This appeal arises out of a suit to enforce a mortgage bond bearing date October 1893 executed by one Annopurna, widow of Peary Mohan Ghose. This person died in November 1892, leaving a Will which he had executed on the 30th August 1890 by that Will, he appointed his widow Annopurna his executrix. He directed that all his debts should be paid out of the estate, and he made a specific legacy in respect of a certain piece of land in favour of Annopurna. Annopurna then, as already mentioned, in October 1893, mortgaged the land in question to Defendant No. 3, for a certain consideration received by her; and the Defendant No. 3 sold his mortgage interest to the Plaintiff. Sub sequently, on the 20th November 1895, a creditor of Peary Mohan Ghose obtained a money decree against his legal representatives, Annopurna having in the meantime died, and, in execution of that decree, the property mortgaged to Defendant No. 3 by Annopurna was sold up, and purchased by Defendant No. 2. And it is against the Defendant No. 2 that the relief in this action is mainly claimed.
The Court of first instance gave the Plaintiff a decree but decree has been set aside by the lower Appellate Court aside the simple ground that, having regard to the provisions for sec. 105 of the ??? Act, the in ??? in favour of ??? 1893, is ??? fore, the ??? Judge, in discussing the question raised before him, begins by saying that the question before him is whether or not the decree in execution of which the Defendant No. 2 made his purchase was a charge upon the estate; and he is apparently of opinion, though he does not express it in so many words, that it is a charge upon the estate, and that this charge must have precedence over the legacy given to Annopurna. Sec. 105 of the Probate and Administration Act, upon which he proceeds in determining the question raised before him by the Plaintiff, runs as follows:— “Debts of every description must be paid before any legacy.” We do not know whether the attention of the Subordinate Judge was called to a succeeding section (108) of the same Act, which provides as follows:— “Where there is a specific legacy and the assets are sufficient for the payment of debts and necessary expense the thing specified must be delivered to the legatee without any abatement no enquiry seems to have been male in this case, and indeed there is no suggestion made by the Defendant that the assets left by the deceased were insufficient for the payment of the debts and necessary expenses, and one might well presume, bearing in mind the fact that the legatee was the executrix herself, and the mortgage was not given until about a year after the death of Peary Mohan Ghose, that so far as Annopurna was concerned she considered that the assets the deceased were ??? debts and ??? may ??? that he has put upon sec. 105 of the Probate and Administration Act, to which we have already referred. That section merely provides that the debts must be paid before any legacy is paid. It does not say that, if the legacy is paid before the debts are paid, and the legatee deals with the property by way of mortgage or otherwise, that transaction must be taken to be invalid. In the present case, the debt upon which the decree was obtained, and in execution of which decree the property was sold, has been paid by the sale itself. So that, the debt has been extinguished and necessarily, if there are no other debts due from the estate of the deceased, the legacy must operate. We have already mentioned that the decree that was obtained by the creditor was simply a money decree, and no charge upon the property bequeathed to the widow was crated thereby. In the case of Ramdhone Dhur v. Mohesh Ghunder Ghowdry(1), were a somewhat similar question arose, it was held by a Division Bench of this Court that a decree in favour of a creditor to estate of the deceased is a mere money decree, and has not the effect of creating a Charges upon the property, and that a direction in the will for the payment of the testator's debts is only a general direction to pay up all his debts out of the estate and that it creates no charge thereupon. If the decree which the creditor obtained did not create a charge upon the property, we fail to see how the ??? in ??? that might be said is that, when Annopurna took the legacy, she took it subject to the debts due from the estate of the deceased but it could not be said that the mortgage created by her was altogether invalid in law. Upon these considerations, we are of opinion that the judgment of the Court below cannot be supported. It must, therefore, be set aside and that of the Court of first instance restored with costs.
S.C.S
Appeal allowed.