Richard Garth, C.J.
1. I think that the Court below had no power, under the circumstances, to add the name of the administratrix as a co-plaintiff or to give a decree in favour of both the plaintiffs.
2. The amendment was made at the trial under Section 32 of the Civil Procedure Code, which allows the Court 'to order that the name of any person who ought to have been joined in the suit, either as plaintiff or defendant, or whose presence, before the Court may be necessary in order to enable the Court effectually and completely to adjudicate and settle all questions involved in the suit, should be added.' That section, so for as the addition of plaintiffs is concerned, appears to me to apply to those cases only where the plaintiff who-has brought the suit is one of the right parties to sue, but some other person., either as being his co-contractor, or otherwise jointly interested with himself, ought to have been joined as a co-plaintiff. I do not think that the section is intended to enable a plaintiff who has brought a suit without having any right to do so, to add the name of a person who has the right to sue, and to obtain a decree in right of that person ; and I rather think that the learned Judge in the Court below was of that opinion, because he goes into the question of whether the original plaintiff in this case had a right to sue, and decides that he had, because the defendants were vexatiously withholding the debt from the plaintiff, and so the case came within the exception in Section 2 of Act XXVII of 1860.
3. Now it appears to me that, in this case, there is no ground whatever for saying that the defendants 'vexatiously withheld' the debt from the plaintiff. The plaintiff, of course, could have no claim whatever to the money till the death of his father Sibchunder on the 24th of May 1878. Within twelve days of that time,- namely, on the 3rd of June 1878,- the plaintiff brings this suit. It does not appear that Sibchunder ever required payment of the debt in his lifetime, nor that the plaintiff ever asked for it before he brought this suit. There certainly was no refusal on the defendants' part to pay it; and so far from the debt being withheld vexatiously or fraudulently, it appears from the answers to the interrogatories which have been put in by the plaintiff himself, that the defendants have been trying to make an arrangement to pay whatever was due from them to the plaintiff as well as to the other creditors.
4. The real reason why the suit was brought so soon after Sibchunder's death, was very candidly admitted by the plaintiff's counsel to have been because the promissory note bore date the 6th of June 1875, and the plaintiff's advisers filed their plaint on the 5th June 1878 to prevent the claim being barred by limitation.
5. But then Mr. Bonnerjee for the plaintiff contends, that where there is no real doubt as to the person entitled to receive a debt, the payment of it must be considered to be withheld vexatiously if the debtor simply omits to pay it. But this, in my opinion, is not the meaning of the section. If it were I think the object of the Act would be entirely defeated. The heir of a deceased Hindu or Mahomedan might then always sue for a debt due to his ancestor without even asking for it; and unless the defendant could show at the trial that he had any reasonable doubt as to the party entitled to receive the money, the plaintiff would be entitled to recover. This would not be affording to the debtor the protection which the Act intended to give him, and it would be giving no meaning, excepts perhaps a very strained and unnatural one, to the words 'withheld from fraudulent or vexatious motives.'
6. I consider the intention of the Act to be, that, as a general rule, no Court shall compel any debtor of a deceased Hindu or Mahomedan to pay his debts to any person unless such person shall either have obtained a certificate under the Act, or probate of the deceased's will, or administration to his effects. The only exceptions to this rule are cases where not only there is no reasonable doubt as to the person entitled to receive the money, but where also the debtor withholds the debt from fraudulent or vexatious motives. The mere nonpayment of the debt when it has never been asked for, or where the debtor is doing his best to pay it, is to my mind clearly not a withholding it from fraudulent or vexatious motives.
7. I am strongly disposed to agree with what fell from my learned colleague during the argument, that if the heir of a deceased Hindu sues for a debt without having obtained a certificate or probate or administration, upon the ground that his case is within the exception, -that is to say, that there is no reasonable doubt that he is the person entitled to receive the debt, and that the defendant is withholding it from fraudulent or vexatious motives;-if he does not make this statement, it ought to be a good answer on the part of the defendants that the plaintiff has not obtained a certificate or probate or letters of administration, and consequently that he has no right to sue.
8. The Madras High Court has held in Govindappa v. Kondappa Sastrulu (6 Mad. H. C. E., 131), that it is sufficient for the plaintiff to be prepared at the trial with proof of his certificate when he has stated in his plaint that he has applied for it, and possibly it might be right (in analogy to cases in England, where a party sues as executor or administrator, and obtains his probate or letters of administration before the trial) to hold that this would be sufficient.
9. But that is not the plaintiff's case here. He has neither obtained nor intended to obtain administration, and the defendants raised the point by a direct plea that administration had not been granted to the plaintiff, but had been granted with the plaintiff's consent to a third person. The plaintiff, therefore, having no right whatever to sue, and the Court having no power to compel the defendants to pay him the money, he applies at the trial to add the name of the administratrix as a co-plaintiff with himself. He does not apply to substitute her name for his ;- that he must have done under Section 27 of the Code, and the Court could not have granted the application unless it had been satisfied that the plaintiff had suedin his own name under some bona fide mistake. Here it is not pretended that there was any mistake. Nor was the application made upon the ground that the plaintiff and the administratrix claimed the right to this debt in the alternative (see Section 26). Mr. Bonnerjee does not attempt to put his case upon that ground. He contends, that the plaintiff and the administratrix had a joint interest in the debt, the one as the person beneficially entitled, the other as the person who had the legal right to sue.
10. But even assuming that in some cases it might be proper that a trustee and his cestui que trust should join as co-plaintiff's, that could only be in a case where the Court was at liberty, if it thought proper, to make a decree in favour of the cestui que trust. But here the Court is expressly prohibited by Section 2 of the Act of 1860 from ordering the defendants to pay the debt claimed to the plaintiff, and it is equally prohibited, as it seems to me, from ordering the defendants to pay the debt to the plaintiff conjointly with some one else who has a better title. If this were permitted, creditors would be deprived of the very protection which Act XXVII of 1860 was intended to afford them. A party, claiming as heir to a Hindu, but having no title as such, might always sue with impunity for a debt due to the estate, and then by bringing into the suit at the last moment the party who is really entitled, they might obtain joint decree.
11. In this case the party who had no right to sue brought the suit. The party who had the right did not sue, and yet by making these two persons co-plaintiffs at the trial, the Judge not only places them in a position to obtain a joint decree, but obliges the defendants, who had at any rate an answer to the suit up to the time when the administratrix was joined, to pay the costs of it ab initio.
12. The plaintiff had really no excuse then for the; course which he adopted. He might, if he pleased, have taken out administration himself, or when he waived his right in favour of his mother, he might have withdrawn his suit at little or no expense within three days after he had filed his plaint, and allowed another suit to be brought at once in the name of the administratrix. There was no difficulty as regards limitation, because interest had been paid up to March 1878, and the plaintiff had full notice of the mistake he was making, because the point was directly raised in the defendants' written statement....
13. In order to avoid further delay and expense, I am prepared, if both parties will assent to that course within a fortnight from this date, to allow the decree of the lower Court to stand in favour of the administratrix only, Mr. Bonnerjee's clients paying the costs in both Courts on scale 2. In that case the name of the original plaintiff will be omitted, and the amount of the defendants' taxed costs will be deducted from the amount of the decree.
14. If the parties do not consent to these terms within a fortnight from this date, the judgment of the Court below will be reversed, and the plaintiff's suit will be dismissed with costs in both Courts on scale 2.
15. The plaintiff in this case sued as only son and heir of his father to recover the principal and interest, moneys secured by a promissory note granted by the defendants to the plaintiff's father. The plaint was filed on the 5th of June 1878, within twelve days of the death of the father ; but the summons was not served on the defendants until the 18th of June. In the meantime, on the 8th of June, an order for a grant of letters of administration to the father's estate was made in favour of his widow. This order could only have been made with the concurrence of the plaintiff, who must have been aware before filing his plaint that it would be applied for.
16. The defendants, in their written statement, took the objection that letters of administration had been granted to the widow, which precluded the plaintiff from recovering in this suit. The plaintiff, however, elected to go to trial, and filed interrogatories, which the defendants were obliged to answer. But at the hearing the plaintiff's counsel asked the learned Judge in the Court below to add the administratrix as a co-plaintiff, which application, though opposed, was granted, as if authorized by Section 32 of the Code, and thereupon a decree was at once made for payment to the plaintiff and co-plaintiff, not only of the moneys secured by the promissory note, but also of all the costs of suit.
17. Against that decree the defendants have appealed, insisting that the learned Judge in the Court below had no authority to add the administratrix as co-plaintiff at the hearing, and at all events ought not to have directed the defendants to pay the costs of the suit; for if the addition of the co-plaintiff was nesessary, then no costs should have been given up to the hearing; and if her presence was unnecessary, then, at least, the defendants ought not to have been directed to pay her costs, or the costs incidental to making her a party.
18. Technically I am of opinion that the Court below did not have power to add at the hearing the administratrix as a co-plaintiff; and, of course, if the judgment of the Court below is technically wrong, the whole case of costs is open in appeal. In my opinion Section 32 of Act X of 1877 applies to a suit which is to some extent properly instituted, though partially defective ; in other words, there is no jurisdiction at the hearing to add a plaintiff, unless the original plaintiff had some title to sue. It was strongly urged before us, that the original plaintiff, as sole heir of his father, was entitled to sue alone for the debt, or at least had some title to sue. But Section 2 of Act XXVII of 1860 enacts that 'no debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person, or any part thereof, except on the production of a certificate, to be obtained in manner hereinafter mentioned, or of a probate or letters of administration, unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives, and not from any reasonable doubt as to the party entitled.'
19. In this case the plaintiff has not attempted to prove, nor is there any ground for saying, that the defendants withheld payment from fraudulent or vexatious motives. No demand was proved to have been made before suit, and before service of the summons an order for administration had been granted with the plaintiff's concurrence to another person. No offer of obtaining the concurrence of the administratrix was made before the hearing, and it appears that so far from evading payment, the defendants were taking steps to raise the money.
20. Section 27 of Act X of 1877 authorizes the Court to substitute or add the proper plaintiff when the suit has been instituted by a wrong person under a bona fide mistake ; but even if there were a bona fide mistake in this case, it appeal's to me that, as the section does not contain the words 'on or before the first hearing,' which appear in Section 32, the power given by the section ought to be exercised before the first hearing ; and as the objection was taken in the written statement, it was mere perversity of the original plaintiff to wait until the hearing before he asked for the administratrix to be made a co-plaintiff.
21. The order of the Court below being in my opinion technically wrong, the appellants would he entitled to have the decree reversed with costs in both Courts. But inasmuch as substantial justice was in fact done by the decree in ordering payment to the administratrix, I also should be willing, if the parties consent, and for the purpose of saving expense, to allow the decree to stand so far as it directs payment to the administratrix. But whether the parties consent or not, I think the plaintiff must pay the whole costs of suit and appeal, to be set off against the decree, if the parties elect to let the decree with the proposed modification stand.