JUDGMENT

Oldfield, J. - The answer to this reference seems to me afforded by the terms of Act XXVII of 1860. By that Act "no debtor of any person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person, or any part thereof, except on production of a certificate, to be obtained in the manner hereinafter mentioned, or a probate or letters of administration, unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives, and not from any reasonable doubt as to the party entitled."

2. The Act indicates the course to be taken by the heirs, and the debts should be collected by the administrator, and the assets distributed amongst the heirs.

3. The Court can permit an action to be brought by the heirs under the discretion allowed, but it can only properly do so when the party or parties suing are in a position to sue for the whole debt, for to permit one heir to realize his share would be to alter the nature of the contract, and to subject the debtor to inconveniences and hardships.

4. I would answer the reference in the negative.

Petheram, C.J. and Brodhurst, J.

5. concurred.

Duthoit, J.

6. I am of the same opinion as the learned Chief Justice and my learned brothers Oldfield and Brodhurst, but I wish to add a few words by way of explanation as to the way in which I have arrived at the conclusion stated.

7. There can, I think, be no doubt that when an obligation is contracted between A and B, then, in default of anything in the nature of the obligation, or of a special covenant to the contrary, the obligation passes to the representatives of the parties. How, then, does the obligation pass? European Jurisprudence would, I believe, say that, if the obligation is indivisible, it cannot be split up among the representatives according to their shares in the inheritance; but, if it be divisible, it can. This was, I take it, the Roman Law on the subject, and it is so stated to have been by Demangeat, who is perhaps the best authority on the point. The French Law, too, is formulated to the same effect in the Civil Code, Book III, Title III, Section V, paras. 1217 to 1221, But it would, in my judgment, lead to much inconvenience if we were to attempt to apply this canon in its entirety to the circumstances of this country, where the law of inheritance among Hindus and Muhammadans is complicated by variations, of which, as governing the particular case, one of the parties to the obligation might well have no knowledge.

8. Take, for instance, the case of a Hindu creditor on whose death the widow enters into possession and management of the estate, and thus obtains payment of a debt due to her husband. Presently three brothers of the deceased come forward and say,--and the fact is admitted by the widow,--that the creditor was living jointly with them, and that consequently the widow had no share in the debt. Or take again the case of a Muhammadan creditor who leaves a widow and ten sons and daughters. The sons and daughters claim, and are paid, their legal shares of the debt, but afterwards the widow comes forward and claims the entire debt, as due to her alone, on account of her dower, a first charge on the estate.

9. It was, I take it, to meet such difficulties that Act XXVII of 1860 was enacted, the preamble of which recites that it is expedient to consolidate certain Acts, and to remove all doubts as to the legal title to demand and receive debts payable in respect of the estates of deceased Hindus and Muhammadans. The Act then goes on to provide that no debtor of a deceased person shall be compelled to pay his debt to any person claiming to be entitled to any part of the effects of the deceased, except on the production of a certificate obtained under the Act, and that such certificate shall afford full indemnity to all debtors paying their debts to the person in whose favour the certificate has been granted.

10. The only cases which we