1. This is an appeal from an order of the learned Subordinate Judge of Berhampore directing that the life-interest of a Hindu widow in certain Government promissory notes should be sold in the first instance and if this is not sufficient, the promissory notes themselves should be sold.
2. The decree against the widow was for mesne profits of a property recovered by the decree-holder in litigation with her husband. Part of the mesne profits accrued due during the husband's life-time and part after his death.
3. The learned Judge divided the claim into three periods: 1. The period of the husband's life-time for a few months in 1312. 2. The period of the executors of the estate under a forged Will during the remainder of 1312 and up to Assin 1316. 3. The widow's period from Kartick 1316 to Chaitra 1317 when she gave up possession. Shyamacharan Singh, the husband, died on the 1st April 1906. Litigation was then still going on. Plaintiff's title to recover possession of 1/3rd had already been declared but there was an appeal pending.
4. Plaintiff sued to recover possession with mesne profits on the 29th July 1907. The suit was kept pending for the Privy Council decision in appeal as to the title. The Privy Council delivered judgment on the 14th February 1911 = 2nd Falgun 1317 and the widow made over possession directly. She had notice of the decision in March 1911 Chait 1317. On the authorities it is clear that the widow could not be made personally liable for the mesne profits on her husband's estate. Only the estate itself could be made liable.
5. The widow was bound to defend the litigation by which it was sought to diminish her husband's estate by one-third. She did no wrongful act. She had no possession herself after the final decree of the Judicial Committee. She must, therefore, have been sued in her representative capacity for mesne profits and if her right, title and interest were put up for sale as it ought to have been, what would pass would be the estate of the husband. But in an enquiry as to the amount of mesne profits due to the decree-holder the learned Subordinate Judge passed a judgment on the 29th August 1914, which matured into the decree now sought to be executed, declaring that Kiranbala Dassi, the widow appellant, was liable for mesne profits from 1st Bysack 1313, Rs. 2,205 odd with interest and future interest till realization, secondly from 1st Bysack 1316, Rs. 2,306 odd with interest as before and thirdly, Rs. 5,936; from 1st Bysack 1317. Now the dates given in the decretal order and the decree appear not to tally with the periods set out by the Judge or with the findings of the Commissioner.
6. The first item appears to be for the first period, that is, the period during Shyamacharan's life-time.
7. This alone shows that the decree against Kiranbala for this sum, whatever the learned Judge who made it may say, was a decree in her representative capacity and the respondent has admitted before us that he does not press for the personal liability of the widow as far as that amount is concerned. That being so, as all the items are governed by the words 'Kiranbala is liable' the whole decretal order must be interpreted as meaning liable in her representative capacity. To hold otherwise would be to hold that the decree passed was contrary to all principle and authority and that a gross injustice was intended to be inflicted on the unfortunate lady by the Court. We observe that the learned Judge himself finds that it is quite true that the object of the decree-holder is to make Kiranbala Debi a beggar, because the promissory notes will pass out of her hands for a sum insufficient to cover the decree and they will have to be sold again at their face value as part of the husband's estate, yet he finds it impossible to interpret his own decree in the only way it can be interpreted so as to make it a legal and valid decree. In any case there was no decree against the life-interest of Kiranbala specifically. All that could be sold was her right, title and interest and if that had been done, the test to be applied in order to determine the exact interest which passed at the sale would depend upon the question whether the suit in which the sale was directed was one brought against the widow upon a cause of action personal to herself, or one which affects the whole inheritance of the property in suit; Jotindro Mohun Tagore v. Jugal Kishore 7 C. 357; 9 C.L.R. 51 upheld by Jugal Kishore v. Jotindro Mohun Tagore 10 C. 985; 11 I.A. 66. An examination of the Sub-Judge's judgment on which the decree is based clearly shows that for the first period during her husband's life-time the widow could not be personally' liable, for the second period, she has been held not liable as the executors who got possession under a forged Will could alone be liable; how then could she be liable for the third period in any other capacity than that in which she has been found liable in the decree for the mesne profits accrued due during her husband's life time? The learned Subordinate Judge has neglected to carry out the sound rule that was laid down by this Court in the case of Ramkishore Chuakerbutty v. Kallykanto Chuckerbutty 6 C.479; 8 C.L.R.1 in neglecting to state specifically whether the decree against the Hindu widow is a personal decree or one against her as representing her deceased husband and it was, therefore, open to any Court dealing with the decree to interpret it in accordance with sound principles of law and it was certainly not open to the Subordinate Judge to interpret it in a sense which would render it contrary to law. Even if the widow had been personally responsible for retaining possession after her, husband's death, which in this case she certainly was not, there is authority for holding that inasmuch as the origin of the debt was in her husband, and the proceeds of the sale could not be applied exclusively to a liability incurred after the husband's death, what would pass in a sale of the right, title and interest of the widow would be the estate of inheritance: Rajah Debendro Narain Roy v. Coomar Chundernath Roy 20 W.R. 30. In a suit in which the estate of her husband is in any way involved, the widow represents the whole estate of her husband and she alone is entitled to be a party as representing the estate and the decree fairly and properly obtained against her will bind the whole estate. See Katama Natchier v. Srimut Rajah Moottoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Taver 9 M.I.A. 539; 2 W.R.C.R.P.C. 31; 1 Suth. P.C.J. 520; 2 Sar. P.C.J. 25.
8. There can be no doubt on the facts, pleadings and judgment in this case that the widow was sued for mesne profits in her representative capacity and even after sale under the decree the frame of the original suit can and should be gone into, as was pointed out by Mookerjee, J., in Roy Radha Kissen v. Nauratan Lall 6 C.L.J. 490 at pp. 519-20, where all the authorities on this point are collected.
9. A fortiori this can and should be done in interpreting the decree before sale when the decree does not specifically show on the face of it whether it was a decree against the widow in her personal or her representative capacity. We there-fore, think that the order of the Subordinate Judge is erroneous and that all that can be sold in execution is the right, title and interest of the widow in the estate of her deceased husband. The petition for execution against her personal, life interest is infructuous and must be dismissed with costs as an appeal from order valued above Rs. 10,000.