1. The facts of the two appeals, Nos. 37 and 57 of 1933, are to some extent inter-connected with each other and it is necessary to state the facts of the two cases in the order in which they have been presented by the learned advocate for the appellant. It appears that there were two brothers of the name of Prasanna and Bhabani. Prasanna had also another name Gurucharan. He died leaving behind him a widow Sham Rangini and his brother Bhabani. During the lifetime of Sham, Rangini she executed a deed of relinquishment of her husband's estate in favour of Bhabani, the latter promising to giving a certain amount as maintenance to the lady during her lifetime. In 1917 Bbabani executed a promissory note for certain amount in favour of Sham Rangini who instituted a suit against Bhabani on the said note. During the pendency of that suit Bhabani died. Sham Rangini however obtained a decree against the sons of Bhabani who are four in number, namely Syamapada Roy, Nagendra Nath Roy, Birendra Nath Roy and Jogendra Nath Roy.
2. Against this decree which was obtained by Sham Rangini against the present appellants, namely the sons of Bhabani, the latter preferred an appeal to the District Judge. In the meantime Sham Rangini took out certain proceedings to which it is not necessary to refer. On 20th October 1925, during the pendency of the appeal, the amount which was decreed in her favour and which had swelled at that time to a sum of Rupees 2,070 odd was withdrawn by Sham Rangini, one of her relations having stood surety for her. On 5th March 1930 the learned District Judge in the appeal brought against Sham Rangini came to the conclusion that her suit on the promissory note was barred by the statute of limitation and the, suit was accordingly dismissed by the appellate Court. Sham Rangini preferred an appeal to the High Court. On 15th December 1930 the defendants, that is, the sons of Bhabani, made an application for refund of the money which bad been taken out by Sham Rangini after the decision of the Court in the promissory note case. To this proceeding the surety was added as a party. On 4th January 1931, while the appeal to the High Court was pending. Sham Rangini died. On the death of Sham Rangini the appellants wanted to bring on record three persons, Kumudnath Roy, Ambikapada Roy, and one Haran Chandra Adhicary, on the ground that they had intermeddled with the estate and as such they were legal representatives of Sham Rangini or of her husband's estate within the meaning of Section 2, Civil P.C. The Subordinate Judge held that they are not the legal representatives, as the appellants are the legal representatives, being both the reversioners of Sham Rangini's husband's estate as also the heirs of her stridhan property. The Subordinate Judge accordingly dismissed this application for restitution. The District Judge has affirmed that decision holding at the same time that no appeal lay to him. Notwithstanding, the learned District Judge has gone into the merits of the case. It is against that order of the District Judge that an appeal from appellate Order No. 57 of 1933, has been preferred to this Court.
3. Now to come to the facts of appeal from appellate Order No. 37 of 1933. On the reversal of the judgment by the District Judge in the promissory note suit it is said the defendants-appellants became entitled to an amount of about Rs. 4,500. Sham Rangini brought a suit for arrears of maintenance and obtained a decree against Bhabani on 11th June 1930. On 20th August 1930 she made an application for execution for a sum of about Rs. 1,379. On 23rd December 1930 Sham Rangini is said to have assigned the benefit of this ex parte decree of Rs. 1,379 in favour of one Haran Chandra Adhikary who is respondent in appeal No. 37. The validity of this deed of assignment was challenged by the defendants. They alleged that as the deed was registered on the date on which Sham Rangini died, that is on 4th January 1931, it cannot be said to be a deed which was registered by her at a time when she was in full possession of her senses and it was further contended that the deed of assignment was a forgery as Sham Rangini was admittedly a literate lady and as she is alleged to have signed the document in eight places in four of which her name was spelt in four different ways.
4. The handwriting expert one Mr. Hardless was examined who has deposed that the deed does not contain her signature. It is to be observed that the thumb impressions which were there are not disputed to be her thumb impressions; but it is said that the thumb impressions were obtained at a time when the lady was unable to execute the deed of assignment. It was further said that the Sub-Registrar before whom the deed was registered was examined. The present appellants asked for further recalling of this witness in order to put him certain relevant questions their case being that the Sub-Registrar had never been near Sham Rangini's residence at the time when the deed was said to have been registered. Both the Courts below have agreed in the view that the deed of assignment is a genuine one and that it was executed for consideration by Sham Rangini and have accordingly disallowed the objections raised on behalf of the present defendants-respondents. Against this concurrent judgment appeal No. 37 has been brought to this Court.
5. We deal with appeal No. 37 first as that has been argued first by the learned advocate for the appellants. Two questions arise in this appeal. It is argued in the first instance that the judgments of the Courts below are vitiated by irregular procedure which was followed by the Court of first instance seeing that the trial Court shut out evidence on material points and has allowed the late production of a document which has been marked as Ex F in the case and that the appellants have been seriously prejudiced by the reception of this document at the late stage. It is stated in the second place that Haran Chandra Adhikary, the respondent in the present appeal, has taken the assignment with notice of the claim made in the application for restitution by the present defendants-appellants against Sham Rangini and that the Courts below should have held that the defendants were entitled to get a set off of the sum for which restitution has been applied. With regard to the first of these grounds we are of opinion that there is absolutely no substance in it. It appears that the Sub-Registrar who was examined on 24th August was not put the question which it is now complained the appellants should have been allowed to put to him. Several days after, some time in September, an application was put in, before the Court stating that some material questions should be put to the Sub-Registrar in support of the case made by the appellants that the Sub-Registrar was nowhere near Sham Rangini's residence on the date the deed of assignment was executed.
6. We ourselves have examined those questions and we are of opinion that the Courts below were right in coming to the conclusion that some of those questions were not of any relevancy and did not bear on the questions in issue in the present case. In matters of this kind a certain amount of discretion is always vested in the trial Court, and in the exercise of that discretion the Court of first instance was of opinion that the questions were more or less of a frivolous character, and having examined some of the questions we have read we are of opinion that this ground must fail. With regard to the late production of Ex. F it appears that this document was not in possession of the present respondent, but was in the possession of a pleader who produced it on 4th June 1931. It does not appear that any application was made to the trial Court asking for time to rebut the evidence produced at the late stage namely to rebut the letter which was really produced for the purpose of showing an admission made by Sham Rangini as to the execution of the deed of assignment in question.
7. With regard to the second point taken namely that the assignment was subject to equities and that the Courts below were wrong in not allowing a set off of the sum of-Rs. 4,000 odd which forms the subject matter of the application for restitution against the sum of Rs. 1,379 in respect of which the application for execution has been made by her, reliance has been placed very strongly by Mr. Mitter who appears for the appellants in these two appeals on Section 49, Civil P.C. It is said Haran Chandra Adhikary who was really looking after the litigation on behalf of Sham Rangini had notice of this application for restitution and as such he must be said to have taken the assignment with notice of this equity. The question which arises for decision is as to whether the mere claim in the application for restitution of certain sum of money as against Sham Rangini can be held to be an equity which was available in favour of the present appellants. It is contended for the respondent that Section 49 which occurs in the body of the Code is expressed in very general terms and it is the rules in the schedule to the Code which really state the way in which this equity is to be worked out and it was never intended by the framers of the Code that although there was in existence on the date of the assignment no cross decree in the restitution matter, still the rights of the assignees will be subject to the mere claim for restitution. If one looks to Section 49 of the Code the illustrations to the section which of course are not exhaustive show that in both the illustrations what was allowed to be set off were the two decrees that had been obtained on the date when the execution application was made.
8. The principle which is embodied in Section 49, Civil P.C., is the same as that enacted in Section 132, T.P. Act of 1882, and it appears to us that the right of set off is undoubtedly an equitable right, and if the judgment-debtor has the right to set up a cross decree under Order 21, Rule 18 of the Code, he has this right also against the transferee of the decree-holder. Reference may be made in this connexion to a decision of this Court in the case of Kristo Ramani Dassee v. Kedar Nath (1912) 16 Cal 619, which was decided at the bar. In Illus. 2, which really|is taken from the facts of the case of Kristo Ramani Dassee v. Kedar Nath (1912) 16 Cal 619 to which we have just referred, it appears that at the time when C applied for execution against B of the whole decree B had already obtained a decree against C and it was held that C was not entitled to execute the decree for more than the sum which C could recover after the set off. From the other illustration also it appears that if A holds a decree against B for a sum of Rs 5,000 and B holds a decree against C for Rs. 3,000 and A transfers his decree to C, C, cannot execute the decree against B for more than a sum of Rs. 2,000. The right of set off was not in existence on the date when this application for execution of the present respondent in respect of the decree assigned over to him was made. In these circumstances it appears to us that this ground also must fail. It has been pointed out further on behalf of the respondent that even during the life-time of Sham Rangini the order for sale in execution of the decree which has been assigned over to the present respondent was made and it is argued on the principle analogous to res judicata, which has been enunciated by their Lordships of the Judicial Committee of the Privy Council in the case of Mungal Pershad Dichit v. Grija Kant Lahiri (1910) 8 Cal 51 that it is no longer open to her legal representatives to contend that execution cannot proceed for the entire sum in respect of which it is sought to bring about a sale of the property. On all these grounds we are of opinion that this contention of the appellants must also fail. The result is that this appeal must be dismissed.
9. To take now Appeal No. 57. It is argued in this appeal that the Courts below were not right in coming to the conclusion that this application for restitution must fail seeing that there hag been a merger of the rights of the creditor and the debtor the two rights having vested in one and the same set of persons. It appears that after the death of Sham Rangini as has already been stated her husband's estate vested in the present appellants and the present appellants are also the heirs of Sham Rangini. Therefore one could see every reason in ordinary circumstances to hold that after Sham Rangini's death the rights of the estate of Sham Rangini, either her personal estate or her husband's estate would vest in the appellants. Therefore the position is that so far as the application for restitution is concerned the applicants and the opposite parties would be one and the same set of persons. There would in such circumstances be what has been termed as merger of two interests. This position was considered in a very early case by the very learned Judge, Mahmood, J., of the Allahabad High Court. In circumstances similar to the present the learned Judge observed in the case of Banarsi Das v. Maharani Kuar (1883) 5 All 27, (at p. 34) thus:
We are prepared to hold that when on account of death a creditor becomes heir to a debtor or a debtor becomes heir to a creditor, and thus the two opposite characters of debtor and creditor become united in the same person the application to pay money may be regarded as extinguished.
10. This principle has been followed in a later decision one of which was the decision of the Madras High Court to which the learned District Judge has referred. The principle accords with common sense and we agree with the principle laid down in the Allahabad case. In our opinion that application for restitution by the appellant can no longer be executed. It is next said that even if it could not be executed as against the present appellant it is certainly executable as against some persons, namely the respondents who have already been stated to be three in number who have intermeddled with the estate of Sham Rangini's husband as also with her own personal estate and as such they are legal representatives against whom execution can be levied within the meaning of Section 2, Clause 11, Civil P.C. The facts which have been found are that they have in their possession a small part of the movables, namely the utensils and so forth, and perhaps a small cash belonging to the estate either, of Sham Rangini or her husband. But there is no finding, neither there is any assertion, in the application to substitute them as legal representatives to the effect that they are in possession of the movables and cash with the intention of representing the estate either of Sham Rangini or her husband. In these circumstances it becomes very difficult to hold that they are really legal representatives within the meaning of Section 2, Clause 11, Civil P C. It is one of the essential tests with regard to the case of persons who intermeddle with the estate of another before they can be called as legal representatives of the deceased persons that they must retain possession of properties belonging to the estate with the intention of representing the estate. That is the view which has been taken in a very recent case in this Court in the case of Satya Ranjan Roy v. Sarat Chandra AIR 1926 Cal 825 which has been also referred to by the learned District Judge. It is next said as a part of the argument on this branch of the case that by reason of irregularity of procedure in the Court of first instance it has not been possible for the appellant to establish that the three persons who are the respondents are really the legal representatives within the meaning of Order 2, Rule 2. It is said that an application was made asking for discovery of the books of the estate and that application was acceded to by the Court and notwithstanding that the books which were in possession of the three respondents have not been produced and the Court should have taken other steps to ensure the production of those books and if those books had been produced it would have been possible to show that the respondents were in possession of a large portion of the cash and movables belonging to the estate and from that intention might have been gathered that they did so with the object of representing the estate. It appears further that when this application for discovery was made each of the three persons came forward and said that they were not in possession of those books and consequently notwithstanding the order made by the Court the case proceeded without these documents. It appears further that this objection, namely, that there has been prejudice by reason of this prayer for discovery not having been given effect to was not taken in the grounds of appeal before the learned District Judge in appeal. In these circumstances we do not think we shall be right in allowing this objection to be raised here. It is not necessary in this view to consider the other ground on which the appeal of the appellant before the lower appellate Court was dismissed, namely that the appeal was incompetent for the learned advocate for the respondents does not wish to press this ground. It appears therefore that for reasons we have given this appeal must also be dismissed. The result therefore is that both these appeals must be dismissed with costs. We assess the hearing-fee at two gold mohurs in each case.
11. I agree.