1. The suit having been dismissed on the ground of limitation and without any evidence being taken, it is necessary to see precisely what is the cause of action alleged in the plaint.
2. The defendants are the administrators with the will annexed of one Pestonjee Nusserwanjee who died in 1881. The plaintiff is entitled under the will to a legacy of Rs. 2,100 and to a share of the residuary estate. In the sixth paragraph of the plaint, the plaintiff takes exception to the account filed by the defendants in July 1886, and in the eighth and following paragraphs he makes certain charges against the defendants with regard to their administration of the estate. He assesses his claim at Rs. 40,000 and asks for relief in respect of the matters charged against the defendants. He does not ask for payment of his legacy, nor for the ascertainment of the share of the residue to which he is entitled. The District Judge has treated the suit as one for an account and has held that, assuming time to have run from the date when the account was filed in 1886, the suit is barred by limitation being instituted more than six years after that date. We agree with the District Judge that in a suit for an account the plaintiff is not entitled to go back more than six years. See Saroda Pershad Chattopadhya v. Brojo Nauth Buttacharjee I.L.R. 5 Cal. 910 followed in Hemangini Dasi v. Nobinchand Ghose I.L.R. 8 Cal. 788. If, therefore, the administration was closed in 1886 and the functions of the administrators had then ceased, it would follow that the suit could not be maintained. But this does not appear to be the case. The plaint, in connection with one charge, assigns October or November 1893, as the date and it is not admitted by the plaintiff that all the other charges relate to acts done more than six years before the date of the suit. The plaintiff ought to have been asked to give dates in respect of the other charges. At any rate on the ground of limitation the suit ought not to have been dismissed altogether.
3. But there is another point that requires consideration and that is that the plaint does not explain on what principle the damages for which he asks can be granted to him. Assuming that the allegations are true and that no question of limitation arises the plaintiff can be entitled to no more than the amount of his legacy and his share of the residuary estate. It is only on the defendants pleading that they have no assets that it becomes material to inquire whether the defendants have wasted the assets. On proof of such waste, the plaintiff could recover from the defendants personally, so far as they had or might have had, assets of the deceased.
4. Breaeh of duty on the part of the administrators may give a legatee or creditor the right to recover what is payable to him from the pockets of the administrators themselves, but it cannot, otherwise, we think give him any fresh right of demand against them. It is the debt, and not damages which only the creditor can obtain whether de bonis testatoris or de bonis proprus (see Williams on Executors and Administrators, Part V, Book II, Chapter 1).
5. Without a material amendment of the plaint, we are of opinion that the plaintiff cannot obtain any relief. Leave to amend ought to have been asked for in the Court below where, as it is clear, the frame of the plaint was discussed. Leave cannot therefore be granted except upon the terms of the appellant paying the respondents' costs of this appeal and also the costs of the hearing in the District Court. The plaint requires to be amended by stating that the plaintiff seeks to recover the legacies payable under the will from the defendants personally.
6. The suit was brought within thirteen years of the testator's death and therefore as a legacy is not payable for one year after the testator's death, the law of limitation would not apply. See in re Johnson L.R. 29 Ch. D. 970. The one year's rule is recognized in the Succession Act and the decision of the Privy Council in Mylapore Iyasawmy Vyapoory Moodeliar v. Yeo Kay I.L.R. 14 Cal. 801 had reference to a case in which Hindu law and not the Succession Act had to be applied.
7. It is clear that in answer to a suit for a legacy the administrators cannot defend themselves by pleading their own wrong and alleging that more than six years before the suit they misappropriated or wasted the assets. In other words, if the suit is regarded as a suit for a legacy or a share of the residue, no question of limitation arises.
8. Subject to the above observations and assuming that the plaintiff is willing to amend, we think the decree ought to be reversed and the suit remanded; otherwise the appeal should be dismissed with costs.