1. The principal questions before us are five:
On the part of the appellant it is contended that he ought to have been, allowed, in account with the plaintiff, the sum of Rs. 5,298-1, being the residue of the sum of Rs. 7,273 (after deducting the sum of Rs. 1,975 found to have been actually paid) due by the estate of Teicum Chand to Sara Bibee, the widow of his deceased brother Luchmun Chand, and for which residue of Rs. 5,298-1 he alleged that he had become liable by agreement with her; and he also contends that having succeeded on the reference to the Assistant Registrar, he ought to have been allowed his costs of the reference out of the money in the hands of the receiver, or that, at any rate, he ought not to have been ordered to pay the plaintiff's costs of that reference.
2. The respondent in his cross objections objects - 1st, that the marriage expenses, Rs. 3,755, of Rookmai ought not to have been allowed; 2nd, that Rs. 2,507 for the shrad of Teicum Chand at Bikaneer was improperly allowed; and 3rd, that the sum of Rs. 1,975 allowed to the defendant as having been actually paid, out of the sum of Rs. 7,273-1, was improperly allowed. These are the principal points.
3. There are other contentions as to costs which we need not specially mention, and which must follow the result of the main contention before us.
4. We think that it is clearly proved by the evidence in the case that the transaction deposed to by the defendant, between him and Teicum Chand did substantially take place. It is proved, we think, that Teicum Chand handed over his property, so far as he could do so, to the defendant, with a direction to him to pay the debts which he specified, and to apply the surplus for the necessities and support of his family. This the defendant did, and, so far as appears from this case, with perfect fidelity, to the best of his judgment. He collected the monies due to the deceased, paid his debts, and conducted the affairs of the family of the deceased, taking, in their domestic matters, the place which naturally fell to him as the surviving brother of Teicum Chand.
5. We see no reason whatever to doubt that in what he did both with respect to the payment of debts, go the part payment of Sara Bibee, and the settlement with her as to what remained unpaid to her, and with respect to the monies paid by him for the expenses of Teicum Chand's family, he acted in perfect good faith; and that as to the latter, he made the disbursements, both those which have been allowed to him and those which are in part the subject of this appeal, with regard to what it was in his judgment right and proper for him to expend on their behalf. A proof of his good faith in this respect is afforded by the fact that he expended Rs. 3,000 on the marriage expenses of the plaintiff, which sum he did not make any attempt to seek credit for in this suit, but has been content to defray from his own purse.
6. We have however to determine, not the question of the defendants' good faith, but whether he made, and if so was legally entitled to make, the actual payments challenged in this appeal, and whether he is or is not liable at all events in respect of the Rs. 5,298-1 not actually paid to Sara Bibee.
7. Now, first, as to the shrad expenses of the deceased and the marriage expenses of Rookmai.-We see no reason to be dissatisfied with the finding that as a matter of fact those expenses were incurred: we agree with the reasons given by Trevelyan, J., for the conclusion to which he came on this matter.
8. Nor do we think that any case is made out of extravagant or improper expenditure. Taking it as we do that the expenditure deposed to and recorded in exhibit 9 was honestly recorded, and that this book has not been forged for the purposes of the suit, we have it that the money spent on Teicum's shrad and on Rookmai's marriage was spent or was authorised by the persons most acquainted with the position of the family and the sort of expenditure which that position would properly entail according to the usages of the country, and at the same time interested in not going unreasonably beyond a proper expenditure; for there is no reason to conjecture that at that time there was in any one's mind the least anticipation of an account of these expenses being called for on behalf of the plaintiff or his family, or any notion beyond that of celebrating these two ceremonies in a suitable and proper manner.
9. If, therefore, the defendant had a legal right to defray out of Teicum Chand's estate expenses of this nature, he is entitled to be allowed these items in his account.
10. As to the defendant's legal position as custodian or holder of the estate of his brother, three alternative views have been suggested to us.
11. That as the domicile of Teicum Chand was the Native State of Bikaneer, the mandate by him to his brother should be construed as a nuncupative will, good as to the estate (consisting of moveables only) in British India; and that the defendant was therefore in the fullest sense, an executor to his brother's will.
12. The case is not before us in such a shape as would allow us to enter on this question. Most probably Teicum's domicile was as suggested; but this has not been found, nor was the question raised, or any evidence directed to it.
13. Then it is said that at any rate he was an executor de son tort, and that the payments made by him were good in that point of view.
14. A third mode of regarding the dealings of the defendant with the estate is to treat him as a trustee under a parol trust created by Teicum Chand in his lifetime: and we think that (subject to what we shall say further on as to the possible effect of the Probate and Administration Act, which came into force a week before Teicum Chand's death) that this contention may be supported. According to the account of the defendant, which we accept, Teicum Chand made over to him the key of his place of business, and requested him to take charge of his goods and outstandings, to pay there out his debts, specifying them, and to apply the rest of the estate for his family.
15. In this country especially, a Court must require a transaction of this kind to be very completely proved before holding that a parol trust has been created. But looking both to the evidence and admissions in this case, and to the subsequent acts of the family, to the fact that defendant did pay the debts (by actual payments, save as to part of Sara Bibee's claim), and that as to none of the debts, save Sara's has any question been raised, we think ourselves in this case justified in holding that, at any rate so far, as the debts were concerned, a good trust was created, and that, so far as the intention of Teicum and the defendant was concerned, a good trust also as to the application of the surplus for the benefit of the widow and children.
16. Regarding the matter in this light, a good trust in favour of Sara Bibee for the whole amount of the debt due to her was created in respect of the monies which reached the defendant's hands applicable under the terms of the mandate to him for payment of her claim. No question therefore arises under the Statute of Limitation; and it is unnecessary for us to consider the questions whether we should be entitled to assume, in the absence of anything to the contrary, that Sara's claim was not time-barred; or whether if it was, the defendant, if acting as an executor de. son tort, had power to pay it though barred.
17. The trust was not one in the nature of a testamentary disposition, though it certainly was created by reason of the anticipation of speedy death, just as the trust to which effect was given in Peckham v. Taylor 31 Beav. 250 was so; and at any rate after the death of Teicum Chand, could not be recalled or questioned by his representatives.
18. The payment therefore of the Rs. 1,975 was a good payment in execution of the trust, while as to the residue, the trust of it in the defendant's hands for Sara Bibee is a good answer to the plaintiff's claim. The defendant now holds that money as a trustee for her. He does not dispute it and, as we understand, has never done so; and indeed produced the money in Court that it might be taken charge of by the Court for her benefit, which of course we have no power to do in this suit.
19. As to that part of the intended trust which from its nature could not operate until after Teicum Chand's death, i. e., the application of surplus for widow and children, a difficulty might arise in holding it to be operative, inasmuch as this would, or might, be to allow a testamentary effect to be given to a disposition, not a will, not subject to probate duty, and therefore an evasion, however unintentional, of the law; it may be that after the debts specified were paid the defendant was as to the surplus and his management of it in the position of an executor de son tort. No doubt the sections of the Indian Succession Act relating to executors de leur tort are not applicable to Hindus; and Section 265, illustration (6) of that Act, would not expressly apply to the case. The remarks of Phear, J, in jogendro Narain Deb Royhut v. Temple 2 Ind. Jur. N.S. 224, cited in Mr. Henderson's Tagore Law Lectures for 1887, show that practically it may be difficult to avoid the application of the principle on which executorship de son tort is founded to Hindus in some cases. It is not necessary to deal with the question here, as we are here concerned with the payment of a debt expressly mentioned by Teicum Chand, and with defendant's authority to pay it, whether-time-barred or not. But in either case the findings we have affirmed show that the payments were properly made by him in that capacity.
20. The result is that the defendant succeeds as to the whole sum in dispute upon the exceptions to the report; and completely succeeds upon the account ordered, and the appeal must be allowed and the decree modified accordingly.
21. As to costs.--The enquiry before the Assistant Registrar was conducted in a highly unfortunate manner on the part of the plaintiff, imprudent to say the least with reference to his interests; and most oppressive to the defendant. The plaintiff is now of age; and he has adopted, as far as he could, the oppressive proceedings conducted in his name, and has pressed for costs as given in the Court below; or rather, for costs on terms even more favourable to him than the order then made: an order which, in respect of costs even upon the findings made in the original Court, we should have felt bound to alter materially in favour of the defendant.
22. Not merely was the conduct of the suit after the order for account was made oppressive. The suit itself was instituted without demand made of the defendant either for an account or for anything else.
23. This was the conduct pursued towards the defendant after he had for many years acted as head of the family with generosity to the plaintiff personally, and as custodian of the family funds with perfect fidelity, as appears from the findings of fact. It must not escape attention, too, that had the plaintiff succeeded in this appeal, his success would have chiefly consisted in relieving his estate from payment of a claim undoubtedly just, and which his father admitted just before his death.
24. The defendant appellant must have his costs of the suit as against the next friend, or as to all or such portion of them as he may claim there out, out of the moneys in the hands of the receiver; the plaintiff respondent must bear his own.