1. The suit giving rise to this appeal was brought by the plaintiff to recover certain properties as heir of her father one Bharat Chandra Basil. The properties had been placed in two Schedules ka and kha of the plaint, Bharat obtained the properties described in Schedule ka as heir of his son who had predeceased him, the son having inherited the properties from his maternal grandfather. The properties in Schedule kha were the ancestral properties of Bharat. Bharat died leaving two daughters, the plaintiff who was married at the time and Mon Mohini a maiden daughter. Mon Mohini, therefore, succeeded to the property left by Bharat obtaining a Hindu woman's estate. Bharat had also three nephews, his brother's sons. One of them Krishna was appointed guardian of Mon Mohini during her minority. It appears that Bharat died leaving some debts and a decree was obtained by the creditor one Ram Kumar Nag in a suit in which he made both the daughters of Bharat defendants. The decree was, for Rs. 88 odd and was dated 13th July 1883. In order to pay off this debt Krishna as guardian of Mon Mohini borrowed a sum of Rs. 100 from one Kali Kumar Pal by a simple bond dated 31st May 1884. He executed this bond as the certificated guardian of Mon Mohini, and under that bond there was only the personal liability of the executant, no property left by Bharat being charged for the debt. No money was paid for that bond but a fresh bond was executed in favour of the creditor on the 17th October 1887 by Krishna purporting to act as guardian on behalf of Mon Mohini. This bond was for Rs. 160. The creditor, Kali Kumar Pal, brought a suit on the renewed bond in 1890 making both the minor Mon Mohini and her guardian Krishna defendants in the suit. The suit was decreed on the 14th February 1890, and the ordering portion of the decree runs thus: It is ordered that an ex parte decree be passed as against the defendant NO. 1 for the claim in suit with costs together with interest and that the defendant No. 1 do pay to the plaintiff the sum of Rs. 226-8. The defendant No. 1 was the lady Mon Mohini. This decree was put in execution and the properties mentioned in schedule ka of the plaint were sold and purchase by the decree-holder. The date of sale-certificate is 27th schedule ka are now in the possession of his heir the defendant No. 1. The properties and the defendant Nos. 9 and 10 purchased those properties on being sold in execution of the mortgage decree by the creditors and they are now in possession of those properties.
2. Mon Mohini died sometime in 1908 and the plaintiff bring this suit for the recovery of the allegation that she is entitled to those properties as the next heir of Bharat. The Court below has dismissed the suit entirely. The plaintiff claimed the properties in various grounds. She impeached the auction sales as fraudulent and collusive and also alleged that defendant No. 1's father was actually acting as the guardian of Mon Mohini, and also denied that Bharat had any debts. The real question, however, and that is the point which has been urged before us, is whether the sale in 1891 of the properties in Schedule ka conveyed the entire interest in the properties or only the limited interest of the minor Mon Mohini. With regard to the properties in Schedule kha it was urged that there was no reliable evidence of the gift and the lower Court was wrong in holding that the evidence of the gift had not been contradicted by the plaintiff.
3. The claim with regard to the properties in Schedule kha may be disposed of at once. We find from the evidence that the properties were of very small value, the income only being Rs. 3 realised as rent and about 12 maunds of paddy per year. It is in evidence that Bharat had affection for his brother's sons and also that those brother's sons had nursed him during his old age. It also appears from the evidence on the plaintiff's side that Krishna was very affectionate towards his cousins the plaintiff and Mon Mohini, and had acted for the purpose of preservation of their interest. It does not appear to us that there is any good ground for disbelieving the evidence that there was an oral gift by Bharat in favour of his nephews. If that is so the plaintiff cannot lay any claim to those properties. The appeal, therefore, with regard to the properties in Schedule kha is dismissed.
4. The decision of the right as regards the properties in Schedule ka depends upon the fact as to whether the sale in 1891 conveyed the entire interest in the properties to the father of defendant No. 1. It is no doubt true that a decree was obtained against Mon Mohini for the debts owed by Bharat and that money was borrowed upon the bond of 31st May 1884 in order to pay off that decree. The guardian could certainly under the law have created a valid charge on the property for that debt, but apparently the creditor was satisfied with having only the personal undertaking of the guardian to pay that amount. This bond Was renewed on the 17th October 1887. One objection was made on behalf of the appellant that this renewal was after the date when the previous bond had been barred by limitation. This point was, however, not raised in the Court below and although from the dates of the two bonds it would appear that the debt was barred on the 17th October 1887 it may be that that it was kept alive by acknowledgment or payment of interest. However that may be, by the second bond of 1887 the creditor was satisfied by taking a simple money bond, as it is called, without any charge having been created on the property. It is possible that although no charge was created the Original debt having been for lawful purposes the creditor might have recovered his debt from the estate left by Bharat if he had chosen to do so. But in order to make the estate liable he ought to have framed his suit in a proper manner. What he asked for was simply to have a personal decree against Mon Mohini and the guardian who was made the second defendant. The Court passed a decree against the minor alone. It does not appear any where that the minor was made a party to the suit as representing her father's estate.
5. It has been contended on behalf of the appellant that a decree against the minor ought not to have been passed on the bond executed by the guardian. But it is not open to us to decide whether the decree of 1890 was wrongly made against the minor. Besides having regard to the question urged that the sale only transferred the interest of Mon Mohini in the property the question is immaterial. The sale certificate which was granted to the father of defendant No. 1 does not show that the entire interest in the property was sold as is contended on behalf of the defendant No. 1. What was sold was all rights and interest of the judgment-debtor in the property which does not of itself show that any interest beyond what the lady possessed in her woman's estate was sold. No doubt if the proceedings in the suit and the sale notification had contained any materials from which it could have been held that the decree-holder had intended to sell the entire interest in the property and not merely the limited interest of the daughter, the statement that only the rights and interest of the judgment-debtor was sold would not have been of value in representing what interest in the property had been purchased. The decree itself shows that it was only a personal decree and, therefore, we must hold even if the foundation of the decree be a liability which might bind the reversioner this is not sufficient. The suit ought to have been so framed that it would show that it was intended to bind the entire estate and not merely to enforce a personal liability against the daughter. The female heir, no doubt, represents the entire estate in respect of her own as well as the reversionary interest, and for that very reason the creditor is bound to give notice that he is seeking a larger remedy so as to put the other persons interested on their guard and to enable them to protect the estate if they had thought fit. Here the bond did not charge the property as it might have done. The decree was not against the lady as representing the estate but a mere personal decree and the proceedings leading up to the sale have not been produced and, therefore under these circumstances we hold that the case is governed by the principles laid down by the Privy Council in Baijun Dubey v. Brij Bhookun Lall Awasti 2 A. 275 : 1 C. 133 : 24 W.R. 306 : 3 Suth. P.C.J. 207 : 3 Sar. P.C.J. 541 : 1 Ind. Dec. (N.S.) 86 (P. C). The Court below has relied on the Privy Council case of Jugul Kishore v. Jatindra Mohan Tagore 10 C. 985 : 11 I.A. 86 : 8 Ind. Jur. 455 : 4 Sar. P.C.J. 553 : 5 Ind. Dec. (N.S.) 657 (P.C.). But in that case their lordships held that the entire interest was sold after looking into the judgment in the case in order to ascertain what was sold.
6. We must therefore, hold that the plaintiff is entitled to the property in Schedule ka after the death of her sister Mon Mohini. Having regard to the fact that the plaintiff by stating various untrue facts in the lower Court unnecessarily complicated the matter, we are of opinion that she is not entitled to the costs in the Court below.
7. The decree of the lower Court is varied to this extent that the plaintiff will, get a decree for the property described in Schedule ka except property No. 3 about which there was a compromise and her suit with regard to property in Schedule, kha will be dismissed. She will get 2/3rds of her costs of this appeal from defendant No. 1. The defendants Nos. 9 and 10 who are respondents in this Court will get l/3rd of their costs of this appeal from the plaintiff-appellant and they will also get their costs in the First Court. The defendant No. 1 will bear his own costs in both Courts. The plaintiff will also get a decree for mesne profits to be assessed by the Court below against defendant No. 1.