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22. I have so far dealt with the litigation relating to the Medur estate. As regards the personal property belonging to Venkayamma, it was taken possession of by Rangayya Appa Rao, one of the two heirs to her personal property under Hindu Law, and the other heir Venkata Narasimha Appa Rao filed on the 10th of March 1902, O.S. No. 8 of 1.902 on the file of the Sub-Court, Kistna, against Rangayya Appa Rao, claiming one half of the personal property. The value of the property was stated to be Rs. 10,589-0-10, and the plaintiff claimed Rs. 5,294-8-5 being the half share. No reference was made to the will, fn the written statement filed by the defendant he stated that he heard that Venkayamma had executed a will leaving certain legacies, that the legatees had brought a suit, and that, unless it can be proved that the will was not genuine or the provisions thereof were not valid, the entire property in the suit would have to pass to the legatees. It was also pleaded that, in view of the contingency of the suit by the legatees succeeding, the plaintiff should execute an agreement undertaking to give one half of the property to them. Although the will was set up in this suit, the Subordinate Judge decreed a partition on the ground that the plaintiff and the defendant were the Stridhanam heirs of Venkayamma and that the pendency of a suit by the legatees under the will was no ground for refusing relief. The suit by (he two legatees, to whom, under the terms of the will of Ven-kayamma, her jewels and moveable properties were bequeathed, was tiled on the 10th of March 1902 against Rangayya Appa Rap and Venkata Narasimha Appa Rao and was numbered as O.S. No. 15 of 1902. The plaint set out the will, and alleged that the executor who was appointed under the will died without making any arrangement regarding the property, that the 1st defendant took possession of the moveables and that the 2nd defendant was also laying claim to the same. The defendants filed a written statement pleading that they were not aware of the execution of the will, the burden1 of proving which was on the plaintiffs, that the testatrix was not in a position to execute the will and that, even if the will was genuine, the properties specified in the will pertained to the Medur estate which the testatrix had no power to will away. They stated that, if the will was genuine and the testatrix had disposin g power, they had no objection to the properties disposed of being decreed to the plaintiffs. A decree was passed on the 30th of March 1904 holding the will to be genuine and that the testatrix had power of disposition over the moveables claimed in the suit and decreeing the claim of the two legatees. Execution proceedings went on till 1916 and the decree was executed. The present suits were brought in 1916 to recover the residuary legacies and also the four pecuniary legacies bequeathed under' the will. The Subordinate Judge dismissed the suits as barred by limitation. An appeal was held to the High Court Mr. Justice Sadasiva Aiyar held that the decision of the Subordinate Judge was right, while Mr. Justice Phillips held that the suits were not barred by limitation, and hence these Letters Patent Appeals against]the decision of Sadasiva Aiyar, J. dismissing the suits as barred.

28. The next question is whether the legatees have a right of action against defendants. Though, under the will of Venkayamma, Gopalakrishnamma was appointed executor, it is found that he did not accept the office and that he died without doing anything in connection with the estate. The exact date of his death does not appear, but it is common ground that he died soon after the testatrix. As he did not accept office, there was no person to assent to the legacies given by the testatrix in her will and consequently Section 112 of the Probate and Administration Act which requires the assent of the executor to complete the legatee's title to his legacy can have no application. As the will in question was executed by a Hindu outside Madras and as it does not comprise any immoveable properties in Madras, the Hindu Wills Act does not apply to the will and consequently Section 187 of the Succession Act which enacts that no right as executor or legatee can be established in any Court of justice unless a Court of competent jurisdiction within the province shall have granted probate of the will under which the right is claimed or shall have granted letters of administration and which is made applicable under the Hindu Wills Act to wills to which that1 Act applies, does not govern the present case. There was therefore no necessity to take out probate or letters of administration for the purpose of enabling the legatees under the will to claim the bequests given to them. So far as the decisions of Courts in India go, a right of suit has always been given to the legatee direct against an executor or administrator or the heirs of the deceased or the person in possession of assets out of which the legacy is to be paid even though there has been no assent to the legacy. In Khetramani Dasee v. Dhirendra Nath Roy (1913) I.L.R. 41 Cal 271, a suit by a residuary legatee against the heir of an executor for the recovery of a legacy due to her and for an account was held to lie. Jenkins, C.J. in reversing the decree of Richardson, J., and sending the case back for the determination of the question whether the plaintiff is entitled to the legacy claimed and for the purpose of taking accounts if such accounts were necessary, observed: It is true that the executor is dead, but his estate which would be liable at least to the extent to which it was enriched, is represented by the presence before the Court of his sole heir and representative. That does not mean that the heir or representative is personally liable for his father's breach of obligation, if breach there was, but that he is liable to the extent of the assets received from the father's estate." In Nandlal v. Gopilal (1905) 9 Bom. L.R. 317 a suit by one of the residuary legatees under the will of her father against the widow of the deceased who was in possession of the properties of the deceased and who claimed them adversely to the legatees was held to lie. As regards the form of the present suits, there is a prayer in the plaint in O.S. No. 30 of 1916 filed by the Rajah of Bhadrachalam, which is the subject matter of L.P.A. No. 20 of 1921, for the taking of accounts and for necessary directions for the purpose of affording adequate relief to the plaintiff. The plaint in O.S. No. 88 of 1916, which is, the subject matter of L.P.A. No. 24 of 1921, in addition to the prayer for the taking of accounts and for directions, also contains a prayer for the administration of the property of the testatrix under the orders of Court. No authority has been cited to show that a residuary legatee cannot file a suit for the taking of accounts for the determination (of the amount clue to him in respect of the legacy. In order to remove any technical objection that may arise as regards the form in the absence of a prayer for taking accounts in O.S. No. 87 of 1916, which is the subject-matter of L.P.A. No. 26 of 1921, we have allowed the plaintiff to add a prayer for the taking of accounts. It should be remembered that the defendants are also the legal representatives of Venkayamma, who, in the absence of the will, would be entitled to the personal properties of Venkayamma. In a suit by one residuary legatee for the taking of accounts and the payment to him of his share, the other residuary legatees are not necessary parties.

29. There is also the fact that in the present case the executor died without accepting office or showing any indication that he took upon himself the duties of executor. Under these circumstances, I agree with the view taken by Phillips, J., that the estate would not, under Section 4 of the Probate and Administration Act, vest in him. Section 4 no doubt declares that the executor or administrator of a deceased person is his legal representative for all purposes and that the property of the deceased person vests in him as such; but it is difficult to see how, in the absence of the acceptance of office by the executor, the property can still vest in him. In cases where the Hindu Wills Act applies and where probate is necessary, the estate does not vest in the executor until he obtains probate. In such cases the application for probate itself is an indication of the acceptance of office. Section 12 of the Probate; and Administration Act enacts that probate of a will, when granted, establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such. But in cases where probate is not necessary, there should be some indication that the person appointed executor is willing to accept office and perform the duties of the executor. In cases where he does not accept office, I think, the estate must vest in the legal representative until an application is made by some person competent to obtain a grant under the Probate and Administration Act In the present case the legal representatives of Venkayamma were the fathers of the present defendants and they took possession of the moveable properties of Venkayamma on her death and divided the same between them under a decree of Court which I have already referred to above. They have also laid claims to the income of the Medur estate which would under the terms of the will go to the legatees, and they drew monies from Court. I do not think the fact that they claimed to be reversioners to the Medur estate and not heirs of Venkayamma when they drew the monies, makes any difference. The nature of the claim made by a legal representative who takes possession of properties bequeathed under a will is immaterial in discussing the question whether the legatees have a cause of action to recover the legacies bequeathed to them under the will, though it may have an important bearing on the question as to whether Article 123 of the Limitation Act applies to such cases. All that is necessary to give the legatees a Cause of action is that the defendants should be in possession of assets left by the deceased to which under the terms of the will they are entitled and which have to be applied for the payment of the legacies left by the will. Even assuming my view that the estate vested in the legal representatives of the deceased owing to the executor not Having accepted office is wrong, I think the defendants and their fathers are in the position of executors of there own wrong in that they intermeddled with the estate of the deceased and were in possession of assets and they would be liable as such. It is clear that the fathers of the present defendants were aware of the will left by Venkayamma. The position that they took up in the suit relating to the moveable properties, which I have already referred to, was that they heard that Venkayamma left a will but were not personally aware of it, and that, even if the will was executed by her the properties specified in the will belonged to the Medur estate which she had no power to will away, but that, if the Court should hold that the will was genuine and that she had disposing power, they had no objection to the terms of the will being carried out. It is clear from the evidence that, so far as the moveable properties in the possession of Venkayamma and disposed of by her in paragraphs 2 to 4 of the will are concerned, they were taken possession of by Rangayya Appa Rao and subsequently divided between him and Venkata Narasimha Appa Rao by a decree of Court. The will was found to be genuine in the suit brought by the legatees and a decree was obtained by them in respect of the properties mentioned in paragraphs 2 to 4 of the will. As regards the Government promissory notes and cash representing the income of the estate between the date of the death of the son of the testatrix and her own death they must have known perfectly well that they were also disposed of by the same will. In the application to be brought on record in the Medur suit after Venkayamma's death it was alleged that Rangayya Appa Rao and Venkata Narasimha Appa Rao were the legal representatives and that they were entitled to the. Medur estate as reversioners. An order was made on the 20th of July 1899 bringing them on record on the ground that they being the reversioners of the plaintiff's husband and son, were entitled to continue the suit. In the application to be brought on record, nothing was said of the will, and the income of the estate was evidently treated by them as part of the Medur estate. It is arguedon their behalf that, whatever may be their position as regards the moveable properties disposed of in paragraphs 2 to 4 of the will, they could not be treated as executors of their own wrong as regards the income of the Medur estate which they claimed not as the heirs of Venkayamma but as reversioners to the Medur estate. Reference has been made to Williams on Executors, pages 182 and 195, where the learned author observes that, if a person sets up in himself a colourable title to the goods of the deceased, as when he claims a lien on them though he may not be able to make out his title completely or if he takes goods of the deceased by mistake supposing them to be his own or if he seizes the testator's goods claiming property in himself though it afterwards appears that he had no right, he shall not be deemed; an executor tie son tort. Having regard to the written statements filed in the suit relating to the moveable properties of Venkayamma, where the reversioners in-effect put the plaintiff to the proof of the will and of the disposing power of Venkayamma over the properties disposed of by the will and admitted their readiness to the terms being carried out should the Court hold the will to be genuine, and that the testatrix had disposing power, I think the position taken up by them was that as regards the properties referred to in pargaraphs 2 to 4 of the w ill and the legacies given by the will, they were holding the properties for themselves if the Court should hold against the will, and for the legatees, should the decision be in favour of the will. In the Medur suit they alleged that they were the reversionary heirs, but it should be remembered that, in adition to being the reversionary heirs to the estate, they were also the heirs of Venkayamma as regards her own private properties, and that the mesne profits that were disposed of by the will and over which Venkayamma had disposing power bore a very small proportion to the entire value of the estate and the interest involved in the suit.

36. Article 123 of the Limitation Act comprises two classes of suits: the first is suit for a legacy or for a share of a residue bequeathed by a testator, and the second is suit for a distributive share of the property of an intestate. Till the decision of the Privy Council in Mating Tun Tha v. Ma Thit (1916) I.L.R. 44 Cal. 379, it was held by all the High Courts following the view in Mahomed Risat Ali v. Hasin Banu (1894) 21 C. 197 that Article 123 of the Limitation Act was not applicable to a suit for partition by one Mahomedan against his co-heirs and that it was not a suit for a distributive share of the property within the meaning of Article 123 of the Limitation Act, as one heir was not under legal duty to distribute the estate to his co-heirs. In Maung Tun Tha v. Ma Thit (1916) I.L.R. 44 Cal. 379 a Burmese Budhist claimed one quarter share in the estate of his father who died on the 19th of December 1906 against the defendants who were his mother and the other children. The suit was dismissed by the Chief Court of Burma on the ground that under the Burmese Budhist law a son claming one-quarter share in the joint estate on his father's death must exercise his option, that the right given to the eldest son to claim a quarter share in the joint estate must be exercised as soon as possible, and that if there was unreasonable delay it lapsed. On appeal their Lordships of the Privy Council held that the plaintiff was at liberty to exercise the right within any period that was not outside the period that was fixed by Article 123 of the Limitation Act as the period within which a claim must be made for a share of property on the death of an intestate. The question as to which Article of the Limitation Act is applicable to cases like the one in question was not discussed. In Shirinbai v. Ratanbai (1918) 1 L.R. 43 Bom. 379 Sir Basil Scott, C.J., was of opinion that Article 123 of the Limitation Act applied to every suit where the plaintiff seeks to recover a distributive share of the property of an intestate irrespective of whether the defendant was under a legal obligation to distribute it or not, and that the decision of the Privy Council in Maung Tun Tha v. Ma Thit (1916) I.L.R. 44 Cal. 379, displaced the line of Indian cases upon which reliance was placed for the defendants. Macleod, J., was of opinion that a suit for a distributive share may be against any person in possession of the estate and not necessarily against the administrator or one in law bound to distribute. In Nurdin Najbudin v. Bu Umrao (1921) I.L.R. 45 Bom. 519 it was held that when members of a Mahomedan family continued to live as tenants in common without dividing the estate of a deceased ancestor, limitation would not run from the time of his death and that a suit for a distributive share of the deceased's estate would be governed by Article 144 and not Article 123. Fawcett, J., was of opinion that Maung Tun Tha v. Ma Thit (1916) I.L.R. 44 Cal. 379 was not a pronouncement of the Privy Council which should necessarily be held to conclude the question and that the word "distributive" in Article 123 has a peculiar meaning of distribution of an estate which has vested in an executor or administrator. Whatever doubts there maybe as regards cases of intestacy, I do not see any reason for holding that a suit for a legacy or for a share of a residue bequeathed by a testator can fall under Article 123 only if it is against an executor and not if it is against one in possession of assets which are liable for payment of the legacies. The wording of Article 123 is general. It refers to a suit for a legacy or for a share of a residue bequeathed by a testator, and if the legatee has a cause of action against the person in possession of the assets of the testator, I do not see why there should be a further qualification that the person in possession of the assets should be an executor or administrator. I think it will be reading into the Article words which are not there, namely, that the suit should be for a legacy or for a share of a residue against an executor or administrator. In Khetramani Dassee v. Dhirendra Nath Roy I.L.R. 41 Cal. 271 the suit was not against the executor but against the legal representative of an executor who was in possession of the assets, Jenkins, C.J. and Mookerjee, J., applied Article 123 to the suit. The legal representative in possession of the assets of a testator is bound to pay the legacies to the extent of the assets and an executor de son tort is liable to be sued by the legatees and will have no defence to the action if he is proved to be in possession of assets. It will not be open to an executor de son tort to deny that he is under all the duties of a rightful executor. The land is thus stated by Williams in his book on Executors, 11th Edition Vol. 1 P. 184: "When a man has so acted as to become in law an executor de son tort, he thereby renders himself liable, not only to an action by the rightful executor or administrator, but also to be sued as executor by a creditor of the deceased or by a legatee for executor de son tort has all the liabilities though none of the privileges that belong to the character of an executor." Reference was made by the respondent's Vakil to Sithamma v. Narayana (1889) I.L.R. 12 M. 487, where it was held that Article 123 of the Limitation Act was not applicable when the suit was by a legatee against an executor de son tort. If he is liable to pay the legacy and if he has all the liabilities of an executor, there is no reason why a suit by a legatee should not fall under Article 123. The only reason given by the learned Judges is that if the contention were to prevail the suit would not be barred before the expiration of 12 years. There is no reason why it should be so long as it is a suit for a legacy and is against a person who has in law all the duties of an executor cast on him owing to his having intermeddled with the estate or having taken possession of the assets. In Kheiramani Dassce v. Dhircndra Nalli Roy (1913) I.L.R. 41 Cal. 271, Article 123 was applied to a suit by a residuary legatee against the legal representatives of an executor. In Rajamannar v. Venkatakrishnayya (1901) I.L.R. 25 Mad. 351, the son of the deceased executor was a party defendant and Article 123 was applied so far as he was concerned. No doubt the surviving executor was also a defendant, but it was not suggested that a different period applied to the heir of the executor. Even assuming that Article 123 does not apply, Article 120 or Article 62 would be applicable. On the termination of the Medur litigation by the decision of the Privy Council, it became clear that the persons who came on record as the legal representatives of Venkayamma had no right to take the mesne profits which accrued between the date of the death of Venkayamma's son and her own death and that, if they received mesne profits, they must hold it for the benefit of the legatees under the will. Treating the suit as a suit for the recovery of money had and received, Article 62 would apply. Limitation under Article 62 cannot commence earlier than the date of the Privy Council decision as it is only on that date it can be said that money was received for plaintiff's use. If Article 62 does not apply, then the residuary Article 120 would be applicable.