1. This is an appeal from a decision of the learned Additional Subordinate Judge of Hoogly dated the 16th September 1911. The suit out of which the present appeal arises is a suit brought to enforce certain mortgage securities. It appears that one Satya Dayal Banerji, who died as long ago as the 30th May 1897, left a Will, dated the 11th January 1897, under the terms of which the plaintiff and the defendant No. 2 in this case, who are his sons were executors. The defendant No. 3 is the only other son of the deceased Satya Dayal Banerji. In accordance with their duties as executors the plaintiff and respondent No. 2 had in their hands certain moneys and these moneys they invested in these mortgage securities, the mortgagor in each case being the defendant No. 1. These mortgages were dated respectively the 6th November 1898, the 10th February 1899 and the 20th April 1899, and the respective principal sums were Rs. 14,000, Rs. 10,000 and Rs. 9,550-8-6. The plaintiff, apparently later on, had disputes with his brother, the defendant No. 2, and the present suit was brought by him to enforce these mortgage securities. He appears as the sole plaintiff in this case and his brothers have been joined as defendants.
2. The only question that is in dispute in this case is as to certain items that appear endorsed in the mortgage bonds as having been paid, it is said, to the defendant No. 2 by the defendant No. 1. It is said that this endorsement is a good receipt and that these sums ought to be given credit to the defendant No. 1. In the first place I disagree in the proposition of law that has been put forward by the learned Vakil for the appellant. This is not a case governed by Section 92 of the Probate and Administration Act at all. Section 92 applies to property which the English lawyers say rests in the executor virtute office. That appears from Section 4 of the Probate and Administration Act. It is the property that lies vested in him, thfit is, the executor as such, that Section 92 applies to. The illustrations to Section 92 make it clear. In a system of law such as exists in England where there is a distinction between real and personal estates, it is a matter of some importance. But here where there is only one class of property, the matter is not of such great importance. Where the executor derives his title to a lease-hold by virtue of his office, it is frequently in English law a matter of great importance. When one looks at illustration (6) of Section 92, it will appear that one executor has power to surrender a lease, that is because the lease vests in him as such, as mentioned in Section 4 of the Act. The right under these bonds, notwithstanding that the money did, in fact, form a portion of the estate of the deceased, did not vest in the executors as such under Section 4 of the Act, but vested in them under and by virtue of the bonds which were given to them by the defendant No. 1. That being so the money was lent on a joint account and it was the duty of the defendant No. 1 on making re-payment to see that he made the payment to, and obtained a receipt from, a person entitled to give, him a discharge. So even if I come to the conclusion that the learned Judge of the Court below was wrong in the findings of fact, I should agree in the result that he has arrived at. The learned Judge, it seems to me in a case like this, was in a far better position than any Appellate Court is in, where the question is purely as to the weight and value to be attached to the evidence of certain witnesses that the Judge had before him and where he was able to appreciate the evidence that was given in his presence. We are not in an equal position and we are not entitled, unless we come to the conclusion that the learned Judge was clearly wrong in the conclusion that he arrived at, to distrub the findings of fact made by him. The learned Judge having these witnesses before him has come to the clear finding that the defendant No. 1 and defendant No. 2 acted in collusion to cheat the estate of the deceased Safya Dayal Banerji. If that be so, no weight can be attached to any statement of either of these witnesses unless it is supported by good and independent evidence. A great deal has been made of the admission by the defendant No. 2 that he was deceived of these sums that are alleged to have been paid by the defendant No. 1, a sum of Rs 4,939-10-6 payable on the second bond and another sum of Rs. 400 payable on the third bond. But tke learned Subordinate Judge has disbelieved the whole of this story. How can we, in appeal, not having seen the witnesses, say that these people were telling the truth, that we should hold that their evidence ought to be believed and that the statements made by these 'witnesses proving the payments ought to be given a greater weight than the learned Subordinate Judge has given them, and that we ought now to come to the finding that these payments were in fact made? Then, it is said that the learned Subordinate Judge was biassed as against the defendant No. 1, because he was the co-defendant in a divorce case and got off what the learned Judge calls scot-free. But I am satisfied on the judgment that it was not that only that made the learned Judge take an unfavourable view of the evidence given by the two defendants. The real fact is that he had before him the whole of their evidence, he disbelieved that evidence and disbelieved the genuineness of the endorsements that are on the bonds. I see no reason why we shoulu differ from the findings of fact made by the learned Judge, and I think we ought not to disturb those findings on the evidence as it now stands before us. Far from thinking that the learned Judge has come to a wrong conclusion, so far as I have been able to form an independent estimate of the evidence, I think that if I had been in the position of the learned Judge of the Court below, I would have arrived at a similar conclusion.
3. The only other point that was raised in this appeal is as to the form of the decree. The learned Subordinate Judge had before him all the parties interested in the estate of the deceased Satya Dayal Banerji, namely the plaintiff, the defendant No. 2 and the defendant No. 3, and thought it proper to give one-third of the mortgage-money to each of them, that being the share which each of them is entitled to, apparently under the terms of the Will, although, as a matter of fact, the Will has not been given in evidence. The only point raised is that the defendant No. 2 admitted that he had received Rs. 4,939-10-6 and Rs. 400 out of the mortgage-money and had endorsed these payments on the back of the second and third mortgage bonds, and it is said that at any rate the defendant No. 1 should have received credit as against the defendant No. 2 for these two sums so endorsed, which have been admitted by the defendant No. 2 to have been received by him. The learned Judge did not assent to that view and apparently on this ground, namely, that he was not bound by the admission and he disbelieved the admission; and, therefore, he thought that he ought to make a decree for the whole amount of the mortgage-money. What has happened as a matter of fact is, that the greater portion of the mortgage-money has been paid into Court by the defendant No. 1 and by an order of the Court it has been drawn out by the plaintiff, the defendant No. 2 and the defendant No. 3 in equal shares. So now it would not be convenient for the Court to alter that portion of the decree declaring that the defendant No. 2 should get one-third of the amount realized under the terms of the mortgage-deeds. The defendant No. 1 paid the money into Court, I suppose, on terms as to the stay of execution of the decree that then stood, and he must have known when he did that, that the Court might order that that money should be paid out on the terms of the decree then existing. Any right that he has got against the defendant No. 2 in respect of these sums which the defendant No. 2 says he has received, he will be able to enforce in an independant suit. I think it would not be convenient now to disturb the decree so far as the defendant No. 2 gets 1/3rd share of the mortgage-money, when in fact he has already received a greater portion of his 1/3rd share. On the whole I come to the same conclusion as the learned Subordinate Judge has come to and in my opinion the present appeal fails and must dismissed with costs to the plaintiff only.
4. I agree.