1870 SAYAMALAL SAUDAMINI is a case, No. xx, in which it seems to have been decided that a person afflicted with leprosy is incompetent to adopt a son. The following case, No. xxi, shows that if the leper has performed the prescribed penance, he may adopt, and in a note a passage from the digest of Jagannatha is referred to as follows: "Raghunandana "holds that expiation for a man afflicted with elephantiasis or "other similar disease is ordained for the purpose of enabling "him to perform acts of religion ordained in the Veda. By parity "of reasoning he becomes competent to inherit property as well as to perform religious ceremonies." 66 In a case before the Privy Council, Ramalinga Pillai v. Sadasiva Pillai (1), it seems to have been taken as admitted law that an adoption by a person while under pollution, in consequence of the recent death of a relation, would be invalid. On the whole, I am of opinion that Thakomani, as an unchaste widow, living in concubinage, and being in a state of pregnancy resulting from such concubinage, was incompetent to receive a son in adoption; and, therefore, on the question of law, as well as upon the facts, my judgment is adverse to the plaintiff. The suit will be dismissed in the terms I have already intimated. Suit dismissed. Attorney for plaintiff: Baboo Ashutosh Dhur. Attorney for defendant: Baboo M. C. Chatterjee. (1) 9 Moore's I. A., 506. [APPELLATE CIVIL.] Before Mr. Justice Norman and Mr. Justice Mitter. NGA THA YA (Defendant) v. MI KHAN MHAW (PLAINTIFF).* Parties-Act VIII of 1859, ss. 73, 350—Act XXVII of 1860, s. 4—Adding Parties-Irregularity in an Interlocutory Order not Affecting Merits of the Case-Certificate of Administration-Suit by Co-heir against Holder of Certificate of Administration-Parties to Suit for Account of an Estate against Holder of Certificate. In a suit against a co-heir, who had obtained a certificate under Act XXVII of 1860, for an account of the estate of the deceased proprietor, a third party was added as a defendant, under section 73 of Act VIII of 1859, "it appearing, from the accounts put in that a large portion of the assets had been disposed of by him as agent" of the holder of the certificate. On appeal, held that a co-heir is entitled to follow property of the deceased into the hands of any person who has misappropriated it, and such right is not taken away by the certificate. Therefore, any person who, with the consent of the holder of the certificate, has improperly possessed himself of property belonging to the deceased, and misappropriated it, may be joined as a co-defendant. The third party was rightly so joined in this case. The words in section 73 of Act VIII of 1859 (1), "who may be likely to be affected by the result," construed to mean "likely to be affected, if added as parties." THIS was a suit to administer and divide the estate of the late Nga Tha. The plaint stated that the plaintiff, Mi Khan Mhaw, was the wife of the deceased; that the defendant, Nga Tha Ya, had, on the 18th April 1868, upon a representation that she was the wife of the deceased, obtained, from the Court of the Recorder of Moulmein, a certificate to collect debts of the deceased, and had, on the strength of such certificate, become possessed of the * Regular Appeal, No. 268 of 1869, from a decree of the Recorder of Moulmein, dated the 11th August 1869. (1) Act VIII of 1859, section 73.-"If it appear to the Court, at any hearing of a suit, that all the persons who may be entitled to, or who claim, some share or interest in the subject-matter of the suit, and who may be likely to be affected by the result, have not been made parties to the suit, the Court may adjourn the hearing of the suit to a future day to be fixed by 1870 May 8. 1870 effects of the deceased, and had refused to render any account. NGA THA YA thereof to the plaintiff. Hence the present suit. v. MI KHAN The Recorder said: "I think the proper mode of effecting this "introduction to the record of a party alleged to be an accounting "party in an administration suit is by making him defendant. "Such a position certainly appears to be the one prescribed for "him by section 73 of the Civil Procedure Code, and is the "one which he invariably occupies in administration suits, as "at present framed by the Equity Courts at home." Nga Tha Ya was accordingly made a party defendant by the following order :— "It appearing, from the accounts put in, that a large portion "of assets have been disposed of by Nga Tha Ya, as agent of "Mi Kho Oo, let Nga Tha Ya be made a defendant, under "section 73 of the Civil Code." On the 11th June 1869, the Recorder of Moulmein passed the following order : 66 "Evidence having been taken as between the plaintiff and "the original defendants on the record, the Court found that the "estate was divisible into two equal parts, and that the plaintiff "was entitled to one of such parts, and the defendants, as they originally stood, to the other. In investigating the assets, it appeared that the greater portion of them had come into the "hands of Nga Tha Ya, as the agent of Mi Kho Oo, and Nga Tha "Ya was, accordingly, added as a defendant. The learned coun"sel for Nga Tha Ya desires to dispute the plaintiff's claim to "an account, and claims to have the rights of the original defend"ants to contest the property in suit. I do not think he is "entitled to this. He has been made a party only as liable to "account to the parties beneficially interested in the estate about "to be administered, and the only issue he is entitled to have "tried is, whether he has duly discharged himself of the assets "which have come to his hands." The Recorder also found that the bulk of the estate of Nga Tha came to the hands of Mi Kho Oo, the younger widow; that she was a feeble character, and had fallen into the hands of the defendant, Nga Tha Ya, who took advantage of her inexperience, and possessed himself of some property be an 1870 v. longing to the estate, and by a pretended sale of the same, managed to secure to himself a profit of rupees 1,596; that NGA THA YA from the accounts taken, Nga Tha Ya was liable, as MI KITAN accounting party, to the estate in rupees 3,651-11, and he was ordered to pay the same into Court; that with regard to Mi Kho Oo, the Court found that she was liable to pay to the estate the sum of rupees 560-15, which amount would be debited to her in the general distribution. On the 23rd August 1869, leave was given to the plaintiff to proceed in execution of the order of the 11th June, in the same manner as if it had been a decree of Court. Nga Tha Ya appealed to the High Court. Mr. Montriou, for the appellant Nga Tha Ya, contended that the Recorder had no jurisdiction to make the appellant a party to this suit; he was not 'entitled to,' nor did he claim some share or interest in the subject-matter of the suit' (section 73 of Act VIII.) There are General Orders of Chancery in England authorizing certain additions of parties; but, even could they be introduced by implication here, there is no rule of equity, nor of practice, which could warrant what has been done in this case. The agent of an accounting party cannot, as such, be joined with his principal in a suit for an account: Attorney-Genl. v. Earl of Chesterfield (1). Cottle v. Aldrich (2) was a strong exceptional case, where one, originally acting as agent for an executor, continued, after the death of the principal, to act without renewal of authority, and was treated as executor de son tort. That case confirms the general rule. Here it is found that the appellant had accounted with his principal, Mi Kho Oo, the certificate-holder. Nor does any question arise upon the limited character of the Indian certificate as a representative title: it has never been contended that the appellant claimed to be, or acted as, representative, or was chargeable as such. The Recorder's order is :-" A large portion "of assets have been disposed of by Nga Tha Ya as agent of "Mi Kho Oo: let Nga Tha Ya be made a defendant under "section 73." But it may be inferred from the judgment that the Recorder treated the appellant's position as simulated and a fraud upon Mi Kho Oo, and therefore upon all parties interested in the estate. He finds that Nga Tha Ya had profited by Mi Kho Oo's inexperience; that he induced her to sign a bond, although he appears "to have rendered no assistance of any sort; but, on the contrary, "to have so arranged with other persons as to give him a pretext "for further claims against her in respect of their services;" that, "by a pretended sale to his brother-in-law, Nga Mazin,” he managed to secure to himself a considerable profit upon timber belonging to the estate. This is the special case relied on as making the ostensible and admitted agent of the certificate-holder an accounting party to the estate, jointly with his principal. Now, there can be no question of Mi Kho Oo's liability, in respect of her agent's receipts; her insolvency is not charged. The several exceptional cases of collusion and other circumstances establishing a quasi-privity with the estate or, by reason of misconduct, a liability to next of kin and creditors, referred to in Calvert on Parties to Suits, are distinguishable. [The learned Counsel went through and distinguished several of the cases.] No facts are found here showing the necessity or propriety of going beyond Mi Kho Oo for an account of the assets realised under the certificate. Then, the vague findings or insinuations of fraud in the judgment are wholly unwarranted by the evidence, which fully establishes the bona fides of the agent's proceedings. Mr. Vertannes, contra.-The first question for consideration is the position of a certificate-holder under the provisions of Act XXVII of 1860. A certificate-holder has power only to collect the debts due to the deceased, and to grant receipts; and for that reason, if there be any Government securities standing in the name of the deceased, special power to receive interest, or negociate them, must be given to the certificate-holder. No title to the estate is acquired under the certificate; whereas under Letters of Administration, the administrator has a legal title, and fully represents the estate. Any one therefore who acts as the agent of a certificate-holder, in the disposal of the assets, is not in the same position as one who deals, similarly, with an |