Alfred Henry Lionel Leach, C.J.
1. Santhanathammal, the grandmother of the first, second and third respondents died on the 17th August, 1928, leaving a will by which she bequeathed her properties to her grandsons and others. She appointed the fourth respondent, who is her daughter-in-law and the mother of the first, second and third respondents, her executrix. On the 6th March, 1929, the fourth respondent and her mother, Kanikaimari Ammal, who was the fifth defendant in the suit out of which this appeal arises, borrowed from the appellant a sum of Rs. 1,700 for the purpose of taking out probate of the will. A promissory note was executed by the fourth respondent and her mother for this amount and the instrument stated the purpose for which the money was borrowed. The fourth respondent executed the promissory note in her capacity as executrix and as guardian of her sons. The probate was obtained, but the fourth respondent failed to repay to the appellant the money which she had borrowed from him for the purpose. The consequence was that the appellant was compelled to file a suit in the Court of the District Munsif of Trichinopoly for the recovery of the money. The defendants to the suit were the respondents to this appeal and Kanikaimari Ammal. The fourth respondent denied that the money had been paid to her by the appellant, but the District Munsif held that this was untrue. A personal decree was passed against the fourth respondent and her mother, but the suit was dismissed as against the estate. The appellant appealed to the District Judge of Trichinopoly against the finding of the District Munsif that the estate was not liable. The respondents to this appeal were the first, second and third respondents in the present appeal. The appellant, however, did not make the fourth respondent a party. The District Judge allowed the appeal, holding that the appellant was entitled to a charge against the estate. The grandsons of the testatrix then appealed to this Court. The appeal was heard by Varadachariar, J., who restored the decree of the District Munsif. Before Varadachariar, J., the appellant asked that he be allowed the benefit of the indemnity to which the executrix would, be entitled in law from the estate if it was shown that the money-had been applied for purposes necessary for or beneficial to the estate. The learned Judge refused to accept this contention on the ground that the pleadings did not justify a decree being passed against the estate. The present appeal has been filed against the judgment of the learned Judge under Clause 15 of the Letters Patent, a certificate having been granted.
2. The appeal first came before us on the 23rd February and after hearing the arguments we were unable to share the opinion of Varadachariar, J., that the plaint was not sufficiently widely drawn to allow the appellant to stand in the shoes of executrix. The prayer in the plaint reads as follows:
I therefore pray that the Court may be pleased to pass a decree directing defendants 4 and 5 to pay to the plaintiff the amount noted hereunder together with subsequent interest and cost of this suit - the fourth defendant from out of the estate of the deceased Sandanathammal which she is managing as executrix and which belongs to defendants 1 to 3, and the fourth and fifth defendants personally.
3. In our opinion there is here a claim for a decree against the estate as well as against the fourth respondent and her mother. The plaint was written in Tamil and the words used may not be as precise as the words which an expert draughtsman in English would use, but we consider that they were sufficiently precise for the purpose. In these circumstances we thought it proper to make the executrix a respondent in the appeal. In accordance with our direction she was served with notice of this appeal and became the fourth respondent. The judgment of Varadachariar, J., shows that he would have adopted this course himself had he considered that the plaint wag sufficiently widely drawn to permit of an order being made against the estate. The case comes on for hearing with the fourth respondent before us.
4. We agree with the opinion of Varadachariar, J., that the District Judge was wrong in holding that the appellant was entitled to a charge, but we consider that he is entitled to stand in the shoes of the executrix, for the purpose of recovering the money from the estate. Section 321 of the Indian Succession Act, 1925, provides that the expenses of obtaining probate shall be paid next after the funeral expenses and death-bed charges. Mr. Subrahmaniam on behalf of the fourth respondent has contended that no order should be passed allowing the appellant to stand in her shoes as the executrix. Why his client has adopted this attitude is not far to seek. She is a woman and although she has been held personally liable it will be difficult if not impossible to execute a personal decree against her. She borrowed the money from the appellant for obtaining probate, and for her to say that the appellant should not be allowed the benefit of the indemnity which she herself enjoys is dishonest. The appellant provided the money for a necessary purpose and she utilized it for that purpose. It is not disputed that in a proper case a creditor can stand in the shoes of an executor and be given his remedy against the estate. This is a proper case which the appellant should be allowed to stand in the shoes of the executrix, and we will allow the appeal to this extent.
5. The case will be remanded to the trial Court for inquiry as to what rights the fourth respondent has against the estate in respect of the sum of money borrowed for obtaining the probate. The trial Court will draw up a fresh decree based on its findings in the inquiry arrived at in the light of this judgment. It will not be open to any of the respondents to contend that the money was not borrowed from the appellant for the purpose of obtaining probate, or to contend that this was not a necessary purpose. There are findings, and they are conclusive, that the money was borrowed by the fourth respondent from the appellant for the purpose of obtaining probate and that it was borrowed for a proper purpose. The inquiry will therefore proceed on this basis. The decree against the fourth respondent and the fifth defendant will stand in so far as they are personally concerned.
6. Before Varadachariar, J., the first, second and third respondents contended that if the estate was to be made liable the rate of interest mentioned in the promissory note was excessive. In view of the decision of the learned Judge on the other questions arising in the case which led to the restoration of the decree of the District Munsif it was not necessary to go into this question. It has been agreed by the parties that the question of the rate of interest so far as the estate is concerned shall be decided by the District Munsif on remand.
7. As the appellant did not make the fourth respondent a party in his appeal to the District Judge, and failed to make her a party in this Court we make no, order as to costs, either in this Court or in the District Court.
8. The memorandum of objections will be dismissed but there will be no order as to costs.