Beverley and Hill, JJ.
1. This is a suit on a roka for the recovery of a sum of Rs. 2,607-5-8. The plaintiffs are the representatives of the payee of the roka who is now dead. The defendants are the widow of the maker of the roka and a person who is sued in the character of a surety for its repayment. As against the latter, however, the suit has been dismissed and he is not concerned in this appeal. The maker of the roka was a Mahomedan, and the first defendant, his widow, is sued as being in possession of his estate, the relief claimed being that a decree for Rs. 2,607-5-8 principal with interest be passed first against the estate left by Yusuf Hossain Khan (that is, the maker of the roka) and held and possessed by defendant No. 1, and in the event of non-realization, then against the person of the second defendant. There is a prayer also for such further relief as in the opinion of the Court the plaintiff may be entitled to.
2. The pleas of the first defendant so far as they are now material were directed in the first place to the frame of the suit. It was pleaded that the suit was bad for non-joinder of all the legal heirs of the deceased who are named, and then that the first defendant was not in possession of any property of the deceased in the capacity of his heir. She did not, it is to be observed, deny her possession, save in this qualified manner; and the Court of First Instance has found that there is some evidence, though it has refrained from expressing an opinion as to its value, that after the death of her husband the first defendant disposed of an elephant, horses, and carriage belonging to his estate. That Court has, however, refused to give effect to this evidence apparently on the ground only that there was no evidence to show what the value of the property in question amounted to. On the question of parties it found that the suit had been properly brought against the widow of the deceased to the exclusion of the other heirs of her husband, as she alone had been granted a 'certificate of heirship,' by which presumably is intended a certificate for the collection of debts, by the District Judge. But such a certificate would not, it may be remarked, constitute her the representative of her late husband's estate in the sense understood by the Subordinate Judge. In the result the Subordinate Judge passed a decree in favour of the plaintiff for the amount claimed with interest to be realized 'from the properties left by the deceased Yusuf Hossain Khan.'
3. Against this decree the first defendant appealed to the Court of the District Judge, and there, it is said by the learned Judge in his judgment, two points were argued, one as to the correctness of the decision of the Court of First Instance on a question relative to the stamp borne by the roka in suit, and the other as to the necessity for adding the other heirs of Yusuf Hossain Khan. On the first point the learned Judge found against the appellant, but on the second in her favour; and was accordingly, it appears, about to dismiss the suit, but thought it better, on consideration, to give the respondents the opportunity of withdrawing the suit in its then form, with liberty, if they chose to avail themselves of it, to bring a fresh suit against all the heirs of the deceased, and so held his hand. The respondents did not, however, see fit to avail themselves of the liberty thus given them, their avowed reason being that any fresh suit which might then be brought by them against the other heirs of the deceased on the roka would be barred by limitation. This difficulty they brought to the notice of the learned Judge, and they urged also that even if they were not entitled to treat the appellant as sole heir, by which probably they meant as the legal representative of the estate of the deceased, they were nevertheless entitled to get a 'partial decree' as against her proportionate to the assets actually held by her, and the learned Judge, actuated by reasons which can hardly be called in question, set down the appeal for further argument on this point. The result of this further argument was that the learned Judge, to use the language of his judgment, allowed the decree of the lower Court to stand--'made a little more clear in the expression of it, as in the nature of a 'partial decree.' 'It is not very easy to follow the learned Judge in the interpretation which he places upon the decree of the Court of First Instance, since, as has been seen, that Court made the claim realizable from the properties of Yusuf Hossain Khan without limitation, its view being apparently that the estate was fully represented by the widow by virtue of her 'certificate of heirship.' But, be this as it may, the learned Judge gave effect to his understanding of the matter in his own decree, which after dealing with the costs of the lower Court proceeds: 'In all other respects it (i.e, the appeal) is dismissed with the declaration that the debt due by the deceased to the plaintiffs is recoverable only from such assets of the deceased as can be shown to have been in the hands of the principal defendant at the time at which this suit was filed against her.'
4. From this decree the first defendant has now appealed to this Court on several grounds. The first is that the Lower Appellate Court ought to have dismissed the suit, because the plaintiffs having based their claim on the ground that the appellant was the sole heir in possession of all the assets, they had failed in the opinion of that Court to prove their case. This plea, if we understand it aright, seems to us to proceed on a misconception of the nature of the suit. There is no allegation or suggestion in the plaint that the appellant represented the estate of her late husband. She is sued merely as being the person in possession of it, and consequently the failure to prove the allegation of exclusive possession on her part does not involve a failure to establish her representative capacity. The theory of representation is not known to the Mahomedan law. Under its provisions the estate of a deceased person devolves immediately on his death upon his heirs, charged however with his debts, and they are the persons through whose medium the property ought ordinarily to be reached. The plaintiffs seem to have assumed that the appellant was the sole heir of her husband, and that she was, probably as a natural consequence, in exclusive possession of his property, the fact of possession being the basis upon which their suit was founded. In both assumptions no doubt they appear to have been mistaken, but it does not follow that because they failed in establishing that she was possessed of the whole, they are precluded from showing that she is in possession of a part, There is no question here in fact of a change of the capacity in which the lady was sued; and we think that had it been shown that she was in fact in possession of a part of the assets of the deceased, relief might, notwithstanding the allegation that she was in possession of the whole estate, have been obtained against her.
5. The next plea in appeal calls in question the propriety of the action of the Court below in passing a decree in the plaintiffs' favour, notwithstanding that at one stage of the proceedings it was of opinion that the suit ought to be dismissed. We do not think, however, that this plea is entitled to much consideration. The Judge did no doubt at one time entertain the opinion referred to, but before he had completed his judgment he thought it advisable to hear further argument, and it was on the further argument that he came to a different conclusion. In taking this course he has not, so far as we are aware, transgressed any legal principle, or done more than Judges not unfrequently find themselves constrained to do.
6. The next plea is in effect a repetition of that with which we have first dealt above, and what we have there said sufficiently disposes of it.
7. The next raises a question of a somewhat more serious kind, and one with respect to which it cannot be said that the law is administerd with complete uniformity. It asserts that a creditor has no right to sue only one of the heirs of a deceased debtor and recover the entire amount of the debt from the assets which may have come to the hands of that heir. The proposition is somewhat more widely stated than was probably intended, for we did not understand the learned pleader who appeared for the appellant to contend that it would be applicable to a case in which it appeared that a single heir had possessed himself of the whole of the property of the deceased. If we rightly apprehended his argument it was directed to this, that the amount decreed ought to be proportionate to the interest in the estate of the particular heir, and that when it is sought to recover the whole of the debt all the heirs ought to be before the Court. Stated in that form the proposition is one of which there is much in favour. An individual heir cannot be said with strict propriety to represent his co-heirs in a suit brought by a creditor to enforce his claim against the property of the deceased proprietor. The right of each heir is several and distinct, and arises, as has been said, immediately on the death of the person whose heir he is. There is no intermediate vesting in anyone, and no rule of Mahomedan law by which an individual heir, as such, may be taken to represent either the estate of the deceased or the heirs generally; and it has been held by the High Court at Allahabad that a sale made under a decree obtained by a creditor of a deceased Mahomedan in a suit to which a single heir only was a party might on this principle be set aside at the instance of the other heirs to the extent of their interests, contingently, however, on their paying their proportionate share of their ancestor's debt: (see Jafri Begam v. Amir Muhammad Khan I.L.R. 7 All. 822 and Muhammad Awais v. Harsahai I.L.R. 7 All. 716; and in another case in the same Court, it was held that a decree ought not to be passed against some only of the heirs of a Mahomedan for the whole amount of his debt, but ought to be confined to an amount proportionate to their shares in the property of the deceased [Pirthi Pal Singh v. Husaini Jan I.L.R. 4 All. 361].
8. On the other hand, however, it has been held in this Court in the case of Mutty Jan v. Ahmed Ally I.L.R. 8 Cal. 370 where certain heirs of a deceased Mahomedan sued to set aside a sale in execution of a decree passed in a creditor's suit to which they were not parties, that a creditor's suit is in the nature of an administration suit, and as such, an heir in possession is bound to account for any assets that may have come into his hands, and to that extent is liable to pay the creditors. The principle of this case has never, so far as we are aware, been since dissented from in this Court, though it was undoubtedly subjected to unfavourable criticism in the case of Jafri Begam v. Amir Muhammad Khan I.L.R. 7 All. 822 referred to above. And we think that apart from the consideration that it is an authority of this Court which has remained unquestioned now for several years, it embodies a salutary rule and one to which effect ought to be given. If the creditor of a deceased Mahomedan is to be confined to the recovery of a fractional portion of his claim, notwithstanding that the assets may be wholly in the possession of the person through whom it is sought to enforce it, or is to be postponed until the estate has found its way into the hands of all the persons who are entitled to share in it, as might frequently be the case, we can conceive that very grave injustice might in many cases, be perpetrated, and a method sanctioned by which it would be easy to place obstacles in the way of the realization of the just obligations cast upon the estate. And the technical difficulties which influenced the decisions to which reference has been made in the Allahabad Court, unless they are insuperable, which, in our opinion, they are not, ought not, we think, to be allowed to override such considerations as these. In England, where rules of practice would probably be enforced with greater stringency than in this country, it has been held by a Judge of much experience that, when a person possesses himself of the assets of an intestate without having administered, a bill for an account of the specific assets he has received would lie against him as executor de son tort, though there be no legal personal representative--Coote v. Whittingtan L.R. 16 Eq. 534, and see also Rayner v. Cochler L.R. 14 Eq. 262, and In re Lovett L.R. 3 Ch. D. 198. And though the analogy may not be complete between the Mahomedan heir, who is in possession of more than his share of the inheritance, and the executor de son tort of English law, it is yet sufficiently close to sustain a comparison.' If, 'it is said in the last of the cases just referred to,' you cannot sue a person as executor de son tort, then any person may enter upon and take possession of the property of a deceased, and he cannot be sued for doing so'--a conclusion which the learned Judge who tried the case refused to accept.
9. In our opinion, then, the suit was properly brought against the appellant, and her liability, we think, is to be measured, not by the extent of her interest in her late husband's property, but by the assets which have come to her hands, and which she has not disbursed duly in the discharge of the liabilities to which the estate was subject at her husband's death.
10. The next point taken in the pleas of appeal is that the plaintiffs, having failed to prove that the appellant was in possession of any of the assets of the deceased, were not entitled to the judgment of the Court. If the premiss here asserted were true the conclusion might no doubt follow; but we do not understand the learned Judge to have arrived at any such conclusion. He has found no doubt that the appellant was not in possession of all the property of the deceased, but his decree would be unintelligible, had his opinion been that none of the deceased's property had come to her hands. His decree is indeed erroneous in that he confines the enquiry to the assets, which can be shown to have been in the hands of the appellant at the time of the institution of the suit, and in that it makes no provision for the allowance of sums duly disbursed by her; but it cannot, we think, be impugned on the ground now in question.
11. Lastly, exception is taken to the allowance of interest on the roka after due date, as well as to the rate allowed, but we think that in neither of those particulars is the decree incorrect,
12. We think, however, that the decree ought to be amended in the respects which we have mentioned above, namely, that the enquiry should be as to the assets received by the appellant since her husband's death, and that allowance should be made her for such sums as she may have paid thereout in discharging the liabilities of the estate. Subject to these amendments, the decree will stand, and the case will go back to the lower Court in order that the inquiries now directed may be carried out. We make no order as to costs.