Decided on January 09,1900



Banerjee and Stevens, JJ - (1.) This appeal arises out of a suit brought by the plaintiffs-respondents against three persons, namely, Pramatha Nath Pal Chowdhry, Satya Prosad Pal Chowdhry, and Lolit Mohun Pal Chowdhry, for recovery of a certain sum of money due on hatchittas or signed accounts on the allegation that the late Koilash Chunder Pal Chowdhry, father of the defendants, carried on monetary dealings with the plaintiffs on hatchittas, on condition of paying interest at the rate of 12 annas per cent, per mensem and of renewing the hatchitta on the Ramnavami Puja day of each year, so that interest at the said rate might run from that day on the amount due as principal and interest; that Koilash Chunder Pal Chowdhry died in Assin 1300, after having executed his last hatchitta on the 14 of Cheyt preceding, for Rs. 27,527 odd; that on his death his widow Damini Dasi, mother of the defendants, having obtained probate of his will on the security of defendants l and 2, continued renewing his hatchitta year after year down to Cheyt 1302, as his executrix, her name being signed by defendant No. 2; that the said Damini Dasi as the executrix of Koilash Chunder Pal Chowdhry and for the benefit of his estate borrowed from the plaintiffs a further sum of Rs. 1,600, promising to pay interest at 1 per cent, per mensem; and that subsequently on the objection of defendant No. 1, Promatha Nath Pal Chowdhry, the grant of probate to Damini Dasi having been revoked, the defendants under the will of their father have become possessed of his estate and are liable for the amount claimed. The defence was limitation, denial of the plaintiff's right to sue without joining their mother as a plaintiff, denial of the execution of hatchittas by Damini Dasi, and denial of her power as executor to borrow money or renew hatchittas,
(2.) The Court below has found for the plaintiffs upon all the issues raised in the case and has given them a decree.
(3.) Against that decree defendants No. 2 and 3, Satya Prosad Pal Chowdhry and Lolit Mohan Pal Chowdhry, have preferred this appeal; and it is contended on their behalf, first, that the Court below is wrong in holding that Damini Dasi alone was competent to exercise the powers of an executor when the will of Koilash Chunder Pal Chowdhry appoints not her alone but her and four other persons as executors, and directs that they shall act jointly; secondly, that, even if Damini Dasi was competent to act alone, the Court below is wrong in holding that the renewal of hatchittas by her as executrix was binding on the estate of the testator; thirdly, that, even if Damini Dasi was competent to act alone, the Court below was further wrong in holding that the estate of the testator was liable to pay the money borrowed by her; and fourthly, that the Court below ought to have held that the plaintiffs were not competent to maintain this suit without joining as a co-plaintiff their mother as heir of their deceased brother, who had a share in the money sued for.;

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