B.C Ray, J.:— These two appeals are against the common judgment and order No. 114 dated October 9, 1969 passed by the Subordinate Judge, 6th Court, Alipore passed in Misc. Case No. 55 of 1967 and Misc. Case No. 5 of 1968 arising out of Title Execution Case No. 13 of 1967 under S. 47 of the Code of Civil Procedure.
2. The salient facts of the cases are one Raja Promoda Nath Roy of Dighapatia who was possessed of considerable immovable properties in the various districts of undivided province of Bengal executed a will on February 13, 1926 whereby he appointed his eldest son Prativa Nath Roy as one of the co-executors along with other executors. The said Raja died leaving behind him hit widow Rani Girija Kumari and 6 sons and three daughters. The entire estate of the testator was divided into three divisions — ‘ka’ which has been described as main estate was given to the eldest son Kumar Prativa Nath Roy, and ‘kha’ estate was given to all the sons of the testator excluding the eldest son Kumar Prativa Nath Roy. Under Clause 19 of the said will the testator created 5 legacies of Rs. 2,35000/- each, that is, Rs. 85000/- for construction of the house and Rs. 1,50,000/- on account of miscellaneous items and it was enjoined that the said legacies were to be paid out of the income of the ‘ga’ estate. It was also provided under Clause 20 of the said will that the entire ‘ga’ estate after repayment of debt and payment of legacies would be obtained by the recepient of the main estate i.e ‘ka’ estate. The said will was duly probated on August 15, 1928 in the court of the District Judge, Rajshahi Kumar Bijanendra Nath, who was a bachelor died intestate on June 30, 1926. Rajkumari Usha Prova Dey, one of the daughters of the testator brought a suit being Title Suit No. 82 of 1939 for administration of the estates in the Second Additional Court of Subordinate Judge, Alipore. The suit was decreed on 9th of November, 1949 on the basis of a compromise entered into between the parties in Civil Rule No. 1564 of 1946 which was issued against certain orders passed in the said Title Suit. In Clause ‘O’ of the said compromise decree it has been provided that Rani Girija Kumari agreed to receive interest on the sum of Rs. 2,35000/- payable to her as heir of Kumar Bijanendra Nath Roy, now deceased, at the rate of 5 per cent during her life time Raja Prativa Nath Roy agreed and gave an undertaking to the court to pay such interest as stated above as and when it would become due to her during her life and on her death the defendant Raja Prativa Nath Roy agreed and undertook to pay the sum of Rs. 2,35000/- to the then heirs of Kumar Bijanendra Nath Roy, since deceased and until such payment the properties recited in ‘ka’ and ‘ga’ schedules of the said will would stand charged for payment of such interest and also of the said capital sum. Clause 15 of the said consent order further has provided that all these payments secured therein by way of charge and or undertaking would be paid by defendant Raja Prativa Nath Roy and would be enforceable against him by the party or parties entitled thereto by execution of that order or decree without recourse to a fresh suit and the defendant Prativa Nath gave an undertaking not to raise any objection relating thereto in such proceeding. All the other executors were discharged and the defendant Prativa Nath Roy became the absolute owner of the ‘ga’ schedule properties under Clause 7 of the said compromise decree.
3. Rani Girija Kumari died intestate on 26th June, 1964 leaving behind her surviving three sons Prativa Nath, Sailesh Nath and Tushar Kumar besides the three daughters. Prativa Nath died intestate on 30th of September, 1964 leaving behind widow Rani Pravabati and two sons Prabhat Nath and Bimalendu Nath, the appellants.
4. On June 23, 1967, Sailesh Nath Roy, the decree-holder respondent No. 1 made an application under Order 21 Rule 11 of the Code of Civil Procedure registered as Title Execution Case No. 13 of 1967 for execution of the said decree in the 6th court of Subordinate Judge, at Alipore. Another application for execution of the decree was filed by Sm. Suchandra Roy, widow of Late Subhendra Nath Roy and Sarajit Roy and Sm. Surasri Roy son and daughter of Subhendra Nath Roy. This was registered as Title Execution Case No. 14 of 1967. The judgment debtor appellants filed objections in the said execution cases under S. 47 of the Code of Civil Procedure contending inter alia that under the judgment of the High Court dated September 3, 1947, Raja Prativa Nath, the predecessor-in-interest of the petitioners agreed and undertook to pay the said sum of Rs. 2,35000/- to the heirs of Kumar Bijanendra Nath Roy, since deceased. These ‘ka’ and ‘ga’ schedules properties which were situated within Pakistan had vested in the State on abolition of zemindary and the Pakistan Government had taken possession of the same. In view of the restrictions imposed by Pakistan Government relating to remittance of money from Pakistan to India neither the deceased Prativa Nath nor the petitioners received anything from the said property and as such there has been total frustration of the agreement and or undertaking for payment of the said legacy for which the ‘ka’ and ‘ga’ schedule properties stood charged. The purported undertaking obtained from Raja Prativa Nath Roy, since deceased, the predecessor-in-interest of the petitioners would not entitle the decree holder to fall upon the properties of Prativa Nath Roy for the satisfaction of the legacy. It was further stated that by the said undertaking it was never intended to make properties in India liable for the said decretal sum. It was denied that the decree holder was entitled to half share as surviving heir of Late Kumar Bijanendranath Roy as claimed in the execution petition. The decree holder obtained a sum of Rs. 85000/- for constructing a house but he has not erected any house uptil now and so he is liable to refund the said sum and without making such refund he cannot claim any sum as an heir of Kumar Bijanendranath and his claim shall be deemed to have been fully satisfied. It was also stated that the bank deposits sought to be attached for satisfaction of the claim of the decree holder were the exclusive property of the petitioner No. 2 and were never inherited by him from his father Late Prativanath Roy and so the same was not liable to be attached in execution of the decree passed against the executor Prativa Nath Roy and the execution case should be accordingly dismissed. The said applications were numbered as Misc. Cases Nos. 55 of 1967 and 5 of 1968 respectively.
5. On October 9, 1969, the said misc. cases were heard analogusly by the learned Subordinate Judge, 6th Court, Alipore who by order No. 114 dismissed the said misc. cases holding inter alia that the legacy in question was not a specific legacy but demonstrative legacy and as such it was open to the claimants to realise these sums due from other properties of the judgment-debtor as well. It was also held that S. 214 of the Indian Succession Act was not applicable to the case of realisation of the decretal sum against an executor and no succession certificate was necessary for proceeding with the execution cases. The learned Subordinate Judge also held that the execution case should not be struck out before disposal of the petition for amending the petition for execution. It was held further that the dispute regarding shares amongst claimants inter se in the decretal amount was not within the scope of the present applications under S. 47 of the C.P Code and as such the same could not be decided.
It is against this judgment and order these appeals have been preferred.
6. Mr. S.C Dasgupta, the learned Advocate appearing on behalf of the appellants has contended that the legacy in question is not demonstrative but it is a specific legacy as provided in S. 142 of the Indian Succession Act inasmuch as the specific sum of money was directed to be paid out of the income from ‘ga’ schedule properties. It has been submitted that the ruling in 63 CWN 227 does not apply to this case and the decision of the Subordinate Judge was erroneous. The second dimension of Mr. Dasgupta's contention is that the property in schedule ‘ga’ being no longer available as the same vested in the estate and no income or benefit had been obtained from the said property either by the executor Prativa Nath Roy or by his successors, the present judgment debtors, the execution case is not maintainable. The personal assets of the executor which have been inherited by the appellants cannot be proceeded against for payment of the said decretal sum. It has been further submitted that unless it is proved that the property sought to be attached comes out of the testator's estate the same is not attachable for payment of the said legacy under Order 21 Rule 11(2) of the Code of Civil Procedure. It has lastly been contended by Mr. Dasgupta that the ‘ka’ and ‘ga’ properties which have been charged for the payment of the said legacy being situated in the then Pakistan and the same being vested in the State there has been a frustration of the contract inasmuch as neither the appellants nor their predecessor Raja Prativa Nath received any income from or compensation on account of the said property. The compromise decree which, in substance, embodies a contract between the predecessor of the judgment-debtors and the decree holders, as such, cannot be enforced because of the frustration of the contract due to non-receipt of any income out of the said properties. Mr. Dasgupta has also submitted that the decree in the administration suit does not conform to form No. 19 in Appendix D of the C.P Code. As such the executor cannot be held personally liable for payment of the legacies. The undertaking was given by Raja Prativa Nath Roy as a co-executor to pay the said legacies. It is evident from paragraphs 8 and 9 that Raja Prativanath was entrusted with all the functions of an executor to perform and as such whatever undertaking given by him was given in the capacity of an executor and not in his personal capacity. In this connection the decision in AIR 1930 Cal. 258 was referred to. It was lastly contended that S. 214 of the Succession Act is a positive law and not a procedural one and as such the same cannot be waived. The execution proceeding cannot be proceeded with without obtaining a succession certificate as mandatorily required under the said provision. Mr. P.K Dutta, learned Advocate appearing for the respondent No. 1 has submitted that Clause ‘O’ and Clauses 14 and 15 of the decree clearly revealed that the decree has created concurrent remedies against the defendant No. 1 Raja Prativa Nath and the same can be executed both against the properties charged as well as against the assets of the judgment-debtor Prativa Nath Roy. It has been urged that the undertaking as given in the compromise decree is a personal undertaking because an undertaking acts in personam. Such an undertaking itself can be enforced in execution against the assets of the undertaker Prativa Nath. In this connection the decision in 1957 SCR 77 was referred to. It has been next urged that the rights and legacies and their nature and effect has been finally determined by a consent decree and as such the executing court is not competent to go behind the decree and cannot determine the rights of the patties. It has been next submitted that S. 214 of the Succession Act does not apply to this case as the judgment-debtor Prativa Nath as an administrator to the estate left by the testator. An administrative suit cannot be considered as a suit within the meaning of S. 214 of the Succession Act. Even if it is assumed for argument's sake that the said section applies to this case it is a matter of procedure and as such the same can be waived by the court. It has been also urged that this section has no application to the debt created by the decree of the court. In support of this contention a Bench decision of this Court reported in AIR 1964 Cal. 42 has been mentioned. It was contended by Mr. Dutta that the legacy in question is not a specific legacy as it does not purport to be a bequest of specific property to a legatee as distinguished from the other properties left by the testator. The legacy falls under illustration 2 and 3 of S. 150 of the Succession Act and illustration 7 of 142 of the Succession Act. It has been urged that there was no bequest of a property nor any specific property was given but only certain sum of money was directed to be paid out of the income of the ‘go’ estate being primary fund or stock created by the testator. It has been submitted that the doctrine of frustration of contract does not apply to a consent decree. The consent is binding on the parties as a decree passed by invitum. The rulings in AIR 1968 Mysore 184, 74 CWN 162 and AIR 1964 SC 352 were referred to. It has been next contended that the plea that the assets of the judgment-debtor Prativa Nath which was inherited by the appellants could not be proceeded against for satisfaction of the decree is barred by the principles of res judicata in view of the orders of disclosure of assets of Raja Prativa Nath Roy made by the judgment-debtors and the order No. 73 dated 15.5.69 and Order No. 82 dated 9.6.69 passed thereon. The said orders have not been challenged by the judgment-debtors. The appellants, as such, are not competent to raise the question of executability of the decree against the assets of Prativa Nath Roy disclosed pursuant to order under S. 50 of the Code of Civil Procedure.
7. Mr. Mitter, appearing on behalf of the respondents Nos. 3, 4 & 5 has contended that the legacy-in-question is not a specific legacy as the legacy money is payable out of cash money in the hands of the executor Prativa Nath or out of the income of ‘ga’ schedule property as provided in Clause ‘m’ of the compromise decree. It has been further contended that there is no provision in the will that the said legacy money is to be paid from a specified fund. Mr. Mitter has also submitted that by the undertaking given by the executor Prativa Nath as contained in Clause ‘O’ of the decree he has made himself personally liable for payment of the said legacy and as such the personal estate of Prativa Nath is liable for attachment and sale for satisfaction of the decree. It has also been submitted that by the said undertaking a jural relationship of debtor and creditor was created between Raja Prativa Nath in his personal capacity and Bijanendra Nath by the decree. It has been lastly urged that in view of the earlier order No. 73 dated 15.5.69 and order No. 82 dated 9.6.69 passed in Title Execution Case No. 13 of 1967 the question of executability of the decree against the assets left by Raja Prativa Nath and inherited by appellants which have been disclosed pursuant to an order on an application under S. 50 of the Code of Civil Procedure was barred by res judicata.
8. It appears from the terms contained in the Clause 18 of the will as well as from the terms of Clauses ‘m’ and ‘O’ of the order of this Court passed on 3.9.47 on compromise in C.R No. 1546 of 1946 in accordance with which the suit was decreed no specified part of the testator's property was bequeathed to Bijanendra Nath Roy as distinguished from other properties of the testator. The fifth item in ‘illustration’ ‘IV’ of S. 142 does not apply to this case of bequest and it is not a specific but a demonstrative legacy. It is a bequest of some money not necessarily part of the estate and not distinguished from all others of the same kind and as such it is a general legacy. Demonstrative legacy has been defined in S. 150 of the Succession Act in the following terms:—
“Where a testator bequeaths a certain sum of money, or a certain quantity of any other commodity, and refers to a particular fund or stock so as to constitute the same the primary fund or stock out which the payment is to be made, the legacy is said to be demonstrative.
Explanation:— The distinction between a specific and demonstrative legacy consists in this, that—
where a specified property is given to the legatee, the legacy is specific; where the legacy is ditected to be paid out of specified property, it is demonstrative.”
The present case falls within the second explanation as well as illustration ‘III’ to S. 150 of the Succession Act and as such the legacy in question is demonstrative. The said legacy money can be realised and or satisfied from the other assets and estates of the testator besides ‘ka’ and ‘ga’ schedule estates which had been charged for payment of the said legacy. In 71 ER 291, Paget v. Huish the testator devised five annuities and declared that each of the said annuities should be paid by the trustees out of the rent of the real estate devised thereby. Subject to such payment of annuities the trustees were to apply to real and residuary personal estates on certain trusts. The rents and profits of the real estate was insufficient to meet the annuities. It was held that as there was no intention expressed by the testator that the annuities would fail by the failure of the particular fund the deficit must be made out of the residuary personal estate. The bequest was demonstrative. In the Bench decision of this Court in 63 CWN 227 the fact in short was that the testator devised two annuities in favour of the two daughters and charged property of schedule 7 for the payment of the annuities. It was held relying upon the decision in 71 ER 291 that the legacy fell within the category of demonstrative legacy and not of specific legacy.
9. Section 214 of the Indian Succession Act lays down that the court shall not pass a decree against the debtor of a deceased person for payment of his debt to a person unless that person has obtained a succession certificate entitling him to the effects of the deceased or any part thereof. It has been urged on behalf of the appellants that the respondents have not obtained any succession certificate entitling them to be heirs of the deceased legatee Bijanendra Nath and as such this execution proceeding at their instance is not maintainable. In the present case a decree has been passed in an administration suit in terms of the orders passed on compromise on September 3, 1947 in the Civil Rule mentioned before. Moreover, it is an execution proceeding in respect of claims against an executor and not a suit against a debtor as contemplated in the said section. As such in our considered opinion this section does not apply to this case. Moreover, the production of a succession certificate is not a condition precedent to the institution of a suit against the debtor. The certificate can be produced before the court at any time before the decree is made as held in the decision reported in ILR 42 All. 549 Gulsam Ali v. Fakir Ali. Even if it is assumed for argument's sake that the said section applies to this case the respondents may produce the succession certificate before the passing of the order in the execution case. In AIR 1964 Cal. 42, Sm. Tarak Dasi v. Batta Krishna Roy it has been observed that a judgment-debt created by the decree itself is not a debt coming within the purview of S. 214(i)(b). This contention of the appellants, therefore, fails.
10. It appears from Clause ‘O’ of the decree that the defendant Raja Prativa Nath gave an undertaking to pay interest at 5 per cent on the sum of Rs. 2,35000/- payable to Rani Girija Kumari as heiress of Kumar Bijanendra Nath Roy, since deceased, during her natural life and thereafter to pay the said capital sum to the heirs of Kumar Bijanendra Nath, since deceased, and the properties in the schedule ‘ka’ and ‘ga’ of the said will stood charged for such payments. It has been contended on behalf of the appellants that this is not a personal undertaking given by the executor Raja Prativa Nath Roy but it was an undertaking given by him qua-executor in the administration suit. This undertaking can be enforced only against the testator's estate which has come to the hands of the executor Prativa Nath and not against his personal estate inherited by the appellants as his heirs and successor. On the other hand it has been argued on behalf of the respondents that the undertaking incorporated in the decree was a personal undertaking to pay the legacy. This undertaking was unqualified and it was not subject to the existence of ‘ka’ estate or ‘ga’ estate. The undertaking carried with it a personal obligation of the undertaker to pay the legacy and the estates received by the appellants from Prativa Nath is subjected to the payment of the legacy money no matter if such assets are the personal estate of Prativa Nath. The undertaking was given by the executor Raja Prativa Nath Roy in the administration suit instituted by one of the legatees in the said will to pay the legacy money to the then heirs of Kumar Bijanendra Nath, since deceased. It is evident from paragraphs 8 and 9 of the decree that the defendant Prativanath Roy was given all the functions of sole executor in administering the estate left by the testator and all other executors and executrix were discharged and absolved from rendering any accounts in relation to the estates and in relation to the payments of debts and legacies mentioned in the will. We hold on consideration of the terms of the said decree that the undertaking was given by the executor Raja Prativa Nath Roy in the capacity of an executor to the testator's estate in an administration suit and as such it did not create a personal liability of Raja Prativa Nath Roy to pay the decretal amount and his own estate cannot be made liable for the satisfaction of the decree in question. In AIR 1930 Cal. 258, Pravash Singha v. Ashutosh Mukherjee it has been held that the court in exercising jurisdiction under S. 202 of the Succession Act, 1925 is acting in pursuance of the testamentary and intestate jurisdiction with which it is vested and not of its ordinary original civil jurisdiction. As such the court cannot determine any disputed question of title, the jurisdiction of the court under that section being confined to issue of direction to the executor relating to the management of the estate. The case reported in 1957 SCR 77, Rajesh Kanta Roy v. Santi Devi is not at all applicable to this case inasmuch as in that case there was no dispute between the parties that the terms of compromise decree imposed a personal obligation on the plaintiffs to pay the first defendant therein a monthly allowance and the decree holder was therefore entitled to a personal remedy. The only dispute was with regard to the question whether the interest of the judgment-debtor in the properties covered by the trustees which were sought to be attached in execution of the decree was a contingent interest and so not attachable. As regards the question of res judicata on the question of executability of the decree against the assets of Prativa Nath Roy which were disclosed in the affidavit, it appears that the judgment-debtor appellants by their application dated March 24, 1969, as well as affidavit dated May 31, 1969, disclosed the assets which have been inherited from Prativa Nath Roy pursuant to a direction by the court under S. 50 of the C.P Code. It also appears that in the said affidavit it has been contended that the decree could not be executed against the estate of the deceased Prativa Nath Roy. This question cannot be decided in these misc. cases inasmuch as the execution petition does not include the said assets of the judgment-debtor in the schedule. Of course, an application for amendment of the execution petition has been made on October 10, 1969 for amendment of the execution petition and the same is pending for decision. As such it is fit and proper that this question should be decided at the hearing of the execution case. As regards the contention that the execution case is not maintainable unless suitable amendments are made in the execution petition regarding schedule of movable properties to be attached, it appears that an application for amendment has been filed already. As such we are in respectful agreement with the learned Subordinate Judge in holding that the execution cases should not be struck off before the disposal of the petition for amendment. With regard to the question as to the frustration of the agreement contained in the compromise decree owing to the vesting of ‘ka’ and ‘ga’ schedule property in the State of Pakistan and owing to the non-receipt of any income or compensation in respect of the said properties charged for payment of the legacy money, it appears that the decree sought to be executed against the judgment-debtor appellants was passed on compromise. The said consent decree is binding on the parties unless it is set aside. In a Bench decision of this Court in 75 CWN 163, Santi Devi Mehra v. Gyan Prakash Mehra it has been held that the substantive rights of the parties acquired under the terms of the consent decree cannot in any event be interfered with except by consent of the parties or in proper cases by a duly constituted suit. In AIR 1968 Mysore 184 Bhima Jadav v. Abdul Rashid it has been observed that when a court puts its seal of its approval of the compromise arrived between the parties, then it ceases to be a contract simpliciter and becomes binding upon the parties to it until it is set aside in an appropriate proceeding. In AIR 1954 SC 352 it has been observed by the Supreme Court that it is well settled that a consent decree is binding upon the parties thereby as the decree passed by invitum. Considering the above decisions and also in view of our finding that legacy is demonstrative and not specific we hold that the provisions of S. 56 of the Contract Act are not applicable to this compromise decree and the compromise decree cannot be held to have been frustrated owing to the non-receipt of any income or profit or compensation in respect of ‘ka’ and ‘ga’ schedule property which had vested in the then State of Pakistan.
11. For the reasons aforesaid the appeals are dismissed and the judgment and orders of the learned Subordinate Judge are hereby affirmed. In the circumstances of the case there will be no order as to costs. Let the records be sent down to the court below immediately. In view of the judgment the Rule is discharged.
N.C Mukherjl, J.:— I agree.
Appeals dismissed.