1. This is an appeal that arises in execution of the decree, in O.S. No. 36 of 1909, obtained by one Janaki Ammal against her mother-in-law, one Lakshmi Ammal. As Lakshmi Ammal is now dead, execution is applied for against one Angavalath-ammal, the legal representative and daughter of Lakshmi Ammal. The decree was for possession of certain immoveable properties and for a certain sum of money) over Rs. 10,000. The decree had been executed, during the life-time of Lakshmi Ammal as regards immoveable properties and possession had been taken away from Lakshmi Ammal a year before her death. Lakshmi Ammal died in April 1916. This application is put in, by the Receiver appointed in O.S. No. 40 of 1916, on the file of the Subordinate Judge's Court of Tanjore, in whom the right to execute the deoree has been vested for the time being, Janaki Ammal, being a party to O.S. No. 40 of 1916. The application prayed for compelling Angavalathammal to pay the decree amount, from the assets of Lakshmi Ammal in her hands, with subsequent interest and costs: Angavalathammal's plea was that Lakshmi Ammal did not have or leave any assets and that no assests of hers came into her hands and that she was not liable to' be proceeded against in execution of the decree.
2. The learned Subordinate Judge has passed an order, apparently under Section 50, Sub-clause, 2, of the Civil Procedure code, and this appeal is tiled against the said order, directing Angavalathammal to pay the decree amount herself personally. To justify such an order under the Civil Procedure Code, it must be shown by the person applying that the legal representative had received sufficient property to cover the decree debt and the later must have failed to show that the amount that had come into her hands has been duly disposed Of Section 50(2). Civil Prooedure Code says:
Where any suoh property remains in the possession of the judgment-debtor and he fails to satisfy the Courtf that he has duly applied suoh property of the deceased, as is proved to have come into his possession, the deoree may be executed against the judgment-debtor, to the extent of the property in respect of which he has failed so to satisfy the Court, in the same manner as if the decree had been against him personally.
3. In this case, three issues were framed by the Subordinate Judge to the following effect:
(1) Did Lakshmi have or leave any assets?
(2) If so, did they come into the hands of the respondents?
(3) To what extent, if at all, is the respondent liable?
4. On the first point, the Subordinate Judge has gone into a calculation of what the possible inoome of Lakshmi might have been, for the last 9 years. He considers that the lands, which were in her possession, would have yielded 800 or 1000 kalams of paddy, that the Rs. 10,000 that was paid to her would have fetched a fair amount of interest and that on the whole, Rs. 2,000 might be taken to be the probable yearly income and that she was enjoying this, for 8 or 9 years. Then taking Che probable amount she might have spent out of the inoome, including the expenses of oertain special ceremonies, which the old lady had performed and making some allowance for household expenses, he comes to the conclusion that she must have had and must have left very large assets at her death. Then he proceeds to hold that she did, in fact, leave large assets. Then he goes on to say that, as Angavalathammal is the legal representative of the deoeased Lakshmi, she must have got all those assets and as she has not accounted for them,' she must have ttfem with her and she is liable to pay the present deoree amount in full personally. The defect in this process of reasoning is that it is very problematical and speculative. It is not denied that there is no direct evidenoe of the old lady having left any assets at all, exoept perhaps a few ohembus, in the house, which her legal representative has accounted for, by showing that they were given away in charity.
5. It was said, by the respondent's Vakil, that the assets of the old lady were partly in the shape of bonds and partly in the shape of cash. As regards the existence of the bonds, one would have expected some better proof as the persons, who were liable under those bonds, could have been easily called as witnesses. But no one was called. As to the existence of such bonds, as a matter of fact, there is no evidence at all, on record, not even of one. As regards the cash also there is no evidence whatsoever that the old lady left anything in the shape of cash. On the other hand, there is on the side of the appellant some evidence to show that the old lady spent large sums of money in charities and in the performance of religious festivals and solemnisations. The evidence of the appellant, if accepted, would show that the old lady could not have left much assets, even if we assume that the estimate of the income by the Subordinate Judge is right. But that estimate is also a matter of speculation. There is no proof exactly as to how much Lakshmi got from the lands, or as interest of the monies she had. The lands, which were the subject-matter of the decree, were removed from her possession a year before her death. It is shown that she had undertaken a costly litigation; and an eminent Vakil of this Court was taken from here to the lower Court, and was engaged in the case, when it came up to this Court, and the appellant's estimate that the litigation cost, about Rs. 4,000, is not in our opinion an excessive one. Taking all these circumstances into consideration, we cannot hold that it is proved that the old lady had left any assets at all, at the time of her death, except a few chembus. It was said that she bad been paying income-tax on a sum of Rs. 1,050, said to have been interest derived from Rs. 15,000. There is evidence that she had protested against levy of the tax, but that the income-tax authorities would not relieve her and consequently she had to pay. We do not think it is safe to arrive at any conclusion, from the income-tax assessment, that she had, at the time of her death, any particular sum of money at her disposal.
6. If we are right in the conclusion that we have come to, that the old lady left no assets, the respondent's case necessarily fails. But apart from that, even if she had left any, there is no proof whatsoever that those assets got into the hands of the appellant before us. It is true that she was the legal representative and it is also true, as pointed out by the respondent before us, that this lady was paying income-tax herself, after the death of her mother, Lakshmi. But the payment of the income-tax is easily explained and does not indicate that she received any money on her mother's death; because she had, as proved by unimpeachable evidence, dealings with her own money, before her mother's death, on which she was getting interest. Two Chetties have been called as witnesses, P. W Section 1 and 4, to show that during the life-time of Lakshmi Aminal, the appellant before us had a sum of Rs. 8, 500, transferred to her name by her husband. The evidence of these witnesses is supported by entries in their account books, and there can be no doubt that there were such transfers, as is spoken to by them.
7. Besides that, Angavalathmmal explains that she had a sum of money given to her, by her father and that she got some money by the sale of her jewels. We are not in agreement with the Subordinate Judge, in rejecting all this evidence. We think that this evidence is entitled to consideration. The reason given by the Subordinate Judge, for rejecting the evidence, that her husband gave her some money, is that she and her husband were not on good terms. That may be so; but it really is no reason, to discredit the evidence of the Chetties Admittedly, her husband was a rich man and it is not unlikely that he was persuaded to settle on her, a certain sum of money, after he married a second wife. As regards the jewels, she is likely to have got some from her husband and from her father and it is not pretended that the jewels are now in her hands the fact that she is not able to state exactly to whom the varrious jewels were sold is no reason for discrediting her evidence that she did sell them. That is the reason given by the Subordinate Judge, for discrediting that part of the evidence, relating to the sale. The payment of income-tax by her, after her mother's death, is of no importance, because she herself ought to have paid income-tax much earlier on her own dealings and when she was called upon to pay income-tax, she had practically no defence but to pay.
8. It was suggested by the learned Vakil for the respondent that once it is proved or admitted, that the legal representative, sought to be made liable, has come into possession of assets belonging to the estate of the deceased, however small it might be, the burden of proof is on the legal representative to prove 'the extent of the assets really received by him and that, if that burden is not discharged by him, he would be made liable for the whole of the debts of the deceased. Three oases have been cited to us on this point. Bajah of Kalahasti v. Sree Mahant Prayag Dosjee varu 35 Ind. Cas. 224 : 30 M.L.J. 391 (1916) 2 M.W.N. ranchode Das Goverdhan Dass v. Krishna Dass 12 Ind. Case 253 : 21 M.L.J. 1096 : 10 M.L.T. 272 : (1911) 2 M.W.N. 271 and Magaluri Garudiah v. Narayana Bangiah 3 M. 359 : 6 Ind. Jur. 24 : 1 Ind. Dec. 805. These cases no doubt say that, if it is shown that some property had passed into the hands of the legal representative, the extent of the property received by him being peculiarly within his knowledge, he is bound to show that |he had not received so much property, as would satisfy the debts. The real meaning seems to be that, if it were shown that a deceased person left a certain amount of assets and that the legal representative had received some portion of those assets, it would be for him to explain why he did not receive the whole of the assets and if he says that he did not so receive them, it would be for him to establish what proportion of the assets, proved to have been left by the deceased, really got into his hands. Of course, the burden is upon the legal representative to show that he has utilised the assets that have come into his hands, in the proper administration of the estate otherwise, he will make himself personally liable for the debts of the deceased to the extent of the assets shown to have been left by the deceased and presumed to have passed into his hands. Whether this statement of the law, as to the burden of proof, is not too wide in itself, need not be considered in this case; for our finding is that no assets have been proved to have been left by the deceased. It would seem from the authorities, cited by Mr. Krishnaswamy Aiyar, and in this matter the English law is more restricted, the burden being upon the person who desires to make the legal representative or the, administrator liable, to prove not only the amount of the assets left by the deceased, but also the extent of such assets, which have actually passed into his hands. See the statement in Williams on Executors, 11th Edition, p. 1564, 14 Halbury's Laws of England, 331 and some of the cases cited therein and Bullen and Leake, at page 561. It is not necessary to discuss this question further, in view of our finding that there is no proof in this case, to show affirmatively, that the old lady had left any assets, or that any passed into the hands of the appellant.
9. In these circumstances, we must set aside the order of the Subordinate Judge and dismiss the execution application with costs in both Courts. Costs to be paid out of the estate of Janki Ammal.