1. The facts necessary to be stated for the disposal of the question of law raised in this petition are these. One Nella-yappa Pillai died in January 1915 leaving a widow and a daughter born of a former wife; also about Rs. 25,000 assets. The widow was a creditor of her husband's estate to the extent of Rs. 473 which he owed her for her stridhanam. In January 1916 the widow made a Will devising this debt of Rs. 473 to the plaintiff and died- shortly after. The plaintiff brought this suit to recover the amount from the daughter, who succeeded to the estate of her father after the widow's death. The Subordinate Judge dismissed the suit, holding that it was not maintainable on the ground that, by the widow becoming possessed of assets whereby she could have paid off her own debt, the debt became extinguished. For this proposition he ralied upon certain observations occurring in Husainara Begum v. Rahmannessa Begum 8 Ind. Cas. 837 and in chitty on Contract, page 774 (4th Edition). In the former, which was a case of a mortgagee appointed as administrator of his mortgagor's estate, it was stated that possession of assets amounts to payment on the principle that there is an extinguishment of the debt if the person who is to receive the money is also the person who ought to pay, reference being made to Williams on Executors, 10th Edition, Volume I, page 1058, and to Wankford v. Warikford (1698) 1 Salk. 299 These deal with the cape of a debtor making a creditor his sole executor and leaving assets which come into that executor's hands. It is not alleged in this case that Nellayappa Piliai made his widow his executor in law or that she took out Letters of Administration to his estate. The principle which applies to executors does not extend to widows as such. A Hindu widow succeeding to her husband's estate is in a different position from an executor. This has often been pointed out, I will cite only one of the resent decisions of, the. Calcutta High Court: Sudhir Chandra Das v. Kamal Chandra Dutta 41 Ind. Cas. 503, where the position of an executor was denned by Chitty, J., in the following and other words; 'It was argued that, as a widow or a guardian of a minor or shebait was a manager, therefore, an executor, who was also a manager, stood in the same position. The argument is obviously fallacious. The analogy is in no sense complete, and the cases which deal with the peculiar powers of widows, guardians or shebaits have really no bearing upon the pre sent question ***** An executor under Statute is the legal representative of a deceased person for all purposes and all the, property of the deceased person vests in him as such. ******** The executor is, therefore, in many respects in a different position from a Hindu widow succeeding to her husband's estate, a guardian of a minor, or a shebait of an idol. The estate of the testator is absolutely vested in the executor for the purposes of administration and he can deal with it as ha pleases, subject, of course, to the responsibility for the due administration of the estate.'
2. An attempt has been made to support the Subordinate Judge's decision by invoking the doctrine of merger. In this country the only statutory merger is that created by Section 10, Transfer of Property Act, which runs thug: 'Where the owner of a charge or other incumbrance on immoveable property is or become absolutely entitled to that property, the charge or incumbrance shall be extinguished unless he declares, by express words or necessary implication, that it shall continue to subsist, or such continuation would be for his benefit.'
3. Now the widow's stridhanam in the pre-sent suit was at law not a charge or incum-brance within the meaning of this section, as it was not attached to any land. Again, in equity the question of merger is one of intention, the presumption being that a person having a right to act in one of two ways is assumed, in the absence of evidence to the contrary, to have acted according to his interest: Vide Gokaldas Gopaldas v. Puranmal Premsukh Das 11 I.A. 126 In the case of a limited owner the presumption is against merger, as it is not for his or her advantage that the charge should sink for the benefit of the remainderman (Halsbury's Laws of England, Volume XIII page 1 hi). It is not for the advantage of a widow to pay off her stridhanam debt out of the income of her husband's estate as she is entitled to enjoy the whole of the income of the estate. The obligation she is under to discharge her busband's debts is a religious and a moral obligation. Moreover, if intention is to be gathered from circum-slanoep, the inference in this case is that the debt was intended to be kept alive, for not only has the Subordinate Judge found on the third issue remanded to him that there was no evidence that the widow did any act indicating an intention of satisfying the debt out of her husband's estate, but the very fact of her making a Will bequeathing the debt to the plaintiff denotes an intention on her part to keep it alive. On this preliminary point the Subordinate Judge's decision must, therefore, be reversed and the suit will be remanded for disposal on the other issues arising in the case. Costs will abide and follow the result.