1. The plaintiff sues for the recovery of a legacy of Rs. 10,000 bequeathed to him by his brother Chinnam Venkata Gopalam with interest thereon, the first defendant being the son of the deceased testator, and defendants Nos. 2 and 3 the executors of the will.
2. The will is dated the 27th April 1887, and the provision in it, under which plaintiff claims, runs as follows: 'My elder brother Ry. Venkatakrishnayya Garu's self acquisition to the extent of about Rs. 10,000 is kept with me. So, that money should be given to him.' There are several codicils to the will, the only one affecting the plaintiff being dated the 25th of July 1887 in which it is directed that the rupees that have to be given to him are to be paid immediately in cash. The testator died on the 14th September 1888, and this suit was brought on the 9th May 1899 which is within the twelve years period allowed by Article 123 of the second schedule to the Limitation Act, for a suit for a legacy. The plaintiff admitted the receipt of Rs. 6,000 on account of the legacy on the 27th January 1897 and his claim for principal was therefore only Rs. 4,000, but he further claimed compound interest at 6 per cent. per annum, on Rs. 10,000 from 14th September 1888 to the part payment of Rs. 6,000 on the 27th January 1897, and on the balance of Rs. 4,000 at the same rate from that date till the date of suit, making a total of Rs. 16,362 odd. The Subordinate Judge finding that, besides the receipt of Rs. 6,000 admitted by plaintiff, Rs. 4,000 had also been paid to him, and allowing only simple interest at 9 per cent. per annum on the Rs. 10,000 treating it as a deposit to be repaid, and not as a legacy, decreed the plaintiff but Rs. 6,832 of his claim. In appeal No. 125 the plaintiff appeals against the disallowance of the remaining Rs. 9,530, and in appeal No. 119 the first and third defendants, appeal against the sum allowed to plaintiff.
3. To take the defendants' appeal first, it was contended on their behalf (1) that the Rs. 10,000 was not a legacy, but either a loan by plaintiff to the testator or a deposit repayable on demand, in either of which cases the suit was barred by limitation, (2) that as a fact the whole amount of the principal had been discharged, and (3) that no interest was stipulated for. The Subordinate Judge decided on the first point that the limitation bar for the recovery of the sum as a deposit was saved by acknowledgments, on the second point in favour of the defendants, and on the third point that interest to run at 9 per cent. was intended by the parties.
4. We are unable to agree with the Subordinate Judge on the first question for in our opinion the bequest of Rs. 10,000 was clearly a legacy meant as a satisfaction of the indebtedness of the testator to the plaintiff for money (as he expresses it) 'kept with him' by the plaintiff. The mere fact that it finds place in a will not payable to the plaintiff till the testator's death, and is a round sum without any provision for interest, negatives the idea that it was a direction to the executors to pay a just and lawful debt. This they would have been bound to do, apart from the will, and the testator would probably have settled the amount in his lifetime if he considered that the money deposited with him was a debt pure and simple. We take it therefore that the Rs. 10,000 was a legacy, and consequently it is unnecessary for us to discuss the question whether, treating it as a deposit, the plaintiff's claim was or was not barred by limitation. The appellant's Vakil then urged that the suit if taken to be for a legacy was also barred inasmuch as it involved an administration of the estate, and administration suits were governed by Article 120 of the second schedule of the Limitation Act under which the limitation is six years. We cannot accept this contention, for though it is true the plaintiff prayed for an administration it was only ancillary to his getting his legacy; when a suit for a legacy, for which twelve years is specifically allowed under Article 123, entails administration of the testator's estate, it would be unreasonable to hold that that circumstance cuts down the period of limitation to six years under an indefinite article like 120, which does not refer to an administration or any particular suit but only to suits for which no other period of limitation is provided.
5. It was further urged that the plaintiff had no right to sue for the legacy as such, as his title thereto was not complete for want of the executor's assent (Section 112 of the Probate and Administration Act V of 1881) and the only suit he could therefore bring was one for administration, which was clearly barred, but as regards this there is indubitable proof of one executor's express assent in exhibit F and of the other executor's in exhibit B. The last contention is that the plaintiff is estopped from claiming the legacy under the will as he has disputed the validity of the will, and has elected to take the Rs. 10,000 as a debt due to himself, and not as a legacy. What happened was that in a suit brought by a brother of the plaintiff claiming his share in the testator's estate as family property the plaintiff supported his brother and also claimed a share. It was then decided that the property was the sole property of the deceased, and that neither plaintiff nor his brother had a right to share therein. We do not see how the plaintiff's right to the legacy is affected thereby. Having had to bow to the decision that he had no independent right in the testator's property, he now seeks that he may recover what the testator gave him out of that property. There is no estoppel. And as to the alleged election, if he had agreed to accept the money as in repayment of a debt, and had actually so received it, he could not of course claim the same amount once again as a legacy. Having however failed to obtain it as a debt he is entitled to get it as a legacy. We accordingly decide on the first question that the suit as brought is maintainable, and is not barred by limitation.
6. The second question is the subject of the cross appeal No. 125 by the plaintiff which may now be dealt with. The Subordinate Judge found that a sum of Rs. 4,000 paid by the testator to the plaintiff on the 30th of August 1887 was a part payment towards the Rs. 10,000 bequeathed to him. There is really nothing to support this finding. The plaintiff asserts that this sum of Rs. 4,000 was paid him on a different account, and the onus was on defendants to prove their allegation, The account, exhibit R, shows that the money was sent in reply to a letter, but that letter is not produced nor are its contents proved. Neither in exhibit R, nor in the letter, exhibit II, sending the money, is it mentioned on what account it is forwarded. In the absence of any explanation for the non-production of the letter referred to in exhibit R, which would probably show exactly for what the money was paid, the presumption is that if produced it would disprove the defendant's case. Further, the testator executed two codicils subsequent to the date of this payment, but in neither has he reduced the amount of his bequest of Rs. 10,000 by this Rs. 4,000, which he would surely have done had it been meant to go towards reducing the amount of the legacy in the will. We therefore find that it stands at Rs. 10,000.
7. The third and last question as to the rate of interest is easily solved by our finding that the amount claimed is a legacy. It becomes unnecessary to decide what the parties intended as to whether there should be any interest and if so, at what rate, because the law itself lays down what rate of interest shall be allowed and from what date it is to be computed. That rate is 6 per cent. per annum, and in this case it is to be calculated from the date of death of the testator; first, because the legacy was in satisfaction of a debt (see exception 1 to Section 130 of the Probate and Administration Act V of 1881), and secondly, because the testator so expressly directed in a codicil already referred to (see Section 136 of the same Act).
8. The result is that the defendants' appeal (No, 119) succeeds so far as the rate of interest is concerned and the plaintiff's appeal (No. 125) so far as the principal sum of Rs. 4,000 is concerned. The first defendant not being an executor will also be exonerated from the decree to be passed, and the second and third defendants, the two executors, alone held liable to pay the amount adjudged out of the assets of the estate.
9. In lieu of the amounts decreed by the Subordinate Judge, there will be a decree for plaintiff for Rs. 4,000, the balance of the legacy still unpaid, with interest at 6 per cent. per annum on Rs. 10,000 the whole amount of the legacy from the 14th September 1888, the date of testator's death, to the 27th January 1897, when the part payment of Rs. 6,000 was made, and on the remaining Rs. 4,000 at the same rate from the 27th January 1897 to the date of this decree. The parties will receive and pay proportionate costs on the total amount now decreed in both Courts. The plaintiff will get subsequent interest at 6 per cent. per annum on the amount of this decree from this date to date of payment.