Alfred Henry Lionel Leach, C.J.
1. Several questions of law arise in this appeal but in order to understand them the facts must be examined in detail. On the 10th of April, 1909, Narasayya Chetti, the father of the first appellant, died. He left a will which he had executed four days before and by it he bequeathed to his daughter some 19 acres of agricultural land in the East Godavari District. The land was mortgaged and there was then due to the mortgagee Rs. 15,800., The testator appointed his brother Subbarayadu, his nephew Yerrappa and his grandson Satyanarayana as his executors. The will did not expressly state that they were to be his executors, but there can be no doubt from the wording of the document that this was his intention. Subbarayadu applied to the Chief Court of Lower Burma for a grant of letters of administration with the will annexed, the testator having left considerable property in Burma. Subbarayadu claimed to be entitled to the grant as an executor and Yerrappa as an executor agreed to the application being granted. The grandson Satyanarayana was then a minor. In due course letters of administration were issued.
2. The testator directed his executors to pay to the first appellant's husband a sum of Rs. 16,000 to enable him to discharge the mortgage and he further directed that when this had been done they were to convey the property to his daughter. After making certain other bequests the testator directed that the residue of his estate should be divided equally between Subbarayadu, Yerrappa and Satyanarayana . The executors realised that it was their duty to pay off the mortgage on the property left to the first appellant and on the 5th of March, 1917, they executed a promissory note for the amount due to the mortgagee. In the body of the note it was stated that the testator had left a registered will wherein it was provided that the property mortgaged should be given to his daughter and that the amount due to the mortgagee should be paid out of the monies owing to him at Rangoon. The testator had a number of cargo boats in Rangoon and according to the inventory which Subbarayadu filed in the Chief Court of Lower Burma there was due to the testator's estate for the hire of these cargo boats Rs. 21,585. The executors were apparently not able to collect the whole amount immediately and the debts due to the mortgagee were not completely discharged until the 20th August, 1930. From time to time payments to account were made and fresh promissory notes were executed by Subbarayadu as the representative of the estate.
3. In 1925 Satyanarayana instituted a suit (O.S. No. 31 of 1925) in the Court of the Subordinate Judge of Amalapuram for the administration of the estate and for possession of his one-third share in the residue. In his plaint he expressly admitted the validity of the legacy in favour of the first appellant. The defendants to the suit were Subbarayadu and Yerrappa, the other two executors, and the first appellant, but as the plaintiff conceded that she was entitled to the 19 acres of land she was not called upon to file a written statement and so far as she was concerned the suit proceeded ex parte. Subbarayadu and Yerrappa defended it and pleaded that the will was invalid because the whole of the property referred to in it belonged to the joint family. They also pleaded that they had acquired title to the 19 acres left to the first appellant by reason of being in possession adverse to her for more than twelve years. The Subordinate Judge passed a preliminary decree on the 26th of November, 1930. He held that the property which the testator had disposed of by his will represented his self-acquired property and therefore the will was valid. He directed the partition of the estate and ordered the plaintiff to be put in possession of his share. In order to effect an equal division of the estate a Commissioner was appointed. When the matter was before the Commissioner the question was raised whether the legacy to the first appellant should be deemed to have lapsed. No notice was given to the first appellant that this question had been raised and it was disposed of in her absence. The Subordinate Judge held that the legacy had lapsed and the lands had become divisible between the plaintiff and the two contesting defendants.
4. On the 18th of August, 1933, the respondent obtained a money decree in the Rangoon High Court against Yerrappa, his brother Venkatarao and another person. This decree was transferred to the Court of the Subordinate Judge of Amalapuram for execution and in the month of March, 1934, the decree-holder attached 76 acres out of the 19 acres which formed the legacy to the first appellant. The first appellant filed an objection to the attachment on the ground that the property had been left to her by her father. Her objection was accepted and the attachment removed. Thereupon the respondent filed the suit out of which this appeal arises. He contended that as the first appellant had not instituted a suit to enforce her rights under the will within twelve years of the death of the testator she had lost all right to the property. He also averred that Subbarayadu and Yerrappa had acquired a good title to the land in suit by reason of adverse possession and that the decree passed in O.S. No. 31 of 1925 operated as res judicata. The Subordinate Judge accepted these pleas. Accordingly he declared that the 776 acres constituted the property of Yerrappa and his brother Venkatarao and therefore could be attached in a decree against Yerrappa. The appeal is from that decision.
5. It will be convenient to deal with the question of res judicata first. The decision on a question which arises between the defendants in a suit may operate as res judicata but the Privy Council in Munni Bibi v. Trilohanath (1931) 61 M.L.J. 106 : L.R. 58 IndAp 158 : I.L.R. All. 103 laid it down very clearly that before the rule of res judicata can be applied between co-defendants three conditions have to be fulfilled, namely : (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the plaintiff the relief claimed by him; and (3) the question between the defendants must have been finally decided. Now in this case the plaintiff admitted the first defendant's right to the 19 acres and she was not concerned with his claim to a one-third share in the residue of the estate. That was a matter between him and his co-executor. It was not necessary to decide whether the legacy had lapsed in order to give the plaintiff the relief which he claimed. Therefore, the second of the three conditions laid down by the Privy Council is not fulfilled in this case, and the doctrine of res judicata cannot be applied. In the circumstances it is not necessary to decide whether the third condition laid down by the Privy Council is also unfulfilled.
6. We will now turn to the question whether the first appellant's legacy must be deemed to have lapsed. The finding of the Subordinate Judge that it had lapsed was based on Article 123 of the Limitation Act. That fixes a period of twelve years for the institution of a suit to enforce a legacy and the time begins to run when the legacy becomes 'payable or deliverable.' The construction to be placed upon this article was considered by the Judicial Committee in Venkatadri Apparao v. Parthasarathi Apparao (1925) 48 M.L.J 627 : L.R. 52 IndAp 214 : I.L.R. Mad. 312. There suits were instituted in 1916 to recover the legacies bequeathed by a testatrix who had died in 1889. The will provided that the legacies were to be paid out of a fund in Court. The fund could only come under the control of the testatrix if and when a suit which she had brought was successful. The suit was pending until the death of the testatrix and was continued by her legal representatives. The case was decided against the legal representatives in the trial Court and in this Court, but on appeal to the Privy Council it was decreed. The decision of the Privy Council was given in 1913 The suits which were instituted to recover the legacies were filed 17 years after the death of the testatrix, but within three years of the decision of. the Privy Council. The Judicial Committee held that they had been instituted in time. In the course of the judgment the Board said,
The question as to what the word 'payable' means is not without difficulty. It has been contended on the part of the appellants that the legacies sued for became payable at the latest twelve months after the death of Venkayyamma, in which case the suits would be barred by limitation. Looking at Article 123 as one of general application to such suits, it appears to their Lordships that a similar interpretation must be given to the words 'payable' and 'deliverable' as used in the article, and that a share in the property of an intestate would not be 'deliverable', until the administrator, to whom letters of administration had been granted, had in his hands the share to be delivered, and, similarly, a legacy or share in a legacy does not become 'payable' until the executor or other person liable to pay it has in his hands money with which it could be paid.
We have already pointed out that the land left to the first appellant was subject to two mortgages and that the executors were directed to pay them off. Until they did so the land could not be declared to the first appellant free of the mortgages which was the testator's direction. If the executors had not the money in hand to discharge the mortgages the legatee could not compel them to do so and until they were in a position to redeem the legacy was not deliverable to her. It seems to us that the decision in Venhatadri Apparao v. Parthasarathi Apparao (1925) 48 M.L.J. 627 : L.R. 52 IndAp 214 : I.L.R. Mad. 312 was direct application here. Accordingly we hold that when Satyanarayana brought his suit in 1925 the legacy to the first appellant had not lapsed, the mortgages not having been paid off. They were not paid' off until the 26th of November, 1930, and therefore the first appellant had twelve years from that date in which to enforce the delivery of the lands to her.
7. We consider that the Subordinate Judge also erred in holding that Subbarayadu and Yerrappa had acquired title by adverse possession. He appears to have been impressed by the fact that on the 15th of November, 1911, 4th of October. 1916 and on the 9th of February, 1925, Subbarayadu granted leases of this land. The fact that he did so does not imply any claim adverse to the first appellant. He had obtained letters of administration and until he was in a position to deliver to the first appellant the 19 acres free of the mortgage it was his duty to let out the lands for the benefit of the estate. There is no evidence whatsoever of a claim adverse to the first appellant having been made by either Subbarayadu or Yerrappa until the time when they filed their written statements in the suit instituted against them by Satyanarayana.
8. The appeal will be allowed with costs here and in the Court below. Our findings also dispose of the memorandum of cross-objections filed by the respondent. This will likewise be dismissed with costs.