Sinha, J.:— This is an appeal from the concurrent decisions of the Courts below decreeing the plaintiff-respondent's suit for recovery of Rs. 2,200 on the basis of a promissory note executed in the following circumstances.

Thakur Sri Pratap Narayan Deo was the proprietor of the Lakshmipur Estate in the district of Bhagalpur. He appears to have been a much married man, having married five ladies in succession, and died leaving him surviving all those ladies as his widows, but no male child. He left a will, authorising his seniormost widow, who was impleaded as defendant no. 1 in this suit, to make an adoption of a son to him. She adopted Thakur Chandra Narayan Deo, the defendant no. 2 in this suit, whose father was Thakur Sahdeo, Narayan Deo. The Will was proved, and the seniormost widow aforesaid, Thakurain Kusum Kumari Devi, was appointed the administratrix of the estate. She appointed Thakur Sahdeo Narayan Deo aforesaid, as her man of business with a power of attorney. The plaintiff's case is that Sahdeo Narayan Deo borrowed Rs. 1,100 in cash from the plaintiff for the benefit of the Lakshmipur Estate on the Basis of a hand note, dated the 14th August, 1932, agreeing to pay interest at three per cent, per mensem. The plaintiff also alleged that he paid Rs. 10 on each, of the three dates with a view to saving limitation, namely, on the 10th of July, 1935, 9th of July, 1938, and 5th of September, 1938, making endorsements of payment on the back of the handnote itself. The suit was instituted on the 4th of September, 1941, that is, on the last day of limitation, treating the alleged payment of Rs. 10 on the 5th of September, 1938, as the starting point of limitation. The claim was limited to double the principal sum advanced, though on accounting, the plaintiff alleged, he was entitled to a much larger sum. The suit was contested by the defendant no. 2 on the ground that it was barred by limitation; that Thakur Sahdeo Narayan Deo had no power to borrow the money on behalf of the defendant no. 1 or 2, as he had no such authority under any general power of attorney, nor did he, as a matter of fact, borrow Rs. 1,100 on the 14th of August, 1932, as alleged by the plaintiff; that there was no necessity or occasion for borrowing, inasmuch as the estate had sufficient funds in its hands; that, on enquiry, it had been found that the said Thakur Sahib borrowed Rs. 1,700 from the plaintiff in September, 1929, for his own personal use; and that he paid Rs. 2,500 on the 14th of August, 1932, towards the aforesaid dues in respect of principal and interest, and executed the handnote sued upon for the remaining sum of Rs. 1,100. It was thus clearly denied on behalf of the defendant that the money had been borrowed by Thakur Sahdeo Narayan Deo on behalf and for the benefit, of the estate of the defendant, and that he had any authority to borrow any sum on behalf of the estate. Relief was also sought under the Bihar Moneylenders Act. It was also denied that Thakur Sahdeo Narayan Deo had made any endorsements on the handnote or that he made any such endorsements holding a general power of attorney on behalf of the defendant no. 1. It was finally alleged that the defendant no. 1 adopted the contesting defendant no. 2 in February, 1928, and that, under the orders of the High Court passed in Miscellaneous Judicial Case no. 60 of 1937, dated the 9th December, 1937, the defendant no. 2 came in possession of his estate, and that thereafter his mother, had no authority to borrow money on behalf of the estate or to authorise any other person to do so. The defendant no. 3 put in a formal written statement, denying his liability and praying that the suit be dismissed as against him, as he had been unnecessarily impleaded.

On the question of the liability of the estate, both the Courts below have practically thrown the burden of proof on the contesting defendant to prove that there was no authority in Thakur Sahdeo Narayan Deo to borrow the money or that the borrowing was not for a justifying necessity of the estate. They have drawn an adverse inference against the defendant from the non-production of the account books and of the power of attorney. Hence, they came to the conclusion that the evidence of the plaintiff's single witness proved the plaintiff's case of borrowing by Thakur Sahdeo Narayan Deo on behalf of the estate, and for the benefit of the estate. On the question of limitation both of them took the view that the order of the High Court (exhibit A) did not affect the question of limitation. The trial Court passed a decree against defendants 1 and 2 both. But, on appeal, the learned Subordinate Judge modified the judgment and decree of the trial Court by exonerating the defendant no. 1 and, confining the decree as against the defendant no. 2 only. Hence this second appeal on behalf of the defendant no. 2. It may be noted that the other defendants are not parties to this second appeal, the sole respondent being the plaintiff in the suit.

The first question that arises for consideration in this case is whether the borrowing by Thakur Sahdeo Narayan Deo can bind the estate. In this connection it may be recalled that Thakurain Kusum Kumari Devi, the adoptive mother of the defendant-appellant, was appointed administratrix by the High Court. On attaining majority, the appellant made an application to this Court for being placed in charge of the estate in pursuance of the directions contained in the Will of his adoptive father. This Court, after considering the grounds of objection raised on behalf of Thakurain Kusum Kumari Devi, passed the following order:

“We have power under section 302 of the Succession Act to direct the administratrix to hand over the property or to administer the property according to such general or special directions in regard to the estate as we may think fit in the circumstances; and the fact that the adopted minor son has now attained majority is sufficient and good reason for us to direct that the lady as administratrix do hand over possession of the estate to the minor son and with regard to the future liability as administratrix after such handing over and after accounts are settled she will be discharged from liability.”

It is not denied—as a matter of fact, it has been assumed by the Courts below—that the appellant came in possession of the estate in pursuance of this Court's order, quoted above. Now, the question arises whether the borrowing by Thakur Sahdeo Narayan Deo, assuming it to have been for the benefit of the estate, as the general attorney on behalf of Thakurain Kusum Kumari could bind the estate. A Division Bench of the Calcutta High Court in the case of Srishchandra Nandi v. Sudhirkrishna Banerji has considered the question in great detail with reference to the English and Indian authorities on the subject, and has come to the conclusion that where an executor borrows money in that capacity without any authority in that behalf contained in the Will itself and without creating a valid charge on any portion of the property, and the estate is benefited by the borrowing, the highest right that the creditor can claim against the estate is the right to be subrogated to the right of the executor to be indemnified out of the estate to the necessary extent, and, unless the right of the executor to the indemnity is established, the creditor has none against the estate itself. In the present case there is no evidence whether the Will of the late proprietor of the Lakshmipur Estate contained any sanction authorising the defendant no. 1 or any of his other widows to borrow money for the benefit of the estate: nor is there any direct evidence of the fact that the lady had authorised the executant, of the handnote, Thakur Sahdeo Narayan Deo, by the power of attorney granted in his favour or that the money was utilised for the purposes of the estate. The Courts below have decreed the suit relying upon the presumption to be drawn against the defendant from the non-production of account books of the estate and of the power of attorney, assuming that document is in possession or control of the contesting defendant. In this connection reference may be made to the observations of their Lordships of the Judicial Committee in the case of Bilas Kunwar v. Desraj Ranjit Singh to the effect that it is open to a litigant to refrain from producing any documents which he considers irrelevant, and that, if the opposing litigant is dissatisfied, it is for him to apply for an affidavit of documents, and he can so obtain inspection and production of all that appear to him in such affidavit to be relevant and proper. Their Lordships further point out that, if he fails to do so, neither he, nor the Court at his suggestion, is entitled to draw any inference as to the contents of any such documents. There is no evidence in this case that the defendants or any of them were called upon to produce any such documents as are made the subject-matter of an adverse inference against the appellant. Be that as it may, it must be held, on the authority of the ruling of the Calcutta High Court, referred to above, that neither the defendant-appellant nor his estate is liable for the money sought to be recovered from them. This, is not a suit of the nature indicated in that ruling of the Calcutta High Court, namely, to establish the right to be subrogated to the right of the administratrix to be indemnified out of the estate in the hands of the defendant no. 1 or the defendant no. 2. Mr. G.C Mukherji on behalf of the plaintiff-respondent contended that the administratrix had not been removed by the order of the High Court, nor discharged. I am not sure whether this contention is correct. But, even assuming that this contention is correct, the plaintiff could get a relief only against the estate in her hands, if he had framed his suit and made the necessary allegations in his plaint on that basis; but, as already indicated, the suit is a simple one for money on the basis of the handnote aforesaid. In such a suit it is not possible to grant the appropriate relief: nor it is possible at this late stage to convert the simple money suit into one for enforcing the indemnity by right of subrogation which the plaintiff might possibly claim. It may also be stated that no such application for amendment of the pleadings had been made before us, assuming that it could be granted.

On the question of limitation also, the plaintiff's suit must fail. The suit can be held to be within time only if it can be shown that the endorsement of payment made on the 5th of September, 1938, had been made by the duly authorised agent of the administratrix in that behalf. But it has not been shown by the plaintiff that the administratrix was there in charge of the estate on the 5th of September, 1938, that is to say, even after the High Court had directed her to make over charge of the estate to the defendant-appellant: nor is there any evidence to the effect that the administratrix, or the contesting defendant, had authorised the said Thakur Sahdeo Narayan Deo to make the part payments and the endorsements extending the period of limitation.

In my judgment, for the reasons aforesaid, the suit should have been dismissed, and the judgment and the decree to the contrary passed by the Courts below are erroneous in law. The appeal is accordingly allowed, and the suit dismissed with costs throughout.

Fazl Ali, C.J:— I agree.

Appeal allowed.

H.R.K