Kumaraswami Sastri, J.
1. The plaintiff who is the appellant sued to recover Es. 4,534-13-3 alleged to be due on a promissory note executed by the deceased Kothai Ammal, the widow and executrix under the will of one' Narasimhachari who died leaving another widow, two daughters and a daughter's son (defendants 1 to 4 respectively). The case for the plaintiff is that the promissory note sued on was executed in respect of moneys borrowed by the executrix to pay the legacy due to the 3rd defendant and that defendants 1 to 4 who have taken the testator's property and defendants 2 to 4 who have succeeded to Kothai Ammal's properties are liable. Various defences were raised but it is only necessary to consider the plea that the executrix had no power or necessity to borrow so as to bind the estate of the testator and the plaintiff can only proceed against Kothai Ammal's heirs and the assets in their hands.
2. The Subordinate Judge held that under the terms of the will the proceeds of the life policy (referred to in paragraph 8 of the will) were specified as the fund out of which the legacy was to be paid, that there was no necessity to borrow and that the estate of the testator was not bound to satisfy the amount due on the promissory note. He passed a decree against Kothai Ammal's legal representatives. On appeal the District Judge confirmed the decree on the ground that plaintiff did not prove any necessity for the loan.
3. It is argued for the appellant that both Courts were wrong in viewing the case solely from the standpoint of necessity that the powers of an executor to borrow monies for the purposes of administration of the estate are wider than those of an administrator, that the indication of a fund in the will out of which the legacy was to be paid does not prevent it from being otherwise discharged, if the fund is not immediately available and that so long as the executor borrows money bona fide in the due course of administration he is entitled to a right of retainer which can be availed of by the creditor whose loan has been applied to the payment of sums payable out of the estate. It is also argued that the creditor has a direct right to proceed against the estate as he cannot be in a worse position than the creditor who has lent moneys to the managing member of a joint family or to a trustee of a temple or the guardian of a minor for necessary and binding purposes.
4. Before dealing with the above contentions it is necessary to refer to the important clauses in the will and certain proceedings prior to the execution of the promissory note sued on. Paragraph 3 of the will directs the executrix to deliver at once to the testator's daughter' Ranganayaki (3rd defendant) the share in the Arasaven village which the testator had acquired for her benefit and pay her Es. 3,000. In paragraphs 2, 4 and 7 the testator directs payment of Rs. 1,000 to his grandson Govindarajan (4th defendant), Rs. 50,000 to his widow (1st defendant) in case, the testator left no sons (a contingency which happened and entitled her to the bequest) and Es. 4,000 to his daughter-in-law. Clause 8 directs the executrix to get from the Oriental Life Assurance Company the sum of Es, 8,000 payable in respect of the life policy taken out by the testator and to pay his debts and the legacies specified above. It is clear on the face of it that all the legacies could not be paid out of the insurance monies even if there were no debts to be paid and that the executrix must have had recourse to other properties of the testator in order to pay them. I may add that Exhibits D and E show that the testator had debts to pay and that a decree for Es. 11,558 and odd was passed against the executrix and all the present defendants.
5. Soon after the testator's death Namagiri Ammal (1st defendant) filed O.S. No. 14 of 1909 for her share under the will and the executrix contested the suit inter alia on the ground that the legacy to her was only Rs. 5,000, the sum of Rs. 50,000 being a fraudulent alteration in the will. A razinamah Exhibit C was filed which provided for payment of a certain sum to Namagiri Ammal (plaintiff in the suit) for collection by the executrix of debts due to the estate and the amount due on the life policy and the payment by her of the debts due by the estate including the legacy of Es. 3,000 payable to Ranganayaki; the plaintiff being indemnified against non-pay' ment by the executrix. Some stress has been laid on the words ' the 1st defendant alone shall pay all debts etc'. It is clear that reading it with the other clauses of the razinamah the intention was not to transfer to the executrix personal liability for all the testator's debts and legacies so as to absolve the estate from payment of the same but to prevent it being said subsequently by the other parties that the co-widow (the plaintiff in that suit) by reason of her having taken the properties given to her for her share was liable to pay anything or that the properties she took should in any way be charged with or made liable for payment of their claims. It is not suggested that the razinamah was not a bonafide and proper adjustment of the differences between the executrix and her co-widow.
6. After the razinamah Ranganayaki Ammal, the daughter of the testator (3rd defendant.) was pressing for payment of the legacy and threatened legal proceedings. The 1st defendant at that time was not able to recover the sum due on the policy. The terms of Clause 3 of the will were specific and directed, that Rs. 3,000 was to be paid at once and having regard to the fact that the legacy would have been payable even if the policy monies became irrecoverable the situation was not as clear as the Subordinate Judge thinks it was, The executrix who was threatened with a suit for the legacy, borrowed Es. 3,500 and executed the pronote sued upon on the 9th December 1909. It recites that the sum of Rs. 3,000 was borrowed for the purpose of paying Ranganayaki who was entitled to the same both under the will and the razinamah (above referred to) and Es. 500 to discharge the other referred to in the will. It was signed by Kothaiammal without any description or qualification and so far as the note is concerned except for the recital that the debt was contracted for purposes of carrying out the directions contained in the will there is nothing to exclude or to limit the personal liability of the executant or to indicate that she charged the estate with payment.
7. It is well settled that a person executing a negotiable instrument will be personally bound thereby unless there is clear indication that he does not intend to incur any personal liability but limits recourse of the payee or holder to the person whom or the estate which he represents either as trustee, executor, guardian or agent. There may be a difference of opinion as to the words or recitals necessary for so limiting liability; but the principle is clear. I need only refer to Koneti Naicker v. Gopala Aiyar I.L.R. (1918) M. 482 and Sundaresa Gurukal v. Sambasiva Aiyar (1915) 2 L.W. 188. In the case of executors the View taken by Warrington, J., in Walling v. Lewis (1911) L.R.I. Ch. 414 that the words 'as such trustees but not so as to create any personal liability on the part of either of them ' were void and repugnant as there was a covenant to pay and an indemnity, was not followed in Gant v. Hobbs (1912) L.R.I. Ch. 717 where it was held following Muir v. City of Glasgow Bank Ltd. (1879) L.R.4 A.C. 337 and Gordon v. Campbell (1842) 1 Bell. App. 428. that the words ' as such trustees and not otherwise ' did not render them personally liable.
8. In the present case it is clear that the executrix for the purpose of paying the legacy due to the testator's daughter borrowed moneys on the promissory note sued on without limiting her liability charging the estate or any part thereof with payment of the sum borrowed. The question is. how far and subject to what limitation can the creditor proceed to realise his debt by proceeding against the estate in case the personal liability is insufficient.
9. Where an executor or an administrator has been dealing with the assets or making contracts bona fide in the due course of administration in his character as executor or administrator, the question whether on contracts personally entered into by him he should be sued in his character as legal representative so as to enable the creditor to pursue his remedies directly against the estate or in his personal character, the creditor being afterwards left to work out his rights by being subrogated to the executor's right of retainer or indemnity has been dealt with in numerous cases.
10. The authorities which I shall refer to show that (1) ordinarily a decree de bonis testatoris will be passed in all cases where the testator is personally liable or the contract of the executor arises out of a contract with or something done by the testator and that in all other cases the only decree that will be passed is a decree de bonis proprius: (2) an executor will in the absence of an express stipulation be personally libable on all contracts entered into or debts incurred subsequent to the death of the testator:(3) creditors cannot have any direct remedy against the testator's estate or proceed in execution against the assets except in cases where a specific charge is validly created or the debts are incurred in pursuance of directions to carry on a trade or business or where a specific trust is created for a specific purpose and debts are incurred in the due carrying out of the trust: (4) an executor who has incurred liabilities or spent moneys in the due course of administration is entitled to the right of exoneration, indemnity or retainer as against the estate : (5) a creditor who has no legal claim against the estate is entitled in equity to enforce on his own behalf the aforesaid rights of the executor while he also retains his legal claim against the executor personally. (6) The right to be subrogated is, subject to any defence which would be available against the executor and is, confined to the assets which the executor could have resorted to for an indemnity : (7). The mere fact that a debt was incurred by the executor in the due course of administration and that the estate was benefitted or enriched by the loan would make no difference and would give the creditor no direct recourse.
11. In exparte Garland (1804) 10 Vesey 110 it was held that where an executor carries on business after the death of the testator he is entitled to be indemnified out of the assets which are authorised to be or can be otherwise properly applied for the purpose of the business and that in such cases creditors are entitled to stand in the place of the executor or administrator and to claim that the fund out of which he is entitled to indemnity shall be applied in payment of their debt, A similar view was taken in Dowse v. Gorton (1891) A.C. 190 where it was held that the creditor of the executor or trustee is entitled to the benefit of the indemnity which the executor or trustee is entitled to in cases where any part of the estate is authorised to be applied for the purpose of carrying out the business specified in the will. In Raybould v. Turner (1900) L.R. 1 Ch. 199 the principle in Dowse v. Gorton L.R. (1891) A.C. 190 was extended to damages which a trustee has to pay. The following observations of Byrne, J., put the matter very clearly : ' Benett v. Wyndham (1862) 4. D.F.& J. 259 goes to show that if a trustee in the course of ordinary management of his testator's estate either by himself or his agent does some act whereby some third person is injured and that third person recovers damages against the trustee he is, if he has acted with due diligence reasonably entitled to be indemnified against the testator's estate. When once the trustee is entitled to be thus indemnified out of the trust estate I cannot myself see why the person who has recovered judgment against the trustee should not have the benefit of this right to indemnity and go direct against the trust estate or asset as the case may be just as an ordinary creditor of a business carried on by a trustee or executor has been allowed to do'. In Fairland v. Percy (1875) L.R. 3 P. & D. 217 letters of administration as a creditor in equity were granted to a person who had contracted with an executor authorized to carry on business on the ground that where business is carried on by an; executor under a will which directs that it might be carried on with the assets left by the testator creditors of the business who have had transactions with the executor have in addition to the personal remedies against the executor the right in eguity to claim against the estate of the testator to the same extent that he authorised it to be used in the business. In Smith v. Shorey (1898) 79 L.T. 349 a creditor of the executor was held tb be entitled to a decree for the administration of the testator's estate when the executor was authorised to carry on business. In Davies Banks & Co. v. Beavon (1912) L.R. 1 Ch. 197 the right of subrogation was allowed to a creditor who paid off debts incurred by the guardian for necessaries supplied to the lunatic. Neville, J., observed as follows: 'It appears to me that no legal right arises as a result of the lending in favour of the lender; but I think an equity arises and that, that equity is to stand in the shoes of those creditors who being creditor for necessaries supplied for the maintenance of the lunatic have been paid out of the moneys advanced by the lender. Where however there is no authority given to the executor or administrator to carry on any trade or business, debts incurred by the executor are treated only as the executor's personal debts and the creditors to whom the debts are owing have been given no direct remedy against the testator's estate either by proving against the estate or taking the asset in execution. In Farhall v. Farhall (1871) L.R. 7Ch. Ap. 123 James, L.J., was of opinion that neither authority nor principle was in favour of the view that an executor can by borrowing money enable the person who lent it to stand as a creditor to the estate even though the moneys were borrowed for the purpose of the estate. Mellish, L.J., took it to be settled law that '' upon a contract of borrowing made by an executor after the death of the testator the executor is only liable personally and cannot be sued as executor so as to get execution against the assets of the testators.' In Strickland v. Symons (1884) 26 Ch. D. 244 Selbourne, L.J., observed that 'there is no principle or authority for saying that if a trustee makes himself personally liable for goods the creditor thereby obtains a lien on the trust property or can have equitable execution against the trust estate in respect of a judgment against a trustee.' In Evans v. Evans (1887) 34 Ch, D. 597. Cotton and Lindley, L. C, were of opinion that the creditor cannot have any direct claim against the estate or be entitled to anything higher than a right to be subrogated to the rights of the administrator to the indemnity. In Labouchere v. Tupper (1857) 11 M P. C 198. a similar view was taken by the Privy Council and it was held, that an executor of a trader carrying on the trade after his death was personally liable for all the debts contracted in the trade and that the propriety of his conduct as between himself and the beneficiaries did not give the creditors the right to be treated as creditors of the testator or give them a charge on the assets.
12. It is no doubt true that Bayley, J., in Ashby v. Ashby (1827) 7 B & C. 444 pointed out the hardship that might arise in individual cases and Lord Tenterdon, C. J., expressed an opinion that if the matter were res integra it may be as well to hold that the lender may elect to treat the receipt of money as an act done by the executor in his character as executor and to take his chance whether he will be paid out of the assets or not; and that in Farhall v. Farhall (1871) L.E. 12 Eq. 93 Bacon, v. O., inclined to the view that Ashby v. Ashby (1827) 7 B. & C. 444 and other cases recognised the rule that a demand may exist against the executor both de honis testatoris and de bonis propriis and that there may be a right to proceed against the goods of the testator by reason of transactions with executor but in Farhall v. Farhall (1871) L.R. 7 Ch. 123 the decision of Bacon, V. C, was reversed by Lords Justices Mellish and Cotton with the observations already referred to by me and the remarks of Byles, J., were explained as being confined to cases where the matter arose out of a contract with or something done by the testator.
13. Some Courts in the United States of America have taken the view that creditors ought to be allowed to recover against the estate to the extent to which it has been benefited or enriched by a debt which has been properly incurred in the due course of administration but the rule has not found favour in other states which follow the rule laid down by the English decisions referred to by me.
14. There is a great deal to be said in favour of the view that direct recourse ought to be given at least to the extent to which the estate has been enriched, where debts borrowed in the due course of administration benefit the estate but the question is settled by authority both English and Indian.
15. Turning to cases in India Sale, J., in Romanath Paul v. Kanai Lal Dey 7.C.W.N. 104 following Farhall v. Farhall (1871) L.R. 7 Ch. 123 held that apart from any special power given by a will to an executor money borrowed by him on a promissory note for the benefit of the estate is not a charge on the estate. In I.L.R. 28 Cal. 575 (Be Shard) the same learned Judge following Re Johnson (1880) 15 Ch. D. 548. Strickland v. Symons (1884) 26 Oh D. 245 and Raybould v. Turner (1900) 1 Ch. 199 held that the mere fact that the trustee rendered himself personally liable in carrying out the trust would not give the creditors the right to proceed against the trust property. In Bridge v. Madden I.L.R. (1904) Cal. 1084 the decision in I.L.R. 28 Cal. 575 was approved of and it was held that the creditor who supplied goods to a trustee authorised to carry on business is entitled to the trustee's right of indemnity if the trustee has not through his default lost the right. In Byramji Rustomji v. Heerabai(1909) 11 Bom.L.R. 250 Scott, C. J., observed that ' it was clear that on a claim for money lent to executors they are liable personally and a judgment cannot be directed against the asset of the testator.' The creditor was only subrogated to the right of the executor and was not allowed to attach the property belonging to the estate though he lent money to pay off a debt due by the testator. In Swaminatha Aiyar v. Sreenivasa Aiyar (1916) 32 M.L.J. 259. Abdur Rahim and Spencer, JJ. following Be Johnson (1880) 15 Ch. 518, Strickland v. Symons (1884) 26 Ch. D. 245 held that a creditor who lent money to a trustee was not ordinarily entitled to have his debts realised out of trust properties but was only entitled to be subrogated to the trustee's right of indemnity against the trust. In Krishnamoorthy v. The Bank of Burma : (1911)21MLJ620 . Wallis, C. J., in dealing with cases where business was carried on behalf of a minor referred to Lahouchere v. Tupper (1867) 11P.C. 198., In Re Johnson (1880) 15 Ch. 518 and Evans v. Evans (1887) 34 Ch. D. 597 and was of opinion that the creditors were only entitled to be subrogated to the guardian's rights of indemnity and lose the right to proceed against the assets embarked on the business when the guardian owing to misconduct lost the right to be indemnified.
16. My attention has been called by Mr. Krishnaswami Iyer to cases where persons who lent moneys to (1) the guardian of a minor, (2) the managing member of an undivided family and (3) the head of a religious Endowment were allowed direct recourse against the estate of the minor and the trust property. In Krishnan Chettiar v. Nagamani Ammal I.L.R. (1915) Mad. 915 it was held by Seshagiri Aiyar and Napier, JJ., that a negotiable instrument executed by the guardian of a minor for purposes binding on him is enforceable against the minor's estate and in Nataraja Naicken v. Ayyasami Filial (1916) 5 L.W. 410. Ayling, and Seshagri Aiyar, JJ., held that a promissory note executed by one brother in respect of a loan contracted for necessary purposes binds the other brothers also and treated. Kutti Ammu v. Purushottam Dass : (1911)21MLJ526 . as overruled by the decision of the Privy Council in Karmali Abdulla v. Karimji Jiwanji I.L.R. (1915) 39 Bom. 261. Both the decisions proceed upon special principles of Hindu Law and the position of the guardian of a Hindu minor or the managing member of an undivided family affords no striking analogy to that of an executor under a will on whom the whole estate of the testator vests by virtue of Section 4 of the Probate and Administration Act and who completely represents it.
17. As regards heads of Religious Endowments the authorities are not uniform. In Srimath Daiva Sikamani Pandara Sannadhi v. Noor Mohammed Bowthan I.L.R. (1907) Mad. 47 it was held that Mutt properties were liable in the hands of its holder for debts contracted by his predecessor-in-title for necessary purposes even though no express charge was created and a similar view was taken in Nataraja Desikar v. Karutha Rowthen (1910) 21 M.L.J. 129. But in Swaminatha Aiyer v. Srinivasa Aiyar (1916) 32 M.L.J. 259 it was held that the creditor was only entitled to be subrogated and could not have his debts realized out of trust properties and Abdur Rahim and Spencer, JJ., were not prepared to follow Srimath Daiva Sikhamani Pandara Sannadhi v. Noor Mohamed Rowthan I.L.R. (1907) Mad. 47 if it laid down a contrary view. There is also a considerable divergence of opinion as to the exact position of the head of a religious endowment and the analogy which is to be applied in dealing with debts contracted by him. In some cases the analogy applied was that of a manager of an infant heir and in others the widow in possession of her husband's Estate (see Srimath Daiva Sikhamani Pandara Sannadhi v. Noor Mahomed Bowthan (1916) 32 M.L.J. 259. In the matter of the Second Grade Pleaders I.L.R (1910) Mad. 35. Zamindar of Kapileswarapuram v. Secretary of State I.L.R (1910) M.366. Hossim Ali Khan v.Mahanta Bhagbah Das I.L.R. (1906) Cal. 249. The Full Bench decision in 33 Madras 265 to the effect that the position of the head of a mutt should be determined in each case on the conditions of the grant or usage of his mutt and that it cannot be predicated of the head of a mutt that he is either a life tenant or trustee makes it difficult to treat the decision in a particular case as of general application as regards trustees of secular trusts in the absence of knowledge of the facts of each particular case. No case has been cited where direct recourse was allowed to an executor or secular trustee falling under the Trusts Act and so far as I can see the authority of the English and Indian decisions referred to by me has not been questioned in any of the Madras decisions.
18. I am of opinion that the plaintiff in the present case is entitled to be subrogated to the rights of the executrix as the loan evidenced by the promissory not was contracted to pay the legacy directed in the will to be paid to the 3rd defendant and to discharge the balance of the othi referred to in the will. It is clear that the executrix would have been entitled to payment of Es 3,500 out of the estate if she had paid the legacy and discharged the othi out of her funds and it makes no difference that she borrowed the money from another, so long as the rights of the creditors are made subject to the state of accounts between the executor and the estate. Both the Lower Courts have not dealt with the claim of the plaintiff against the estate from the right stand-point and have failed to deal with the plaintiff's right to be subrogated to the executor's right of repayment out of the estate.
19. It has been argued on the strength of Swaminatha Aiyar v. Srinivasa Aiyar (1916) 32 M.L.J. 259 that the plaintiff is not entitled to relief on this footing as he did not ask to be subrogated but claimed direct recourse. I am of opinion that the fact that the plaintiff claimed the larger right to proceed against the assets of the testator as if he was a person entitled to the right of direct recourse would not prevent the Court from granting a lesser relief by subrogating him to the executor. I do not think the learned Judges intended to lay down a hard and fast rule that in no case should the Court grant the lesser relief by subrogating the plaintiff to the rights of a trustee when he claims the right of direct recourse. If the decision is capable of such a construction I would respectfully dissent from it. The case may however be distinguished on the ground that there was observed by the learned Judges nothing in the plaint to show that the temple was liable whereas in the present case the plaintiff distinctly sought to make the estate of the deceased in the hands of the defendants liable (see prayer 3 of the plaint). His mistake was to claim direct recourse and not satisfy himself by getting the lesser right of being subrogated to the executor. It is a well recognized rule that a party claiming a larger relief ought not to be denied relief which can properly be granted unless the ground on which the lesser relief can be granted is inconsistent with the case of the plaintiff as set out in the pleadings or would lead to the determination of issues which would embarrass the defendants or necessitate the addition of parties. Sometimes when the claim of the plaintiffs is unconscionable, Courts have declined to stretch a point in his favour but a just claim ought not to be defeated by technical considerations based on plaintiff having asked for more than he is legally entitled especially in cases where owing to the conflict of authorities and the want of precedents, the law is not quite clear.
20. There is so far as I can see nothing in the various decisions referred to by me or in the provisions of the Civil Procedure Code which prevents the question from being enquired into and determined as an issue in the suit. It is no doubt open to the party to move by Judge's Summons in cases where the rules of the original side apply as was done in Bridge v. Madden I.L.R. (1904) .C.1084 or to file a separate administration suit after judgment obtained against the executor personally or to apply for letters of administration de bonis non in case where the executor dies without having fully administered the estate. These remarks do not exclude the right of having the matter adjudicated in the suit itself and the policy of the Civil Procedure Code is to prevent a multiplicity of suits and to avoid the leaving for determination in proceedings subsequent to the decree of matters which may be conveniently decided in the suit. The doctrine of subrogation is an equitable doctrine the basis of which is the doing of ' complete essential and perfect justice without technicalities as to form or procedure' except where substantial hardship will arise to the defendants.
21. Turning to the merits they are all in plaintiff's favour. There can be no doubt that the money was lent to pay a legacy due and the residuary estate has been enriched to the extent. The executrix is dead and all persons claiming under the will or in any way interested in the estate are patties to the suit. It is probable that a separate suit will be met by the plea of limitation and any additional trouble that the parties may be put to can be easily compensated by costs. If the executrix did not lose her right of indemnity there is absolutely no reason why the legatees and heirs of the testator should profit at the expense of the plaintiff.
22. I do not think the fact that the suit is based on a promissory note makes any difference. The plaintiff is only seeking to work out the rights of the executants of the promissory note and the fact that the working out of the right would make others liable does not contravene any of the provisions of the Negotiable Instruments Act. Subrogation does not necessarily rest on contract or privity. In Krishnamurti v. The Bank of Burma Ltd : (1911)21MLJ620 which was a suit on a negotiable instrument executed by the guardian of a minor, Wallis, C. J., was of opinion that the right of the creditor to proceed against the minor's estate was based on the doctrine of subrogation.
23. I would set aside the decree of the Lower Court in so far as it dismisses the claim of the plaintiff to proceed against the defendants by reason of their being in possession of the estate of Narasimha Chari and remand the suit to the Subordinate Judge to decide the question whether Kothai Ammal the executrix has lost her. right to reimbursement out of the estate in respect of the sum of Rs. 3,500 borrowed by her on the promissory note sued on if any and if so what entent. If it is found that she has the right, plaintiff will to that extent be entitled to proceed against the estate. Costs in the Lower Court and appeal will abide and follow the result.
Sadasiva Aiyar, J.
24. I have had the great advantage of a study of the very instructive opinion (if I may be permitted to say so) just now pronounced by my learned brother before preparing my own opinion,
25. The suit was brought on the promissory note executed by the executrix and not on the debt evidenced by it. On the question whether, when the promissory note and the debt are contemporaneous, you can sue on the debt apart from the promissory note, there is a difference of opinion in this Court, and, speaking for myself, I adhere to the opinion which I expressed in Muthu Sastrigal v. Visvanadha Pandhara Sannadhi (1918) 26 M.L.J. 10 that, where the loan is practically contemporaneous with and was, when made, intended to be evidenced by the promissory note, the claim could only be made on the note. Where the claim is so made on the promissory note which is a negotiable instrument and where the trustee or, the executor does not sign as trustee or executor, the authorities are, in my opinion, clear that there can only be a personal decree against the executant or if the executant is dead, against his or her legal heirs and there cannot be a decree against the trust estate or the testator's heirs.
26. Assuming however that the creditor can sue on the debt (apart from the note) even in such a case, the authorities (See Strickland v. Symons (1884) 26 Ch. D. 245.--Re Johnson (1880) 15 Ch D. 548, Re Shard I.L.R. (1901) Cal. 574. Evans v. Evans (1887) 34 Ch. D. 597 show that the creditor cannot have any direct claim against the testator's estate and that he cannot have anything higher than a claim to be subrogated to the right of the executor to retain or receive amounts from the estate necessary to indemnify the executor against loss. This claim to be subrogated is, however, of no value if the executor had no such right to retain or receive any amounts from the estate; in other words, if it could be shown that the executor has to account to the estate for a sum not less than that in respect of which he has right to be indemnified. Now how and when is this relief to be obtained by the creditor The procedure of the English Courts of equity is not the procedure by which Indian Courts are to be guided. I am not very familiar with the English procedure either of the Common Law Courts or of the Equity Courts in suits or execution proceedings. It appears from the decision in Evans v. Evans (1887) 34 Ch. D. 597 that the creditors in that case wanted to proceed against the intestate's properties for a debt incurred by his administrator after his death in connection with a business which the intestate had carried on. They proceeded by application in the administration action brought by the intestate's infant child and in which action, the assets of the estate were being administered. But the present suit is not an administration action; there is no administration suit or decree before us and this suit cannot be treated as an application in an administration action. In Raybould v. Turner (1900) 1 Ch. 199 the remedy of proceeding against the estate on the basis of the trustee's right of indemnity was sought after the passing of a personal decree against the trustee By taking out in the Chancery Division a fresh 'summons for the purpose of enforcing ' the claim against the testator's estate. Here, we are asked to give a decree in the first instance against the heirs of the testator.
27. As regards Srimath Daiva Sikhamani Pandara Sannadi v. Noor Mohamed Bowthan I.L.R. (1907) Mad. 47 (which was not a suit on a negotiable instrument), it has been dissented from in Swaminmtha Aiyar v. Srinivasa Aiyar (1916) 32 M.L.J. 269. That case can also be distinguished (as pointed out by my learned brother) on the ground that it related to a Eeligious Trust and not to a secular trust.
28. As regards the cases in Krishnan Ghettiar v. Nagamani Ammal I.L.R. (1915) Mad. 915 and Nataraja Naiken v. Ayyasami Pillai (1916) 5 L.W. 410. I do not think it necessary to express a final opinion as to the correctness of both or either of them as the decisions therein depended upon the application of the Hindu Law of joint family and of guardianship which the learned Judges who decided, those cases considered to be applicable to even suits on negotiable instruments. The question whether a partner is liable on negotiable instruments executed by another partner for the needs of the partnership is also governed by different considerations based on the law of partnership as a branch of Mercantile Jurisprudence. See Rarmali Abdula v. Karimji Jiwanji I.L.R. (1915) 39 Bom. 261.
29. The plaint in the present case does not state that the executrix and her heirs were entitled to take or retain any sum from the estate as indemnity and does not pray for a declaration that the plaintiff in execution is entitled to proceed against the properties of the late Narasimhachary in the hands of his heirs direct to the extent of such indemnity. In Swaminatha Aiyar v. Sreenivasa Aiyar (1916) 32 M.L.J. 269 the learned Judges when requested by the appellant in a similar case to order an enquiry as to whether the trustee was entitled to recover any money from the trust estate by way of indemnity and to make the trust estate liable for the plaintiff's debt to that exent observed as follows: 'But there was no allegation whatever in the plaint nor was any question raised by the issue that the temple was indebted to the 1st defendant. We do not think that it would be the right course in this suit to order any such enquiry as has been suggested. It may be that Mr. Anantakrishna Aiyar's client has a remedy by a suit properly framed against the trust property if as a matter of fact, the trust property is liable to the 1st defendant on a proper account being taken.'' The learned Judges accordingly dismissed the Second Appeal with costs. I think these observations apply aptly to the present case also, where the plaint does not say that Kothai Ammal had any claims against her husband's estate and does not pray that by reason of her right to indemnity, Narasimhachary's heirs should be made liable to the plaintiff for that indemnity amount to the extent of the assets of that estate in their hands. The only basis alleged in the plaint for the claim against Narasimha Chary's heirs is that Kothai Ammal was his executrix and she borrowed from the plaintiff under the promissory note to pay up a legatee under Narasimha Chary's will. Those allegations are insufficient according to the authorities to justify the passing of a decree against the estate or heirs of Narasimhachary. Of course, if there is any debt due to Kothai Ammal and her heirs by the heirs of Narasimhachary, there are the provisions of the Civil Procedure Code for attaching those amounts in execution of the decree now passed against the heirs of Kothai Ammal. But an enquiry just now into the indebtedness of the estate to Kothai Ammal or its liability to indemnify Kothai Ammal seems to me to be opposed to the authorities and not to be warranted by the allegations made in the plaint as the basis of the plaintiff's claim. I regret therefore that I have the misfortune to differ from my learned brother as regards the final order to be passed in this appeal. I would have been glad if I could distinguish this case from Swaminatha Aiyar v. Srinivasa Aiyar (1016) 32 M.L.J. 259 where Abdur Rahim and Spencer, JJ., refused to allow in Second Appeal the question of the plaintiff's right to be subrogated to the indemnity of the trustee to be raised or decided in the suit out of which that second appeal arose. I however, find myself unable to do so. The plaintiff could, if he wanted his claim to be satisfied from Narasimhachary's estate (and not to be a claim against Kothai Ammal personally), have made Kothai Ammal sign the promissory note as executrix or obtained a. charge from her on that estate. If he wanted to be subrogated to her right to indemnity and to have the extent of it ascertained, he should have framed his plaint in the present suit accordingly (assuming that the Indian Procedure allows such a claim aginst Narasimha Chari's heirs to be joined to and tried in the same suit brought on the promissory note against Kothai Ammal's heirs). It may be argued that the decision in Swaminatha Aiyar v. Srinivasa Aiyar (1016) 32 M.L.J. 259 refusing to allow the plaintiff's claim to be subrogated t6 the trustee's right took a rather technical view of the pleadings. But several difficult questions have arisen in this case, (a) as to the extent of the right of subrogation of the personal creditors of an executor. or trustee India, (b) as to whether such right can be claimed in a Suit on a negotiable instrument executed by the trustee or executor in his personal capacity, (c) as to the nature of the proceedings in which the existence and the extent of the right of subrogation should be tried and ascertained (it may be that some new, rules of procedure might have to be invented by the Indian Courts in the mofussil to have the question tried and decided as the matter is left in a rather nebulous state by the Indian decisions). It appeared to me therefore that it is very desirable if all these questions could be considered by a Pull Bench, it might be so considered, and as it is likely that there would be a Letters Patent Appeal from my decision dismissing the Second Appeal (which prevails under Section 98 of the Code of Civil Procedure). I have thought it best to follow what I consider to be the principles of the decision in Swaminatha Aiyar v. Srinivasa Aiyar (1916) 32 M.L.J. 259 and to dismiss therefore this Second Appeal with costs (only one set).