1. This is an appeal from a decision of the First Class Subordinate Judge, Dhulia, passing a preliminary mortgage decree in favour of the plaintiffs for the payment of the mortgage money within six months, and directing that in default a final decree might be applied for for the recovery of the decretal amount by the sale of the mortgaged property.
2. The mortgage deed was passed by one Karsetji, who had died before the suit was brought, and the mortgagees sued his widow, his six sons and three daughters as his heirs. Only the defendants Nos. 3 and 10, that is to say one of the sons and one of the daughters, appeared through a pleader. The case was heard against the others ex parte. The third defendant admitted the suit bond, but contended that it had been executed by his father through undue influence, and was therefore void. He also pleaded that the mortgage-debt had been satisfied by virtue of a set-off of certain ginning charges said to be due from the plaintiffs in respect of cotton that had been ginned in the defendants’ factory. The tenth defendant denied knowledge of the suit debt, but prayed for instalments, in case it was proved. There was also an issue raised as to whether the plaintiffs were entitled to the interest claimed. The Subordinate Judge held the mortgage-bond was proved to have been executed by the deceased Karsetji; that defendant No. 3 had failed to establish that it was void on the ground of undue influence; and that the alleged satisfaction was not proved, and, in any case, would be an unascertained sum, which could not be allowed as a set-off in law.
3. In this appeal the main point taken is one that was not urged in the trial Court, viz., that the lower Court had no jurisdiction to pass the decree it did in view of the provisions of Section 190 of Act X of 1865, which has now been superseded by Section 212 of the Indian Succession Act 1926. This section says: “No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction.” It is urged that no letters of administration have in fact been taken out in regard to the estate of the deceased mortgagor, although if one of those primarily entitled to take out these letters did not do so, it was open to a creditor like the plaintiffs to take them out, and that this is a suit to establish a right to sell part of the deceased’s property under a mortgage; so that the suit is barred by the provisions of this section. I must remark that this seems to me rather a mean plea for the appellants to raise, because if anybody should have taken out letters of administration in regard to the estate of the deceased Karsetji, it was one of the defendants whose primary duty it was to do so, and they are virtually seeking to get a benefit from their omission to perform a duty, which on the face of it would lead to an inequitable result. No doubt it cannot be said that an omission to take out letters of administration is an actual wrong, so that the maxim “no man can take advantage of his own wrong” would apply. But it certainly is a case where the objection raised must be characterised as unconscionable and technical.
4. The question, however, has to be considered on its merits and, no doubt, there is some authority that the learned pleader for the appellants was able to adduce in support of his contention. I will consider that authority later. I think the best thing is, first of all to consider the answer that is made on behalf of the respondents. Apart from the question whether Section 190 of the former Act and Section 212 of the present Indian Succession Act is applicable to a case of the present kind, Mr. Shingne for the respondents contended that the defendants had intermeddled with the estate of the deceased so as to make them, in any case, liable in a suit by creditors like the plaintiff’s. He relied in support of this mainly upon the provisions of Section 304 of the present Indian Succession Act, corresponding to Section 266 of the Act of 1865. It is there provided that, when a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator and payments made in due course of administration. This also follows the corresponding English law on the subject. The question how a person becomes an executor of his own wrong is dealt with in Section 303, which says: “A person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong.” In English law very little is required to establish that a person is an executor of his own wrong, or de son tort as it is more generally expressed, and this is dealt with for instance in Williams on Executors, 11th Edition, Vol. I, at p. 177. In the present case there can be no doubt that the defendants have been dealing with the estate of the deceased in a manner that would make them executors de son tort, or, at any rate, if there was any serious dispute on this point the case would have to be remanded for the decision of an issue on the point. Assuming that the defendants have intermeddled-as there is the strongest presumption that they have done-then clearly the plaintiffs are entitled to the benefit of the provisions of Section 304, and the defendants would, in any case, be liable to the extent of the assets which have come into their hands, after deducting the payments (if any) mentioned in that section. This section must be read as a proviso to Section 212, if it covers the present suit. That will be in accordance with the ordinary principle that parts of an Act must be read together, so as to reconcile them as far as possible. As further authority for this view I may refer to the case of Framji Dorabji Ghaswala v. Adarji Dorabji Ghaswala (1893) I.L.R. 18 Bom. 337, which dealt with a somewhat similar question. In that case two Parsi brothers had assumed the management of the estate of their father without taking out administration, and each had received moneys on account of it. One of them brought a suit against his brother and the other members of the family to recover out of the estate a certain sum of money he had advanced to his father, and it was held that the estate being unrepresented, the suit could not be maintained under Section 190 of the Act of 1865. But that decision was based on peculiar circumstances that do not exist in the present case, viz., that both the brothers had intermeddled with the estate and that it would be impossible in the circumstances to say to what extent one of them was a creditor of the estate without proper accounts being made as in an administration suit. Otherwise it is clear from the remarks at the bottom of p. 340 that Section 266 of the Indian Succession Act of 1865 would have been allowed to be pleaded. Their Lordships say :-
Now there can be no doubt that a creditor may sue an executor de son tort for the recovery of his claim; and assuming that the plaintiff was a creditor as he alleged in his plaint, and that Framji had intermeddled with his father’s estate and had assumed the management of it, we held that we could not, at that stage, without going into the evidence, dismiss the claim, which prima facie was sustainable against defendant No. 1 to the extent of the assets which might have come into his hands.
5. Obviously, the Court would have held that, apart from the special circumstances, Section 190 of the Act of 1865 would not prevent the provision of Section 266 being availed of. Therefore, in my opinion, the contention of Mr. Shingne in regard to this particular question of intermeddling is correct, and Section 212 of the present Act would not in itself be a bar to the suit, if the case is covered by Section 304.
6. I am, however, prepared to go further than that, and after consideration of the arguments that have been addressed to us, I feel no doubt whatever that the present suit cannot properly be said to be a suit of the kind contemplated in Section 212. There is no reported authority in this Court for saying that this section covers a mortgage suit for sale, where the mortgagor was dead at the commencement of the suit. The decision in Tuljaram v. Bamanji Kharsedji (1894) I.L.R. 19 Bom. 828 in not quite in point, because there the sale of land had been made by the intestate’s brother, But that decision at any rate shows that Section 190 of the old Act, and the corresponding Section 212, is not to be used without some reasonable limitation. There are, on the other hand, some decisions which can be cited in favour of the appellants and in particular that of Sukh Nandan v. Rennick (1882) I.L.R. 4 All. 192 may be said to be most favourable to his contention. In that case the plaintiff had sued some of the heirs of a person governed by the Indian Succession Act, 1865, who died intestate, for a debt due to him by the deceased, and had obtained a decree against these personal. In execution of that decree property belonging to the deceased was sold, but before the sale proceeds were paid to the plaintiff, one of the heirs of the deceased obtained letters of administration to the estate of the deceased and an order for payment to her of the sale proceeds. The plaintiff sued that heir for the hale proceeds and to have the order directing the payment of the sale proceeds set aside, But it was held, with reference to Sections 190 and 191 of the Indian Succession Act, 1865, that the decree obtained by the plaintiff against persons who did not legally represent the estate of the deceased, and the proceedings taken against such persons in execution of such decree, gave the plaintiff no title to the sale proceeds, and that the suit was therefore not maintainable. It is to be remarked that the actual decision of the Court that the proceedings in execution were void and gave no title to the sale proceeds could be justified on the simple ground, approved by the Privy Council in the case of Khiarajmal v. Daim (1904) I.L.R. 32 Cal. 296, s.c. 7 Bom. L.R. 1, P.c., that a sale under a decree in a suit where the estate has not been properly represented is absolutely void. That, in my opinion, would have been a very much better ground on which to base the decision. The only remarks that are contained in the judgment about Section 190 are as follows (at p. 195) : “the plaintiffs’ decrees, obtained against persons who did not re* present the estate, and the proceedings in execution taken against them, can give no title to the property forming the estate. This is expressly declared by Sections 190 and 191 of the Act.” As I have already remarked the first sentence is correct under the decision of the Privy Council in Khiarajmal v. Daim. If the second sentence is meant to lay down that any suit brought to recover a debt due from the deceased intestate falls under Section 190, then I must respectfully dissent from that wide view. The section appears to me to be plainly limited to a suit in which a person seeks to establish a right to a part of the property of a deceased intestate. Such a suit would ordinarily be one to recover a specific part of that property, or a suit to be paid a certain amount as an heir, or a person otherwise entitled to succeed to part of the estate. To apply it to all suits where a creditor of the deceased intestate seeks to recover his debt from the legal representatives of that deceased would, in my opinion, be extending it beyond its proper scope. Under Section 37 of the Indian Contract Act, promises bind the representatives of the promisors before performance, unless a contrary intention appears from the contract, and the present suit is merely a suit to enforce the obligation that exists on the representatives of the promisors in accordance with the provisions of that section. This view is all the more substantial, having regard to the recent Full Bench decision in Hatimbhai v. Framroz Dinshaw (1926) 29 Bom. L.R. 498, F.B., overruling India Spinning & Weaving Co., Ltd. v. Climax Industrial Syndicate (1925) I.L.R. 50 Bom. 1, s.c. 27 Bom. L.R. 1281, F.B., where it was held that a suit for the recovery of mortgage money by sale of the mortgaged property is primarily one to recover the mortgage debt and is not one for land or an interest in land. No doubt, the proper representative must be sued, and if in fact any of the defendants had taken out letters of administration, then obviously the suit would have had to be brought against them. That would be, in accordance with the provisions of Order XXXI, Rule 1, of the Civil Procedure Code. But, apart from the suggested construction of Section 212, there is no law which says that, if in fact there is no legal administrator, the heirs of the deceased, who are actually in possession of the estate of the deceased, cannot be sued. The definition of “legal representative” in Clause (11) of Section 2 of the Civil Procedure Code covers the case of persons, who have intermeddled with the deceased’s estate, and therefore covers the case of the defendants. It was suggested that the provisions of the Parsee Succession Act 1865 necessitated the taking out of letters of administration. That Act merely lays down that the deceased’s estate “shall be divided” among certain persons, who are stated to be the heirs in particular cases. It was held in Shapurji v. Rustomji (1903) 5 Bom. L.R. 252, regarding Section 2 of that Act, that the property vested in the heirs mentioned in that section on the death of the deceased ; and if that view is correct, it is entirely against the contention that was put before us. There is nothing in English law that I can find that would support the contention that in a case like the present some person must take out letters of administration and that the suit can only be brought against him. In fact, in the case of there being executors de son tort, the English law is against any such contention. I may refer to Williams on Executors, Vol. I, pp. 184, 185, in this connection: and in the case of foreclosure suits the general rule in England was that the executor was not a necessary party where the mortgage was a freehold, and was only joined if, the mortgaged property was insufficient to satisfy the mortgage debt. The law has been altered since January 1, 1898, by the provisions of the Land Transfer Act, 1897, so as to make the personal representatives necessary parties, unless the property has by assent or conveyance become vested, according to its nature, in the heir or devisee or other person beneficially interested : see Halsbury’s Laws of England, Vol. XXI, Article 495, at pp. 279 and 280. But English law does not, in any case, govern the present case, and the defendants, as being the persons interested in the equity of redemption, were, in my opinion, properly sued under Order XXXIV, Rule 1, of the Civil Procedure Code. It may be added that the contention of the plaintiffs would almost necessarily result in a situation that is not approved of by the Courts, The plaintiff’s would have had to take out letters of administration, unless some other creditor agreed to do so, and the probabilities are that they would not find any other creditor willing to undergo that trouble. If accordingly they were to take out letters of administration, the result would be that they would have to be both plaintiffs and defendants in the suit, and that is a position that contravenes the law as laid down in Rustomji v. Sheth Purshotamdas (1901) I.L.R. 25 Bom. 606, s.c. 3 Bom. L.R. 227 and Dadabhoy Framjee v. Cowasji Dorabji (1922) I.L.R. 47 Bom. 349, 361, s.c. 24 Bom. L.R. 1111. Therefore, in my opinion, this contention is not correct, and I hold that Section 212 of the Indian Succession Act is not a bar to the present suit….The result is that in my opinion the decree of the lower appellate Court should be confirmed, and I would dismiss the appeal with costs.
7. In this case the plaintiffs brought a suit to recover Rs. 22,500 on a mortgage bond dated July 13, 1909, passed by the deceased Karsetji Jivaji. The heirs of the deceased mortgagor were made defendants. Defendants Nos. 3 and 10 defended the suit, and alleged that the mortgage was executed by Karsetji under undue influence, and set up an agreement between the mortgagor and mortgagee that the ginning charges of plaintiffs’ cotton ginned in defendants’ factory were to be set off against the mortgage debt. No evidence was led by the defendants and a decree was passed against the heirs for the amount sued on. It is contended on behalf of the appellants that the estate of Karsetji Jivaji was not represented, and under Section 212 of the Indian Succession Act of 1925 the plaintiffs could not establish any right to the deceased’s property, unless letters of administration had first been granted by a Court of competent jurisdiction, and reliance was placed on the cases of Sukh Nandan v. Rennick (1882) I.L.R. 4 All. 192; Framji Dorabji Ghaswala v. Adarji Dorabji Ghaswala (1893) I.L.R. 18 Bom. 387; Matangini Dassee v. Chooneymoney Dassee (1895) I.L.R. 22 Cal. 903; and Khiarajmal v. Daim (1904) I.L.R. 32 Cal. 297, s.c. 7 Bom. L.R. 1, P.C.. The mortgagor was a Parsee, and the case would be governed by the Indian Succession Act X of 1865. The question that arises in this appeal is whether the plaintiff mortgagee cannot sue the heirs of the mortgagor Karsetji unless letters of administration have first been granted by a Court of competent jurisdiction under Section 190 of Act X of 1865. It is conceded that there was no administrator appointed by Court. Under Section 260 of Act X of 1865 corresponding to Section 216 of the Act of 1925 if an administrator is appointed by the Court he shall have the power to act as representative of the deceased, but in this case no administrator has been appointed and all the heirs are made defendants. In Sukh Nandan v. Rennick (1882) I.L.R. 4 All. 192, letters of administration were applied for before the sale proceeds were paid to the creditor and the subsequent suit was brought to recover the sale proceeds, and right to the property of the intestate was sought to be established.
8. In Framji Dorabji Ghaswala v. Adarji Dorabji Ghaswala (1893) I.L.R. 18 Bom. 387 it was held that a creditor could sue an executor de son tort for recovery of his claim, but the plaintiff who was an executor of his own wrong could not sue another who was also an executor of his own wrong, and was not entitled to enforce his claim against the estate on the ground that unless it was ascertained what amount the plaintiff recovered out of the deceased’s estate, it was impossible to say as to what extent the estate remained indebted to him, and that the only course open to the plaintiff was to take proceedings to obtain the appointment of an administrator of the estate.
9. In Matangini Dassee v. Chooneymoney Dassee (1895) I.L.R. 22 Cal. 903 the deceased debtor left a will and appointed an executor and one of the executors had taken out probate.
10. In Tuljaram v. Bamanji Kharsedji (1894) I.L.R. 19 Bom. 828 it was held that Section 190 of Act X of 1865 did not apply as neither the plaintiff nor the defendant relied as the basis of his right on the previous title in a person who was the owner when he died intestate, and there was no question with regard to the administration of the property and the result of the suit could not prejudice the rights of any heirs, who might possibly exist. Under Order XXXIV, Rule 1, subject to the provisions of the Code of Civil Procedure, all the persons having an interest in the right of redemption shall be joined as parties to any suit relating to the mortgage. The provisions of the Code relevant to this question, subject to which Order XXXIV, Rule 1, will operate, are those under Order XXXI, Rule 1, and it is clear that in this case there was no administrator in existence, It is argued on behalf of the appellants that if there was no administrator in existence the plaintiff ought to have applied for being appointed as an administrator, but in that event the creditor would have to sue himself. A person cannot be a plaintiff and a defendant at the same time. See Rustomji v. Seth Purshotamdas (1901) I.L.R. 25 Bom. 606, 612, s.c. 3 Bom. L.R. 227 and Dadabhoy Framji v. Cowasji Dorabji (1922) I.L.R. 47 Bom. 349, 361, s.c. 24 Bom. L.R. 1111. Besides, under Section 206 of Act X of 1865 letters of administration can be granted to a creditor, when there is no person who is related to the deceased and willing to act. It is not shown in this case that any of the defendants was ever willing or unwilling to act as an administrator. There being thus no administrator appointed by any Court the heirs of the deceased mortgagor sufficiently represent the estate. The heirs sued on in this case are in possession and have intermeddled with the estate of the deceased and are the legal representatives of the deceased Karsetji within the meaning of Section 2, Clause (11), of the Civil Procedure Code, and are answerable to the creditor under Section 266 of Act X of 1865. See Framji Dorabji Ghaswala v. Adarji Dorabji Ghaswala (1893) I.L.R. 18 Bom. 337; Dinamoni Chaudhurani v. Elahadut Khan (1904) 8 C.W.N. 843, 851; Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal (1878) I.L.R. 4 Cal. 342; and Chuni Lal Bose v. Osmond Beeby (1903) I.L.R. 30 Cal 1044.
11. It is argued on behalf of the respondents that in the present case the title of Karsetji is not in dispute as the mortgage is admitted, and that the plaintiffs do not seek to establish any right to any part of the property of a person who died intestate, but that the suit is brought to enforce the liability of the estate of Karsetji and therefore Section 190 of Act X of 1865, corresponding to Section 212 of the Indian Succession Act of 1925, does not apply.
12. I agree with my learned brother that the present suit is not a suit to establish any right to the property of the deceased intestate, but that it is a suit to enforce a liability on the estate of the intestate, and therefore Section 190 of Act X of 1865 does not apply….
13. I, therefore, concur in the order dismissing the appeal with costs.