1. I am of opinion that the estate of Raj Chunder Doss, to which the defendants have succeeded on the death of Juggodumba Dossee, is liable for the balance of the price of the lime supplied by the plaintiff for the repair of certain houses appertaining to that estate. The lime was ordered for the purpose of repairing some of the houses on Raj Chunder's estate, and was actually used for that purpose.
2. Under these circumstances the plaintiff, in my opinion, has the right to be paid out of the estate to which the houses appertain; and Juggodumba is not personally liable for the balance of the price of the lime supplied by the plaintiff. She incurred this liability as representing the estate of Raj Chunder Doss.
3. The point referred to us has been argued before us as if the question--for decision was, under what circumstances a Hindu female in possession of a qualified estate is competent to borrow money for the management of the estate, so as to bind it in the hands of the next heir. But it seems to me that is not the question before us.
4. The question before us is of a different character. It is, under what circumstances a contract or a transaction giving rise to pecuniary liability, entered into by a Hindu female representing an estate, is binding upon the heir of the last male owner after her death.
5. It is now settled law that a Hindu widow fully represents the estate, and when the estate is pretty large it becomes necessary to enter into various contracts or transactions with third parties in the course of its management. Circumstances may be imagined, where it would be manifestly unjust to hold that a particular contract, which a Hindu widow found it necessary to make with a third party for the benefit of the estate, was not binding upon the next heir after her death. Suppose the estate consists of Sunderbund grants in which periodically embankments are required to be constructed for their preservation.
6. Suppose a Hindu widow in possession of such an estate engages workmen to construct an embankment on the condition of paying for the work after it was finished; suppose the death, of the widow takes place just after the work was completed. It seems to me, that it would be manifestly unjust to hold that the next heir succeeding to the estate would not be bound to pay for the work done out of that estate.
7. On the other hand, cases may be supposed where it would be unjust to the next heir, after the widow's death, to make him liable under a particular contract, though made by a Hindu widow in the course of the management of the estate.
8. Suppose a Hindu widow engages a builder to make sundry improvements in the family dwelling house while there is no necessity for such improvement, and dies after the work is finished. It seems to me that it would be unjust to hold that the next heir is liable to pay for the work done out of the estate, though it is to a certain extent benefited thereby. It follows therefore that in order to bind the next heir it is not sufficient to show that the contract has conferred a benefit upon the estate; but it must be further established that the contract is of such a nature that a prudent owner in managing his estate would find such a contract necessary for the due preservation of the estate. A contract, therefore, which not only confers a benefit upon the estate, but is necessary for its good management, though made by a Hindu widow, is, in my opinion, binding upon the next heir after her death.
9. In the case before us both these requirements are fulfilled. The repair of the houses not only benefited the estate, but was necessary in order to prevent their deterioration in value. It is not disputed in this case, and the fact is well known, that the value of house properties considerably depends on their being kept in good repair.
10. It has been said that such outgoings as the costs of repairing houses appertaining to the estate must be met from the gross income of the estate. There is no doubt that it is so. But that circumstance cannot affect the rights of a third party who has a valid claim against the estate. Suppose on the last day on which revenue may legally be paid a widow finds herself unable to meet a Government demand, from deficiency in the collections of rent from the tenants. There cannot be a question that a third party, who under these circumstances lends money to the widow to meet the Government demand, is entitled to recover it out of the estate. But suppose the next day after the revenue was paid the arrears of rent were paid into her treasury, and she, without repaying the loan, squandered away the whole of the rent received, her a>ct would not in the least degree affect the rights of the lender. The Government revenue is as much payable out of the gross income as the costs of repairing houses on the estate. The; estate would be liable if there is a valid necessity for the particular transaction, although if a widow neglects to meet the liability out of the gross income she would be liable to be sued by the presumptive heir on the ground of waste.
11. But in this case there is no such charge of waste against the deceased widow. On the other hand, it is admitted that after her death the arrears of rent that accrued due during her lifetime have been since collected. If the costs of repairing houses on the estate are to be met from the gross income, the plaintiff is at least entitled to a decree to have his claim satisfied out of the arrears of rent collected since the death of the widow. But it has been contended that the accumulations go to the heir of the husband, and are not liable for the widow's personal debts. But ex hypothesi the whole of the arrears since collected cannot be considered accumulation, because if the costs of repairing houses on the estate and similar outgoings are to come out of the gross income, that portion of it would become accumulation which would remain after meeting them. The creditors of the widow cannot prefer any claim against the arrears of rent collected after her death, because such rent does not constitute her stridhan, Therefore the arrears of rent collected since the death of the widow cannot be considered assets left by her, and available to her general creditors. It is those creditors only, who have a claim arising out of the management of the estate by the widow, that are entitled to be paid out of the said rent. The heirs of the husband are entitled to have the control of the said fund, and not the personal heirs of the widow. But the former being only entitled to the accumulations properly so called, are bound to pay out of the said fund the necessary outgoings of the estate for the time during which the widow's estate lasted.
12. It is therefore clear to me that at any rate the plaintiff is entitled to be paid out of the arrears of rent since collected.
13. But it seems to me that the plaintiff's right is higher, and, in my opinion, he is entitled to enforce his claim against the appellants as the heirs of Raj Chunder generally.
14. We are asked to say, whether, under the circumstances stated in the order of reference, the plaintiff had a right to enforce his claim as against the appellants: (1) as against the heirs of Raj Chunder generally; (2) as against the amount of rent which accrued due to Juggodumba Dossee and which remained uncollected at her death, and which has since been collected by the Receiver on account of the aforesaid heirs.
15. I think that both the questions should be answered in the affirmative, and generally for the reasons given by my learned brother Mitter.
16. It is admitted that Juggodumba Dossee ordered the lime, for the price of which this suit is brought, and that she was legally bound to pay for it.
17. It is further admitted that the lime was ordered by her for the express purpose of repairing some of the houses appertaining to Raj Chunder's estate, and that it was actually used for that purpose. It is clear that the repairs of these houses not only benefited the estate of her father, Raj Chunder, but were necessary in order to prevent a deterioration' in their value.
18. Under these circumstances, the: plaintiff, in my opinion, has a right to be paid out of the estate to which the houses appertained, and Juggodumba or her heirs cannot be held to be personally liable for the balance of the price of the lime supplied by the plaintiff.
19. It has been argued that such outgoings, as the cost of repairing houses should, be met from the income of the estate; that this is so, I think, cannot be doubtful, and if Juggodumba Dossee, having assets sufficient to meet such charges, had spent the income on her own amusements and had neglected to pay such debts as those due to the plaintiff, she might be liable to be sued by the presumptive heirs of Raj Chunder to restrain her from waste; but I argue with Mitter, J., that this would not affect the rights of a third party, such as the plaintiff, who has a valid claim against the estate; more especially in a case like the present one, where the heirs of Raj Chunder have received the amount of rent which had accrued due before the death of Juggodumba Dossee, which said amount is much more than sufficient to satisfy the plaintiff's claim.
20. This is a case tried on the Original Side of this Court, which an Appellate Bench has referred for our opinion on two points involving considerations of Hindu law.
21. The following facts have been found, or have been admitted in the course of argument.
22. The plaintiff, from time to time, has supplied Juggodumba (who as daughter by right of inheritance was in possession of the estate of Raj Chunder Doss) with lime for the purpose of repairing some of the houses of Raj Chunder's estate, and the lime was used for this purpose. It was the practice for Juggodumba's man of business, from time to time, to make payments to the plaintiff on this account; at Juggodumba's death moneys were due to the plaintiff for lime thus supplied and used, and he has accordingly sued the heirs of Raj Chunder Doss, who have succeeded to the estate as liable to satisfy this debt out of that estate; but at the same time he has joined as a defendant the heir of Juggodumba herself, asking as an alternative that, should relief be refused against Raj Chunder's estate, the lady's personal estate may be held liable. It further appears that there were, at the lady's death, large outstandings due in the shape of uncollected rents which formed portion of Raj Chunder's estate; these have been realised, and are in the hands of a Receiver. The plaintiff asks in the first place to be paid out of these moneys.
23. I agree with Mitter, J., and generally for the reasons stated by him, that the heirs of Raj Chunder Doss are liable for the debt to the plaintiff, but I would add a few observations.
24. I will first of all consider the rights of the plaintiff as against Juggodumba as if she were now alive. On his inability to obtain a private settlement of his claims he would be entitled to obtain the assistance of the Courts by means of a suit. If he desired to make Juggodumba personally liable, that is to say, if he were satisfied with obtaining a decree against her personally, which would be enforceable only by attachment of her person, or by attachment and sale of her own personal property, that is her stridhan, he would bring the suit against her alone. But it would be open to her to reply that she was not personally liable; that her dealings with the plaintiff were as representing the estate of Raj Chunder; that the articles for which payment was sought were such as could legitimately be purchased by her in the interests of that estate; and that they were supplied and used for such purpose.
25. The Court would then join the reversionary heir to Raj Chunder's estate as defendant to the suit, and try the issue of the liability of that estate, or whether the widow was alone liable. If the allegations made by the widow, such as I have above stated, were established, a decree would, as I understand the law, be passed declaring Raj Chunder's estate to be liable to satisfy the debt. If, however, she should fail to prove her allegations that she was not personally liable, the plaintiff would receive a personal decree against her.
26. But it would also be open to the plaintiff to sue the lady and the next reversionary heir together, if he desired to make his claim for payment from the estate of Raj Chunder. In that case the Court would have to determine the same points that I have just stated, as might be raised if the lady were sued alone for the money as a personal debt. It would not, as I understand the position of the parties, be for the Court to determine in such a suit the question of legal necessity, as applied to the powers of a Hindu widow to alienate some of the immoveable family property by sale, or to borrow money by creating some incumbrance on it, but simply to decide whether the articles supplied were such as could legitimately be supplied to a Hindu widow, for the purpose of enabling her to perform her duty as the temporary proprietor, and as such, borrowed to maintain the family property. Whether non-payment of such debts amounted to waste is not a matter which could be raised in that suit.
27. It is a matter with which the plaintiff would have no concern. His right, under the circumstances stated above, to recover the money due to him cannot be affected by the omission or refusal of the Hindu widow to pay the money due out, of her current income; such conduct on her part might, however, amount to an act of waste, which would entitle the reversioner to sue her for the purpose of obtaining an adequate remedy.
28. The death of the lady before payment was made, does not, in my opinion, alter the rights of the plaintiff, unless we hold that he was bound to give her no credit but to require cash payments. I do not understand that this proposition is insisted on. Whether Juggodumba has been guilty of waste in her management of Raj Chunder's estate; whether, out of her ample income from this source, she should not have paid this debt before her death, are matters with which in the present suit we have no concern. We have rather to consider whether the plaintiff has any claim on that estate. If he has, mere forbearance on his part in realizing the money due to him promptly would not affect his right. If the lady has, as has been suggested, been wasting that estate so as to favour the heirs of her private estate that cannot concern the plaintiff. These are matters which concern only the heirs of the respective estates in determining to which estate any funds belong. Nor do I propose to consider any hypothetical cases of the position of a reversionary heir in the event of waste on the part of a Hindu widow. If Raj Chunder's estate is liable, the plaintiff is entitled to recover from it; any waste on her part would not shift the responsibility so far as regards payment to the plaintiff, unless possibly it could be shown that by his conduct the plaintiff had connived at that waste. He has had long dealings with the family, and has not been paid in cash, but he has had his account settled at intervals, and the accident of the lady's death at a time when there was a balance due to him could not affect his position. But even if it be held that this debt should have been met out of the lady's current income--a proposition not conceded by me except for argument's sake--we have it here that at her death large sums of uncollected rents were due, more than are sufficient to meet this demand.
29. For these reasons I would reply to the questions put by the Appellate Bench that, under the circumstances stated, the plaintiff has a right to enforce his claim against the heirs of Raj Chunder, either generally or as against the amount of rents which accrued to Juggodumba and which remained uncollected at her death.
Richard Garth, C.J.
30. As the question referred to us is peculiarly one of Hindu law, I feel some hesitation in dissenting from my brother Mitter. If I could find any authority in favour of his opinion, or any recognised principle upon which I thought it could reasonably be supported, I should be disposed to mistrust my own judgment, more especially, if I could see that any injustice would result in the majority of cases from my own view of the matter.
31. But as the question is admittedly now raised for the first time in a Court of law, and as there is no authority upon it, and as I cannot help thinking that the position for which the plaintiff contends, will not only be inconsistent with recognised principles of Hindu law, but will give rise to a vast amount of inconvenience and litigation, I feel bound to record my own strong convictions in opposition to the views of the majority of the Court.
32. We have here, a Hindu lady in the enjoyment of a widow's estate in a very large property consisting in a great measure of houses in Calcutta. Her yearly income was estimated at no less than from four to five lakhs of rupees.
33. Her manager gives orders to the plaintiff for a quantity of lime, for the repair of these houses. The plaintiff supplies it from time to time, and is paid for it by the manager by sums on account out of the lady's income, which, of course, is very far more than sufficient to satisfy this, and every other, requirement of the estate.
34. There were no special terms entered into with the plaintiff. He was dealt with in the same way as any other merchant or tradesman who supplied goods or labour for the purposes of the estate by order of the lady or her manager.
35. Under these circumstances, it is contended that the plaintiff did not contract with the lady personally, but merely with her as representing her husband's estate for the time being, and that consequently the plaintiff, if he had sued her for the price of the lime, could not have obtained a decree against her personally, but only a decree enforceable against the estate; or, in other words, a decree under which the lady's own stridhan, if she had any, or her person, could not be taken in execution.
36. And, if I understand my brother Mitter rightly, such a decree could not be realised against the estate so as to affect the reversionary heirs. It could only be realised against income of the estate in her hands, or against her life interest in the property; and in case of her death after the decree was made it could not be realised against the estate in the hands of the reversionary heirs.
37. The consequence would be, that the creditor, having obtained such a decree, would have less security for his money than if he had contracted with the lady personally, and obtained a decree against her in the ordinary way, because, under a decree against her personally, he could, not only, have proceeded against her stridhan and her person, but also, against any proceeds of the estate in her hands, or against her own life interest in the estate itself See Baijun Dabey v. Brij Bhookan Lall Awusti 24 W.R. 307.
38. The only way, so far as I can see, in which a creditor, under such circumstances, who had supplied goods upon the credit of the estate, could place himself in any better position than if he had personally contracted with the widow, would be, by suing the widow and the next reversionary heir in the same suit for the price of the goods, and having obtained a decree against both defendants, by putting up the entire estate (not only the widow's but the reversionary interest) for sale in execution, he might in this way sell the whole estate, or as much of it as would be necessary to liquidate the debt, but, of course, the reversionary heir, having notice of the proceedings, would have an opportunity, if he so pleased, of redeeming the property from sale.
39. In many cases, however, the reversionary heir would probably not think it worth while to redeem; as, for instance, in the case of a young widow likely to live many years, where, the reversionary heir is an old man or a bad life. In such case if the reversionary heir did not choose to redeem, the estate would be sold to the injury of the inheritance.
40. Now this, as it seems to me, would be allowing a widow, or any other Hindu female heir, to do indirectly precisely what the Hindu law expressly forbids, and what our Courts and their Lordships of the Privy Council have been very careful in a long series of decided cases to prevent.
41. If there is any point of Hindu law more clear than another, it is this, that a Hindu widow has no right to sell or charge the estate to the prejudice of the inheritance, so long as the income from the estate is sufficiently large to satisfy all its proper requirements.
42. In other words, in order to justify any such sale or charge, a necessity of two kinds must be shown:
1st.--A necessity for the money sought to be raised; as, for instance, that it is wanted for repairs, or for paying Government revenue, or for shrads, marriages or the like; and
2nd.--That the income of the property is not sufficient to provide the requisite funds, and that consequently it is necessary to sell or mortgage.
43. Unless this last necessity is shown, no mortgage or sale, by a Hindu widow, is valid as against the reversionary heir.
44. But if the plaintiff's contention be correct, it would never be necessary in a case like the present to consider whether the income of the widow is sufficient to pay for the repairs or not; all that the widow need do, is to order the materials, or the labour, or whatever else is necessary for repairing the property, and not to pay for them. The plaintiff's remedy would then be, as I understand the plaintiff's argument is, to sue the widow and the next presumptive reversionary heir as representing the estate, and under a decree in such a suit the whole estate, or a sufficient portion of it, might be irredeemably sold, unless, the reversionary heir chose to redeem the property by paying the widow's debts out of his own money.
45. Meanwhile the widow may be expending the income of the estate in her own amusement, or in any way she thinks proper; and the only remedy against her, as I understand the argument is, would be by a suit by the reversionary heir to restrain her from waste; the alleged waste consisting in this, that the widow has been spending the income of the property instead of paying as she ought the creditors upon it.
46. But then, as it seems to me, the mischief would have been done. The sale of the property would have been completed and the interest of the reversioner would have been sacrificed.
47. I should have thought that if this had been the law there would surely be some cases in the books upon the subject. But not a single instance has been adduced in which a suit like the present has ever been brought against the reversioners; not one in which a decree, such as we have been discussing, against the widow as representing the estate, or against the widow and the next reversionary heirs has ever been made; and no single instance in which a suit, such as is suggested, has been brought against a widow for waste.
48. Having regard to the numbers of cases, in which Hindu widows and other female heirs are constantly attempting to raise money by sale or mortgage of the inheritance, and the many devices which are resorted to for that purpose by mookhtears and others employed by these ladies, it is certainly remarkable, that if the law is as the plaintiff contends, we should find no single trace of it in the reports.
49. And, in my opinion, if this were the law, it would lead to much inconvenience and injustice; and I will proceed to explain why I think so.
50. If I understand my brother Mitter rightly, he considers that a contract made by a widow for goods or labour, as in the present case, would only be binding upon the estate if the goods supplied were for the purpose of repairs or other necessary expenditure for keeping up the property.
51. Thus, for instance, if the lime supplied by the plaintiff were required for such repairs, then the plaintiff's contract (in the absence of any special agreement to the contrary) would be made upon the credit of the estate.
52. But if the lime were supplied for building new houses, or for any other purpose which would amount to a necessity, the contract would be made upon the personal credit of the widow herself.
53. If so, it will in future be very important for contractors in the plaintiff's position, when dealing with a Hindu widow, to ascertain for what purpose the goods or labour which they supply are required. If required for one purpose, their remedy will be against the estate; if required for another, their remedy will be against the widow personally.
54. This very case affords a good illustration of the difficulty to which this state of the law might give rise.
55. Suppose, that the widow in this instance had required the lime partly for necessary repairs to her property, and partly for other purposes which would come within the category of necessaries, and suppose, the order to have been given to the plaintiff, without any information as to the purpose for which the lime was required. If the plaintiff, under these circumstances, would wish to ascertain his true legal position, he must find out how much of the lime was required for necessaries, and how much for other purposes; and in the event of his having to sue for the price, he must shape his case accordingly.
56. If his proper claim is against the estate, he would have to find out who is the next reversionary heir, and to make him a defendant in the suit; and here he would expose himself to two risks, which I must say it seems to me very hard to impose upon a contractor in the plaintiff's position.
57. His suit would be defeated as against the alleged reversioner-
1st.--By his failing to prove that he was the next reversionary heir; and
2nd.--By its being shown that the goods were not ordered or required for necessary repairs, but for purposes which were not necessaries.
58. It is obvious that in such a suit the alleged reversioner must be allowed to set up either or both of these defences, because, generally speaking, it would be the object of the widow to shift the burthen of the debt from herself on to the estate; and whatever representations might have been made to the creditor at the time when the goods were ordered, it would be open to the reversioner to show that in point of fact the goods were not used or required for necessary repairs.
59. And difficulties still more serious might arise in suits, such as have been suggested, against the widow for waste.
60. Even assuming that the next reversionary heir lived in the neighbourhood, how could he possibly ascertain, if he was purposely kept in ignorance of the fact, whether the widow was paying her debts or not? And, again, what amount of neglect on the part of the widow to pay such debts would justify a suit for waste
61. If she left them unpaid for six months or a year, or two years, would that amount to waste? Or must the reversioner wait to sue for waste, until he is actually sued for the debt, or his estate has been attached or put up for sale under a decree?
62. These are all novel questions, of course, because the doctrine which gives rise to them is novel; but I fear that if that doctrine is really to be the law of the land, we shall soon hear enough about it in the litigation which will follow. If Hindu widows find, that by shifting their debts from their own shoulders on to those of the reversionary heirs, they can manage to spend their income for their own purposes and upon their own pleasures, I am afraid that they will not be slow in availing themselves of the chances which the law affords them. And this brings us to the question, why should Hindu widows be in any different position as against tradesmen and others with whom they deal, than ladies of any other nationality who have a life estate in immoveable property
63. A European, a Mahomedan, or a Parsee lady, who has a life estate in land, contracts with tradesmen and others, as anybody else in that position would do, upon her own responsibility.
64. The tradesman knows perfectly well that the person with whom he is dealing has only an estate for life, and if he is a wise man he looks after his own interests, and does not allow his customer to run too deeply into his debt.
65. There are thousands of persons in this country, officials and others, who have nothing but their salary, a life income to live upon, and their salary or income dies with them. Tradesmen and others who deal with such persons know this perfectly well; and are content to run the risk of it; and I cannot see why persons who deal with Hindu widows should be placed in any different position.
66. It may be, no doubt, as observed by my brother Mitter during the argument, that the legal status of a Hindu widow in former days was not so much that of a tenant for life, as of a temporary custodian of her husband's property.
67. But that, surely, is not the state of the law now. The true nature of a widow's estate was carefully and fully discussed and considered in the Full Bench case of Kerry Kolitany v. Moneeram Kolila 13 B.L.R. F.B. 1; and nine out of ten Judges of that Bench agreed in holding that the interest of a Hindu widow was not that of a mere custodian or trustee, but that she had an estate of inheritance in some respects larger than an ordinary estate for life under the English law.
68. Then why should she not be personally liable, like any other tenant for life, for goods or labour, which she orders? And why should persons contracting with her be in any worse or better position as regards their rights and remedies, than they would be as against any other tenant for life? The question for this Full Bench is not, upon whose credit, as a matter of fact, the plaintiff contracted; that question would be one for the Division Bench; what we have to decide is this, with whom, as a matter of law, in the absence of any evidence beyond the facts found, the plaintiff contracted to supply the lime, and I am at a loss to see why a different rule should be applied to the case of a Hindu widow from that which would be applied to any other case of a tenant for life.
69. It may be, that in this particular instance it would be morally right that the plaintiff should be paid by the defendants, but I am strongly opposed to sacrificing principle, and introducing novel doctrines into this or any other Court in order to do justice in any particular case; and I consider that the plaintiff's contention is not only contrary to law, but that, as I have already explained, it would lead to much injustice and litigation.
70. There is more plausibility, and, no doubt, less danger, in the second proposition contended for by the plaintiff, but even this is very difficult to reconcile with the present state of the law.
71. Having regard to the discussion of their Lordships in the Privy Council in the case of Ishri Dut Koer v. Hansbutti Kaerain I.L.R. 10 Cal. 324 : L.R. 10 I.A. 150 it is clear that uncollected rents of a property held by a Hindu widow must belong at her death,' not to her estate, but to the reversionary heirs; and, therefore, unless it could be shown that the plaintiff's debt was charged in some way or other upon these rents, it is difficult to see how they can be legally made available for its payment. If the rents were not charged with the plaintiff's debt in the widow's lifetime, it is difficult to see how they could have become so charged at her death.
72. An ordinary tenant for life under the English law is entitled to all? rents, collected or uncollected, which became due in his or her lifetime. They belong to the estate of the life tenant and not to the reversioner.
73. And not only so, but by the Statute 4 & 5, William IV, c. 22, Section 2, all rents becoming due at fixed periods are made so apportionable between a tenant for life and the remainder man or reversioner, as that, on the death of the tenant for life during one of such periods, he or she is entitled to a proportionate part of the accruing rent up to the time of his or her death, and the remainder man or reversioner to the other part.
74. In this respect a Hindu widow is, by the present law of this country, placed at a great disadvantage, and her creditors also; because in case of her death all uncollected rents, instead of belonging to her estate, and being distributable amongst her creditors, belong to the reversionary heir.
75. It would undoubtedly be a very fair rule and productive, as far as I can see, of no hardship, that such uncollected rents should only be considered as belonging to the reversionary heir, subject to any debts which may have been incurred by the widow; at any rate, debts which have been incurred by her in providing for the necessities of the family property.
76. But this would be such a serious qualification of the law as laid down by the Privy Council, that I, for one, do not feel justified at present in adopting such a rule.
77. In my opinion, therefore, the question referred to us should be answered in the negative.
78. It is much to be hoped, that having regard to the novelty, the importance, and the general application of this question, and the divided opinions of this Court upon it, it may be submitted, before long, either in this or some other case, for the consideration of the Privy Council.
79. The first question referred to us is, whether, under the circumstances stated in the reference, the plaintiff is entitled to enforce his claim against the estate of Raj Chunder Doss generally in the hands of the heirs of the latter.
80. I feel great hesitation in expressing an opinion upon this question at variance with that of some of my colleagues, whose experience in the administration of the Hindu law is much longer than mine. But I am unable to come to any conclusion other than that at which the Chief Justice has arrived.
81. I agree generally in the reasons given by the Chief Justice for that conclusion; and I desire only to add some further considerations, which seem to me to support that view.
82. We are asked to say whether a widow or daughter, in possession of an estate as such, who incurs a debt for necessary repairs, there being no suggestion of any deficiency at any time of income out of which to pay it, nor of any necessity to charge the inheritance; and there being no evidence of an intention on anybody's part to charge the inheritance, and no evidence of a contrary intention, is to be taken, as matter of law, to contract on her own behalf or as representing the estate.
83. There is nothing, I think, peculiar about repairs; whatever rule we lay down in this case, must, I conceive, apply to all contracts properly made, and all liabilities properly incurred, in relation to the estate of which the widow or daughter is in possession; in fact, to all the ordinary outgoings which in a well-managed estate make up the difference between the gross income and the net income, such as Government revenue, rent (if any), maintenance and costs of collection.
84. In order to answer the question, in what capacity the lady contracts, or incurs liabilities in connection with the estate? I think, we must first ask another question: In what capacity does she hold the estate? If she holds it as a trustee or manager or on behalf or for the benefit of others, it may well be inferred that she makes contracts and incurs liabilities accordingly.
85. If she holds it as a beneficial owner, on her own behalf, and for her own enjoyment, I think, it follows that she contracts and incurs liabilities in a like capacity.
86. It is, I think, now well settled that a widow or daughter in question, not as such, holds as a beneficial owner, not as a trustee; and upon this principle the question now before us seems to me to be thereby disposed of. The authorities, I think, support the same view. They deal with the case of a Hindu widow; this is, in fact, the case of a daughter. The daughter's ease is certainly not one more favourable to the plaintiff's view than the widow's.
87. In the cases I am about to refer to, it is necessary to bear in mind that the question has arisen after decree and execution, and has related to the effect of the decree and execution; and, of course, it is one thing, to say what was the decree and what did pass under the execution sale, and another thing, to say what might or ought to have been the suit and the decree, and what might or ought to have been sold in execution. But in the cases in question, as in many other classes of cases with which we are familiar, the nature and incidence of the original liability has been considered in construing the proceedings which have been employed to give effect to it.
88. In the case of Kistomoyee Dassee v. Prosunno Narain Chowdhry 6 W.R. 304 it appears that one of several owners of an estate paid the Government revenue upon it, and sued his co-owner for contribution.
89. He obtained a decree against one of them, a Hindu widow, and put up her estate for sale in execution. The defendant became the purchaser. The question was, what passed by the sale, the widow's interest or the whole estate that had been her husband's? The Court said: 'She was a Hindu widow in possession, and the debt contracted was by her, and her rights and interests in the property were sold.' It is added: 'The decree might have declared the property itself liable for the debt.'
90. It seems to me to be held there, that the liability--a liability to contribute to Government revenue paid by a co-owner--was a personal liability of the widow; though from the nature of the liability, arising as it did from a payment made to save the whole estate, it was also a charge upon the estate. And that case is cited with approval by the Privy Council in Baijun Doobey v. Brij Bhookun Lal Awusti L.R. 2 I.A. 279. In Mohima Chundra Roy Chowdry v. Ram Kissore Chowdry 15 B.L.R. 142 the question, again, was what passed by sales in execution of decrees against a widow. One of the decrees was in a suit for rent, the other in a suit on a bond given for arrears of rent, the rent in neither case being rent of the property sold. The rent had accrued after the death of the husband. Couch, C.J., and Ainslie, J., held that only the widow's interest passed. Several reasons are given for this conclusion--amongst them, the want of proper parties to represent the estate. These reasons do not apply to the present case. But other reasons are given that do apply; having referred to two cases in which decrees had been obtained against widows for rent accrued during their husband's life, the Chief Justice says, what is laid down there is that where the suit is brought in respect of a debt due from the husband, the decree against the widow, although it may be apparently a decree against her personally, is not to be considered as such, but as a decree against her as the representative of her husband's estate, and the decree may be executed as such. In the present case, the debt was not due from the husband, and if the estate of the husband is to be charged, either for the arrears of rent becoming due after his death, or for the bond which was given by his widow, it can only be upon the ground that the debts were necessarily contracted by the widow or under such circumstances as to make the whole estate liable, and not merely the interest of the person who contracted them. The suits were against the widow, and the decrees made in both were against her, and purported to be against her personally. The question whether the debts were necessarily incurred, so as to charge the estate, was not tried in either of the suits. It was not necessary for the plaintiff, in either of them, to prove that, in order to obtain a decree, he had a right to a decree against the widow, upon proving in the one case that the arrears of rent were due, and in the other that the bond was executed by her.
91. This passage seems to me to show three things: First, that, in the opinion of the Court, the rent accruing due while the widow is in possession is a personal liability of the widow: secondly, that it cannot be made a debt against the whole estate without proof of necessity: thirdly, that the question, whether the rent is due, and the question, whether it is necessary to incur a debt in respect of it so as to charge the estate, are distinct questions.
92. In the note to that case is reported a case of Brij Bhookun Lall Awustee v. Mahadeo Doobey decided by Loch and Ainslie, JJ. In it the question was, what passed under a sale in execution of a decree against a widow for arrears of maintenance accrued due after her husband's death. It was held that the widow's interest alone passed. Ainslie, J., in the course of the judgment says: 'By the Hindu law, the claim was one to be satisfied by the holder of the property, at the time when each successive annual payment became due. I must hold that the debt was a debt incurred by Doorga Koowar (the widow) herself.' He says again: 'Assuming for the moment that Doorga Koowar's income from the properties of which she was tenant for life, with the right of a Hindu widow, was ample to provide for Net Koowar's allowance, as well as her own necessary expenses, it could not be asserted that there was any legal necessity sufficient to render valid an alienation by her.' It is then pointed out that the maintenance, being a charge on the estate, might have been enforced against the whole estate in a suit properly framed for the purpose, and, no doubt, it might, the charge being prior to the widow's estate.
93. That case came on appeal before the Privy Council L.R. 2 I.A. 275, and the judgment of this Court was affirmed. Their Lordships examine the form as well as the substance of all the proceedings. They consider, amongst, other things, the nature and incidence of the original debt, and, as it seems to me, they treat this as one of the elements in the decision of the case. They say: 'This was a personal debt of the widow, and there is nothing to show that the estate of Mudden Mohun (the husband) was charged by the decree. The sale against her in discharge of her personal liability was of the interest which belonged to her, and not of the estate which belonged to her husband. It was the widow's property only that was liable to be sold, or was sold, in discharge of her personal debt.' And, again, they speak of the view which their Lordships have taken of this decree; that it was a decree in a suit against the widow personally; that the decree was against her personally; that the attachment was to sell her property, that is, the interest which belonged to her in the estate and which was liable to make good her default: That judgment has been again explained by the same tribunal in the recent case of Jogul Kisore v. Moharajah Jotendro Mohun Tagore No. 51 of 1881 and No. 2 of 1882 dated 13th March 1884 unrep.
94. These authorities seem to me to show, that a Hindu widow in possession of her husband's estate is personally bound by the contracts she makes, and the liabilities she incurs in respect of matters properly payable out of revenue.
95. Secondly, that some of these charges may, from their own nature, also be charges on the inheritance, and may be enforced as such in a suit properly framed for the purpose.
96. Thirdly, that the widow cannot by any act of her's throw upon the inheritance liabilities properly her own, except in case of necessity.
97. Fourthly, that necessity means for this purpose not merely a necessity to make a payment, but a necessity for want of funds to pay it with, for throwing it upon the inheritance.
98. It is right, perhaps, to say, for the sake of caution, that I am not now dealing with the nature of the proof of necessity, or of enquiry into its existence, to be required. That subject has been dealt with by the Privy Council in Hunnooman Persaud Panday v. Babooee Munraj Koonweree 6 Moo. I.A. 393; Kameshwar Pershad v. Run Bahadur Singh I.L.R. 6 Cal. 843.
99. I have not found any authority for the proposition contended for in argument that all the legitimate liabilities, incurred by a Hindu widow in the management of her estate, are incurred by her as representative of the estate.
100. A case was cited from Macnaghtep's Precedents, chap. X, case VIII, page 283. The question referred to the Pundits was as to the liability of the reversionary heir of a deceased proprietor to pay a debt incurred by the widow of the latter while in possession of her husband's estate. The answer is, supposing the proprietor, a widow, who succeeded him, to have contracted the debt for the payment of rent due to Government or other necessary disbursement to save the estate, or for the purpose of promoting her husband's spiritual welfare, or for the support of the family, or for the due execution of any conditions made by her husband, and to have died prior to the liquidation of such debt, the proprietor's heirs, that is, his brother and brother's son are bound to discharge the debt; and if the amount was borrowed for the purpose of being appropriated to any other purposes than those specified, such debt must be satisfied by him who becomes possessed of her jewels and other moveable property. The question and answer are, as usual, brief and general in their terms. If we assume that they had to do with the case of a debt necessarily incurred (and we may quite as reasonably assume this as the reverse) the law laid down is quite in accord with the more recent authorities.
101. A case is reported in the note to Mohima Chunder Roy Chowdhry v. Ram Kishore Achorjee Chowdhry 15 B.L.R. 143 n : 12 W.R. 504 decided by Dwarkanath Mitter and Hobhouse, JJ. It has been pointed out by the Privy Council in Baijun Doobey v. Brij Bhookun Lal Awusti L.R. 21. A. 281 that the decision in that case has no bearing upon any such question as the present, for it was a case of the sale of a tenure. But Mitter, J., in his judgment does use the expression, ' the rent due to the zamindar cannot, under any circumstances, be treated as a personal debt of the widow.' Couch, C.J., in the case already cited 15 B.L.R. 143 n : 12 W.R. 504, at pp. 158, 159, points out that if these words referred to rent accrued after the death of the husband, and if they were pressed to the fullest extent of meaning which they might seem capable of bearing, they would be inconsistent with the Privy Council decision in Nugender Chunder Ghose v. Sreemutty Kaminee Dossee 11 Moore's I.A. 241. They would, if so pressed, certainly, I think, be inconsistent with the later Privy Council case which I have already cited.
102. There is another consideration which seems to me worthy of attention, namely, that the view taken by the Chief Justice of the question before us, and in which I concur, keeps the law upon this matter, strictly in harmony with the law upon the kindred subject of the widow's right to sell or mortgage.
103. I cannot see any principle of distinction satisfactory to my mind between the widow's power to charge the inheritance by a mortgage to meet a demand which cannot be postponed, such as Government revenue, and her power to charge the inheritance by obtaining credit in respect of a demand of a less stringent character, like the cost of materials for repairs. The view which we take places the two things on the same footing. According to the view contended for by the plaintiff they stand on quite a different footing. Necessity must be shown in the one case, and not in the other.
104. Another question, bearing upon this part of the case, was discussed before us: Whether given a case of necessity, an obligation incurred by a widow ipso facto binds the estate, or whether it is necessary further to show in some way that the estate was in fact charged at, or at least, that at the time of the transaction, the parties intended that credit should be given to the estate as distinguished from the widow and the widow's interest. Three cases were cited, which are not quite in accord: Ram Koomar Mitter v. Ichamoyi Dasi I.L.R. 6 Cal. 36; Gudgappa Desai v. Apaji Jivandrao I.L.R. 3 Bom. 237; Ramasami Mudaliar v. Selattammal I.L.R. 4 Mad. 375. That question seems to me not necessarily to arise in this case.
105. For the reasons I have stated, in addition to those given by the Chief Justice, I would answer the first question referred in the negative.
106. The second question, whether the plaintiff has a right to enforce his claim against the rents due and uncollected at the death of Juggodumba, ought also, I think, to be answered in the negative. I apprehend we must understand the question as limited to this suit, and as asking whether the plaintiff can in this suit enforce his claim as suggested. I do not see how he can do so upon any view of the case.
107. If this be a debt binding the heirs, then the plaintiff is entitled to a decree for his money and can execute it against the estate in their hands. But he is not entitled to a decree charging the debt upon any particular property.
108. If this is not a debt of the heirs, but of the deceased lady, and if these outstanding rents pass to the heirs simply, then I do not see how the' plaintiff can succeed against them, unless he shows that his debt is charged upon these rents, But when did it become charged and how
109. It was not a charge in Juggodiimba's lifetime. She was free to spend those rents as she pleased and to make what arrangement she pleased for the payment of the plaintiff's debt.
110. A third view has been suggested, namely, that these rents are applicable in the first place to pay Juggodumba's debts of the class to which the plaintiff's belongs, and that only the balance properly passes to the heirs. This view certainly has much to commend it on grounds of justice. But if it be correct, I do not see how we can give any effect to it in this suit. If these rents are liable to all or any class of the debts of Juggodumba, either in relief or in addition to the general assets of her estate, they may be made available for that purpose by a suit brought by the proper parties, that is to say, by the heirs of Juggodumba, who are charged with the administration of that estate and the payment of those debts.
111. It was stated during the argument, and, I think, admitted, that a decree has been made for the administration of Juggodumba's estate. If so, and if these rents are applicable to the payment of her debts or any other, they must, I think, be brought under the control of the Court in the administration suit.
112. And the Court can in that suit direct any such supplemental or ancellary proceedings as may be necessary for the purpose.