1. This is an appeal by the plaintiff and arises out of a suit brought by him to enforce a mortgage security executed by defendant 1 for self and as certificated guardian of defendants 2 and 3 and of their eldest brother Motilal Chatterji since deceased in favour of the plaintiff on 24th July 1922 for a sum of Rs. 7000. Defendant 4 who is the only contesting defendant in the suit has been impleaded as he claims to have purchased the mortgage property in the year 1927 in execution of a money decree. The Subordinate Judge of 24-Parganas before whom the suit came up for trial dismissed the suit with costs against defendant 4 and decreed the suit against defendants 1 to 3 with costs, the decree against them being a simple money decree.
2. It is against this decree that the present appeal has been brought. The questions of law which fall for determination in this appeal depend on facts which are not disputed and which may be shortly stated as follows: Premises No. 37, Chakraberia Road which forms the subject of the mortgage security belonged originally to one Becharam Banerjee who made a gift of the said property to his daughter Kamanimoni Devi by a registered deed of gift dated 20th November 1876 and Kamini was possessing the said property in absolute right till the time of her death which happened on 18th February 1908. In the meantime on 29th January 1908 the said Kamini executed a will to the effect that on her death her two grandsons (Haripada Chatterji and Motilal Chatterjee) by a predeceased son Benimadhav would obtain the said property in equal shares, and that Motilal would be the executor to her estate and would look after the property after her death. The will further provided that should Haripada die sonless then Motilal would obtain Haripada's half share of the property. At the time of Kamini's death there were living her grandson Motilal and a widowed daughter named Matangini but Haripada had not been heard of for a long time before Kamini's death and he left no heirs, consequently the entire estate devolved on Kamini's grandson Motilal. Motilal obtained the probate of the will in common form on 5th May 1909 and probate was directed to be issued on 21st December of the same year. Motilal died in April 1915 and was survived by his widow Bibhabati, defendant 3 and three minor sons Bankim, Kanai, defendant 1 and Joy Krishna, defendant 2. On 21st December 1918 Bibhabati acting as a certificated guardian of her minor sons and with, the sanction of the District Judge of 24 Parganas executed a mortgage in favour of Srinath De for repayment of a loan of Rs. 3,000 by which 37, Chakraberia Road South was hypothecated. It appears that when probate was applied for no citation was issued to Matangini the widowed daughter of Kamini who had in the meantime transferred her interest in Kamini's estate to two persons Charu Chandra and Bir Sinha. The latter two persons applied to revoke the probate of the will on 8th December 1920. The Additional District Judge of 24 Parganas passed the following order on the said application:
I am inclined to call upon the applicant for the grant to prove the will in solemn form and to prove the other remaining issue as to whether the will is a forged document in that proceeding. I do not at this stage order revocation directly and follow the rule laid down in Prem Chand Das v. Surendra Nath Sah (1905) 9 CWN 190 and direct that the probate be re-called and the District Judge would please call upon the Opposite party to prove the will in solemn form.
3. The will was proved in solemn form in the presence of Charu and the District Judge made an order for grant of letters of administration to the sons of Motilal with a copy of the will annexed. This order is dated 28th July 1924. An appeal was taken to the High Court against this order by Charu and this Court varied the order to this extent namely, that letters of administration with a copy of the will annexed was granted to Bankim the eldest son of Motilal as he alone had attained majority. The High Court however directed that the costs of the proceedings both in the High Court and in the lower Court should come out of the estate of the testatrix. This order was made by the High Court on 16th August 1926.
4. It has already been stated that on 24th July 1922 Bankim and his two minor brothers through their certificated guardian Bibhabati borrowed Rs. 7,000 from the present plaintiff and executed a mortgage in respect of 37, Chakraberia Road. Out of this sum of Rs. 7,000 the first mortgage in favour of Srinath De, father of the present plaintiff, was satisfied and sum of Rs. 2,151 was paid in cash to the mortgagors. This mortgage was also effected with the permission of the District Judge of Alipur obtained on 13th May 1922. On 14th January 1927 Charu Chandra and Bir Sinha made an application for execution of the decree of the High Court for costs against Bankim and his two brothers and on the death of Bankim pending execution his mother Bibhabati was substituted in his place. In the column which relates to the mode in which the assistance of the Court is required it was stated that the prayer was for realization of the amount of the costs from the estate of the late Kamini Debi by attachment and sale of premises No. 37, Chakraberia Road. In execution of this decree the right, title and interest of the judgment-debtors in No. 37, Chakraberia Road was sold and was purchased by defendant 4 who is the only contesting respondent.
5. On the state of facts stated above the Subordinate Judge was of opinion that the mortgage of the plaintiff which was for consideration must be postponed to the purchase of defendant 4 or in other words defendant 4's purchase would have priority over plaintiff's mortgage. Several issues were framed in this suit and it is not necessary to refer to them in any detail for the purposes of this appeal. In support of this appeal four points have been raised by Mr. Rupendra Kumar Mitter who appears for the appellant. He contends in the first place that no charge was created by the decree for costs passed by the High Court in favour of Charu Chandra Chatterjee and another. Secondly it is said that if any charge was created it was not a first charge; thirdly, he contends that even if it is a first charge the effect of the execution proceedings was not to affect the estate of Kamini as her estate was not represented in the said execution proceeding and it is contended in the last place that even if the decree for costs created a first charge on the premises in question the plaintiff has a right to redeem the charge as he was not admittedly made a party to the execution proceeding.
6. In support of the first two contentions reference is made to the provision of Section 321, Succession Act and it is said that the costs incurred by Charu in the revocation proceedings cannot be regarded as expenses of obtaining probate or letters of administration including the costs incurred for or in respect of any judicial proceeding that may be necessary for administering the estate within the meaning of Section 321, Succession Act, and reliance is placed on a decision in the case of Godwin v. Prince (1898) 2 Ch 225. That case however is distinguishable for there it was held that plaintiffs' costs of an unsuccessful action impeaching the validity of a will though ordered by the Judge of the probate division to be paid out of the testator's estate are not testamentary expenses. In the present case the revocation proceeding had to be started because the executor had not issued the citation on Matangini and the transferees of Matangini's interest merely wanted a decision upon the validity of the will by requiring the will to be proved in the solemn form. Besides it appears from the judgment of B.B.Ghose and Cammiade, JJ., that there were elements of doubt in the case arising from the fact that the petition for probate altogether ignored Matangini and that the will was not registered although executed at a place within a short distance of the registration office and also having regard to the fact that only one of the attesting witnesses was examined and the other was not. In these circumstances I am of opinion that there is no substance in the first two grounds taken.
7. The argument with regard to the third ground is put in this way; that in 1918 when the mortgage was made in favour of Srinath the title of Motilal as a specific legatee was perfected. It is argued that the premises in question was a specific legacy to Motilal and he must be presumed to have assented to his own legacy as he died about six years after the order for probate and the estate was then fully administered and reliance is placed on Section 333, Clause 2, Succession Act, which says that the assent of the executor to a specific bequest may be verbal and it may be either express or implied from the conduct of the executor and reference is made to Illus. 4 of that section which runs as follows:
Executors die after paying all the debts of the testator, but before satisfaction of specific legacies. Assent to the legacies may be presumed.
8. I am of opinion that this contention is sound and must prevail. The title of the legatee to the bequest was complete on the date of the mortgage of 1918 and by the mortgage of 1922 plaintiff was subrogated to the position of the mortgagee of 1918. The plaintiff having paid the first mortgage must be assumed according to the rule of justice, equity and good conscience to have intended to keep the first mortgage alive and was entitled to stand in the place of first mortgage: see Gokuldas Gopaldas v. Puranmal Prem Sukhdas (1884) 10 Cal 1035, also Malireddi v. Gopalkrishna AIR 1924 PC 36. Besides there is no need for assumption in this case for the mortgage deed itself shows that the intention was to keep alive the first mortgage for the deed states as follows:
I have paid to the first mortgagee Rs. 4,849 on account of the due under the first mortgage and having redeemed the first mortgage bond, I make it over to you as a document of title and you will be entitled to exercise whatever right, title or power the first mortgagee had under the law.
9. Now in the ultimate event the probate or rather the letter of administration with the will annexed stands. The plaintiff therefore acquired good title under the mortgage. It would seem also that the result of the execution proceeding was not to pass the mortgaged premises to defendant 4 for the sale certificate makes it expressly clear that what passed was the right, title and interest of the judgment-debtors in 37, Chakraberia Road and as the said premises was subject to the mortgage of the plaintiff defendant 4 merely purchased the equity of redemption in the said premises which remained outstanding in defendants 1, 2 and 3. An order that estate of Kamini might be got at the execution should have been taken against the estate but an examination of the application of the decree-holders at pp. 17 to 19 shows that execution was taken out against all the three brothers, Bankim, Kanai and Joyram and not against Bankim alone as representing the estate. I am therefore of opinion that defendant 4 as purchaser of the equity of redemption is liable for the mortgage debt. It remains now to consider the two cases relied on by the Subordinate Judge. The first case is that of Chuttraput Singh v. Maharaj Bahadur (1904) 32 Cal 198, and the other is the case of Puran Chand v. Monmotho Nath AIR 1928 PC 38. In the former of these cases their Lordships of the Judicial Committee said this:
When the estate of a deceased person is under administration by the Court or out of Court, a purchaser from a residuary legatee or heir buys subject to any disposition which has been or may be made of the deceased's estate in due course of administration. In fact, the right of the residuary legatee or heir is only to share in the ultimate residue which may remain for final distribution after all the liabilities of the estate, including the expenses of administration, have been satisfied.
10. And this principle was extended to the case of administration of trust in Puranchand's case AIR 1928 PC 38. An examination of the former case will show that the principle was made applicable to the case of a residuary legatee; those cases can have no application to the facts of the present case for here the specific legatee had acquired a title to the property in question long before the proceeding which resulted in the decree for costs in execution of which defendant 4 purchased. The result is that the decree and judgment of the Subordinate Judge are set aside and in lieu thereof there will be a preliminary mortgage decree for the sum of Rs. 10,000 as was claimed in relief (Ka) of the plaint and interest will be allowed on the sum of Rs. 7,000 at the rate stipulated in the mortgage bond with compound interest with yearly rest from the date of the suit up to the date of the period of grace and six per cent per annum thereafter.
11. This order is conditional on the mortgagee discharging the amount of cost of Rs. 484 which had been incurred by defendant 4 in the revocation proceedings with interest at the rate of six per cent per annum from the date of the judgment of this Court in F.A. No. 275 of 1924. This sum, that is, the sum in respect of which the preliminary decree has been passed must be paid into Court within six months from to-day. If the sum is not paid into Court within that date the mortgaged property will be sold. There will be an ordinary preliminary decree for sale on these lines. The plaintiff will be entitled to get costs of this Court and of the lower Court which must be added to the mortgage money.
12. I agree.