JUDGMENT
Dua, J.
(1) This appeal has been preferrd by Pt. Bakhshi Ram defendant No. 2 from the decree of the learned Senior Subordinate Judge, Kangra at Dharamsala, passing a decree against him for a sum of Rs. 6,650/- in favour of Smt. Lila Devi plaintiff who is respondent No. 1 in this Court. On 30th April 1945 one Mr. Harish Chander, a lawyer of Dharamsala, executed a will in which inter alia he bequeathed a sum of Rs. 5,000/- to the plaintiff Smt. Lila Devi who was at the time minor and whom the testator had brought up like his own daughter. This amount, according to the will, was to remain deposited in the name of the beneficiary in the Punjab National Bank, Lahore, through Pt. Bakshi Ram, Pleader of Kangra, and could be withdrawn by the beneficiary on attaining majority. This sum, according to the will, was payable out of the share of the testator’s daughter Smt. Satya Devi in the joint business with Jagan Nath, Mulkh Raj and Bhodu Shah Khatri, deficiency, if any, to be made good out of the testator’s other property. The business mentioned above by the testator was to go to his daughter Smt. Satya Devi and was to be carried on after his death by L. Charan Das Puri, Advocate, Ch. Hari Ram, Pleader, Dharamsala, and Pt. Bakhshi Ram, Pleader, Kangra, on behalf of and for the benefit of Smt. Satya Devi ‘Hari Niwas’ the residential house, belonging to the testator was bequeathed by him to the Rama Krishna Mission Lahore Branch for starting a charitable institution for the service of the poor. After making provision for some other minor bequests, with which we are not concerned, the remaining estate was bequeathed in favour of the testator’s wife Smt. Shanti Devi. The relevant clauses of the will which concern us now had better be reproduced here. After the preliminary introduction the will provided as follows:-
“I. I have a bungalow known as ‘Hari Niwas’ situate on Harish Chander Road, Dharamsala. It was built by me. I will away the said bungalow in favour of the Rama Krishna Mission Lahore Branch along with all its furniture. The said Mission may sell the said bungalow, and start a charitable institution for the service of the poor and ‘Daridar Narain’ to commemorate the memory of Lal Raja Sri Daya Krishan Kaul, with the sale-proceeds thereof.
II. My lawful and wedded wife, Mst. Shanti Devi will be the owner of my entire remaining property, moveable and immoveable, excepting the items which have been mentioned in detail in this document.
By means of this will I give away the entire property owned by me to Mst. Shanti Devi aforesaid but she will not be competent to transfer my property by mortgage or sale or in any other way.
III. * * * * * * *
IV. * * * * * * *
V. * * * * * * *
VI. * * * * * * *
VII. (i) I took the minor girl, Lila Devi, into my custody when she was only three day old. I have brought her up so far like my own daughter. She shall get Rs. 5,000/- in cash at the time she become major. The amount will remain deposited in her name in the Punjab National Bank Lahore through Pandit Bakhshi Ram, Pleader, Kangra, Lila Devi on becoming major shall be entitled to draw this amount with interest. This sum shall be paid out of the share of my daughter Satya Devi, in the business joint with Jagan Nath, Mulkh Raj and Bhodu Shah Khatri, deficiency if any shall be made good out of other property.
* * * * * *
VIII. * * * *
IX. My daughter Kumari Satya Devi has joint business of supplying wood to the Military with L. Jagan Nath and Mulkh Raj Khatris residents of Daulatpur, and Bhodu Shah Khatri resident of Nagrota, Tehsil Kangra. That business shall go on in future as before. My daughter Kumari Satya Devi has been doing this business through me. In future, after my death, the management of the business shall be carried on by Charan Das Puri Adovcate Dharamsala, Chaudhri Hari Ram Pleader Dharamsala and Pandit Bakhshi Ram Pleader Kangra on behalf of my minor daughter, Satya Devi, for her benefit and they will be competent to deal with all sorts of accounts.
X. Pt. Bakhshi Ram Pleader, Kangra and Pt. Roshan Lal Jaswal resident of Polian Prohatan, Tehsil Una, are my relatives and I have full confidence in them. They will render every kind of helped to my wife and daughter after my death, and shall severally execute the provisions of this will on my death Pt. Bakhshi Ram Pleader Kangra shall take into his possession and will give my property to the persons mentioned in this will in accordance therewith.
* * * *”
It appears that the plaintiff was not paid the amount of her bequest on 21st of June 1956 she instituted the present suit for the recovery of a sum of Rs. 6,650/- in all, consisting of Rs. 5,000/- as principal and Rs. 1,650/- by way of interest at the rate of 3 per cent per annum. In her plaint she claimed the amount initially from Pt. Bakhshi Ram, Advocate, defendant No. 2 through whom the amount in question was, according to the will, to be deposited in the plaintiff’s name in the Punjab National Bank Lahore; in case, however, it was established that Pt. Bakhshi Ram had not received any money and was justified in not receiving the same. The plaintiff claimed the amount from defendant No. 1 Smt. Satya Devi, the daughter of the testator, out of the money received by her from the joint partnership business mentioned in the will; failing to receive the amount even from her, the plaintiff claimed the amount, as a last resort, from defendant No. 3 Smt. Shanti Devi widow of the testator who, according to the will, was the residuary legatee.
(2) Pt. Bakhshi Ram in his written statement raised several technical preliminary objections. On the merits he denied having received any amount from the business or from any part of the estate of the deceased. Defendants Nos. 1 and 3 in their written statements also denied their liability to pay the amount claimed by the plaintiff; Smt. Satya Devi defendant No. 1 expressly denied having received any movable or immovable property under her father’s will; she pleaded that the liability, if any, was of the persons who had been directed in the will to manage the business. Smt. Shanti Devi defendant No. 3 denied having received any amount relating to the partnership business.
She admitted the will, but denied knowledge of its contents, though defendant No. 1 denied even knowledge of the existence of the will. Certain preliminary issues were tried in the first instance and while deciding them on 4-4-1957 the learned Senior Subordinate Judge observed in his order that the suit had been filed against defendant No. 2, who is also one of the executors, because it is provided in the will that the sum of Rs. 5,000/- was to be deposited in the name of the plaintiff through him. The other two executors named by the testator in his will were thus not considered by the Court to be necessary parties to the present suit.
The following issues on the merits were framed and tried by the Court below:–
1. Had Shri Harish Chander deceased executed a valid will on 30-4-1945 as alleged ?
2. Was the plaintiff to get Rs. 5,000/- from the estate from the deceased under the will as alleged ?
3. To what interest, if any, is the plaintiff entitled ?
4. Is the suit within limitation ?
5. To what relief and against whom is the plaintiff entitled ?
(3) Issues Nos. 1, 2 and 4 were decided in favour of the plaintiff. Under issue No. 3 the plaintiff was held entitled to claim interest at Rs. 3/- per cent per annum, with the result that, as stated above, a decree for Rs. 6,650/- was passed against defendant No. 2 on the ground that as an executor defendant No. 2 had not carried out the directions of the will and had failed to safeguard the interests of the plaintiff by securing the amount for her as provided in the will; he was thus held liable for the amount to the plaintiff because of his negligence in the discharge of his duties as an executor.
Defendants Nos. 1 and 3 were absolved from liability, the formed on the ground that no liability had been cast upon her in the will for the amount in suit and defendant No 3 on the ground that the estate which came into her hand, as a residuary legatee, was not liable since it was amply established that the amount due to the testator in the partnership account of the joint business was sufficient to enable the plaintiff to realise the amount of her legacy.
(4) On appeal the learned counsel for the appellant has taken us through the pleadings, the terms of the will and the oral evidence and has contended that the plaintiff did not come to Court on the ground of negligence on the part of defendant No. 2 in the discharge of his duties as an executor so as to make him liable for damages, to make good the loss caused to the estate by his carelessness or negligence. It is argued that defendant No. 2 was being held personally liable by the plaintiff for the amount given to her by the will, but, in law, unless it can be established that any money actually came into his hands from the partnerships business for the supply of wood to the military, he could not be called upon to pay to the plaintiff the amount bequeathed to her.
He has also submitted, by referring to the evidence on the record, that there was litigation between the widow of the testator (defendant No. 3) and the other beneficiaries, for example, the Rama Krishna Mission, and between the widow and the executors; the widow having forcibly taken possession of the estate of the deceased. It was on account of these difficulties, amount others, that defendant No. 2 as also the other executors named in the will did not act as executors and by their conduct they had refused to accept and they renounced it is open to an executorship. The counsel has drawn our attention to Williams on Executors and Administrators, 13th Edition, at p. 40, para 50, where the principle of law is stated as follows:
“The office of executor being a private one of trust, and, so as a rule, named by the testator, not by the law, the person nominated may refuse, though he cannot assign the office; and even if in the life-time of the testator he has agreed to accept the office, it is still in his power to recede”. A little lower down in this book it is again stated in para 52 that though the executor cannot be compelled to accept the executorship, he can be compelled to decide whether he will accept it or not. The counsel has also referred us to Ss. 229 and 230 of the Indian Succession Act which suggest that the law in India, is not different. The liability of the executor is dealt with in S. 369 of the Indian Succession Act which lays down that when an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good the amount.
The counsel contends that the present is not the case to which S. 369 applies, because there are no allegations of loss having been caused to the estate by the negligence of an executor and no claim on behalf of the estate, for making good the loss occasioned to it, is being made in the instant case. He has also in this connection relied on Madura Etc., Devasthanams v. Doraiswami Nayudu, AIR 1943 Mad 153 where while dealing with the liability of the ex-trustees of a Devasthanam it was observed that mere proof of negligence was not sufficient to make the defendant liable; it should be definitely proved that the plaintiff had suffered damages in fact as a result of the defendant’s negligence; in order to fix the defendant with liability, the mere proof that the defendant had failed to institute suits within time was not enough unless it was shown that if suits were filed in time and decrees obtained, the decrees could have been realised by execution.
This case, it is true, does not deal with the liability of a testamentary executor but the principle enunciated therein would, as the counsel argues, appear to be applicable to their case as well; the position of the two not being very dissimilar. The counsel has also placed his reliance on Habibullah v. Ananga Mohan Roy. AIR 1942 Cal 571 where at page 574 it has been stated that an executor who had not obtained probate could be effectively sued as defendant only when he had intermeddled with the estate of the testator.
In my view, the contention of the counsel for the appellant is well founded. Defendant No. 2 (appellant) having not acted as an executor and having not intermeddled with the estate could not have been held personally liable for the amount claimed by the plaintiff. Indeed, it is not even shown by clear evidence that he had ever accepted the officer of executor. His conduct also clearly suggests that he never did so. No person is bound to become an executor and until a person acts as such or expressly or clearly accepts such position, he cannot be burdened with the duties & obligations of an executor.
As stated in Mohamidu Mohideen Hajiar v. Pitchey, 1894 AC 437, a decision of the Judicial Committee, a creditor of a decease debtor cannot sue a person named as executor in the will of the deceased unless he has either administered, that is, intermeddled with the estate, or proved the will. This principle, is, in my opinion, applicable to the present case. A person who has neither intermeddled with the estate nor has he duly clothed himself with a representative character so as to become responsible for his acts of commission and omission to the beneficiaries, cannot be proceeded against; indeed, according to this case a person may even after applying for probate renounce his position as an executor before the probate is obtained.
The position seems to be clear that an executor, who has accepted the office, or acts as such, represents the estate of the deceased, which vests in him as such for the purposes of administration. If a probate is taken out subsequently, the probate establishes the will and is conclusive proof of the appointment of the executor and all intermediate acts done in connection with the estate by him, between the date of the testator’s death and the grant of the probate, are validated.
The executor, as is obvious, derives his title from the will; the probate being merely authenticated evidence thereof. It is true that renunciation has to be made either orally in the presence of the Judge or by a writing signed by the person renouncing, but if an executor refuses to act, a residuary legatee can be permitted to prove the will and administer the estate: See sections 230 and 232, Indian Succession Act. It is admitted by defendant No. 3 as her own witness that she has been representing the estate of the deceased, and indeed it is common ground that decrees have been passed against her as representing the estate by competent Courts and she has discharged all those liabilities.
Rama Krishna Mission, one of the beneficiaries, secured a decree for possession of the house bequeathed to it under the will and it was upheld by the High Court. Smt. Thakari Devi also obtained a decree against defendant No. 3 for the maintenance payable to her under the will; similarly several other creditors of the testator obtained decrees against her and she discharged those liabilities. From this evidence it is amply established that defendant No. 2 (appellant) had never accepted the office and that defendant No. 3, the residuary legatee, and all along been effectively representing the estate and also administering it. Her competency to so represent the estate has not been questioned at the Bar before us.
(5) Mr. M. R. Mahajan, the learned Advocate for the plaintiff-respondent, has in reply very strenuously contended that, according to the definition of the word ‘executor’ as given in S.2(c) of the Indian Succession Act, defendant No. 2 was an executor and from his intimate relationship with the deceased testator and from the fact that he attested the will it must be assumed that he had in fact undertaken to Act as one of the executors and accepted the office and therefore he must be fixed with the liability for the amount due to the plaintiff which has not been paid to her because of his negligent conduct.
I am afraid, it is not possible to uphold this contention. The circumstances relied upon by the counsel do not warrant a necessary inference that defendant No. 2 (appellant) had in fact accepted the office of executor or had taken upon himself to act as such. He was undoubtedly appointed by the testator, but the evidence on the present record falls far short of proof, and is wholly inadequate to establish, that he actually undertook to Act as an executor or that he intermeddled with the estate or even that he accepted the position of an executor so as to represent the estate of deceased testator. The plaintiff’s claim against defendant No. 2 (appellant) must, therefore, fail.
(6) In the alternative the counsel for the plaintiff-respondent submitted that she should in any case be granted a decree against either defendant No. 1, the daughter, or defendant No. 3, the widow of the testator, who is the residuary legatee. The plaintiff’s claim against defendant No. 1 also, in my opinion, cannot succeed as the latter is not show, on the present record, to have received any part of the estate of the deceased testator. Relief against defendant No. 3 can indisputably be granted to the plaintiff-respondent by this Court under the provisions of Order XLI, rule 33, Code of Civil Procedure: See First Appeal No. 38 of 1955 decided by Falshaw J. and myself. Indeed, it has not been controverted by the counsel for defendant No. 3 that this Court is competent, if facts so warrant and justice demands, to grant relief against his client under O. XLI, rule 33, Code of Civil Procedure.
(7) Mr. Tuli on behalf of defendants Nos. 1 and 3 has based himself principally on the construction of clause VII of the will. He submits that the amount of Rs. 5,000/- was a charge only on the share of Smt. Satya Devi in the business which was joint with Jagan Nath, Mulkh Ran and Bhodu Shah Khatri, and unless the share of defendant No. 1 in the assets of this firm was shown not to be sufficient for the payment of the amount claimed by the plaintiff, defendant No. 3 could not be held liable. With respect to the liability of defendant No. 1 also he submits that unless the actually received some money from this business, the plaintiff could not call upon her to pay the amount in dispute.
With this contention, as already observed, we are in agreement. The counsel further observed contends, and this appears to be the chief plank of his case as developed before us, that the obligation having been imposed on L. Charan Das Puri. Ch. Hari Ram and Pt. Bakhshi Ram to manage the business on behalf of defendant No. 1 as provided in clause IX of the will, they should be held liable to pay the amount; and L. Charan Puri and Ch. Hari Ram having not even been made parties to the present litigation, and this in spite of an objection having been raised by the defendant to this effect, the plaintiff could not be granted any relief against defendants Nos. 1 and 3.
I have no difficulty in repelling this contention. In so far as defendant No. 1 is concerned we have already held that having not been shown to have received any part of the estate of the deceased she cannot be held liable to pay the amount in question. In so far as the question of charge is concerned, we are of the view that it is not possible to spell out any such charge from the language of the will. In clause VII of the will the bequest in favour of the plaintiff Smt. Lila Devi is absolute, unambiguous and complete.
The direction that this amount may, in the first instance, be paid out of the share of Smt. Satya Devi in the joint business with Jagan Nath, Mulkh Raj and Bhodu Shah Khatri, deficiency, if any, to be made good out of the other property, is merely a directory provision, and does not in any way, destroy the right of the plaintiff to claim the amount out of the remaining estate of the deceased. The contention of Mr. Tuli that the assets of the joint business must first be proceeded against by the plaintiff cannot prevail.
Defendant No. 3, being a residuary legatee and admittedly being in possession of and having continuously represented, the estate of the deceased is, in our opinion, clearly liable for the amount in suit. The word ‘deficiency’ as used in clause VII, in my view, obviously refers to the deficiency in the amount to be realised by the plaintiff as bequeathed to her under this will. It does not, as contended by Mr. Tuli, refer to the deficiency in the assets of the joint firm which the plaintiff has been unable to receive the amount. The reason why the plaintiff has not been able to realise her share of the bequest from the assets of the firm is not very material and, in my view, she can certainly lay claim on the estate of the deceased testator in the hands of the residuary legatee who has been representing and is administering the estate, for realising her share of the legacy. It is not denied that defendant No. 3 is in possession of sufficient part of the estate of the deceased so as to be able to pay the plaintiff’s dues.
(8) The counsel for the appellant also contended by virtue of S. 351, Indian Succession Act, interest was not payable for period of one year after the testator’s death and that though the Court below upheld this contention in its order under issue No. 3, at the time of passing the decree and in concluding portion of the judgment, it has, as if by oversight, allowed full amount claimed by the plaintiff which included interest from September 1945 to September 1946. This has not been controverted by the respondents. Interest on five thousand rupees for one year will, therefore, have to be deducted from the decretal amount, with the result that instead of Rs. 6,650/-, the decree in favour of the plaintiff should be for a sum of Rs. 6,500/-.
(9) For the reasons given above, the appeal of Pt. Bakhshi Ram is allowed and the decree against him is set aside. Pt. Bakhshi Ram, however, is directed to bear his own costs both in this Court and in the Court below. The plaintiff is granted a decree under Order XLI, R. 33, Code of Civil Procedure against Smt. Shanti Devi defendant No. 3 for the sum of Rs. 6,500/-. She will of course have her costs of both the Courts from defendant No. 3.
(10) Appeal allowed.
