Tottenham and Ghose, JJ.
1. This was a suit brought by the plaintiff, one Bussunteram Marwary, against Sheik Kamaluddin, the grandson, and three ladies, being the grand-daughters of, and heirs to, the estate left by one Furzund Ali. There was also another defendant in the suit, viz., one Azeezunissa; but we think we may discard her from our consideration, because, as disclosed in the judgment of the Court of First Instance, her husband, Yusoof Ali, the son of the said Furzund Ali, predeceased his father, and therefore she (Azeezunnissa) could not rank as an heir.
2. The suit was instituted for recovery of a sum of Rs. 1,758-12-8 due upon a roka said to have been executed by the said Furzund Ali; and the plaint alleged that, ' after his death, the defendants, his 'heirs,' were in possession of his estate,' and asked that judgment might be given for the money 'against the estate of Furzund Ali, ancestor of'the defendants.'
3. The defendant No. 1, Kamaluddin, raised no other defence than that the account given in the plaint was not correct, and that the plaintiff was not entitled to recover the whole amount claimed.
4. Among the female defendants, Osikunnissa and Ohidunnissa defended the suit upon the ground that the roka in question was not true, and that it was barred by limitation; and that the suit itself was the result of collusion between the plaintiff and Kamaluddin.
5. It appears that the plaintiff relied upon an endorsement said to have been made by Kamaluddin on the back of the roka, showing that before the roka was barred by limitation, Kamaluddin had paid a certain sum of money as part payment of the principal; and he (the plaintiff) therefore contended that the suit was within time. Kamaluddin was examined about this matter, and he admitted the said endorsement and payment, and alleged in the course of his evidence that the collections from the entire estate were in his charge, and that he had not as yet paid his sisters anything from the collections.
6. The Court of First Instance, while suspecting that there was collusion between the plaintiff and Kamaluddin, and that the alleged part, payment of. the principal was not true, held that there was no authority in Kamaluddin to pay any money on behalf of the other heirs, and that the claim as against them was barred by limitation, but that the suit should be decreed against Kamaluddin, because he did not oppose the claim, and because he admitted having made the said payment, which had the effect of saving the claim from being barred. The Court then found that Rs. 1,729-12-9 was due to the plaintiff, and gave him a decree for the whole amount as against Kamaluddin, and declared that the decree should be realized from, and by the share of, that person alone, and that the shares of the other heirs should be exempted.
7. Against this decree of the first Court the plaintiff preferred no appeal; but the appeal that was made was by the defendant Kamaluddin, complaining that the decree as passed against him was erroneous. The District Judge has held that the claim as against Kamaluddin is not barred by limitation, though it is barred against the other heirs, but that under the Mahomedan law no more than an amount proportionate and equal to his legal share, which was two-fifths, in the estate left by Furzund Ali, could be decreed against him. The Judge accordingly decreed the claim for a two-fifth share of the money due under the roka.
8. Dissatisfied with this judgment, the plaintiff has appealed to this Court; and in this appeal he has enlisted, not only Kamaluddin as a respondent, but also the other heirs, who were not parties in the lower Appellate Court. His counsel has urged the following points before us:
First.--That under the Mahomedan law the debts of the deceased, being a prior charge, the heirs cannot take the estate before the said debts are paid; and therefore a decree should have been awarded for the amount due to the plaintiff against the whole estate of Furzund Ali.
Second.--That this being an administration suit, and Kamaluddin being shown to be in possession of the whole estate in his representative capacity, a decree should be awarded charging the whole of the assets in his hands.
Third.--That, at any rate, a decree should be passed for the whole amount as against the share of Kamaluddin.
9. There can be no doubt that, according to the Mahomedan law, next to the duty of meeting the funeral expenses of the deceased, it is incumbent upon the heirs to discharge his debts, and that the whole estate is answerable for the same. If in this case the claim under the roka was not barred by the law of limitation as against the other heirs, a decree might have been properly given charging the whole estate. But the Munsif held, and there was no appeal against his decision by the plaintiff, that the claim was barred against those persons, and accordingly exempted their shares from liability. If the plaintiff was desirous of obtaining a decree against the whole estate, he should have appealed to the higher Court; and we hold that it is not now open to him to ask that the claim should be adjudged against the estate generally. We may also observe that, as a matter of fact, although the question was raised by the said defendants no decision was come to by the first 'Court upon the question whether the roka itself was genuine. That Court simply proceeded upon the admission of Kamaluddin in decreeing the claim as against him. But before any decree could be awarded, binding the other heirs and the whole estate, the debt should have been proved and found to be true- [see Hedaya, Bk. XXXIX, ch. I, and Assamathem Nessa Bibee v. Roy Lutchmeeput Singh I.L.R. 4 Cal. 142].
10. Mr. Amir Ali, however, contends that Kamaluddin being shown to be in possession of the whole estate, he must be taken to be in such possession in his representative character, and therefore he should be called upon to account for the assets in his hands, and a decree passed accordingly against such assets. But it must be remembered that the suit of the plaintiff as laid in the plaint was not of that character. The plaintiff in his plaint distinctly alleged that all the heirs were in possession of the estate, and asked for a decree against the estate upon that footing. It was not even suggested that Kamaluddin was in possession in his representative capacity, and no prayer was made to call for an account from him. It is indeed true that Kamaluddin in the course of his evidence said that the entire collections of the property were in his charge; but, in the first place, this was no part of the plaintiff's case; and, in the second place, neither the first nor the second Court accepted that statement, and found that this was so, but on the contrary the Munsif suspected that there was collusion between the plaintiff and Kamaluddin, and that the payment of Rs. 200, said to have been made by Kamaluddin, if made at all, was not made on behalf of the other heirs.
11. In this state of things we are unable to treat the case as an administration suit brought against Kamaluddin, in his representative character, and to give the plaintiff relief as against the whole estate, three-fifths of which was, as a matter of fact, exempted from the plaintiff's claim by the decree of the first Court, and in which decree the plaintiff acquiesced.
12. The next question that arises is, whether, failing to obtain a decree against the whole estate, is the plaintiff entitled to charge the share of Kamaluddin alone for the entire amount of his claim. This question is not free from difficulty; but, on considering the matter in all its bearings, we are of opinion that he is not so entitled. Under the Mahomedan law (vide Hedaya, Bk. XX, ch. IV), each of the heirs is bound to pay his own share of the debt; and it is only in the event of one of them being in possession of all the effects that the creditor is entitled to have recourse to him. And it also appears that if the estate be completely overwhelmed with debt, neither composition nor division among the heirs is lawful; but if the estate is not so completely involved, such a composition or division prior to discharge of the debts is allowable--(Hedaya, Bk. XXVI, ch. III). Now, in the present case, it is not the plaintiff's case that Kamaluddin is in possession of the whole property; and although there may not have been any division, properly so called, among the heirs, the plaint admits that they were in possession of the estate, and this must be taken to be a possession of their respective shares according to the Mahomedan law. The Allahabad High Court in two cases, in following the tenets of the Mahomedan law alluded to above, distributed the liability among the several heirs, and adjudged to the creditor a proportionate share of the debt--Hamir Singh v. Mussammat Zakia I.L.R. 1 All. 57; and Pirthipal Singh v. Husaini Jan I.L.R. 4 All. 361; and we agree with that Court in thinking that this was the proper course to adopt. In one of those cases--Pirthipal Singh v. Husaini Jan I.L.R. 4 All. 361--the facts were somewhat similar to those we have before us. It may be said that the Allahabad High Court proceeded upon the principle of the debt being small in amount, and that the debt in the present case is not small, but of considerable amount. But it is not shown what is the extent and value of the estate left by Furzund Ali. What the Mahomedan law says is that it is only when the estate is completely involved that the heirs cannot take the estate and a division amongst them cannot be allowed before the debts are discharged. We, therefore, hold that in the circumstances of the present ease the plaintiff, under the Mahomedan law, can only obtain as against the two-fifths share of Kamaluddin a proportionate share of the money due to him.
13. We propose, in the next place, to deal with the question of Kamaluddin's liability according to the principles of justice, equity and good conscience; for that is the rule of law laid down, when both the parties to the suit (as it is here) are not Mahomedans, in Section 24, Act VI of 1871 (the Bengal Civil Courts' Act), and it may be doubtful whether the questions involved in the present appeal are questions falling within the first paragraph of that section, under which the Mahomedan or Hindu law, as the case may be, is to be administered.
14. Now, it appears to us that the position of the parties is this: The judgment of the Court of First Instance--a judgment which was not questioned on appeal by the plaintiff--declared, as we have already mentioned, that the claim of the plaintiff was barred by limitation as against the other heirs, save and except Kamaluddin; and that the shares of those heirs should be exempted from liability. This judgment is final, and the plaintiff is not now entitled to touch any of those shares. The only share now in the hands of Kamaluddin is that which has devolved upon him according to the Mahomedan law, and which might be answerable for the plaintiff's demand. The debt due to the plaintiff is indeed an indivisible one; and the plaintiff would, under ordinary circumstances, be entitled to realize his dues from the whole estate, or from any portion of it as he might choose. But the circumstances that have occurred in the present instance are such that it would be inequitable to insist that Kamaluddin's share should bear the whole of the debt. The claim of the plaintiff as against the other heirs is now barred by the law of limitation, and their shares having been exempted Kamaluddin would not be entitled to demand contribution from them in the event of the whole of the debt being realized from him or from his share. That being the case, it would not be just or equitable to hold the share of Kamaluddin answerable for the whole claim. If Kamaluddin had not helped the plaintiff in keeping alive his claim by payment of a certain sum of money, he (the plaintiff) would not be in a position to get any decree at all. And we think that it would be unjust to hold that Kamaluddin by his acts and conduct (which the first Court suspected to be the result of collusion between the plaintiff and Kamaluddin) not only kept the claim alive, but made his share answerable for the whole demand. If Kamaluddin was in a position to call upon the other heirs for contribution, there would be no difficulty in decreeing the whole claim as against his share. But, in the circumstances of this case, we are of opinion that the plaintiff is not entitled to charge the share of Kamaluddin with any more than a proportionate share of his dues.
15. We therefore see no ground for disturbing the judgment of the Court below, and dismiss this appeal with costs.