1. This appeal raises the question whether a suit to recover money due on promissory notes against the defendants who are the sons, widows and a daughter of the deceased executant of the notes is barred by limitation.
2. It appears that the two notes in question were executed by one Hajee Imamuddin on the 10th January, 1917 and on the 21st February, 1918, for Rs. 1,600 and Rs. 300, respectively. Imamuddin died in 1919. The plaintiff filed his suit against the defendants on 4th September, 1923, to recover the amount due on the notes. The suit was, therefore, out of time unless, in the meanwhile, there had been an effectual acknowledgment of the liability so as to give a fresh starting point for limitation. It is alleged by the plaintiff, who is the appellant before us, that such an acknowledgment is to be found in a petition filed in this Court on the 9th October, 1919, for a grant of letters of administration, by defendants 1, 2 and 3, of whom defendants 1 and 2 are sons and defendant 3 a widow of the deceased executant of the notes. It is material to observe that Section 278, Indian Succession Act, 1925, requires that a petitioner for letters of administration shall state in his application, inter alia, the right in which the petitioner claims; and Section 218 (1), Indian Succession Act, provides that
If the deceased has died intestate and was a...Muhammadan... administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would he entitled to the whole or any part of such deceased's estate.
3. The petitioners here, being the sons and widow of the deceased, were the persons entitled by Muhammadan Law to the estate, or at least a part of the deceased's estate, and were in consequence entitled to the grant, and a joint grant of administration was in due course made to them. They, as required by the Court Fees Act, filed with their petition for a grant the form of valuation prescribed by Schedule III of the Act, stating in Annexure A the assets of which the deceased was possessed or to which he was entitled at the time of his death, and in Annexure B the 'debts owing from the deceased and payable by law out of the estate'. Among these debts were shown the amounts due on the two promissory notes above referred to. This valuation form on affidavit of assets is required for the purpose of assessing the Court-fee payable in respect of the grant of letters of administration, and until the appropriate fee has been paid no grant can be issued. The question before us is whether the inclusion of the debts in Annexure B amounts to an acknowledgment of liability in respect of the debt so as to extend the period of limitation for the plaintiff's suit.
4. There can, we think, be no doubt that when an executor in his petition for probate includes a debt owing by his testator in Annexure B he must be deemed to acknowledge liability for that debt in his capacity of legal representative of the deceased. This arises from his position of executor. The executor derives his title from the will. Immediately upon the testator's death his property vests in the executor, for the law knows no interval between the testator's death and the vesting of the property (Whitehead v. Taylor (1834) 10 A. & E. 210 It follows that before and without obtaining probate the executor may do most things which appertain to his office; thus, he may take possession of the testator's property; and he may pay, or take release of, debts owing from the estate; and he may receive or release debts which are owing to it (Williams on Executors, Vol. I, p. 220, 10th Edition). The grant of probate does not give him his title: it makes his title certain. (Hewson v. Shelley (1914) 2 Ch. 13 . An executor, therefore, having the power as legal representative to admit and dispose of claims against the testator's estate, when he includes such a claim in Annexure B as owing from the testator and payable from his estate, may be assumed to acknowledge liability of the estate for the debt. But the position of an administrator is very different. He derives his title wholly from the Court. He has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant (Woolley v. Clark (1822) 5 B. & Ald. 744. Upon the issue of the grant the administrator's title has relation back to the date of the deceased's death. Section 220 of the Indian Succession Act provides:
Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment of his death.
5. But an act done by a party who afterwards becomes administrator to the prejudice of the estate is not made good by the subsequent administration; for it is only in those cases where the act is for the benefit of the estate that relation back exists (see Morgan v. Thomas (1853) 8 Exch. 302. And this principle is embodied in Section 221, Indian Succession Act, which states:
Letters of administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate's estate.
6. In our opinion, an acknowledgment of liability professed to be made on behalf of a deceased's estate by a person whose power to make the acknowledgment solely depends upon his being the administrator of the deceased is not made effectual by his subsequently obtaining letters of administration. Such an intermediate act as the admission that a debt was due from the deceased's estate would certainly tend to the diminution of the estate. This was the ground upon which the learned Trial judge decided the case when dismissing the plaintiff's suit as barred by limitation, and we entirely agree with him upon this ground.
7. But, on appeal, a new ground has been taken, namely, that the acknowledgment of liability here was made by the petitioners for administration in their character of heirs of the deceased, and the argument is that this acknowledgment has the effect of preventing limitation. After judgment in the suit the plaintiff obtained leave from the Appellate Court to amend his plaint so that he might have an opportunity of putting forward his real case, which, in the opinion of the Appellate Court, he had done before the learned Trial Judge. We have, therefore, to deal with the appellant's case as presented in his amended plaint. It is clear from the language of Section 218 (1), Indian Succession Act, already referred to, that the right to a grant of administration follows the right of succession, and that in order to establish the right to a grant the petitioner must show that he is, as an heir, entitled to a share on the distribution of the deceased intestate's estate. It follows that, this being the purpose of the description of the petitioners, defendants 1, 2 and 3 as the sons and the widow of the deceased in their application for the grant, they must be taken to have made the acknowledgment of the liability for the debts set out in Annexure B in their character of heirs. It is not suggested that any other character was open to them; so we are not here confronted with any complicated question of an acknowledgment made by individuals filling more than one character. The petition, therefore, contained not only an admission of assets but the admission that the debts were payable out of those assets. As heirs the defendants could have been sued by the plaintiff, and they would be liable for the debts of the deceased to the extent of the assets received by them as heirs. This liability would in no wise be affected by the subsequent grant of letters of administration to some of them. The conclusion, then, at which we have arrived, is that the acknowledgment of liability of the debt due to the plaintiff from the estate prevented the bar of limitation to his suit.
8. The only other question is, whether the acknowledgment of liability by defendants 1, 2 and 3 serves to bind defendants 4 and 5. We do not think it does. The acknowledgment by defendants 1, 2 and 3 could only be effective against the other two defendants if it could be shown that these two defendants authorised them to acknowledge liability on their behalf. But it is plain that no such authority can be implied, because at the time when the petition for administration was filed defendants 1 to 3 were disputing the claim of defendant 4 to be the widow of the deceased and of defendant 5 to be his legitimate daughter. And it appears from the written statement of defendants 4 and 5 that the status of these defendants was not established until 22nd July, 1920, when a decree was passed by this Court in T.O.S. No. 21 of 1919. This decree was in a testamentary suit which resulted from the caveat entered by defendants 4 and 5 against the petition for administration filed by defendants 1 to 3. In Fordham v. Wallis (1853) 10 Hare 217 it was held that among devisees an acknowledgment by some did not keep alive the creditor's right against others who had availed themselves of the Statute of Limitation. 'Looking at the question upon principle,' said Turner, V.C., 'I do not see upon what ground parties, who might have availed themselves of the statute and have neglected to do so, can insist upon contribution from other parties who have set up the statute, and have, upon the footing of it, succeeded in repelling the demand against them.' In these circumstances, we are unable to find any possible ground for holding that defendants 4 and 5 are liable on Account of the acknowledgment of liability made by defendants 1, 2 and 3. The recovery of the debt as against these two defendants is, therefore, barred. Reference has been made to an affidavit sworn by defendant 2, one of the administrators, on the 21st October, 1921, in support of his application to the Court for leave to sell, as required by Section 307 (2), Indian Succession Act, the immoveable property of the deceased for the liquidation of the debts. This can have no bearing on the question of defendants' 4 and 5 liability. For the purpose of Section 19(1) of the Limitation Act an acknowledgment of liability must be before the expiration of the period prescribed for the suit, and at the date of this application by defendant 2 the suit on the two promissory notes had already become barred against defendants 4 and 5.
9. The result is that we allow the appeal against defendants 1 to 3, but dismiss it as against defendants 4 and 5. There will be a decree for the amount due on the two pro-notes with interest up to date, and with 6 per cent, interest from the date of the decree till payment, against defendants 1 to 3 to the extent of the assets received by them as their shares of the deceased's estate.
10. Defendants 1 to 3 will pay the appellant the costs of this appeal. As there has been no appearance on behalf of defendants 4 and 5 to the appeal, we make no order as to costs in their favour. We do not give the appellant his costs in the Court of First Instance as it was due to his failure to present his case there properly that judgment was given against him. The plaintiff will pay the costs of defendants 4 and 5 in the Trial Court, but otherwise parties will bear their own costs.