1. This was a suit brought 4>y the plaintiffs on certain dealings in Khata between plaintiff l's wife and the defendants. The khata was settled in 1923 and a sum of about Rs. 40,000 was found due. Plaintiff l's wife died on 9th June 1923 leaving an unregistered will in favour of the plain-stiffs. The will is dated 5th June 1923. This suit was filed on 10th September 1925 and no probate had been taken out nor succession certificate before the filing of the suit. An application for attachment before judgment was taken out by the plaintiffs on 6th October 1925. We find from Ex. 11, a reply notice sent by the defendant's pleader to the plaintiffs' pleader, that the defendants had no objection to pay the suit amount if proper security was furnished or if probate of the will had been obtained. This notice was said to have been received on 12th October 1925 and on 17th October 1925, plaintiff 1 filed a further affidavit (Ex. 16) in the attachment proceedings in which he stated that:
This letter (of the defendant dated 12th October 1925) implies that defendant 1 is ready with money and he may be directed to pay the money into Court and if he fails to pay his bad motives and objects will be clear to the Court.
2. Hence it is obvious that the plaintiffs suspected that this letter Ex. 11 was a piece of bluff. However the defendants did deposit the amount in Court on 24th October 1925 and on 24th November 1925 they filed a written statement. Ultimately the Court held that it could not pay the money to the plaintiffs without probate of the will being secured and this was not done until 1928, after which the suit was disposed of. The Court ordered that the defendants should pay interest for one month from 24th October 1925 to 24th November 1925, that is from the date of the deposit to the date of the written statement, on the ground that no notice of the deposit as required by Order 24, Rule 2, Civil P. C, had been served on the plaintiffs. As regards costs, the lower Court ordered the defendants to pay the plaintiffs one-half of the court-fee and to bear their own costs except to the extent to which they succeeded. This appeal is preferred by the defendants on two matters, first with regard to the interest allowed for one month from 24th October 1925 to 24th November 1925 and secondly as regards the direction as to costs.
3. With regard to the first matter, the question is whether, subject to their giving security, the plaintiffs could have withdrawn the amount deposited in Court if they had pleased. Looking into the previous correspondence between the parties and to the subsequent statements and affidavits filed, we feel no doubt that had the plaintiffs been willing to give security they could have drawn this amount immediately after it had been deposited. We have already alluded to defendants' offer Ex. 11 which reached the plaintiffs by 12th October 1926 and it is the plaintiffs who by Ex. 16 invited the Court to ask the defendants to make this deposit, evidently believing that the offer of deposit was not serious. There is in Ex. 20 dated 6th July 1927 a statement in para. 5 which runs thus:
Even on the day on which we deposited money in Court, we represented to the Court in the presence of the other side that we do not want to keep the plaintiffs off from the money. and that all that we are anxious for is that no opportunity be left to the plaintiffs to trouble us after receiving the money.
4. This statement has not been specifically challenged either by further affidavit or by any evidence. When we look at the issues we find that the plaintiffs were contending all along that they could obtain the money without probate or succession certificate or security. It seems therefore impossible to believe that they did not have notice of the deposit of this money nor do they assert in the evidence or elsewhere, that they had no notice. Order 24, Rule 2, Civil P.C.. no doubt provides that notice of deposit shall be given through the Court by the defendant to the plaintiff and there is a form (No. 3) in Appendix II to Civil P. C, which runs thus:
Take notice that the defendant has paid into Court Ksand says that the sum is sufficient to justify the plaintiffs' claim in full.
5. But when the deposit has been made on the challenge of the plaintiffs and in the presence of the plaintiffs it is not necessary that there should be a separate notice. The learned Sub-Judge who eventually decided the case was not the same as the Sub-Judge to whom the deposit was made. We have come to the conclusion under the circumstances that interest was not chargeable for this month, as plaintiffs could have withdrawn the money by giving security.
6. Then as regards costs, they are, no doubt, in the discretion of the Court, but we find that the lower Court has acted under a misapprehension when it held that the plea that the defendants offered to pay the amount if only a certificate was produced or security furnished was an after thought. In his evidence, as P. W. 4 one of the plaintiffs has stated as follows:
Sometime after purchasing court-fees I went to defendants and showed them the stamps and said that I would like to avoid filing suit if they should pay up money. They said they could not pay then. So I filed the suit. No, they said that they would pay money in case I obtained probate or gave security.
7. It is true that further on in cross-examination the plaintiff tried to resile from this and said:
Defendants never asked me to give security; but said they had no cash.
8. But looking into Ex. 11 we feel no doubt that the attitude taken up by the defendants was that they were prepared to pay if security was given while the plaintiffs persisted that they were not bound to give security or secure probate.
9. That being the case, it is clear that the Court acted under a misapprehension of fact in passing this order as regards, costs. The very case relied upon by the respondents in this connexion, Prasheram v. Dorabji (1900) 2 Bom LR 254, will justify our interference in such a case for it says:
A Court has absolute discretion in the matter of costs according to Section 220, Civil P.C., and; an appellate Court will not interfere unless it-has proceeded on a manifestly wrong ground' such as the application of an erroneous principle-or a misapprehension of facts. So long as the-discretion was in fact exercised an appellate-. Court will not interfere simply because it would-itself have exercised the discretion differently.
10. The principle of the decision in Thakar Das v. Firm Bashi Mal Kishin Chand (1921) 64 IC 385 is that a defendant is not. legally bound to pay money in a case of this sort until he is satisfied that the plaintiff has produced a succession certificate or probate or letters of administration or some authority to collect the-debts due to the deceased person, and if the claimant files a suit in such circumstances he is not entitled to his costs.. The lower Court seems to have agreed! with this decision which was quoted before it, but on account of the aforesaid misapprehension of facts it did not apply it to this particular case when considering the question of costs. There is however one matter in which defendants are to blame. The defendants did! not send a reply to the plaintiff's notice Ex. 10 of 29th August 1925 at once, but sent it only on 5th October 1925, on the very day the suit was filed. The plaintiffs purchased the stamps on 11th September and it cannot be said that they did not wait long enough for a reply to their notice before purchasing the stamps. Had they however furnished the security which the defendants had asked for they need not have filed the suit and they could have obtained a refund of the greater part of the stamp-money from the revenue authorities. What they would have lost on the stamps would have been Rs. 115-12-0 and to that sum we think they are entitled. On the other hand we find no-reason for not allowing the defendants, the costs of Rs. 456-8-0 disallowed by the lower Court. We see nothing on. the record to show that they raised any-frivolous defence or unduly protracted! the suit. The appeal is therefore allowed except to the extent of Rupees 115-12-0 with proportionate costs.