1. This is an appeal by defendants 3 and 5 from a decree by which the plaintiffs' claim for recovery of arrears of rent for a certain ferry alleged to have been leased out to their father by the plaintiffs has been decreed against them and some others. One of the contentions which was attempted to be urged on behalf of the appellants was that no lease was taken and so no money was due; but in view of the evidence, oral and documentary that there is on the record and which amply establishes the fact that such a lease was taken and that the amount claimed was due under it, this contention was not eventually pressed. The other contention, which is of considerable substance, is that the decree, such as it is, is not supportable. The appellants' father Tamizuddin died leaving his mother, a widow, three sons and three daughters. All these heirs were impleaded in the suit as defendants. Two of these heirs, namely, defendants 6 and 8, were minors and as they were not properly represented, the suit as against them was dismissed. It was decreed against the others, on contest against defendants 3 and 5 and ex parte as against the rest. The entire amount due from Tamizuddin as claimed was decreed against these defendants, they being held 'liable for the aforesaid decretal amount to the extent of the assets of Tamizuddin inherited by them.'
2. Now, all authorities are agreed that if the estate of Tamizuddin had been distributed after his death each of his heirs would have been liable for his debts to the extent only of a share proportionate to his own share of the estate (Pirthipal Singh v. Husaini Jan (1882) 4 All 361, Amba Shankar v. Sayad Ali (1395) 19 Bom 273, Bussunteram Marwary v. Kamaluddin Ahmed (1885) 11 Cal 421 (at p. 428). What we are concerned with here is a ease in which there has, in fact, been no distribution. Two questions arise: 1st. Whether the creditor may sue any heir in possession of the whole or any part of the estate without joining the other heirs as defendants, for realization of the entire debt, and if so, whether a decree for the entire debt passed in such a suit may be enforceable against all the assets that are in his possession or only against that particular heir's share in the estate; and 2nd. What sort of decree should be passed in the present case. So far as the first question is concerned the opinion of this Court has been consistently in the affirmative. Two decisions in support of this view may be cited. In the case of Muttyjan v. Ahmed Ally (1882) 8 Cal 370, three earlier decisions, amongst others, were referred to, viz., Mt. Nuzeerun v. Ameerooddeen (1875) 24 WR3, in which the analogy of a Hindu widow sued in her representative character was applied, 33 Bibi v. Boy Lutchmeeput Singh (1379) 4 Cal 142, in which such analogy was ignored but the procedure prescribed in the Hedaya for the guidance of Mahomedan Law officers was relied upon, and a much earlier decision of the Sudder Dewany Adawlut in Kishwur Khan v. Jewan Khan (1799) 1 Mac Sel Rep 33, in which neither of the aforesaid two views was adopted but it was held that creditors' suits were to be regarded as administration suits. The learned Judges held that the proper principle to apply was to treat the creditors' suit as an administration suit, and as such an heir in possession is bound to account for any assets that may have come into his hands and to that extent he is liable to pay the creditors and that the residue, if any, is to be divided amongst the heirs. The case was very unfavourably commented on by Mahmud, J., in a very exhaustive judgment in the Full Bench case of Jafri Begum v. Amir Muhammad Khan (1885) 7 All 822, notwithstanding that it was followed in a later decision of this Court in the case of Amir Dulhin v. Baij Nath Singh (1894) 21 Cal 311. The learned Judges appear to have felt the force of the contention that was urged against the view. They observed:
If we rightly apprehended his argument, it was directed to this, that the amount decreed ought to be proportionate to the interest in the estate of the particular heir, and that when it is sought to recover the whole of the debt all the heirs ought to be before the Court. Stated in that form, the proposition is one of which there is much in favour. An individual heir cannot be said with strict propriety to represent his coheirs in a suit brought by a creditor to enforce his claim against the property of the deceased proprietor. The right of each heir is several and distinct, and arises, as has been said, immediately on the death of the person whose heir he is. There is no intermediate vesting and no rule of Mohamedan law by which an individual heir, as such, may be taken to represent either the estate or the heirs generally.
3. Having made these observations and quoted Jafri Begum's case (1885) 7 All 822, and other cases in support of them, the learned Judges referred to the case of Amir Dulhin's case (1894) 21 Cal 311, and followed it giving some additional reason in support of the decision in that case. The reason why they did so was gut in the following words:
And we think that apart from the consideration that it is an authority of this Court which has remained unquestioned now for several years, it embodies a salutary rule and one to which effect ought to be given.
4. The principle enunciated in Jafri Begum's case (1885) 7 All 822 which, as already stated, was also acknowledged as correct, in Amir Dulhin's case (1894) 21 Cal 311, though not acted upon therein has been adopted in later decisions in Allahabad: see Dullu Mal v. Hari Das (1901) 28 All 263, and the more recent decisions in Bombay: see Bhagirathibai v. Roshanbai AIR 1919 Bom 61, Shahasaheb v. Sadashiv AIR 1919 Bom 135 and Lala Miya, v. Manu bibi AIR 1923 Bom 411, and has also been approved of in Madras Abdul Majeeth v. Krisknamachariar (1917) 40 Mad 243. In a recent decision, this Court has re-affirmed the proposition that in Mahomedan law there is no representation of the family as under the Hindu Law by one or more members of it, and expressed an opinion that the decisions of this Court which have proceeded upon an assumption that the doctrine of representation is applicable to Mahomedan families may require reconsideration. Notwithstanding all this we should not be prepared to make a reference to the Full Bench to examine a settled view of law as propounded in this Court ever since the days of the Sadar Dewany Adwlut: Kishwar Khan v. Jewun Khan (1799) 1 Mac Sel Rep 33, and which was upheld in Amir Dulhin's case (1894) 21 Cal 311, in a considered judgment in which the force of the observations in Jafri Bogum's case (1885) 7 All 822 was fully recognized.
5. We now arrive at a point where it becomes necessary to consider the second question formulated above. The principle which this Court has acted upon, treating the creditors' suit as an administration suit, in our opinion, cannot, and should not, be applied indiscriminately to all cases in which some only of the heirs are sued for recovery of the entire debt. It has its limitations. There are weighty reasons why it should not be applied to suits other than those in which some only of the heirs are sued, as being in possession of a part or the whole estate or assets not merely for themselves but on behalf of all the heirs. The decisions of this Court, to which we have referred as adopting this principle, sufficiently show that the suits concerned therein were against some of the heirs who were in possession of the whole or the part so as to be bound to account for the same to the rest, or in other words were against some of the heirs who were in possession of more than their share of the inheritance. It is only on such a footing that the analogy of an administration suit can, with any show of reason, be invoked. 'Where however that is not the case, but the heirs are made parties as being in possession of their shares of inheritance only, the principle cannot possibly be of any application. In the present case all the heirs were made parties, suggesting that each was in possession of the share he or she had individually inherited. In our opinion it would be wholly wrong to apply this principle to such a case. Here, two of the heirs, namely, defendants 6 and 8 have been absolved, the suit against them being dismissed because they were not properly represented; and the other heirs if they are made liable for the entire debt, will have no right of contribution as against them. Either under the Mahomedan law or according to the principles of justice, equity and good conscience which we are bound to look to where, as here, both the parties to the suit are not Mahomedans: see Section 24, Act 6 of 1871, the plaintiff should not recover from the remaining defendants anything more than their proportionate share of the debt from out of the assets they have inherited in their shares. This view is supported by the decision of this Court in the case of Bussunteram Marwary v. Kamaluddin (1885) 11 Cal 421. A Hindu creditor of a deceased Mahomedan sued his heirs four in number to recover money due from him alleging that they were in possession of the estate left by him; the debt was barred against three of the heirs but, not against the fourth, one Kamaluddin who had made a part payment.: In the Court below the entire claim was decreed against the fourth heir, the suit against the other three being dismissed. It was held that under the circumstances of the case and having regard to the rule of Mahomedan law, the creditor was not entitled to a decree against Kamaluddin for more than his own proportionate share of the debt and that on principles of justice, equity and good conscience, it would not be equitable to hold him liable for the whole of the debt. The learned Judges observed:
What the Mahomedan law says is that only when the estate is completely involved that the heirs cannot take the estate and a decision amongst them cannot be allowed before the debts are discharged. We therefore hold that in the circumstances of the present case the plaintiffs, under the Mahomedan law, can only obtain as against the two-fifth share of Kamaluddin a proportionate share of the money due to him....The debt due to the plaintiff is indeed an indivisible one; and the plaintiff would, under ordinary circumstances, be entitled to realise 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 case are such that it 'would be inequitable to insist that Kamaludddin's share should bear the whole of the debt. The claim of the plaintiff as against the 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 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 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 the case, we are of opinion that the plaintiff, is entitled to charge the share of Kamaluddin with any more than a proportionate share of his dues.
6. The result is that in our opinion the appeal should be allowed in part and the decree made by the Court below in favour of the plaintiff and as against the defendants other than defendants 6 and 8 should be modified by reducing the amount of the claim to 71/88 x Rs. 6,479-2-9= Rs. 5,227-8-3, representing the share of the debt proportionate to their share of inheritance. In other respects, the said decree will stand. The costs of this appeal will be awarded to the parties in proportion to their success.