1985 PLP 218 (MLD)

3. The appellant filed the suit for recovery of Rs.22,

500. The same was resisted by the respondent and following four issues were framed:- (1) Whether the defendant is agriculturist within .the meaning of D.A.R. Act? (2) Whether the defendant has paid the entire amount of cheque and Hundi namely Rs.4,000 and Rs:20,000, respectively or the defendant had paid. only Rs.1,500?: ' (3) Whether. the plaintiff is entitled to recover any amount from defendant having been -given the probate by the Court, dated 16-12-1968? If yes what amount? (4) What should 'the decree be?" The plaintiff examined himself and one Sultan Hyder was also examined in his support. The defendant examined himself and also examined witnesses Wajid Ali Shah: and Muhammad Ibrahim in his Support. The Court held that the defendant was an agriculturist within the meaning of D.A.R. Act.. It further held that the respondent was indebted to the. deceased to the extent of the amount shown in. the plaint. In respect of issue No. 3. it was held- that the plaintiff was not the legatee' in respect of debt owed by the respondent as it had not been specified in the will and,: therefore, he. was not entitled to file a suit in respect `of this debt. Consequently this suit was dismissed.

4. There is no cross-objection filled by the respondent in respect of this matter. The only point involved in this appeal is whether the appellant was entitled to file a suit for recovery of an amount which was owing to the deceased R.S. Bulchand but the same had not been bequeathed to the appellant in the will of R.S. Bulchand but he had been appointed as the executor of the will.

5. Mr. Jhamat Jethanand submitted that the testator had clearly bequeathed ail his present or future property to him. He relied upon the following para. of the will:- -- - "These are all myself acquired properties and I, hereby demise and bequeath all the above-mentioned properties which I may acquire hereafter into Narumal son of Govomal, resident of Sujawal, District Thatta absolutely and appoint him sole executor of my this will." His submission is that the expression "properties which I may acquire hereafter" means that all the properties which were to be left by the deceased had been bequeathed to the appellant by this will and, therefore, whether it was a real property or an actionable claim the appellant was the person in whom all such properties vested at the time of the death of R.S. Bulchand. I do not agree with this submission of the learned counsel. The expression quoted above only talks of the properties which were to be acquired after 1-8-1968 by the testator while the present claim against the respondent actually existed on 1-8-1968 and, therefore, it cannot be held that the deceased had bequeathed this particular debt also to the appellant. In fact if there was an heir of, the estate of the deceased and there' was a contest between that heir and the present appellant then the heir would have A been really entitled to take the debt from the respondent to the exclusion of the present applicant. Mr. Jan Muhammad Dawood had rightly submitted that mere grant of probate in favour of the appellant did not mean that the civil Court was excluded from putting its own construction upon the will of the testator. He had relied upon A I R 1946 Oudh

193. I agree with this 'submission of Mr. Jan Muhammad Dawood.

6. However; this only decides about the appropriation of the debt which is owed by the respondent to the deceased R.S. Bulchand. The more important question in this appeal was whether the appellant was really excluded from even filing of a suit for the 'realization of the debt due to the, deceased. The learned District Judge dismissed the suit on the basis of interpretation of section 211(2) of the Succession Act, Section 211(1) vests the property of the deceased person in the executor-or administrator as such. and makes the executor as his legal heir:, for all purposes. However, subsection (2) of the same section provides that nothing, contained in subsection (1) shall vest in an executor or an administrator any property of the deceased person which would have otherwise passed by survivorship to some other person when the deceased was a Hindu, Muhammadan etc. The learned District Judge took the view that the deceased being a Hindu, the property that he left at his death did not vest in the appellant because he was not an heir of the deceased and since the deceased had not bequeathed by his Will the present debt owing from the respondent in favour of the deceased, therefore, the appellant was not entitled to file the suit for its recovery. The above view seems to be based, upon the omission to note the difference between the vesting, of the property and the right; of instituting the proceedings for the recovery of the property. Of course the debt of the respondent did not vest in the appellant as such but he was admittedly the. only executor of the last will of the deceased R.S. Bulchand. In section 2(c) of the Succession Act "executor" is defined as the person to whom the execution of the last will of .a deceased person is, by the testators' appointment, confided section 305 of the same Act invests an executor or administrator with the power to sue in respect of all causes action that survive the deceased and he may exercise the same power for the recovery of the debts as the deceased had he been- living. Even section 306 of the same Act provides that all demands whatsoever and all rights to prosecute or defend any action or subject to, proceeding existing in favour or against a person at the time of his death, survive to and against his executors or administrators except in certain specified cases which is not applicable here. Even in section 318 of the said Act the person to whom a grant has been made of probate or letters of administration, he is required to include in the inventory, of the effects of the deceased, all his movable and immovable property situate in Pakistan and also state the value of the property and pay the court-fee thereon. More important provision is section 319 of the said Act which saddles, the executor or administrator with the responsibility of collecting with reasonable diligence, the property of the deceased and the debts that were due to him at the time of his death.

7. The scheme of the Act, therefore, shows that the executor) appointed by a will can recover the debts owing to the deceased irrespective of the fact whether he will get any benefit of that debt or not. It is commonly, known that a person may bequeathed a number of his properties to different persons .in his will and he may appoint a complete outsider as an executor of the will who can get the probate in respect of that will and after taking over the property may distribute the same amongst the persons who are entitled to get the property under that will.

8. If the distinction between the executor of the will and the legatee as such had been kept in the mind and the powers of the executor had been seen as provided in the Act then this difficulty would not have arisen.

9. It is admitted position according to the will itself that the appellant was the only executor appointed in the will by the deceased, therefore, he had all the powers of the executor in respect of all the property o the deceased and he could, therefore, file the present suit although he could not claim that the debt owing from the respondent had also been bequeathed to the appellant.

10. Since there is no other point involved in this appeal, therefore, I reverse the finding in respect of, issues Nos. 3 and 4 and hold that the suit filed by the appellant was competent and he was- entitled to recover the amount of the suit from the respondent as he was the executor of the will, and probate had been granted to him. The suit is, therefore, decreed as prayed in the plaint. The execution of the decree would however, be subject to the provisions of the Deccan Agriculturist Relief Act because the finding _in respect of, the defendant being an agriculturist was not challenged before me. This appeal is, therefore, disposed of in the above terms with costs. A.A. Appeal allowed.