Dua, J. - (1.) This appeal has been preferrd by Pt. Bakhshi Ram defendant No. 2 from the decree of the learned Senior Subordinate Judge, Kangra at Dharamsala, passing a decree against him for a sum of Rs. 6,650/-in favour of Smt. Lila Devi plaintiff who is respondent No. 1 in this Court. On 30th April 1945 one Mr. Harish Chander, a lawyer of Dharamsala, executed a will in which inter alia he bequeathed a sum of Rs. 5,000/-to the plaintiff Smt. Lila Devi who was at the time minor and whom the testator had brought up like his own daughter. This amount, according to the will, was to remain deposited in the name of the beneficiary in the Punjab National Bank, Lahore, through Pt. Bakshi Ram, Pleader of Kangra, and could be withdrawn by the beneficiary on attaining majority. This sum, according to the will, was payable out of the share of the testator's daughter Smt. Satya Devi in the joint business with Jagan Nath, Mulkh Raj and Bhodu Shah Khatri, deficiency, if any, to be made good out of the testator's other property. The business mentioned above by the testator was to go to his daughter Smt. Satya Devi and was to be carried on after his death by L. Charan Das Puri, Advocate, Ch. Hari Ram, Pleader, Dharamsala, and Pt. Bakhshi Ram, Pleader, Kangra, on behalf of and for the benefit of Smt. Satya Devi 'Hari Niwas' the residential house, belonging to the testator was bequeathed by him to the Rama Krishna Mission Lahore Branch for starting a charitable institution for the service of the poor. After making provision for some other minor bequests, with which we are not concerned, the remaining estate was bequeathed in favour of the testator's wife Smt. Shanti Devi. The relevant clauses of the will which concern us now had better be reproduced here. After the preliminary introduction the will provided as follows:- "I. I have a bungalow known as 'Hari Niwas' situate on Harish Chander Road, Dharamsala. It was built by me. I will away the said bungalow in favour of the Rama Krishna Mission Lahore Branch along with all its furniture. The said Mission may sell the said bungalow, and start a charitable institution for the service of the poor and 'Daridar Narain' to commemorate the memory of Lal Raja Sri Daya Krishan Kaul, with the sale-proceeds thereof. II. My lawful and wedded wife, Mst. Shanti Devi will be the owner of my entire remaining property, moveable and immoveable, excepting the items which have been mentioned in detail in this document. By means of this will I give away the entire property owned by me to Mst. Shanti Devi aforesaid but she will not be competent to transfer my property by mortgage or sale or in any other way. III. * * * * * * * IV. * * * * * * * V. * * * * * * * VI. * * * * * * * VII. (i) I took the minor girl, Lila Devi, into my custody when she was only three day old. I have brought her up so far like my own daughter. She shall get Rs. 5,000/- in cash at the time she become major. The amount will remain deposited in her name in the Punjab National Bank Lahore through Pandit Bakhshi Ram, Pleader, Kangra, Lila Devi on becoming major shall be entitled to draw this amount with interest. This sum shall be paid out of the share of my daughter Satya Devi, in the business joint with Jagan Nath, Mulkh Raj and Bhodu Shah Khatri, deficiency if any shall be made good out of other property. * * * * * * VIII. * * * * IX. My daughter Kumari Satya Devi has joint business of supplying wood to the Military with L. Jagan Nath and Mulkh Raj Khatris residents of Daulatpur, and Bhodu Shah Khatri resident of Nagrota, Tehsil Kangra. That business shall go on in future as before. My daughter Kumari Satya Devi has been doing this business through me. In future, after my death, the management of the business shall be carried on by Charan Das Puri Adovcate Dharamsala, Chaudhri Hari Ram Pleader Dharamsala and Pandit Bakhshi Ram Pleader Kangra on behalf of my minor daughter, Satya Devi, for her benefit and they will be competent to deal with all sorts of accounts. X. Pt. Bakhshi Ram Pleader, Kangra and Pt. Roshan Lal Jaswal resident of Polian Prohatan, Tehsil Una, are my relatives and I have full confidence in them. They will render every kind of helped to my wife and daughter after my death, and shall severally execute the provisions of this will on my death Pt. Bakhshi Ram Pleader Kangra shall take into his possession and will give my property to the persons mentioned in this will in accordance therewith. * * * *" It appears that the plaintiff was not paid the amount of her bequest on 21st of June 1956 she instituted the present suit for the recovery of a sum of Rs. 6,650/- in all, consisting of Rs. 5,000/- as principal and Rs. 1,650/- by way of interest at the rate of 3 per cent per annum. In her plaint she claimed the amount initially from Pt. Bakhshi Ram, Advocate, defendant No. 2 through whom the amount in question was, according to the will, to be deposited in the plaintiff's name in the Punjab National Bank Lahore; in case, however, it was established that Pt. Bakhshi Ram had not received any money and was justified in not receiving the same. The plaintiff claimed the amount from defendant No. 1 Smt. Satya Devi, the daughter of the testator, out of the money received by her from the joint partnership business mentioned in the will; failing to receive the amount even from her, the plaintiff claimed the amount, as a last resort, from defendant No. 3 Smt. Shanti Devi widow of the testator who, according to the will, was the residuary legatee.
(2.) Pt. Bakhshi Ram in his written statement raised several technical preliminary objections. On the merits he denied having received any amount from the business or from any part of the estate of the deceased. Defendants Nos. 1 and 3 in their written statements also denied their liability to pay the amount claimed by the plaintiff; Smt. Satya Devi defendant No. 1 expressly denied having received any movable or immovable property under her father's will; she pleaded that the liability, if any, was of the persons who had been directed in the will to manage the business. Smt. Shanti Devi defendant No. 3 denied having received any amount relating to the partnership business. She admitted the will, but denied knowledge of its contents, though defendant No. 1 denied even knowledge of the existence of the will. Certain preliminary issues were tried in the first instance and while deciding them on 4-4-1957 the learned Senior Subordinate Judge observed in his order that the suit had been filed against defendant No. 2, who is also one of the executors, because it is provided in the will that the sum of Rs. 5,000/-was to be deposited in the name of the plaintiff through him. The other two executors named by the testator in his will were thus not considered by the Court to be necessary parties to the present suit. 1.The following issues on the merits were framed and tried by the Court below:- 2.Had Shri Harish Chander deceased executed a valid will on 30-41945 as alleged ? Was the plaintiff to get Rs. 5,000/- from the estate from the deceased under the will as alleged ? 3.To what interest, if any, is the plaintiff entitled ? 4.Is the suit within limitation ? 5.To what relief and against whom is the plaintiff entitled ?
(3.) Issues Nos. 1, 2 and 4 were decided in favour of the plaintiff. Under issue No. 3 the plaintiff was held entitled to claim interest at Rs. 3/- per cent per annum, with the result that, as stated above, a decree for Rs. 6,650/-was passed against defendant No. 2 on the ground that as an executor defendant No. 2 had not carried out the directions of the will and had failed to safeguard the interests of the plaintiff by securing the amount for her as provided in the will; he was thus held liable for the amount to the plaintiff because of his negligence in the discharge of his duties as an executor. Defendants Nos. 1 and 3 were absolved from liability, the formed on the ground that no liability had been cast upon her in the will for the amount in suit and defendant No 3 on the ground that the estate which came into her hand, as a residuary legatee, was not liable since it was amply established that the amount due to the testator in the partnership account of the joint business was sufficient to enable the plaintiff to realise the amount of her legacy.;