1. This suit raises a question of some difficulty relating to a Hindu widow's power to alienate the estate to which she has succeeded as her husband's heir. It is necessary to set out the facts of the case in some detail. On 28th April 1922 the plain-tiff advanced a sum of Rs. 1600 to three persons named Kaliprosono Dutt, Keshub Chandra Dutt and Kripanath Dutt who, as their father's heirs, were the joint owners of two properties, Nos. 76-A and 73/3, Dharmahatta Street. The advance was secured by a mortgage of No. 73/3, Dharmahatta Street. In August 1928 Kripanath Dutt died intestate and childless, his heir and legal representative being his widow, defendant 1. On 12th February 1930 the plaintiff instituted a suit on his mortgage and obtained a preliminary decree on 5th June 1931. Meanwhile, on 28th April 1930, defendant 1 had instituted a partition suit against the other members of her husband's family, in which she asked for partition and other reliefs. Her brothers-in-law filed a written statement, in the course of which they alleged that the joint estate was liable to satisfy certain debts. On 19th March 1931 defendant 1 applied in the partition suit and obtained leave to raise a loan of Rs. 1500 on the mortgage of her interest in the premises 76-A and 73/3, Dharamhatta Street. On 15th April 1932 a mortgage was executed in pursuance of the leave obtained by defendant 1, the mortgagee being defendant 2, Debendra Nath Ash. By the deed, defendant 1, as the beneficial owner, conveyed to defendant 2 all the undivided share of and in the Dharmahatta Street properties, to hold the same unto and to the use of defendant 2 absolutely in fee simple subject to the proviso for redemption thereinafter contained.
2. On 20th May 1932 the plaintiff obtained a final decree in respect of his mortgage of No. 73/3 and on 31st March 1933, he purchased the mortgaged premises in execution thereof. A preliminary partition decree had meanwhile been made in defendant l's suit. By that decree defendant 1 was declared entitled to one equal third share in the properties in suit and there were the usual directions for partition or sale. On 20th May 1933 defendant 2 filed a suit on his mortgage against defendant 1 and obtained a preliminary mortgage decree in August 1934.
3. On 17th September 1934 the present plaintiff made an application stating, as was the fact, that the price realized by the sale of No. 73/3 was insufficient to satisfy his claim under the final decree, and asking for a personal decree under Order 34, Rule 6, Civil P. C, against the mortgagors, and an order was made that the mortgagors should pay a sum of Rs. 676.8-0 with interest at the rate of 6 per cent. per annum from 1st April 1933 together with the costs of the mortgage suit and the costs of the application, the liability of defendant 1 in this suit being limited to the estate of her deceased husband, Kripanath Dutt. In execution of this order, the plaintiff has attached the share of defendant 1 in 76-A, Dharamhatta Street. He has now filed this suit in which the principal relief asked is a declaration that he is entitled to satisfy his personal decree out of defendant l's undivided share of 76-A, Dharamhatta Street in priority to the claim of defendant 2 under the mortgage of 15th April 1932.
4. It is agreed that the only issue which I have to decide is whether the claim of the plaintiff is subject to the mortgage created by defendant 1. The plaintiff submits that defendant 1, as the widow and heiress of Kripanath, only succeeded to his estate subject to payment of the debts incurred by Kripanath during his lifetime and that the rights of defendant 2 as mortgagee are subject to the payment of those debts.
5. The decision on which the plaintiff places most reliance is Jayanti Subbiah v. Alamelu Mangamma (1904) 27 Mad 45. In that case the appellant had obtained a decree against the widow and legal representative of the maker of a promissory note in his favour. He attached and purchased in execution a house belonging to the deceased maker of the promissory note in which the defendant was living at the time of the purchase. The claim was resisted by the widow on the ground that she had a right of residence during her lifetime, and that she could not therefore be ejected from the residential portion of the house. The widow's contention was rejected by the Court. At p. 50 of the report the following observations are to be found:
A debt contracted by the husband himself as in the present case is necessarily binding upon the widow and on his dearth without male issue his estate devolves upon her by right of inheritance, in the absence of any individual kinsman of his. It is a mistake, under such circumstances, to regard her as having a right of maintenance (which includes right of residence) against her husband's estate. She takes it as heir and must administer it as such. It is only the residue that is left after discharging her husband's debts that will belong to her. During her husband's lifetime she had, no doubt, a right of maintenance against him, but that was only a matter of personal obligation on the part of the husband, quite independent of the possession of any property and it did not form a charge upon his property.
6. The circumstances of that case were quite different from those of the case with which I am dealing. The widow there was still in possession of the property and it was not disputed that it was liable to satisfy the debts created by the husband, but what was said was that the actual property attached, namely a residential house, was still subject to the right of residence which the widow had enjoyed during the lifetime of her husband. The submission on behalf of the plaintiff is that an heir must first administer the estate, in the sense of paying the debts of his predecessor, before he can dispose of any portion of it, and that if he disposes of the estate before the debts are satisfied the transferee takes it subject to liability to discharge those debts. For this proposition, the plaintiff relies on Chutterput v. Maharaja Bahadur Singh (1905) 32 I A 1 where Lord Davey in delivering the judgment of the Judicial Committee observes at p. 16:
But their Lordships agree with the broader pro position stated by Mr. Phillips. When the estate of a deceased person is under administration by the Court or out of Court, the purchaser from a residuary legatee or heir buys subject to any disposition which has been or may be made of the deceased 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.
7. According to the plaintiff the estate of Kripanath in this case was under administration out of Court within the meaning of Lord Davey's observations. In my opinion what Lord Davey had in mind was the distinction between cases where an estate is being administered by the Court as the result of an administration decree, and cases where it is being administered not by the Court, but by an executor or administrator obtaining his title by a grant of probate or letters of administration. I think that it is clear that this was the view taken of the meaning of those words by Sanderson C. J. in a case to which I shall refer later. Various decisions have been cited where in cases of partition it has been held that the proper direction in a partition decree is that before partition the estate should first satisfy the debts of the father provided they have not been incurred for illegal or immoral purposes. An instance of this line of cases is Sat Narain v. Sri Kishan Das .
8. I do not myself think that the partition decree in the suit brought by defendant 1, or the proceedings in that suit generally have any bearing on the question which I am called upon to decide. In any event there is no question here of the estate being called upon to satisfy ancestral debts. The only question is whether the conveyance by defendant 1 is subject to any right of the plaintiff to execute his personal decree against the estate of defendant l's deceased husband out of the property conveyed.
9. Mr. Ghose has directed my attention to two decisions of this Court. The first is Ram Dhun Dhur v. Mohesh Chunder (1883) 9 Cal 406, where it was held that a mortgage created by an heir and devisee after the testator's death was vaild as against one of the testator's creditors inasmuch as the decree in the creditor's suit had not created a charge on the testator's property. That decision appears to me to be adverse to the plaintiff's contention that he is entitled to follow the property in the hands of the alienee for the purpose of satisfying the husband's debt. The decision to which I referred a short while ago, and to which Sanderson C. J. was a party is Bepin Krishna Ghose v. Byomkesh Deb . It is true that that case was directly concerned with the doctrine of lis pendens as formulated in Section 52, T.P. Act. It is also true that it appears that the creditor's claim was never argued on the basis of Hindu law before the Appellate Court. Apparently before the Court of first instance certain submissions as to Hindu law were made to the learned Judge who rejected them. These submissions were not however pressed upon appeal.
10. It is noticeable however, that Sanderson C. J. refers to the passage in Chutterput v. Maharaja Bahadur Singh (1905) 32 IA 1 set out above, and I think it is clear he could not have decided the case in the way he did if he had thought that the words administration out of Court' meant what the plaintiff now submits they mean. In that case the heirs had executed several mortgages of properties belonging to the estate of the deceased father. A creditor brought a suit which was referred to arbitration. The award gave the creditor liberty to apply to the Court for the appointment of a receiver of the estate and for administration thereof by and under the direction of the Court. The award was made a decree of Court on 22nd April 1919, and on 2nd July 1920, the creditor obtained a preliminary administration order in terms of the award. It was held that the doctrine of lis pendens. applied to mortgages created subsequently to 2nd July 1920, but not to any prior mortgages. If the plaintiff's contention is correct, the estate of the deceased would have been under administration out of Court from the day of his death and therefore all the mortgages would have been subject to the rights of the creditors whether created before or after the administration order. The essential facts in Bepin Krishna Ghose v. Byomkesh Deb appear to me to be the same as the facts with which I am dealing. It is true that in the case of Hindu widow it is open to the reversioners to challenge the legality of an alienation made by her but this is a right which is limited to them, and is not one of which a third person can take advantage.
11. In my opinion the claim of the plaintiff under the order of 17th December 1934, has no priority over the mortgage to defendant 2 of 15th April 1932 in the sense that the plaintiff is entitled to execute his decree against the property covered by that mortgage. Having come to this conclusion on the only point at issue in the case, I must dismiss it with costs. Defendant 2 conceded that the plaintiff's title as purchaser of No. 73/3 under his mortgage decree is valid so far as he is concerned.