1. The plaintiff is the appellant in this appeal. The allegations on which his suit was founded were the following: That the husband of defendant 1, left a will appointing her and some other persons as executors, giving her permission to adopt and providing that she would remain in management of the properties until the adopted son came to be of 21 years of age; that defendant 1 obtained probate of the will and acted as executrix; that defendant 1 took defendant 2 in adoption, and the latter had instituted a suit against defendant 1 in which defendant 3 had been appointed administrator pendente lite; that defendant 1 as such executrix borrowed money on hand-notes (seven in number) for paying the Government revenue due on the estate but never repaid the same. It was further alleged in the plaint that the loans were taken for legal necessities and that the estate was benefited thereby. In the suit as originally laid defendant 1 was impleaded in her capacity as executrix, and it was prayed that a decree might be passed for the amounts due together with interest etc. against all the defendants and for recovery thereof from the estate itself. The original plaint was filed on 6th February 1926. The answer of defendant 1 was that the loans were taken for legal necessity and for payment of Government revenue due on the estate, that she had been removed from her position as executrix and defendant 2 had taken over the state as malik, and that therefore defendants 2 and 3 and not she, were liable. She also averred that the account given in the plaint was not correct and that the claim for interest was unjust and exorbitant.

2. Defendant 2 in his written statement made various allegations, most of which are immaterial now as they are either not proved or are untrue. The only averments that require mention are the following:

“Para. 6.—That this defendant does not admit that there were any legal necessities for taking loans of the money covered by those handnotes or that the sums were borrowed for the benefit of the estate, or that the same were spent for the preservation of the estate.”

Para. 7.—That even admitting for arguments' sake that the handnotes were legally executed and the sums were borrowed for the benefit of the estate, the estate is not legally liable for them. They should be regarded as the personal debts of defendant 1 and a decree for the same may be passed against her only. No decree can be passed for the said sums against the estate.”

“Para. 8.— That the late Upendra Krishna Bandopadhya the adoptive father of this defendant, in the will executed by him, did not give any powers to the executors to raise any loan or to charge the estate in any way. On the other hand he made provisions so that the debts he had at the time of his death might be paid off early. Under such circumstances even if defendant 1 borrowed any money in any way, she alone is liable for that and the same is not binding on the estate nor is the estate legally liable for that.”

“Para. 9.—That shortly after defendant 1 had taken probate of the will… a valuable property named (?) belonging to the estate was sold at public auction for the sum of Rs. 39,000 and by that all the debts of the time of her husband were paid of and about Rs. 8,000 remained as surplus to the estate. The net income of the said estate would be a little over Rs. 7,000. Defendant 1 has either misappropriated or squandered away the said cash sum in hand and further by spending at her pleasure the income of the estate, she had also incurred debts to the extent of Rs. 60,000 during her time of management. If the estate has been run into debts through her mismanagement, the estate is not liable for that and even if a decree for the sum claimed in the suit is passed against defendant 1, she cannot get any indemnity for the said sum from the estate.”

“Para. 13.—Even if the plaintiff was entitled to get any decree, he could not get a decree against the estate, nor was defendant 1 entitled to get any indemnity for the decretal money against the estate.”

3. Defendant 3 filed a written statement adopting and embodying in it the substance of the averments which defendant 2 had made.

4. Thereafter on 23rd November 1926 the plaintiff applied for amendment of the plaint alleging that defendant 1 had been made a defendant in the suit in her capacity as executrix but to facilitate the realization of the money it is necessary that she should be made a defendant in her personal capacity. He prayed that in the cause title defendant 1 might be described as impleaded in her personal capacity as well, and that if she be not held liable as executrix then a decree might be passed against her in her personal capacity.

5. Amongst the issues that were framed the one that requires mention is issue 2 which was in these words:

“Has the plaintiff any cause of action as against defendants 2 and 3?”

6. The Subordinate Judge held that the debt was proved, and that the moneys were borrowed for paying Government revenue. He found that the plaintiff had called for the account books of the defendants to show that the moneys were entered therein as having been spent for that purpose, but that the defendants had withheld the same. He held that it had not been established that the executor had authority to borrow money for the purposes of the estate. He held that in such circumstances the debts though they were for legal necessity did not bind the estate. He held that defendant 1 alone was liable and in her personal capacity and that the claim on two of the hand-notes was barred before the date on which the said defendant was impleaded in her personal capacity; and he therefore gave the plaintiff a decree as against the said defendant in respect of the other five hand notes. He made a decree against defendant 1 only in these terms, and dismissed the suit as against the other defendants.

7. The plaintiff has then preferred this appeal. It is clear that if the decree is to be as against defendant 1 only and in her personal capacity only the plaintiff cannot get anything more than what she has got. But the plaintiff's contention in the appeal is that he should have a decree against defendants 2 and 3 as well—such a decree as would bind the estate,—so that he may enforce it as against the estate itself.

8. Defendant 1 has not appeared in the appeal. Defendant 3 is not interested in the estate any longer the estate having been taken over by defendant 2 some time in 1928. Defendant 2 is the only contesting respondent.

9. On behalf of defendant 2 some arguments have been advanced before us to show that the loans were taken and the promissory notes were executed by defendant 1 in her personal capacity and not as executrix. The promissory notes were sealed with her seal as executrix and though she signed her own name therein without describing herself as executrix we must hold that the loans were taken by her in that capacity. We also hold in agreement with the Court below that the loans were incurred for payment of Government revenue; and from the withholding of the account books on the part of the defendants, we think it right to presume that the amounts were so spent.

10. The question whether the decree against the estate may be passed or not is one of considerable importance and one not altogether free from difficulty. A number of decisions have been cited before us on this question and we shall have to examine such of them, and also such other decisions as may have a bearing, on the question.

11. The Subordinate Judge has referred to three cases as authorities for the view he took, and it would be convenient to refer to them first. The first case is that of Ramanath Paul v. Kanai Lal Dey . [1894] 7 C.W.N 104.. In that case the evidence was that the executors borrowed the money secured by a promissory note for the purposes of the estate, represented at the time when the loan was incurred that the money was required for the purposes of the estate and that as a matter of fact the money was utilized for such purposes. The contention was that the plaintiff had a right to a decree not merely against the executor personally, but also against the estate. Sale, J., overruled this contention observing thus:

“I think this contention goes a good deal further than is warranted by any of the decisions in this Court. I know of no case in which it has been held that in the absence of any special power given by the will an executor can render the estate liable for moneys borrowed by him for the purposes of the estate. I am quite aware that under certain circumstances an executor in his capacity as manager has the power of pledging specific portions of the estate for purposes of necessity, but that power is quite distinct from the power now claimed which is obviously of a wider character. In England it is settled law as appears from the case of Farhall v. Far hall . [1872] 7 Ch. 123, that an executor has not the power of charging the estate in respect of loans contracted for the purposes of the estate. In the present case it is not suggested that there is any special power given to the executor to borrow, or to charge the estate for loans made to the executor for the benefit of the estate.”

12. The second case is that of Debendra Nath Biswas v. Radhika Charan Sen . [1904] 31 Cal. 253. In that case one of the executors as such had borrowed money on a promissory note and a decree was asked for against all the executors, the other executors contending that they were not liable. It was found that the promissory note was given for goods apparently supplied to the estate. Maclean, C.J, Geidt, J. concurring relying on Farhall v. Farhall and Labouchere v. Tupper . [1857] 11 Moor. P.C 198 held that it was only the executor who had executed the promissory note and taken the loan against whom a decree could be passed. The third case is that of Sudhir Chandra Das v. Govinda Chandra Roy . [1917] 45 Cal 538. In that case Chitty and Beachcroft, JJ., held that an executor who borrows money in the course of the administration, for the purposes of the estate is personally liable for the payment of such debts, subject to his right of indemnity against the estate upon proof that the borrowing was in all respects proper and for the benefit of the estate. In that case the borrowing executors were repudiating their personal liability. Farhall v. Farhall, Labouchere v. Tupper and the two Calcutta decisions already referred to were relied upon in that case.

13. In Farhall v. Farhall, James, L.J expressed the opinion that neither authority nor principle was in favour of the view that an executor can by borrowing money enable the person who lent it to stand as a creditor to the estate even though the moneys were borrowed for the purposes of the estate; and Mellish, L.J took it to be settled law that upon a contract of borrowing made by an executor after the death of the testator the executor is only liable personally and cannot be sued as executor so as to get execution against the assets of the testator. In Farhall v. Farhall; Bacon, V.C was inclined to hold that Ashby v. Ashby . [1827] 7 B. & C. 444 and other cases recognized the rule that the creditor may have a demand against the executor both de bonis testatoris and de bonis proprius and that there may be a right in the creditor to proceed against the goods of the testator by reason of transactions with the executors, but this view was overruled, and the remarks of Lord Tenterden, C.J, and Bayley, J., in Ashby v. Ashby, which spoke of a hardship that might arise, were explained as being confined to cases in which the matter arose out of a contract with or something done by the testator. Mellish, L.J, in Farhall v. Farhall, quoted the following statement of the law from Williams on Executors (Edn. 9, at p. 6661):

“The more modern authorities have however established that in several instances the executor may be sued as executor on a promise made by him as executor, and that a declaration founded on such a promise will charge the defendant no further than a declaration on a promise of the testator;”

and then observed:

“But if we look through the different cases which follow the statement, it will be found that in every one the consideration for the promise of the executor was a contract or transaction with the testator.”

14. The learned Lord Justice, after referring to two other cases, Dowse v. Coxe . [1825] 3 Bing. 20 and Powell v. Graham . [1817] 7 Taunt 580, observed thus:

“That shows no doubt that a count for money paid for the use of the executor is a good count to charge him in his representative character, when the demand arises in consequence of a contract or transaction with the testator.”

15. This principle was applied in our Court in the case of Satya Prosad Pal v. Moti Lal Pal . [1900] 27 Cal. 683. where the executor had renewed hatchittas in the same terms as the-testator had originally executed them. In Labouchere v. Tupper the Privy Council held that an executor of a trader carrying on the trade after his death was personally liable for debts contracted in the trade, and the propriety of his conduct as between himself and the beneficiaries did not give the creditors the right to be treated as creditors of the testator or to give them a charge on the assets.

16. In the case of. In the matter of M.A Shard10 Sale, J., held that the mere fact that the trustee in carrying on the business of a trust rendered himself personally liable for the business debts would not of itself give the creditors a right to proceed against the trust property, but that the creditors would be at liberty to take such steps as they might be advised to proceed against the trust property in proceedings properly constituted (the beneficiaries were not parties to the proceedings in that case). Dealing with the facts of the case itself he observed thus:

“The mere fact that the suit is described in the cause title as one against the defendant personally, and also in his capacity as trustee would not enable the plaintiff to obtain a decree which could be enforced against the trust property. It is clear upon the authorities, to which I will refer later on, that before the plaintiffs could obtain a decree which they could execute against the trust property they would have to show, first that the trust property under the terms of the settlement was devoted to the purposes of the business of an hotel, and thus made liable to the debts and liabilities which would ordinarily be incurred in the regular course of business, and in the next place they would have to show that the circumstances were such that the defendant as trustee would be entitled to be indemnified by the trust property to the extent of the claim, and further that the plaintiffs as creditors of the hotel business, were entitled to stand in the shoes of the trustee in respect of the indemnity and to be recouped out of the trust estate.”

17. The learned Judge referred to and relied upon three decisions. The first one was Strickland v. Symons . [1884] 26 Ch. D. 245, in which Lord Selborne said:

“There is no principle or authority for saying that if a trustee makes himself personally liable for goods the creditor thereby obtains a lien on trust property. There is not the least authority for such an action as the present. It is an action for an equitable execution against the trust estate in respect of a judgment against the trustee. There is no evidence of any security on any part of this estate. There was only an ordinary contract for goods supplied to a person who happened to be a trustee…. It is therefore impossible to compare the case of Ex parte Garland12 and In re Johnson13, and other cases where there has been an express direction by the testator to carry on a business and where he specially appropriated part of his property for that purpose. Those authorities proceed on this principle that where a particular part of a trust estate is specifically dedicated to a particular purpose and the trustee though personally liable for the debts which he contracts in the course of the business has a right to be paid out of the specific assets appropriated for that purpose, and the trade creditors are not to be disappointed of payment so far as the assets so appropriated are concerned. But the authorities tend to limit that doctrine rather than to extend it. The case of Ex parte Garland shows that the creditor can only have recourse to the particular part of the property of which there has been an express dedication; and the right cannot be extended beyond that either in bankruptcy or in administration and that applies even to cases in which the trustee has done his duty in carrying on the business, and where be may be entitled to an indemnity for the expenses incurred by him. In re German Mining Co.14 and Labouchere v. Tupper, are cases in which the distinction is laid down between the rights of trustees carrying on business to be indemnified for expenses bona fide incurred where there are no particular assets appropriated and the rights of creditors. Under such circumstances the creditors have no rights against the trust estate.”

18. The second case was In re Johnson, Sheerman v. Robinson. In that case Jessel, M.R laid down that:

“Where a trader has by his will directed his executor or trustee to carry on his trade and to employ a specific portion of the trust estate for the purpose the rule is that though the executor or trustee is personally liable for debts incurred by him in carrying it on pursuant to the will he has the right to resort for his indemnity to the specific assets so directed to be employed, but no further; and consequently the creditors of the trade are entitled to stand in the place of the executor and trustee and to claim the benefit of that right, so as to obtain payment of their debts; but the rule does not apply where the executor or trustee is in default to the specific trust estate devoted to the trade; in such a case the defaulting executor or trustee not being himself entitled to an indemnity except upon terms of making good his default the creditors are in no better position and are therefore not entitled to have their debts paid out of the specific assets unless the default is made good.”

19. The third case is that of Raybould v. Turner . [1900] 1 Ch. 199, in which the beneficiaries being parties to the proceeding the creditors were allowed to claim the benefit of the trustee's right to an indemnity so as to enable them to obtain payment of their debts out of the trust estate. In that case Byrne, J., expressed himself thus:

“Bennel v. Wyndham . [1862] 4 De G.F & J. 259. goes to show that if a trustee in the course of the ordinary management of the testator's estate, either by himself or his agent does some act whereby some third person is injured and that third person recovers damages against the trustee in an action, the trustee if he has acted with due diligence reasonably, is entitled to be indemnified out of the testator's estate. When once the trustee is entitled to be thus indemnified out of his trust estate, I cannot myself see why the person who has recovered judgment against the trustee should not have the benefit of this right to indemnity and go direct against the trust estate or assets, as the case may be, as an ordinary creditor of a business carried on by a trustee or executor has been allowed to do.”

20. The case of in the matter of Shard was approved of in the case of Bride v. Madden . [1904] 31 Cal. 1084 and it was held that the creditor who supplied goods to a trustee authorized to carry on business is entitled to the trustee's right of indemnity if the trustee has not through his default lost that right.

21. In In re Evans, Evans v. Evans . [1887] 34 Ch. D. 597, Cotton, L.J (Lindley, L.J, agreeing) observed thus:

“A trader dies and his personal representative carries on his business. Whether the representative carries it on with or without, a person with whom he contracts a debt has no remedy against the assets, though an executor, if he had carried on the business in accordance with his duty, has a right to be indemnified out of them. Here the widow of an intestate took out letters of administration and continued his business, thinking it to be for the benefit of herself and her child. She incurred debts for the purpose of the business and the persons who supplied her with goods claim first against her and then against the goods……… The goods now in question were acquired for the purposes of the business and went into the business. The infant child of the intestate claims then as belonging to the estate, and in my opinion he has a right so to claim them subject to the right of the widow to be indemnified out of them against all claims in respect of them so far as she has not lost such right by being a debtor to the estate, land whether she has lost that right is a question depending on the result of the general account.”

22. In Dowse v. Gorton . [1891] A.C 190, it was held that the creditor of the executor or trustee is entitled, in cases where any part of the estate is authorized to be applied for carrying out a business specified in the will, to the benefit of the indemnity which the executor or trustee is entitled to. In that case Lord Herschell observed thus:

“I think it is clear that where a business has been carried on under such an authority as was conferred upon the executors by the will of this testator, they would be entitled to a general indemnity as against all persons claiming under the will.”

23. In the case of In re East London County and West Minster Banking Company v. East . [1914] 111 L.T 101, where certain creditors of a testator's estate protested against a business which the executors were carrying on ostensibly under a direction contained in the will, Swinfen Eady, L.J, said:

“There can be no question that apart from the creditors of the testator who were in a special position by reason of their having assented to or acquiesced is or associated themselves with the executor's carrying on of the testator's business or otherwise being in such a position as that business is to be deemed to have been carried on with their consent and for their benefit as was the case in the House of Lords in Dowse v. Gorton every other creditor was entitled to say that as against him the executors could not justify the carrying on of the testator's business for the period of three years that they did. Whatever right therefore the executors may have to sin indemnity as between themselves and the beneficiaries, they had no such right as against the creditors.”

24. From the cases cited above the proposition may be deduced that whatever differences there may be in the equity in favour of a creditor who has lent money to an executor, according as it is applied, for a purpose sanctioned by the will or a purpose not expressly sanctioned by it, the highest right that such a creditor may claim against the estate on the finding that it has been enriched or benefited by the money is a 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 as against the estate. We are speaking here of simple cases of loans on promissory notes or hatchittas or other contracts, that is to say, cases where no charge has validly been created on the estate. There are a few other cases of the Indian Courts that may now be usefully cited in support of this proposition. In Byramji Rustomji v. Heerabai . [1909] 2 I.C 161., the creditor was only subrogated to the right of the executor and was not allowed to attach the estate though he had lent the money to pay off a debt due by the testator; Scott, C.J observing:

“It is clear that on a claim for money lent to executors they are liable personally and a judgment cannot be directed against the assets of the testator.”

25. In Smaminatha Aiyar v. Srinivasa Aiyar . [1917] 38 I.C 172., a case in which a trustee of a temple had not signed the promissory note in question as manager, that where money is lent or goods sold to a trustee on his own personal security, though for purposes of the trust, the creditor cannot realize the debt out of the trust property, and that the fact that the money was utilized for the benefit of the trust will not entitle the creditor to a decree charging the amount due against the trust property. In Ammalu Ammal v. Namagiri Ammal . [1917] 43 I.C 760., in which case an executrix borrowed money for paying for certain legacies due from the testator's estate and executed a promissory note to which she affixed her signature without adding any description of herself as executrix and without mentioning in the promissory note the purpose of the loan, while both the learned Judges held that the creditor could not proceed against the estate and that his only remedy was to be subrogated to the rights of the executrix against the estate, they differed on the question whether, in view of the frame of the plaint, an inquiry into the question of the indebtedness of the estate to the executrix or of its liability to indemnify her could not be ordered. In the case of Chidambaram Pillai v. Veerappa Chettiar . [1917] 43 I.C 865., where an executor executed a promissory note describing himself as executor and it was sought to bind the estate in a suit based on it, it was held that the estate was not liable.

26. On behalf of the appellant it has been contended that the three decisions upon which the Court below has relied and other cases generally in which a similar view as regards the limited rights of the creditor has been taken, have overlooked the difference that exists between the powers of an executor under the law in India as compared to what they are in English law. It has been argued that under the Indian law the estate vests in the executor, and that he represents the estate for all purposes and is very much in the position of an owner and that for that and other reasons the principles of English law on which the decisions aforesaid rest should not be held to apply to this country. We think it is now too late to raise a contention of this character, even if it be conceded that there is any substance in it. It is true that the estate vests in the executor, that he represents it for all purposes, and is much in the position of an owner, but then all that is so simply to enable him to do the acts which the will authorizes him to do, and to exercise those powers and discharge those duties which the law vests in him. The powers of an executor are detailed in Ch. 6 and his duties in Ch. 7, Probate and Administration Act, 1881; there is nothing in the provisions contained in these two chapters authorizing him to borrow money for the purposes of the estate. It is not suggested that the will of defendant 1 gave her any such power. It is quite true that it is one of the primary duties of an executor to preserve the estate and to see that its Government revenue is paid, and should he have to find money for that purpose he is entitled to be indemnified to the fullest extent.

27. He may dispose of the estate if he finds it necessary to do so in order to effectuate the general purposes of the will and there can be no good reason why in the exercise of a sound discretion he may not raise money by partial sale or mortgage of the assets: see Bazayet Hossain v. Dooli Chand . [1879] 4 Cal. 402. But we cannot hold that if he takes a loan and pledges his credit only, even though as an executor, he can bind the estate for its repayment, unless it is shown that he has not lost his right to be indemnified out of the assets of the estate. The appellant has also argued that a decree against the estate would be justified on the footing of Section 70 of the Contract Act, or on some principle analogous to what is enunciated in that section. We are unable to agree in this contention. On behalf of the respondent our attention has been drawn to Section 29 of the Negotiable Instruments Act, and certain cases decided under that section. We do not consider it necessary to discuss those cases because that section, which deals with the question of the extent of the limits of the personal liability of the person signing, the promissory note, in our opinion, has no real bearing on the question that we are considering, namely, the question of the liability of the estate or of its owner. The cases cited merely lay this down that executors are personally liable on promissory notes executed by them as such even though they may be acting for the benefit of the testator's estate in doing so, unless their liability is excluded in the manner provided in S. 29 of the Act see, e.g K. Subbarayadu v. K. Subbanna . A.I.R 1925 Mad. 371.

28. In giving a resume of the cases which we have considered relevant to the question of the liability of defendant 2 or of the estate, we have omitted to refer to those cases in which creditors who lens moneys to guardians of infants or the managing members of joint families or heads of religious endowments have or have not been allowed to be subrogated to the indemnity which such guardians, managing members or heads of religious endowments may have against the respective estates. We do not refer to those cases because they obviously stand on a very different footing from the present case. Some argument has been addressed to us to hold the estate liable on the footing that defendant 1 contracted the loan as guardian of the infant, defendant 2, and reliance for this argument was placed upon a provision, which the will is alleged to contain, namely, that the properties should remain under the management of defendant 1 until the adopted son (i.e, defendant 2) attained majority. This provision, by itself, in our opinion, would not constitute defendant 1 guardian of defendant 2. Moreover the case was not presented in the trial Court in that aspect and very different considerations, dependent on investigation into facts on different lines would have arisen if it had been so presented.

29. The above being the state of the authorities on the question indicated above, our conclusion is that in view of the fact that in the present case the executrix, defendant 1, had executed the promissory-notes as such executrix and that the loans were taken for the benefit of the estate and there being a strong presumption arising out of the non-production by the defendants of the account books that had been called for on behalf of the plaintiff that the estate was really benefited by the loans and that the plaintiff, far from asking for a decree against the executrix only in her personal capacity, had in the plaint as originally filed impleaded all the necessary parties and had asked for a decree against all the defendants binding the estate, he should not be debarred from the remedy which the law allows him. It is quite true that it was not specifically pleaded in the plaint that he was entitled to be substituted to the indemnity which defendant 1 had against the state; but that is only a formal defect seeing that the prayer for relief against all the defendants and against the estate was there. Defendant 2 understood quite well that it was the indemnity to which the plaintiff desired to be subrogated as is evident from the passages from the written statement quoted above.

30. We accordingly feel no hesitation in ordering a further trial of the suit to determine the question whether defendant 1 has lost her right to the indemnity, or, in other words, to what extent, if any she is entitled to be indemnified out of the estate. Defendant 2, who pleaded that defendant 1 had lost that right, has given no proof of this allegation at all. In going into this question the Court below will have to take such evidence as the parties may choose to adduce and then to direct an investigation into the accounts to be held by a Commissioner appointed for the purpose, should that course be also necessary, due regard being had to the circumstance that defendant 1 has been discharged from her position as executrix apparently without any liability to the estate which is now in the hands of defendant 2. On the result of this further trial and investigation the Court below will consider what should be the proper decree to be passed in the case.

31. In conclusion, we desire to observe that it would be very necessary for the Court below to be astute enough to see that as a result of collusion between defendant 1 and defendant 2, about which some complaint has been made before us, the plaintiff may not be placed in a position making it impossible for him to show that defendant 1's right to indemnify has not been lost. Necessary presumptions will have to be drawn if defendant 2 persists in the non-production of the books of accounts and other papers which have not been produced by defendant 3 or by himself so far and the allegations that defendant 2 made in the several paragraphs of his written statements will be matters for him to substantiate.

32. The result is that the appeal is allowed, and the decree passed by the Court below in so far as it has dismissed the suit against defendant 2 being set aside, the suit is remanded to the Court below to be tried further in accordance with the observations made and directions, given above. Costs of this appeal will abide the result of the remand.

V.B/R.K

33. Case remanded.