Legal representatives may be sued without prior proof of estate assets; due administration remains a defence on execution, not suit.
A suit against the legal representatives of a deceased debtor may proceed without prior proof that they hold the deceased's assets; the existence of a legal representative for purposes of suit is distinct from the later of execution against estate assets. The plea of due administration or plene administravi remains available where the representative shows the estate has already been duly applied, but it does not bar the suit itself. On the recorded findings, the asserted dower debt was not proved to the required extent, so the defence failed and the decree was supportable.
Issues: (i) Whether a suit against the legal representatives of a deceased debtor requires proof that the deceased left assets in their hands before a decree can be passed. (ii) Whether the legal representatives can resist the suit by pleading full administration or due application of the deceased's assets, including where a dower debt is asserted.
Issue (i): Whether a suit against the legal representatives of a deceased debtor requires proof that the deceased left assets in their hands before a decree can be passed.
Analysis: A person sued in a representative capacity is a legal representative because the estate devolves on him, not because he is necessarily in possession of identifiable assets at the time of suit. The statutory scheme distinguishes between the existence of a legal representative for purposes of suit and the later question of execution against assets of the deceased. The decree may be sought first, and the mode of realization examined later.
Conclusion: It is not necessary, at the stage of the suit, to prove that the legal representatives are in possession of assets of the deceased before a decree can be passed.
Issue (ii): Whether the legal representatives can resist the suit by pleading full administration or due application of the deceased's assets, including where a dower debt is asserted.
Analysis: The plea of due administration or plene administravi is available in substance where the legal representative shows that the available assets have already been duly applied. However, on the findings recorded, no dower debt of the asserted magnitude was proved, and the lower courts' refusal to dismiss the suit was justified. The decree granted below was therefore supportable, though the precise form of the decree was not challenged by the plaintiffs.
Conclusion: The defence based on alleged prior application of assets did not displace the decree, and the appeal failed.
Final Conclusion: The legal representatives remained liable in the suit, and the challenge to the decree did not succeed.
Ratio Decidendi: A suit against legal representatives of a deceased debtor can proceed without prior proof that they hold the deceased's assets, and the question of due application of assets is not a bar to the suit itself but is relevant to the ultimate liability and execution.
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