1. The defendant No. 1 in the present case brought a suit against one Ichhamoyee Baishnabi and two other persons in 1904 to recover some money said to have been due from them in a hatchita. It appears that these two other persons, who in that suit were the defendants Nos. 2 and 3, were the nephews of Ichhamoyee. Ichhamoyee was a prostitute. During the course of the trial, Ichhamoyee died and the question arose as to who was to be substituted as defendant in the suit as her representative. The defendants Nos. 2 and 3 in that suit claimed to be the heirs and legal representatives of the deceased, and the plaintiff in the present suit, who was apparently the paramour of Ichhamoyee, came forward and produced a Will which he said was the Will of Ichhamoyee and claimed to be entitled to represent Ichhamoyee in that suit, on the ground that he was the executor and sole legatee under the Will. He had not then taken out probate of the Will and the Court trying the case held that the defendants Nos. 2 and 3 in that suit must be taken to be the representatives of the deceased. The suit was afterwards disposed of ex parte and a decree was granted to the plaintiff. In execution of that decree, the property belonging to Ichhamoyee was sold and purchased by the plaintiff, the present defendant No. 1, for seventy-five rupees. We are informed that the present plaintiff obtained probate of the Will of Ichhamoyee a few days before the date of the sale. The plaintiff then brought the present suit to have it declared that the sale in execution of that decree did not bind the estate of Ichhamoyee as that estate was not properly represented in that suit, that no right to the property of Ichhamoyee passed to the defendant No. 1 under the sale and that the plaintiff was entitled under the Will of Ichhamoyee to recover possession of the property.,
2. It seems that the Court of first instance at first decreed the suit; but on appeal, to the lower appellate Court, the suit was remanded to the Court of first instance for re-hearing. After remand, the Court of first instance dismissed the plaintiff's suit and the lower appellate Court has confirmed that judgment and decree of the Court of first instance.
3. The plaintiff has appealed and the main question which has been argued before us is whether the lower appellate Court was right in law in holding that, in the suit brought by the defendant No. 1 against Ichhamoyee, the two other persons, the defendants Nos.2 and 3 in that suit, who are the pro forma defendants in the present suit, were the legal representatives of Ichhamoyee and whether the decree against them bound the property of the deceased. In support of the appeal, it has been argued that the lower Courts in dealing with this matter have really misconceived what is, in fact, the plaintiff's case and have supposed that the plaintiff's case is based entirely on the allegations of fraud. This view, which the lower Courts appear to have taken, does not seem to us to be correct. No doubt, there were allegations that after the substitution of the pro forma defendants aa representatives of Ichhamoyee, the defendant No. 1 won them over and so secured a decree in that suit and afterwards was able to sell and purchased the property which belonged to Ichhamoyee but the real basis of the suit was that, as Ichhamoyee's estate had not been properly represented in that suit, therefore, her property could not be affected by the sale held in execution of the decree obtained in that suit. In support of the appeal, it has been argued that, as under the Will all the property of Ichhamoyee passed to the plaintiff and the pro forma defendants had no interest whatever in that property, the estate of Ichhamoyee could not be held to have been properly represented in the suit brought by the defendant No. 1 by the substitution after her death of the pro forma defendants in the present suit as defendants in that suit in her place. It has also been contended that, as the estate of Ichhamoyee was not properly represented in that suit, the property forming the estate of Ichhamoyee, which passed to the plaintiff under the Will, could not be affected by the sale in execution of the decree obtained in that suit, and the decision of the Bombay High Court in the case of Baswantapa Shidapa v. Ranu 9 B. 86 has been relied on as supporting the view that the property coming to the plaintiff could not be bound by the sale in a suit in which the estate of Ichhamoyee was not properly represented. The same view, it is suggested, has also been taken by their Lordships of the Privy Council in the case of Khairajmal v. Diam 32 I.A. 23 : 2 A.L.J. 71 : 1 C.L.J. 584 : 7 Bom. L.R. 1 : 9 C.W.N. 201 : 32 C. 296. In our opinion the authorities relied on fully support the contention advanced on behalf of the appellant and we are of opinion that the estate of Ichhamoyee cannot be held to have been affected by any decree or sale in a suit in which that estate was not properly re-presented.
3. It has, however, been urged on behalf of the respondent that, for the purposes of the previous suit, the estate of Ichhamoyee was properly represented and the decision of this Court in the case of Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal 4 C. 342 : 3 C.L.R. 154,. has been relied on. That case, in our opinion, is clearly distinguishable from the presen case. In that case, it was held that a person, who had taken possession of the estate of a deceased Hindu and who was in possession of and managing the estate, must be treated for some purposes as the representative of the deceased until some other claimant came forward. It is true that in that case, it was stated that a Will had been left by the deceased, but, so far as we can gather from the facts, no body had appeared to claim title to the property of the deceased on the basis of that Will. The learned Judges in that case held--and, it is stated, with some hesitation--that, in a case like that where there was for the time being no body except the person in possession as manager of the estate to represent the estate, that person for certain purposes must be regarded as the representative of the estate. Clearly, in that case, the person in possession was only accepted as no body else came forward claiming a better title. In the present case, the plaintiffs came forward and claimed title under the Will and asked to be substituted as defendant in place of the deceased Ichhamoyee. The pro forma defendants were, no doubt, the nephews of the deceased but it appears that the deceased was a prostitute living under the protection of the plaintiff and there is nothing whatever to indicate that, at the time when the suit was brought, the pro forma defendants were in possession of the property of the deceased or were managing that property. In our opinion, therefore, that judgment affords no assistance in the present case.
4. Reliance has also been placed on certain observations made by this Court in deciding the case of Chuni, Lal Bose v. Osman Beeby 30 C. 1044. Those observations, we may mention, do not lay down any definite principle or decide any point of law. It appears that, in that case, during the execution of, the decree and not, as in the present case, during the trial of the suit, the judgment-debtor died leaving a Will under which Ratan Koer was the residuary legatee. An application was made for substitution and the result of that application was that Ratan Koer who came forward to claim title under the Will as well as another person, who claimed to be the heir ab intestator of the deceased, were substituted as representatives of the deceased and it was held that, in such a case, the estate had been properly represented and the order obtained in the presence of Ratan Koer, who subsequently took out probate of the Will, was a good order. That case affords us no guidance for the decision of the pre-sent case. An argument has been raised on the fact that, in the judgment the learned Judges said that if Ratan Koer could not represent the estate, then the legal heir of the testator could. That was no decision of the fact that the legal heir ab intestator could, under such circumstances, represent the estate in the absence of Ratan Koer. It was merely a suggestion and nothing more. We may observe that, in the case of Matangini Dassee v. Chooney Money Dassee 22 C. 903, it was distinctly held by this Court that, in a suit by a creditor against the estate of a deceased debtor who has died leaving a Will, his heirs on intestacy do not represent his estate and the suit is bad unless the estate is represented. In the present case, we are of opinion that the estate of Ichhamoyee was not properly represented in the suit brought by the defendant No. 1. After the plaintiff had appeared in that suit and had applied to be substituted as the representative of Ichhamoyee by reason of the fact that he was the executor appointed under the Will, the Court of first instance should have either added him' as the representative of the deceased or stayed its hands in order to give him an opportunity of proving his title. The defendant No. 1, however, pressed for the substitution of the pro forma defendants as the legal representatives of the deceased with the result that he obtained a decree against the estate of Ichhamoyee in a suit in which that estate was not properly represented.
5. The result, therefore, is that, so far as the estate of Ichhamoyee and the property covered by that estate which has passed under the Will to the plaintiff is concerned, it is not affected by the decree obtained by the defendant No. 1 in the former suit or by the sale held in execution of that decree. We accordingly set aside the judgment and decree of both the lower Courts and direct that the plaintiff's suit be decreed with costs in all Courts.