1927 (2) TMI 10 - HC - Indian Laws

Summary

Issues Involved:
1. Execution of the bond by the deceased.
2. Alleged dower debt of Rs. 25,000.
3. Transfer of property in lieu of dower.
4. Possession of assets by legal representatives.
5. Legal representative's liability for the deceased's debt.
6. Right of retainer and preference by legal representatives.
7. Plea of "plene administravi" (full administration).

Detailed Analysis:

1. Execution of the Bond by the Deceased:
The primary issue was whether Abdul Qayum executed the bond for Rs. 300. The widow, one of the defendants, denied the execution of the bond by her late husband. The Munsif decreed the suit without a definitive finding on the allegation of sale in lieu of dower, stating, "I am not inclined to hold that the debt of Rs. 25,000 had been proved."

2. Alleged Dower Debt of Rs. 25,000:
The widow claimed a dower of Rs. 25,000 was due to her upon her husband's death, and the property was transferred to her in lieu of this dower. The lower appellate court doubted the genuineness of this transaction but did not decide on the dower amount, dismissing the appeal. The High Court observed that the question of whether legal representatives possessed assets of the deceased need not be tried at this stage.

3. Transfer of Property in Lieu of Dower:
The widow's defense was that the property was transferred to her in lieu of her dower, implying no property of Abdul Qayum was left with his heirs. The High Court concluded it was not necessary to decide on the alleged transfer at this stage, as the plaintiffs could still seek any movable property within 12 years to execute the decree.

4. Possession of Assets by Legal Representatives:
The High Court clarified that a legal representative need not be in possession of the deceased's property to be sued. The legal representative is defined as someone on whom the estate devolves, not necessarily someone in possession of the property. The court referenced Section 2(11) of the Civil Procedure Code, stating, "It is not necessary for his character as legal representative that he should be in possession of any property of the deceased."

5. Legal Representative's Liability for the Deceased's Debt:
The court explained that a creditor has the right to obtain a decree for debt and can then find out how to realize it. The remedy for enforcing a money decree is by attachment and sale of the deceased debtor's assets. The court cited Section 52 of the Civil Procedure Code, which allows for execution against the legal representative if they fail to account for the deceased's property.

6. Right of Retainer and Preference by Legal Representatives:
The High Court acknowledged that legal representatives could use the deceased's assets to pay off debts, including the widow's dower. This right is similar to the English law of retainer and preference. The court referenced various authorities and cases, including Seth Kastur Chand v. Mangal Sen and Haji Saboo Sidick v. Ally Mohamed, supporting the view that legal representatives may show preference and retain debts due to themselves.

7. Plea of "Plene Administravi":
The High Court debated whether the plea of "plene administravi" (full administration) could be raised in the suit or only in execution proceedings. The court noted that in English law, this plea could be raised by a legal representative sued for a debt. The court concluded that the lower courts were bound to decide whether the defendants had duly applied the assets that came into their hands, requiring a decision on the dower debt's fact and amount. The court ultimately found that the trial court intended to find no dower debt was proved and upheld this finding.

Conclusion:
The High Court dismissed the appeal, holding that the lower appellate court was correct in not deciding the question of sale in lieu of dower at this stage. The court stated, "It is neither lawful nor expedient to throw out the suit altogether simply because one of the legal representatives alleges and seeks to prove that no assets are available." The court concurred in dismissing the appeal with costs, emphasizing that the plaintiffs could seek to execute the decree against any movable property available within 12 years.