the Court of his sole heir and representative. That does not mean that the heir or representative is personally liable for his father's breach of obligation, if breach there was, but that he is liable to the extent of the assets received from the father's estate.' In Nandlal v. Gopilal (1905) 9 Bom. L.R. 317 a suit by one of the residuary legatees under the will of her father against the widow of the deceased who was in possession of the properties of the deceased and who claimed them adversely to the legatees was held to lie. As regards the form of the present suits, there is a prayer in the plaint in O.S. No. 30 of 1916 filed by the Rajah of Bhadrachalam, which is the subject matter of L.P.A. No. 20 of 1921, for the taking of accounts and for necessary directions for the purpose of affording adequate relief to the plaintiff. The plaint in O.S. No. 88 of 1916, which is, the subject matter of L.P.A. No. 24 of 1921, in addition to the prayer for the taking of accounts and for directions, also contains a prayer for the administration of the property of the testatrix under the orders of Court. No authority has been cited to show that a residuary legatee cannot file a suit for the taking of accounts for the determination (of the amount clue to him in respect of the legacy. In order to remove any technical objection that may arise as regards the form in the absence of a prayer for taking accounts in O.S. No. 87 of 1916, which is the subject-matter of L.P.A. No. 26 of 1921, we have allowed the plaintiff to add a prayer for the taking of accounts. It should be remembered that the defendants are also the legal representatives of Venkayamma, who, in the absence of the will, would be entitled to the personal properties of Venkayamma. In a suit by one residuary legatee for the taking of accounts and the payment to him of his share, the other residuary legatees are not necessary parties.
29. There is also the fact that in the present case the executor died without accepting office or showing any indication that he took upon himself the duties of executor. Under these circumstances, I agree with the view taken by Phillips, J., that the estate would not, under Section 4 of the Probate and Administration Act, vest in him. Section 4 no doubt declares that the executor or administrator of a deceased person is his legal representative for all purposes and that the property of the deceased person vests in him as such; but it is difficult to see how, in the absence of the acceptance of office by the executor, the property can still vest in him. In cases where the Hindu Wills Act applies and where probate is necessary, the estate does not vest in the executor until he obtains probate. In such cases the application for probate itself is an indication of the acceptance of office. Section 12 of the Probate; and Administration Act enacts that probate of a will, when granted, establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such. But in cases where probate is not necessary, there should be some indication that the person appointed executor is willing to accept office and perform the duties of the executor. In cases where he does not accept office, I think, the estate must vest in the legal representative until an application is made by some person competent to obtain a grant under the Probate and Administration Act In the present case the legal representatives of Venkayamma were the fathers of the present defendants and they took possession of the moveable properties of Venkayamma on her death and divided the same between them under a decree of Court which I have already referred to above. They have also laid claims to the income of the Medur estate which would under the terms of the will go to the legatees, and they drew monies from Court. I do not think the fact that they claimed to be reversioners to the Medur estate and not heirs of Venkayamma when they drew the monies, makes any difference. The nature of the claim made by a legal representative who takes possession of properties bequeathed under a will is immaterial in discussing the question whether the legatees have a cause of action to recover the legacies bequeathed to them under the will, though it may have an important bearing on the question as to whether Article 123 of the Limitation Act applies to such cases. All that is necessary to give the legatees a Cause of action is that the defendants should be in possession of assets left by the deceased to which under the terms of the will they are entitled and which have to be applied for the payment of the legacies left by the will. Even assuming my view that the estate vested in the legal representatives of the deceased owing to the executor not Having accepted office is wrong, I think the defendants and their fathers are in the position of executors of there own wrong in that they intermeddled with the estate of the deceased and were in possession of assets and they would be liable as such. It is clear that the fathers of the present defendants were aware of the will left by Venkayamma. The position that they took up in the suit relating to the moveable properties, which I have already referred to, was that they heard that Venkayamma left a will but were not personally aware of it, and that, even if the will was executed by her the properties specified in the will belonged to the Medur estate which she had no power to will away, but that, if the Court should hold that the will was genuine and that she had disposing power, they had no objection to the terms of the will being carried out. It is clear from the evidence that, so far as the moveable properties in the possession of Venkayamma and disposed of by her in paragraphs 2 to 4 of the will are concerned, they were taken possession of by Rangayya Appa Rao and subsequently divided between him and Venkata Narasimha Appa Rao by a decree of Court. The will was found to be genuine in the suit brought by the legatees and a decree was obtained by them in respect of the properties mentioned in paragraphs 2 to 4 of the will. As regards the Government promissory notes and cash representing the income of the estate between the date of the death of the son of the testatrix and her own death they must have known perfectly well that they were also disposed of by the same will. In the application to be brought on record in the Medur suit after Venkayamma's death it was alleged that Rangayya Appa Rao and Venkata Narasimha Appa Rao were the legal representatives and that they were entitled to the. Medur estate as reversioners. An order was made on the 20th of July 1899 bringing them on record on the ground that they being the reversioners of the plaintiff's husband and son, were entitled to continue the suit. In the application to be brought on record, nothing was said of the will, and the income of the estate was evidently treated by them as part of the Medur estate. It is arguedon their behalf that, whatever may be their position as regards the moveable properties disposed of in paragraphs 2 to 4 of the will, they could not be treated as executors of their own wrong as regards the income of the Medur estate which they claimed not as the heirs of Venkayamma but as reversioners to the Medur estate. Reference has been made to Williams on Executors, pages 182 and 195, where the learned author observes that, if a person sets up in himself a colourable title to the goods of the deceased, as when he claims a lien on them though he may not be able to make out his title completely or if he takes goods of the deceased by mistake supposing them to be his own or if he seizes the testator's goods claiming property in himself though it afterwards appears that he had no right, he shall not be deemed; an executor tie son tort. Having regard to the written statements filed in the suit relating to the moveable properties of Venkayamma, where the reversioners in-effect put the plaintiff to the proof of the will and of the disposing power of Venkayamma over the properties disposed of by the will and admitted their readiness to the terms being carried out should the Court hold the will to be genuine, and that the testatrix had disposing power, I think the position taken up by them was that as regards the properties referred to in pargaraphs 2 to 4 of the w ill and the legacies given by the will, they were holding the properties for themselves if the Court should hold against the will, and for the legatees, should the decision be in favour of the will. In the Medur suit they alleged that they were the reversionary heirs, but it should be remembered that, in adition to being the reversionary heirs to the estate, they were also the heirs of Venkayamma as regards her own private properties, and that the mesne profits that were disposed of by the will and over which Venkayamma had disposing power bore a very small proportion to the entire value of the estate and the interest involved in the suit.
30. In his petition, Exhibit B5, Venkata Narasimha Appa Rao states that he is the nearest agnate now alive and is also the legal representative of the deceased plaintiff (Venkayamma) and that the cause of action as laid by her entirely survives to him. Rangayya Appa Rao, in his counterlpetition B6, states that he is also a reversioner. Their application was opposed by Papamma Rao (1st defendant) on the ground that, as each of them was entitled to a half share, they could not continue the suit. The Subordinate Judge in his order B5, dated 20th July 1899, held that Venkata Narasimha Appa Rao and Rangayya Appa Rao were entitled to be brought on record as legal representatives. No question was raised as to the petitioners not being the heirs of Venkayamma's personal properties, and I do not think the order bringing them on record as her legal representatives can be construed as an adjudication that they could not be recognised to have come on record as her own legal representatives. When the same heirs are brought on record in a suit covering both the personal properties of the widow and the properties in which she has a limited estate, I do not see why the legal representatives should not be said to be on record as her own legal, representatives. Whatever doubts there might have been about the will on the date when the reversioners applied to be brought on record in the Medur suit, it is clear that after the disposal of the suit relating to the moveable properties left by Venkayamma and disposed of in the earlier part of her will, there could be no doubt as to the genuineness of the will left by her, and as a matter of fact it was not suggested at any time thereafter that the will was not genuine. As regards the income of the Medur estate disposed of by I her, it is difficult to see what reasonable grounds the defendants had for believing that it was part of the Medur estate. The testatrix was never in possession of the Medur estate and there were no circumstances to support the view that she treated the income as part of the accretions to the estate. Saodamini Dasi v. The Administrator-General of Bengal I.L.R.(1892) Cal. 433 decided by the Privy Council so long ago as 1892, and Akkanna v. Venkayya I.L.R. (1901) Mad. 351 decided by this High Court as early as 1901, made this law on this question as to the rights of Venkayamma to bequeath the mesne profits perfectly clear. When, therefore, the reversioners applied to the High Court in 1904 for payment to each of them of a one-third share of the monies standing to the credit of the Medur suit, pending the determination of the title of Venkayamma to the Medur estate, they must have known perfectly well that part of the money which they received as attributable to the income of the estate between the date of the death of the last male holder and of Venkayamma, represented property to which they had no right, and which, under the will of Venkayamma, had to be distributed between the various legatees mentioned in the will, should her title to the Medur estate as heiress of her son be ultimately upheld. Under these circumstances, I do not think that, even assuming that they intermeddled with that money asserting a hostile claim to Venkayamma, they would be freed from their liability as executors of their own wrong. It seems to me that, in order to apply the doctrine that a person claiming under colour of a hostile title cannot be made executor of his own wrong, a claim must be made bona fide. I do not see how the assertion of an unreasonable claim by one who intermeddles with the estate which he must have known to be untenable could absolve the person who takes possession of the assets from liability.
31. It was suggested during the course of the argument that after the decree of the Subordinate Judge in the Medur suit the Medur estate must be deemed to have belonged to Papamma Rao after the death of her adopted son and that consequently the moneys were drawn by the parties to the Medur suit as Papamma Rao's heirs under the decree in the suit in the Godavari District Court. If this is so, then, on the reversal of the decree by the Privy Council, their legal representatives (the present defendants) must be deemed to have drawn the moneys when they got orders of Court adjusting the accounts and setting off instead of putting back the moneys in the Medur suit and drawing them out again, and they will be liable as executors de son tort.
32. So far as the position of executor of his own wrong in Indian law is concerned, Section 265 of the Succession Act enacts that a person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong. Section 266 provides that where a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator and payments made in due course of administration. Section 2, Sub-clause (11), of the Code of Civil Procedure (1908), defines 'legal representative' as a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. The policy of the Indian Legislature has evidently been to make the mere fact of intermeddling with the estate and taking possession of the assets a ground of liability. It is argued that there is no provision analogous to Sections 265 and 266 of the Succession Act in the Probate and Administration Act and that consequently there can be no executor of his own wrong in India. The Probate and Administration Act unlike the Succession Act deals only with the grant of probate and letters of administration and with the relation between executor or administrator legally entitled to the office as such and the legatees and next of kin. In fact, the preamble to the Act clearly states that it is expedient to provide for the grant of probate of wills and letters of administration to the estates of deceased persons in cases to which the Indian Succession Act, 1865, does not apply. The omission of provisions in the Probate and Administration Act analogous to Sections 265 and 266 of the Succession Act cannot therefore, in my opinion, be taken to indicate that the legislature did not intend to apply that portion of the law to wills in India. Courts in India are, in cases where there is no statutory enactment, bound to administer the law on the general principles of equity and good conscience, and the provisions of Indian enactments not strictly applicable or the English law, on branches which are not peculiar to English practice or jurisprudence have been applied in analogous cases in India if the interests of justice require it. For example, in Magaluri Garudiah v. Narayana Rungiah I.L.R.(1881) Mad. 359 the learned Judges applied the rule laid down in the Succession Act limiting the liability of an executor de son tort to the amount of assets received by him to cases under Hindu law and decided that, although under strict Hindu law the liability of a person who takes any portion of the estate of a deceased person extends to the whole of his debts, justice demands that the liability should be enforced to the extent of assets received on the analogy of the provisions of the Succession Act as regards the liability of executor de son tort. It is contended that, even if the persons who came on record as the legal representatives of Venkayamma can be treated as executor of their own wrong, the present defendants, who are only their son's, cannot be saddled with the same liability. So far as the present defendants are concerned, they are the heirs of the original legal representatives and came on record as such. The fund in Court which represented the mesne profits which Venkayamma disposed of were drawn by their fathers under a bond by which they were liable to bring back the monies. On the reversal of the decree of the Madras High Court by the Privy Council those monies had to be brought into Court, but 'the present defendants applied that accounts may be adjusted instead of the monies being brought in Court, The legal effect of the order passed upon their application was the same as if they brought back the monies into Court as the heirs of Papamma Rao whose title was negatived, and took it again as the heirs of Venkayamma. So far therefore as the monies in Court are concerned, they would have intermeddled with the estate and be equally liable and in any event they cannot escape liability as the legal representatives of executors of their own wrong. It is argued that, if the suit against them is as executors of their own wrong, the suit would be bad for nonjoinder of the legal representatives of the estate, and reference has been made to Rowsell v. Morris (1874) L.R. 17 Eq. C. 20, where it was held by Sir George Jessel, M.R., that the legal personal representative of a testator is a necessary party to a suit for the administration of his real and personal estate and that if he is not made a party, no decree can be made in such a suit even though an executor de son tort and the trustees of the real estate are before the Court. A contrary view was taken by Malins, V.C., in Coote v. Whittington (1874) 16 Eq. C. 534, where he held that where a person possesses himself of the assets of a testator without having administered, a bill for an account, to the extent of the assets he has received, will lie against him as executor de son tort, though there is no legal personal representative on record, and this view was, in spite of the dissent of Sir George Jessel, M.R. in Rowsell v. Morris (1874) L.R. 17 Eq. C. 20 re-affirmed by him In re Lovett. Ambler v. Lindsay (1876) 3 Ch. D. 1998, where very good reasons are given by the Vice Chancellor for the view he has taken. This decision has been followed in Amir Dnlhin v. Baij Nath Singh I.L.R. (1894) Cal. 311. I am of opinion that where an executor de son tort takes possession of all the assets of the deceased, a suit for a general administration can be filed without joining the legal representatives; and in cases where he takes possession of only a part of the assets he can be made accountable for the part he actually took possession of without joining the legal representatives but where administration is sought for the entire estate in cases where the executor de son tort has taken possession of only a part, the legal representatives would also have to be added. In the present case the defendants and their lathers have taken possession of all the properties of Venkayamma. They first took possession of the moveables and then took possession of the fund in Court and it is not suggested that any property of Venkayamma is outstanding in the hands of any other person. Under these circumstances I think the defendants are liable and that there is a good cause of action against them.
33. The plea of limitation however raises questions of considerable difficulty. Article 123 of the Limitation Act provides a period of 12 years for a suit for a legacy or for a share of a residue bequeathed by a testator, or for a distributive share of the property of an intestate, the starting period being the date when the legacy or share becomes payable or deliverable. It should be remembered that, when Venkayamma executed the will, Exhibit A, she was not in possession of the Medur estate or of the promissory notes and cash referred to in paragraphs 5 and 6 of the will, out of which the legacies were payable. She filed a suit which was resisted on the ground that she had no title to the estate, and the income of the estate which she disposed of by will was in Court. Under the order, Exhibit C(10) dated the 29th of July 1898, the Receiver who was discharged was ordered to deposit in the Bank of Madras at Cocanada the jewels and securities belonging to the estate in his possession and to pay into the Bank any balance of cash that remained in his hands after payment of all legal charges for investment to stand to the credit of suit. Security was given by Papamma Rao, and the order of the High Court became absolute. Venkayamma knew perfectly well that until the suit was decided in her favour she could not get possession of the promissory notes and cash disposed of by her will, and on the date of her death the suit had not come on for trial. Clause 5 of the will, states that the Government promissory notes and cash relating to the Medur estate which were in the custody of Court on the date of the will as well as the interest accruing thereon till payment of the amount should be divided after payment of the legacies referred to in Clause 6. Having regard to all the circumstances under which Venkayamma was placed and to the fact that monies could only come into the hands of the executor after the disposal of the suit in her favour, I think the proper inference to draw under the terms of the will is that she intended that the legacies should be paid only after the disposal of the Medur suit. Till then the legatees had no right of action against the executor. It seems to me that, if a suit were filed by the legatees before the title of Venkayamma in the Medur suit was established, they would be met with the answer of the executor that he had no assets and that he was not in a position to get in the assets until the disposal of the suit. In Luff v. Lord (1867) 2 Ch. A. 782 the testatrix appointed Mr. Lord as executor and bequeathed certain properties in the following terms: 'And further, with regard to the property comprised in the said second schedule upon trust that as soon as proceedings in law and equity shall be terminated and the same shall come into his possession, that he (Mr. Lord) shall pay etc., to each of my brothers and sister Mary Fuller (meaning the plaintiff Mrs. Luff) the sum of 2,000.' There was a litigation as regards the title of the testatrix. The Master of the Rolls was of opinion that the legacy was payable only when the litigation had finally ceased and the property had come into the hands of Mr. Lord and that upon the dismissal of the appeal in the House of Lords the litigation was at an end, at least so far as related to the establishment of a fund applicable to pay the legacy. He was also of opinion that the legacy was neither a reversionary interest nor a contingent legacy, but that it was a vested legacy payable on the happening of a future event, which was somewhat uncertain. The matter was carried in appeal, Lord v. Lord (1864) 34 Beav. 220, and the decision of the Master of the Rolls was confirmed. Sir G. J. Turner, L.J. in dealing with the terms of the will observed: 'But however the case might stand upon the strict literal construction, there can, I think, be no reasonable doubt of the intention. The testatrix refers to property with which she is dealing, as being the subject of litigation, and as property to come into possession. Is it possible to suppose that she could intend her executor to pay the legacies before the litigation was ended, and before the property came into his possession? Besides this she has distinguished, by her will, between the property which she could immediately dispose of and that which she could not, and, moreover, these legacies are part of a series of dispositions, the last of which, the residuary disposition, seems to me to have been evidently intended to be subject to the termination of the litigation and the possession of the property.' Lord Cairns, L.C, agreed with the Master of the Rolls in his construction of the will as to the time when the litigation can be said to have ended. In the present case the testatrix makes a distinction between the properties which were actually in her possession at the date of the will and properties which she had to get on the termination of the litigation. Clauses 1 to 4 of the will deal with properties in her actual possession which she disposed of at once, and Clauses 5 and 6 refer to properties in litigation. The observations of Sir G.J. Turner, L.J., apply therefore with equal force to the terms of this will. Walford v. Walford (1912) A.C. 658, was relied on by the vakil for the respondents. In that case the testator was absolutely entitled in reversion expectant on the death of his father to a fund appointed to him under the will of his mother subject to the father's life interest therein and bequeathed to his sister 10,000 to be paid out of the estate and effects inherited by him from his mother in terms of her last will and testament. The question was whether on the death of the father the legacy carried interest from the date of the expiration of one year from the testator's death or from the falling in of the reversionary fund. Viscount Haldane, L.C., was of opinion that unless there was expressly or by implication a direction that the legacy was not to be payable and that there was no right to payment until a certain time, the right to interest was not postponed. While pointing out that the decision turning on the terms of a particular will is not of much use in construing the terms of another will, he was of opinion on the terms of the will under consideration that there was no postponement. Lord Macnaughten was of opinion that, having regard to the circumstances of the case, the relationship of the parties, the language of the mother's will and the testator's own language, it was more probable than not that the testator intended that his sister should have no claim for payment until the death of the father but that that intention was not made sufficiently plain by the terms of the will. Lord Atkin son was of opinion that having regard to the terms of the will in question, there was not any sufficiently clear expression of an intention that the payment of the legacy should be postponed. I may state that the title of the testator in that case to the estate and effects inherited by him from his mother was clear and beyond dispute, and it was therefore not a case where, as in Luff v. Lord (1), it was dependent on the successful termination of the proceedings which might or might not end in favour of the testatrix. Having regard to the litigation and to the impossibility of the testatrix getting any money into her hands till she succeeded in her suit, I think the facts of the present case fall within the decision in Luff v. Lord (1864) 34 Beav. 220, and Lord v. Lord (1867) 2 Ch. App. 782. As the legacies could only be paid after the termination of the proceedings in the suit instituted by Venkayamma for the recovery of the Medur estate, as there was absolutely no other property except the fund in Court which could come to Venkayamma or to her executor only after the termination of the proceedings in her favour, as the suit for the recovery of the legacies by the residuary or pecuniary legatees would be infructuous till the title itself to the properly was settled and as the title to the fund in Court was negatived both by the Subordinate Judge by his decree, dated the 2nd of December 1899, and in appeal by the decree of the High Court, dated 20th of November 1905, and was only established by the decision of the Privy Council, dated the 10th of December 1913, which reversed the decrees of the Subordinate Judge and the High Court, I am of opinion that the legacies became payable after the termination of the proceedings on the 10th of December 1913 when their Lordships of the Privy Council reversed the decrees of both the lower Courts and held that Venkayamma was entitled to the Medur estate. A suit either by a residuary legatee or pecuniary legatee for the purpose of recovering a legacy will not lie until the expiration of one year from the testator's death. I need only refer to Cursetjec Peslonjee Bottliwalla v. Dadabhai Eduljee I.L.R.(1896) Mad. 425, and to Section 117 of the Probate and Administration Act, which enacts that an executor is not bound to pay or deliver any legacy until the expiration of one year from the testator's death, and to Article 123 of the Limitation Act which makes the period to run from the date when the legacy, or share becomes payable or deliverable. As Venkayamma died on the 9th of March 1899, the legacies were payable only after the 9th March 1900, but on the 2nd of December 1899 Venkayamma's suit was dismissed and her title was found against, and it was not until 1913 that the Privy Council reversed the decisions of both the lower Courts, and held that she was entitled. I agree with Phillips, J. in thinking that until the right of the testatrix to dispose of the fund was recognized by the Privy Council in 1913, the legatees could not enforce their claim to the legacies and that the cause of action did not accrue until that date.
34. It is argued that whatever might have been the course of the proceedings in the Medur and Nidadavole suits it was open to the executor or the legatees to start an independent litigation challenging the decisions of the Subordinate Judge and the High Court and claiming a trial on the question whether Venkayamma was or was not entitled to the mesne profits of the estate between her son's death and her own. It seems to me that such a litigation would be perfectly useless. It is not suggested that the litigation which was continued after the death of Venkayamma was not properly contested or conducted. Every available material was placed before the Court by the legal representatives who continued the suit regarding the Medur estate and it seems to me that the executor or the legatees would be embarking on a perfectly fruitless litigation with the decision in the Medur suit before them. Any suit tiled by the executor or the legatees in the Sub-Court would have been dismissed for the reason that Venkayamma was, in the opinion of the Judge who tried the Medur suit, not entitled to the Medur estate, and beyond spending monies in litigation they would have had no relief. It is contended that the executor or persons entitled could have sold the claim of Venkayamma to the fund and paid the legacies. It is difficult to see who would have purchased a claim which was negatived by the Subordinate Judge and the High Court. It would have been a most imprudent thing to do. In Rameshvar Singh v. Homesvar Singh (1920) 40 M.L.J. 1 (P.C.) a decree was passed on the 27th of July 1906 in favour of the Maharajah of Dharbhanga declaring that the amount decreed was to be realized by the sale of the property belonging to one Janeshvar and left in Ekradeshvar's possession and that the decree holder was not entitled to make any portion of the property of Janeshvar which was in the possession of any one else liable for the decree, On the death of Janeshvar in April 1906 his widow obtained possession of his share of the property and a suit was brought in the Civil Court by Ekradeshvar against the widow, claiming that, in accordance with the custom, the property was his. On the 15th of August 1903, the Subordinate Judge decided in his favour, but on the 2nd of August 1909 the High Court at Calcutta reversed this judgment. Ekradeshvar appealed to the Privy Council and on the 22nd of July 1914 the judgment of the High Court was reversed and the suit decreed in his favour. The property remained in the possession of the widow and came into the possession of Ekradeshvar only after the judgment of the Privy Council. In December 1914, after the decision of the Privy Council in favour of Ekradeshvar, the decree holder applied to the Subordinate Judge for the [execution of the decree of 1906. The plea was raised that execution was barred. The Subordinate Judge decided the plea in favour of the decree holder on the ground that the decree became capable of execution for the first time only after the decision of the Privy Council, but in appeal the High Court held that there was no inherent defect in the decree which prevented execution in 1908, when the Subordinate Judge decreed in favour of Ekradeshvar. Their Lordships of the Privy Council reversed the decision of the High Court and held that execution was not barred. Their Lordships observed as follows: 'They are of opinion that when the Limitation Act of 1908 prescribes three years from the date of a decree or order as the period within which it must be enforced, the language, read with its context, refers only, as they have already indicated, to an order or decree made in such a form as to render it capable in the circumstances of being enforced. This interpretation appears to them not only a reasonable one in itself but to be in accordance with the previously expressed opinion of this Board in Shaik Kumar-ud-din Ahmad v. Jawahur Lal (1905) L.R. 32 I.A. 102 : . The case may also be put in this way. The decree against Ekradeshvar could not have been executed without a further application. This application could not have been made till Ekradeshvar had come into possession of the property of Janeshvar, and, by Article 181 in the Schedule to the Limitation Act, the period of Limitation for making an application is three years from the time when the right to apply accrues.' In Lakhan Chuuder Sen v. Madhusudan Sen I.L.R. (1907) Cal. 209 which was affirmed by their Lordships of the Privy Council in Nrityamoni Dassi v. Lakhan Chendra Sen I.L.R. (1915) Cal. 660 it was held that limitation would be suspended during the time the parties were litigating bona fide as to title. The principle on which these cases were decided is that circumstances may exist which would render a suit or application infructuous and that a party should not be compelled to sue until the impediment is removed.
35. It is argued that, as the legatees were no parties to the Medur suit, they could not take advantage of the litigation and that consequently the decisions above referred to would not apply. I think the legatees stand in a position analogous to the Maharajah of Darbhanga. It should also be borne in mind that in the present case the persons who were brought on record as the legal representatives of Venkayamma were not only the reversioners to the Medur estate but were also Venkayamma's own Sridhanam heirs, and that as the executor appointed under the will did, not act and took no steps (he according to the allegations of the legatees in the suit having died within a few days after the testatrix), and as the legatees would not till the grant of probate with will annexed to them be legal representatives, the two reversioners who came on record as legal representatives in the Medur suit sufficiently represented Venkayamma's estate. In Kadir Mohideen Marakkayar v. Muthukrishna Ayyar 12 M.L.J. 368 it was held that where a person who is not the legal representative is in fact brought on record as such and the Court allows the wrong representative to be brought on record to continue the litigation, the benefit of that litigation may be taken advantage of by the proper legal representative, and that the representatives on record will be accountable to him. If this is so the legatees and creditors can proceed against the proper legal representatives if their claim is not barred. Their proper legal representatives will be in a position to get the benefit of the decree and thus to be in possession of assets. The position is simplified by the reversionary heirs to the Medur estate and the Stridhanam heirs being the same individuals. It should be remembered that Venkayamma died in 1899 when the Civil Procedure Code of 1882 was in force. Kadir Mohideen Marakkayar v. Muthukrishna Ayyar 12 M.L.J. 368, and other decisions which were passed under the old Code would apply. I do not see why under the circumstances of this case the legatees should not be entitled to wait until the termination of the proceedings continued by the two reversioners who came on record as the legal representatives of Venkayamma and why the period during which Venkayamma's title to the Medur estate was being contested should not be excluded. In the view I take of the case, that the legacies were payable only after the termination of the Medur litigation and the decision of the Privy Council on the 10th of December 1913 and that in any event the period during which the litigation was pending should be excluded and it was useless for the legatees to file any suit for establishing their claim owing to the title of Venkayamma to the Medur estate being negatived, the suits will be in time either under Article 123 or 62 or 120 as they were instituted within three years from the date when the legacies became payable.
36. Article 123 of the Limitation Act comprises two classes of suits: the first is suit for a legacy or for a share of a residue bequeathed by a testator, and the second is suit for a distributive share of the property of an intestate. Till the decision of the Privy Council in Mating Tun Tha v. Ma Thit I.L.R. (1916) Cal. 379, it was held by all the High Courts following the view in Mahomed Risat Ali v. Hasin Banu (1894) 21 C. 197 that Article 123 of the Limitation Act was not applicable to a suit for partition by one Mahomedan against his co-heirs and that it was not a suit for a distributive share of the property within the meaning of Article 123 of the Limitation Act, as one heir was not under legal duty to distribute the estate to his co-heirs. In Maung Tun Tha v. Ma Thit I.L.R. (1916) Cal. 379 a Burmese Budhist claimed one quarter share in the estate of his father who died on the 19th of December 1906 against the defendants who were his mother and the other children. The suit was dismissed by the Chief Court of Burma on the ground that under the Burmese Budhist law a son claming one-quarter share in the joint estate on his father's death must exercise his option, that the right given to the eldest son to claim a quarter share in the joint estate must be exercised as soon as possible, and that if there was unreasonable delay it lapsed. On appeal their Lordships of the Privy Council held that the plaintiff was at liberty to exercise the right within any period that was not outside the period that was fixed by Article 123 of the Limitation Act as the period within which a claim must be made for a share of property on the death of an intestate. The question as to which Article of the Limitation Act is applicable to cases like the one in question was not discussed. In Shirinbai v. Ratanbai 1 L.R.(1918) 43 Bom. 379 Sir Basil Scott, C.J., was of opinion that Article 123 of the Limitation Act applied to every suit where the plaintiff seeks to recover a distributive share of the property of an intestate irrespective of whether the defendant was under a legal obligation to distribute it or not, and that the decision of the Privy Council in Maung Tun Tha v. Ma Thit 1 L.R.(1916) Cal. 379, displaced the line of Indian cases upon which reliance was placed for the defendants. Macleod, J., was of opinion that a suit for a distributive share may be against any person in possession of the estate and not necessarily against the administrator or one in law bound to distribute. In Nurdin Najbudin v. Bu Umrao I.L.R(1921) . 45 Bom. 519 it was held that when members of a Mahomedan family continued to live as tenants in common without dividing the estate of a deceased ancestor, limitation would not run from the time of his death and that a suit for a distributive share of the deceased's estate would be governed by Article 144 and not Article 123. Fawcett, J., was of opinion that Maung Tun Tha v. Ma Thit I.L.R(1916) . Cal. 379 was not a pronouncement of the Privy Council which should necessarily be held to conclude the question and that the word 'distributive' in Article 123 has a peculiar meaning of distribution of an estate which has vested in an executor or administrator. Whatever doubts there maybe as regards cases of intestacy, I do not see any reason for holding that a suit for a legacy or for a share of a residue bequeathed by a testator can fall under Article 123 only if it is against an executor and not if it is against one in possession of assets which are liable for payment of the legacies. The wording of Article 123 is general. It refers to a suit for a legacy or for a share of a residue bequeathed by a testator, and if the legatee has a cause of action against the person in possession of the assets of the testator, I do not see why there should be a further qualification that the person in possession of the assets should be an executor or administrator. I think it will be reading into the Article words which are not there, namely, that the suit should be for a legacy or for a share of a residue against an executor or administrator. In Khetramani Dassee v. Dhirendra Nath Roy I.L.R. 41 Cal. 271 the suit was not against the executor but against the legal representative of an executor who was in possession of the assets, Jenkins, C.J. and Mookerjee, J., applied Article 123 to the suit. The legal representative in possession of the assets of a testator is bound to pay the legacies to the extent of the assets and an executor de son tort is liable to be sued by the legatees and will have no defence to the action if he is proved to be in possession of assets. It will not be open to an executor de son tort to deny that he is under all the duties of a rightful executor. The land is thus stated by Williams in his book on Executors, 11th Edition Vol. 1 P. 184: 'When a man has so acted as to become in law an executor de son tort, he thereby renders himself liable, not only to an action by the rightful executor or administrator, but also to be sued as executor by a creditor of the deceased or by a legatee for executor de son tort has all the liabilities though none of the privileges that belong to the character of an executor.' Reference was made by the respondent's Vakil to Sithamma v. Narayana I.L.R. (1889) M. 487, where it was held that Article 123 of the Limitation Act was not applicable when the suit was by a legatee against an executor de son tort. If he is liable to pay the legacy and if he has all the liabilities of an executor, there is no reason why a suit by a legatee should not fall under Article 123. The only reason given by the learned Judges is that if the contention were to prevail the suit would not be barred before the expiration of 12 years. There is no reason why it should be so long as it is a suit for a legacy and is against a person who has in law all the duties of an executor cast on him owing to his having intermeddled with the estate or having taken possession of the assets. In Kheiramani Dassce v. Dhircndra Nalli Roy I.L.R. (1913) Cal. 271, Article 123 was applied to a suit by a residuary legatee against the legal representatives of an executor. In Rajamannar v. Venkatakrishnayya I.L.R. (1901) Mad. 351, the son of the deceased executor was a party defendant and Article 123 was applied so far as he was concerned. No doubt the surviving executor was also a defendant, but it was not suggested that a different period applied to the heir of the executor. Even assuming that Article 123 does not apply, Article 120 or Article 62 would be applicable. On the termination of the Medur litigation by the decision of the Privy Council, it became clear that the persons who came on record as the legal representatives of Venkayamma had no right to take the mesne profits which accrued between the date of the death of Venkayamma's son and her own death and that, if they received mesne profits, they must hold it for the benefit of the legatees under the will. Treating the suit as a suit for the recovery of money had and received, Article 62 would apply. Limitation under Article 62 cannot commence earlier than the date of the Privy Council decision as it is only on that date it can be said that money was received for plaintiff's use. If Article 62 does not apply, then the residuary Article 120 would be applicable.
37. There is also another aspect of the case as regards limitation which has to be considered. After the dismissal of the suit brought by Venkayamma and continued by her legal representatives as regards the Medur estate, and during the pendency of the appeal in the High Court, the legal representatives on record applied to the High Court for the drawing out of a third share each out of the amount standing to the credit of O.S. No. 35 of 1895, and orders were passed by the High Court that on their giving security to the satisfaction of the Subordinate Judge of Masulipatam for the amount to be paid to them, a third of the amount standing to the credit of O.S. No. 35 of 1895 on the file of the Court of the Subordinate Judge of Masulipatam in the hands of the Bank being the principal and interest up to that date was to be paid out to them, and the Subordinate Judge of Masulipatam was directed to call for the money and securities from the Bank and to pay one-third share to each of the petitioners. Venkata Narasimha Appa Rao and Rangayya Appa Rao executed security bonds, Exhibits 1(1) and 1(2), on the 18th of December 1904 and the 3rd of March 1905: Exhibit 1(2) executed by Rangayya Appa Rao recited that in pursuance of (he order of the High Court he was going to receive a third share from Court amounting to Rs. 3,50,000 and proceeds as follows: 'Therefore if this Court should order either for return or for payment to any others of such sums as we might receive from your Court, we hereby undertake to do so.' The immoveable properties specified in the security bond were given as security. Exhibit 1(1) executed by Venkata Narasimha Appa Rao, after reciting that Rs. 3,47,971-13-6 was payable, states that if any disputes should arise from any one in future and consequently the Court should order a refund the amount would be refunded and that in. default of refunding the amount, if ordered, it might be recovered from the properties given as security, As owing to the result of the decision of the Subordinate Judge and of the High Court the Medur estate was divisible into three shares, Partha-sarathi Appa Rao, after the decision of the High Court, applied for the payment to him of a third share. On the 14th of February 1907, an order, Exhibit F(2) was passed permitting Parthasarathi Appa Rao to execute his decree which entitled him to a third share of the cash and net profits relating to the Medur estate on giving security. He executed a security bond on the 22nd of July 1907 and took out a third share of the monies that were originally deposited to the credit of the Medur suit. The terms of the bond were that he would refund the money in the event of the decree of the High Court in his favour being wholly or partially reversed by his Majesty in Council. As the result of the decision of the Privy Council was adverse to him, he was under the terms of the bond to refund the money representing the Medur mesne profits on the termination of the proceedings in the Privy Council in 1913. The two legal representatives of Venkayamma in the Medur suit Venkata Narasimha Appa Rao and Rangayya Appa Rao applied to get the monies which Parthasarathi Appa Rao was bound to refund, and they executed the decree between 1914 and 1916. So far as the amounts received by Venkata Narasimha Appa Rao and Rangayya Appa Rao are concerned, I do not think the monies received by them under the security bonds of 1904 and 1905 can be said to be monies which the legatees were then entitled to claim, The monies were received by them on giving security and undertaking to return the monies if the litigation should be unfavourable. It was an arrangement between the Court and the parties to the suit as to the monies deposited by the Receiver and the right to return the money was conditional on the establishment of Venkayamma's title to the Medur estate. I think the actual receipt for purposes of limitation should be the date when the litigation ended in their favour. It was in December 1913 that Venkayamma's title was established. As regards the amount which Parthasarathi Appa Rao had to refund and which they recovered in execution the receipt of the sum of Rs. 7,00,000 odd was between 1914 and 1916 and so far at least as that amount was concerned the claim of the legatees to be paid out the portion of that amount which represented Venkayamma's absolute property arose only after the receipt of the sum. Limitation begins to run from the time when the assets are successively received and, where assets are received from time to time, a suit by a legatee will be in time if within 12 years from the receipt of any particular assets. In Adams v. Barry (1845) 2 Collier 285 where the question arose as to the period of limitation in a suit tiled by the representative of one of the executors and the residuary legatee against the representative of the co executor to recover the residuary assets of the testator alleged to have been taken possession of by the co-executor it was held that the plaintiffs were barred by the statute, 3 and 4 Will. IV, Clause 27, Section 40, as to assets possessed by the executor more than 20 years before the filing of the bill not as to assets possessed by them since that date. I may also refer to Light-wood's Time Limit to Actions, p. 171, Banning on Limitation, p. 191 and Darby and Bosanquett, p. 185.
38. In the view I take of the case the suit is not barred whichever Article of the Limitation Act is applied.
39. I would reverse the decree of the Subordinate Judge and pass a preliminary decree declaring (a) that Venkayamma, the testatrix, had disposing power over the income of the Medur estate between the 4th day of August 1895 the date of the death of her son, and the 9th day of March 1899, the date of her death, and that the will executed by her on the 30th day of January 1899 and the dispositions made therein are valid and binding on all the parties hereto; (b) that the legatees under the will are entitled to the payment of their respective pecuniary legacies with interest at 6 per cent, from the 9th March 1900 to date of the final decree; (c) that Rajah Parthasarthi Appa Rao, the plantiff in O.S. 30 of 1916, and appellant in Appeal No. 128 of 1918, is entitled to the residue; (d) that the defendants are liable to pay so much of the sums drawn by them or by their fathers from Court and recovered, from the plaintiff in O.S. 30 of 1916 as are attributable to the mesne profits of the Medur estate between 4th August 1895 and 9th March 1899 with interest at 6 per cent, from the dates of the receipts thereof.
40. I direct the Subordinate Judge to make the necessary enquiries and to take an account (1) of the sums which under the declaration above are repayable by the defendants and direct them to pay the sum so found into Court and (2) of the debts and liabilities, if any, of the deceased Venkayamma which are now payable out of her estate and (3) of the amounts due to the respective legatees.
41. The Subordinate Judge will on making the necessary enquiries and taking the necessary accounts pass a final decree. The respondents will pay the costs in this Court and provision will be made in the final decree for the costs of the appellants in the suits.