Muttusami Ayyar, J.
1. This is an appeal from the decree of the Subordinate Judge's Court of Madura (East), in so tar as it disallows appellant's claim upon the hypothecation bond 16, dated the 8th July, 1888. Respondents object to the decree so far as it allows his claim under Section 561 of the Code of Civil Procedure. The plaint claimed Rs. 39,013-3-5, as principal and interest, simple and compound, due under Exhibit A, but the decree awarded Rs. 19,106-1-4 only. The contention on appeal is that the difference, viz., Rs. 19,900 and odd, has boen improperly disallowed, and the objection taken by respondents is that the bond A is not binding on the estate.
2. The live issues upon which the parties proceeded to trial are set forth in paragraph 5 of the original judgment, and the Subordinate Judge decided the first, second, fourth and fifth in appellant's favour, but on the third issue he upheld respondents' contention and credited to the debts sued for two sums of money, viz., Rs. 3,90/5-3-6 and Rs. 12,295-8-0. Whether the Subordinate Judge was right in doing so is what we have to determine in this appeal.
3. Appellant is a money-lender in the District of Madura. The first respondent is the mother of the last male owner of the hypothecated property, and she succeeded to it on the death of his widow, Thanga Nachiar. The second and third respondents are the half-brothers and the reversionary heirs of the late male owner Seemaichami alias Sivagyanaswami Taver.
4. Sivagyana Taver, commonly called the Pandalkudi Zamindar, borrowed from the appellant from time to time various sums of money. He borrowed first Rs. 6,761-5-0 on a promissory note, dated the 21st October, 1884. On diverse occasions he since obtained loans from the appellant on 48 letters (F1 to F48) which, on a settlement of accounts made on the 27th April, 1887, resulted in a balance in his favour to the extent of Rs. 17,542-14-7. The Subordinate Judge has found that on the last mentioned date the debtor consolidated the two debts, executed the promissory note C and took back the prior promissory note and the 48 letters. Subsequently, Mangalasami Taver, his agent, borrowed Rs. 1,800 upon the authority conveyed by Sivagyana Taver by yadasts S to S6. On the 29th November, 1887, the debtor died leaving him surviving a widow named Thanga Nachiar, the first respondent, his mother, and the second and third respondents, his divided step-brothers, Kottaisami Taver and Pandi Dorai. Thanga Nachiar desired, on her husband's death, to enter into possession of his estate, hut her attempt was resisted by the other members of the family who wished the Court of Wards to take up its management on plea of the widow's youth and sex. Their opposition, however, failed, and the Court of Wards declined to supersede the widow who assumed management in March 1888. During this quarrel she had occasion to borrow from time to time and the appellant accommodated her with loans and as is alleged, probably took her side. She also borrowed monies for other purposes, and her own debts were considerable. On the 5th July 1888, she executed the hypothecation bond Z in favour of the appellant for Rs. 30,740-7-10, which was madeup of Rs. 24,304-3-7 due under Exhibit 0, of Rs. 1,800 borrowed under yadasts (S series) and of Rs. 4,636-4-3 interest due thereon. The hypothecation bond provided for interest on the consolidated amount at 12 per cent, per annum, and in default of payment, for consolidating the interest and the principal at the end of each year, It is in evidence that Sivagyana Taver's estate yielded Rs. 30,000 or Rs. 32,000 a year, that the peishcush, cesses and poruppu amounted to about Rs. 14,000, that the cost of establishment was about Rs. 5,000, that the cost of repair and contingent charges amounted to Rs. 1,000, that the amount paid to the first defendant on account of her maintenance was Rs. 1,800 a year, and that the widow's net income was about Rs. 10,000 a year. She had to incur an expenditure of Rs. 6,000 or Rs. 7,000 in connection with the dispute about her management. It is also in evidence that she made payments to a large extent on account of her personal debts and placed part of the collection of her estate in view to their discharge under the direct and immediate control of the creditor.
5. Among the sums of money so paid to and appropriated by the appellant there are admittedly two payments, viz., (1) 12,295-8-0, (2) Rs. 3,905-3-6, which require to be noticed, The first item of payment represents the sale-proceeds of Sivagyana's jewels and the second item represents the produce of a decree in favour of Sivagyanam realized after his death by his widow. It was conceded by the appellant's pleader that at the date of appropriation the appellant was aware that the first item was made up of the sale-proceeds of Sivagyana's jewels. There is also reason to think that, in the circumstances of the case, the creditor had means of knowledge as regards the nature of the second item. Upon these facts the Subordinate Judge has held that the two items formed part of the corpus of Sivagyana's estate and that they ought to have been appropriated by the appellant to the debt due by the estate on the hypothecation bond. He discusses the question in paragraphs 22 to 27 of original judgment, and I agree in the conclusion at which he has arrived. The hypothecation debt was a charge on the estate, whilst it is not proved for the appellant that monies borrowed by Thanga Nachiar were mostly other than her personal debts. This being so, what was recovered on account of the estate and what was realised by the sale of part of it ought to have been applied in its reduction, as the reversioners would otherwise be defrauded.
6. In the case before us the creditor knew that the monies formed part of the estate, and the Subordinate Judge finds, and properly, I think, that the appropriation was the result of collusion between the widow's agent and the creditor. The splitting of the debts referred to by the Subordinate Judge in paragraph 25 of his judgment lends material support to this view of the facts. Moreover, the decision of the Subordinate Judge is in accordance with the principle laid down by the Privy Council in Hurro Nath Rai Chowdhri v. Randhir Singh I.L.R. 18 Cal. 311 : L.R. 18 IndAp 1 I disallow the first contention in appeal.
7. Another contention in appeal is that the Subordinate Judge ought to have awarded interest on the amount decreed from the date of plaint to date of realization, and I am of opinion that it must be upheld. Appellant is entitled to interest on the amount decreed at the contract rate from the date of plaint to that of the decree, and at 6 per cent, per annum from the date of decree to that of realization. The decree appealed against must be modified as indicated above with reference to interest and confirmed in other respects. The costs will be proportionately assessed.
8. As regards the memorandum of objections, respondents object to the whole decree.
9. The first ground of objection is as to the correctness of the Subordinate Judge's finding on the first issue and he deals with it and the second and fourth issues in paragraphs 6 to 21 of his judgment. I agree in the conclusions at which he has arrived. During the argument, respondents' pleader pressed on us four objections to the finding, viz., (i) that there was a considerable interval of time between the date on which document C was drawn up and the date on which it was signed by Sivagyana; (ii) that the evidence of plaintiff's second witness Somasundaram so far as it explains the delay is contradictory; (iii) that several others who might have been called as witnesses have not been called; and (iv) that a sum of Rs. 1,800 was twice included in the amount of debt entered in document Z. As to the first objection the evidence of Somasundaram affords satisfactory explanation. Although he made two conflicting statements, he made the second statement of his own accord and corrected the first, and there is no sufficient reason to think that the discrepancy is not due to defective memory consequent on lapse of time. There is further the evidence of plaintiff's fourteenth witness as to the execution of C and it corroborates that of the second witness. It is true that certain persons who might have been called as witnesses have not been called. But taking the evidence as a whole it is so cogent and varied that it is not possible to come to any other finding than that to which the Subordinate Judge has come. The objection as to Rs. 1,807 being included twice over has no foundation in fact, and the appellant's pleader has shown by reference to the accounts that it is founded on a misconception of certain entries in Exhibit OOO. As regards the contention that there was no necessity for the execution of the mortgage, there is evidence that the creditor insisted on the payment of Sivagyana's debts due on the estate. Under Hindu law, a widow is at liberty to sell a portion of the estate to pay those debts, as the heritage she or any heir is entitled to consists of Sivagyana's property less his debts, or is the aggregate of his property and his debts which are in the first instance payable out of it. A mortgage therefore in lieu of the sale of part of the estate is an act ordinarily beneficial to the reversioners unless special circumstances show that the intention was otherwise. The rate of interest provided by the mortgage is 12 per cent, per annum, and the provision for annual rests is what her husband had entered into in some of instruments executed by him. As Thanga Nachiar was a young widow, she might have hoped to live long and to pay the interest every year as soon as her own debts wore paid off. It must be remembered that she died in October 1889 while the document Z was executed in July 1888.
10. It is next contended that she was bound to apply the income of her husband's estate first in discharge of his debts instead of executing the mortgage. The not income is, under Hindu law as administered in this Presidency, her own exclusive property as widow, and she is not bound either to save or apply it for the benefit of the reversioners. She is no doubt bound to pay her husband's debts from it, because she had taken charge of the whole property left by him whilst her right of inheritance extends only to the property as diminished or affected by his debts. As between her and the reversioners she is entitled to say, 'I will pay my husband's debts by the sale of his property and take the residue, and I desire to keep the not income derived from it and to spend or invest it as I please.' I do not, however, desire to be understood as holding that she is entitled to ignore the charges which are legally payable out of the gross income, such as the peishcush and maintenance due to other members of the family and thereby add to the debt left by the husband so as to prejudice the reversion. Applying these principles to the case before us, I am of opinion that the gross income less the charges she is legally bound to pay from it is her exclusive property as between her and the reversioners. Another objection taken to the decree is that a personal decree has been passed against the first defendant. This is founded on a misconstruction of the decree which only purports to give her the option of paying the decree amount within six months if she desires to prevent the creditor from bringing the property to sale.
11. I would dismiss the memorandum of objections with costs. The decree should, however, be so varied as to grant the six months from the date of the appeal instead of the original decree.
12. By the decree in this case there is made payable to the plaintiff the sum due on the footing of the bond executed by the widow on whose death the defendants came into possession less the sum of Rs. 16,200-11-6 which is found to have been received by the plaintiff. The plaintiff appeals against the decree on the ground that this deduction ought not to have been made and also on the ground that interest up to the date of realisation is not provided for. The defendants object to the whole decree on several grounds. They contend that the whole basis of the suit is false, that the widow was under no necessity to execute the bond, that the bond comprises sums not really duo and that interest at the contract rate ought not to have been allowed. The contention of the defendants which goes to the root of the whole decree forms the subject of the first and second issues. The debt secured by the widow's bond was made up of two sums, one, a sum claimed in respect of a promissory note alleged to have been made by her late husband Sivagyanam; the other, consisting of monies advanced to the widow herself. As to the former, there is a mass of evidence, oral and documentary, brought before the Subordinate Judge to prove the promissory note was made by the late Sivagyanasamy under the circumstances described. That evidence was accepted by the Judge, and there really was no attempt to meet it by counter-evidence. The evidence as to the handwriting of Sivagyanasamy stands uncontradicted. I see no reason to think that the Judge was wrong in his finding on the first issue with regard to the promissory note. It was not denied that the other sums which make up the consideration for the bond were advanced to the widow, but it was said that they had been paid off on a settlement of accounts between her and the plaintiff. This contention founded on a misconception of the evidence was sufficiently disposed of during the argument. The more substantial contention was that the widow was under no necessity to hypothecate the property in which she enjoyed only a limited interest. Sivagyanasamy died on the 29th November 1887. The bond was executed on the 5th July 1888. At the former date the treasury of Sivagyanasamy was empty. On the 30th Juno 1888, there is evidence to show that about Rs. 21,000 remained in hand including the mohathala account. It also appears from the evidence that the gross income of the estate was between 32 and 39 thousand rupees. The particular income for the year succeeding Sivagyana's death is not stated. Assuming that it was about Rs. 35,000 gross, the net available income for the widow would seem to have been about Rs. 11,000. With this income the widow had to face the debt due under the promissory note exceeding Rs. 24,000 in amount. There is evidence, which the Judge believes, that the plaintiff pressed for the payment of this debt as well as the small advances made by him to the widow. Under these circumstances, it seems to me the finding that the hypothecation was made in good faith and under pressure of necessity is fully justified. Nor do I think that the Judge was wrong under the circumstances mentioned by him (paragraph 20) in allowing compound interest. These observations dispose of the defendants' objections. I think they should be dismissed with costs.
13. The plaintiff's appeal relates firstly to the sum allowed to the defendants on account of monies belonging to the estate of Sivagyanasamy which are found to have come into the hands of the plaintiff. The Judge has proceeded on the authority of the decision in Hurro Nath Rai Chowdhri v. Randhir Singh I.L.R. 18 Cal. 311 : L.R. 18 IndAp 1 There can be no doubt that the plaintiff was well aware that the monies received by the sale of the jewels as well as those realized by the decree were part of the estate which the widow took from her husband. His object clearly was, as the Judge finds, to secure himself with regard to the sums he had advanced to the widow personally, and to throw the whole burden of the other debts on the estate. It was argued here that the former debts were also binding on the reversioners, but that was not the contention in the Court below. Then it was said that the appropriation was the result of an arrangement between the widow and the plaintiff. It appears to mo that the Judge was right in holding that the plaintiff ought to have applied the two sums, which came to his hands, to the liquidation of the husband's debt.
14. No reason was given for refusing interest from the date of the suit till the date of decree and thereafter till realization. The decree should be modified by allowing the agreed rate till date of decree and further interest at 6 per cent, till realization. In other respects I would dismiss the appeal with proportionate costs.