Norris and Gordon, JJ.
1. The property which is the subject-matter of this suit formed part of the estate of Kirthi Chandra Rai which descended in the usual course to his grandsons Pran Krishna and Dhan Krishna.
2. The following genealogical table explains the descent:
Kirthi Chandra Roy.
Lakhy Narain Roy (had two wives). Ganga Narain Roy.
| | | |
Rajessary. Umamoyi. Mohanand. Bhairab.
| | |
Joy Krishna. | |
| ----------------------------------- |
| | | | | |
| Pran Krishna. Dhan Krishna. Saraswati. Brajangana.|
| | | | | |
Son, Girish Rakshamoni. Madhumati. Rameswari. Krishna Dhone. Nobin Krishna.
Chunder. | | |
Baroda Kant, Widow, Widow,
Plaintiff. Krishna Manikmoni.
3. On the death of Pran Krishna and Dhan Krishna their mother Umamoyi succeeded, and on her death the property devolved on Krishna Dass and Nobin Krishna, and on their demise without issue Nobin's widow, Manikmoni, succeeded to his share of the estate, and Krishna's widow, Krishna Sundari, and his sisters, Rukshamoni and Modhumati, succeeded to his share under a will left by him. In 1863 Krishna (who survived Nobin) and Manikmoni brought a suit against Saraswati, Brajangana, Chumpakmoni, and her sons, to recover possession of the property left by Pran and Dhan Krishna, obtained a decree and were put in possession, and subsequently Krishna sold a portion of the property to Jiban Gopal. In 1872, after Krishna's death, Girish Chunder, one of the sons of Chumpakmoni, sued Manikmoni, Krishna Sundari, Rakshamoni, Madhumati, and Jiban Gopal to recover possession of one-third of the property left by Pran and Dhan Krishna, alleging that he had not been properly represented in the suit against his mother in 1863. He obtained a decree in the Appellate Court for the share claimed with mesno profits and costs. He then sold the decree to Ramnath Roy, father of the defendants, who executed it for mesne profits against Jiban Gopal alone, and realized the entire decretal amount from him. Subsequently Jiban Gopal brought two suits for contribution against Krishna Sundari, Manikmoni, Rakshamoni and Madhumati and obtained decrees, and in execution of one of those decrees, No. 52 of 1883, he sold the property in suit and purchased a moiety of it himself. The other half was purchased by Ramnath, who subsequently bought the moiety purchased by Jiban Gopal, and thus became the sole owner of the property in suit. Manikmoni died in Aasin 1291 B.S. Plaintiff is the son of Nobin Krishna's sister, Rameswari, and he has brought this suit as reversionary heir of Nobin Krishna to obtain possession of his share of the property, in which his widow Manikmoni had a life-interest, on the allegation that only her life-interest and not the entire estate passed at the sale in execution of Jiban Gopal's decree. The main ground of defence was that the decree obtained by Jiban Gopal was for a debt due by Nobin's estate and not for a mere personal debt of the widow, and that in execution the whele estate was liable to be sold, and that it was sold and passed to the purchasers. The Munsif gave the plaintiff a decree. His reasons are given in the following passage of his judgment:
I am decidedly of opinion that the suit which was brought by Manikmoni and Krishna Dass foe declaration of right of inheritance to the properties left by Dhan Krishna and Pran Krishna, was one in which Manikmoni represented her husband, Nobin Krishna. They were successful. A portion of the property so obtained by them was successfully recovered by Girish Chunder, viz., one-third, and the two-thirds still either remain in their hands, or in the hands of their successors and vendoes and putnidars. It was, however, neither Girish nor his assignee who caused sale of the properties, but it was in connection with the contribution decree obtained by Jiban Gopal, one of the judgment-debtors, that Mauikmoni's property was sold. Here the suit was between a creditor and a debtor, and Mauikmoni does not appear to me as representing her husband Nobin Krishna, so that, although the former part of the litigation is on all fours with the cases reported in the 7th and 10th Indian Law Reports, Calcutta, the latter portion is quite different. I am therefore of opinion that a widow's interest only passed and not the whole inheritance of Nobin Krishna. The property of Manikmoni was sold in execution of a decree in a suit between a creditor and a debtor.
4. On appeal the District Judge reversed the Munsif's decision. He observes:
It seems to me clear enough that Manikmoni, not only in the suit to recover the property from Brajangana and others, but in all the subsequent litigation which arose out of that suit, was representing her husband's estate and had not merely a personal interest [Jugul Kishore v. Jotendro Mohun Tagore I.L.R. 10 Cal. 985]. She was defending not only her own but the reversioner's interests when she sued Brajangana and others. She was doing the same when she defended the suit brought by Girish Chunder, and therefore, I think, the decree for wasilat was clearly one which bound the estate and not only Manikmoni personally. In fact, the reversioners, we know, have benefited by the suit brought against Brajangana, Saraswati and others, for they have obtained what Manikmoni then succeeded in recovering minus what Girish Chunder succeeded afterwards in depriving her of. Girish Chunder's suit clearly arose out of the suit by which, as I have just shown, the reversioners have benefited.
5. And further on the Judge says:
The question really is, was the suit against Manikmoni merely for a personal claim against her or against her in respect of the estate or for a cause of action which was not a more personal cause of action. Jugul Kishore v. Jotendro Mohun Tagore I.L.R. 10 Cal. 985. The decree for wasilat was given in a suit in which Manikmoni was defending, and it seems properly defending, not only her own but the revarsioner's interest. If Girish Chunder or his assignee Ramnath Roy had sold the property in suit in execution of the decree for wasilat, I fail to see how only Manikmoni's life-estate would have been sold. Then what difference does it make when Manikmoni, being jointly liable with Jiban Gopal and Krishna Dass for the whole of the wasilat, was sued by Jiban Gopal for contribution, on the ground that he had had to pay all the wasilat? Surely the character of the claim against Manikmoni was not changed; all that was done was to fix the amount of her share of the wasilat.
6. In second appeal the learned pleader for the plaintiff, while conceding that in the previous litigation Manikmoni represented her husband's estate, and that in execution of Girish Chunder's decree the whole estate was liable to be sold to satisfy the decree for mesne profits, strongly contended that this was not sufficient. He argued that Jiban Gopal ought to have framed his suit for contribution in such a manner as to show that he intended to bind the whole estate and not to make a mere personal demand against the widow, and in support of this proposition he referred us to the cases of Baijun Doobey v. Brij Bhookun Lall Awusti I.L.R. 1 Cal. 133 : L.R. 2 I.A. 275, Kislomoyee Dassee v. Prosunno Narain Chowdhry 6 W.R. 304, Nugender Chunder Ghose v. Kaminee Dossee 11 Moo. I.A. 241, Kristo Gobind Majumdar v. Hern Chundet Chowdhry I.L.R. 16 Cal. 511, Mohima Chunder Boy Chowdhry v. Ram Kishore Acharjee Chowdhry 15 B.L.R. 142 : 23 W.R. 174, and to Mayne's Hindu Law and Usage, 5th edition, p. 739. On the other hand, the learned pleader for the respondents relied on the case of Jugul Kishore v. Jotendra Mohun Tagore I.L.R. 10 Cal. 985, which he contended is not distinguishable from the present case. We have considered the authorities cited and the arguments addressed to us, and we are of opinion that the learned District Judge has taken a correct view of the law in this case. We think the principle enunciated in the case of Jugul Kishore v. Joiendro Mohun 'Tagore is the principle which is applicable to the present case. In their judgment in that case their Lordships of the Privy Council say: 'The case depends on the nature of the suit in which execution issues. There are many authorities to that effect. It is unnecessary to recapitulate them; they are referred to by the Chief Justice in his judgment in the High Court. If the suit is simply for a personal claim against the widow then merely the widow's qualified interest is sold and the reversionary interest is not bound by it. If, on the other hand, the suit is against the widow in respect of the estate, or for a cause which is not a mere personal cause of action against the widow, then the whole estate passes. In many of the cases, although the right, title and interest of the widow had been sold, the whole interest in the estate was held to have passed and the reversionary heir to be bound by it.'
7. The suit for contribution brought by Jiban Gopal was a suit to recover a debt due by the estate. The amount of the debt in the shape of mesne profits had been decreed against Manikmoni and others as representing the estate of Nobin Krishna and Krishna Dass, and it was not, therefore, in our opinion, a personal debt of Manikmoni, that is to say, a debt contracted by her for which she was personally liable. We do not think that the character of the debt was changed merely because Jiban Gopal paid the whole of the mesne profits and then brought a suit to recover the amount from the other judgment-debtors. He paid the whole of the mesne profits and he then sued to recover these mesne profits from Manikmoni and others. In this view we are of opinion that the cases cited by the learned pleader for the appellant are not strictly applicable to the present case, and that the decision of the Privy Council in the case of Jugul Kishore v. Jotendro Mohun Tagore I.L.R. 10 Cal. 985 does apply. The appeal fails and is dismissed with costs.