K Leelavathy
Bai & Ors Vs. P V Gangadharan & Ors [1999] INSC 76 (17 March 1999)
S.Saghir
Ahmad, N.Santosh Hegde SANTOSH HEGDE, J.
This
appeal by special leave is preferred against the judgment and decree of the
High Court of Kerala dated 26.11.1986 made in S.A. No.681/82F.
The
suit pertains to 50 cents of land, two buildings along with some superstructure
situated in Calicut city.
Originally,
the suit property belonged to one S.P. Sadanandan who had executed a Will on
23.6.48, bequeathing properties owned and possessed by him. Under this Will he
bequeathed the suit scheduled properties jointly to two of his sons, namely,
Earnest Devadas Sadanandan and his younger brother J G Sadanandan. The suit
property was enumerated as Item No.10 to Schedule `A' to the Will. Sadanandan,
who died on 10.7.1948, had originally appointed his wife, his elder son E D Sadanandan
and a Chartered Accountant by name Paramasivan as executors of his Will. One of
the executors, namely, Paramasivan later on relinquished his status as an executore.
Therefore, the remaining two executors, namely, widow of the testator - Suseela
and their elder son E D Sadanandan filed O.P. No.231 of 1963 for probating the
Will. The High Court before which the probate proceedings were initiated,
granted the probate on 12.11.1963. It has come on record that the suit property
in question was earlier leased to one S.V. Sivaramakrishana Iyer and during the
pendency of the lease, the eldest son E D Sadanandan mortgaged the property
with possession in favour of the original lessee S V Sivaramakrishna Iyer, son
of S.G. Venkitachala Iyer for a consideration of Rs.1,000/- for a period of 12
years. It has also come on record that one Ramdass filed a money suit being
O.S. No.63/56 before the Subordinate Judge at Calicut against a Company by name
Standard Cotton & Silk Co. Ltd., of which the widow of Late Sadanandan - Suseela
- and her eldest son E D Sadanandan were Directors along with the younger son Sadanandan.
The said suit came to be decreed wherein a decree was passed jointly against
the elder and the younger sons, regarding the assets of the Company. However,
elder Sadanandan was not personally made liable and there was no decree against
the widow Suseela who was not a party to the suit while there was a personal decree
against younger Sadanandan. In execution of the said decree, the present suit
properties along with other items were attached on 27.11.1961 by an order of
the court. It has also come on record that a notice of attachment was issued on
30.11.61 detailing the properties attached which included the present suit
property also. It has also come on record that on 10.1.1964 the suit properties
which were attached, as stated above, were brought for sale privately by widow Suseela
and the elder son Sadanandan in favour of Kerala Transport Co.
represented
by its partner P.V. Swamy. Consequent to the decree and execution proceedings
in the suit filed by the above stated Ramdass in OS No.63 of 1956, the attached
properties were brought for court auction on 17.9.62 and the properties were
actually sold in public auction on 27.7.1964, a date subsequent to the private
sale referred to above. The objections filed against the court auction being
rejected by the executing court, a sale certificate was issued on 2.9.1964 in favour
of the auction purchaser and since the property was under mortgage and in
possession of third party, a symbolic possession was given to the auction
purchaser on 19.12.1964.
The
auction purchaser thereafter filed a suit for redemption of the mortgage being
OS No.158 of 1968 on the file of the Munsif, Kozhikode (Calicut), praying for,
inter alia, that he be permitted to deposit the mortgage amount and redeem the
property in question which right of redemption according to him, was acquired
by him pursuant to his purchase of this property in court auction. The said
suit of the plaintiff came to be decreed by the judgment and decree dated
19.9.1980 of the trial court negativing the defence of the defendants. The
aggrieved defendants preferred first appeals before the District Judge, Kozhikode which came to be substantially
allowed by a judgment and decree of the first appellate court dated 31.3.1982.
In the meantime, the original plaintiff having died, his legal representatives
filed a second appeal referred to above, before the High Court of Kerala which,
as stated above, came to be dismissed and the legal representatives of the
original plaintiffs are now before this Court in this civil appeal.
In the
appeal before the High Court, two points were canvassed for its consideration,
namely, (I) whether the first defendant is entitled to the tenancy rights as
pleaded by him; (ii) whether the prior sale by the executors will prevail or
whether the court sale will have preference over it. Even though with regard to
the first question, both the trial court and the lower appellate court had held
against the defendants. In view of the fact that the lower appellate court had
held in favour of the defendants on the second question, no separate appeal was
preferred by the defendants with regard to the findings rendered by the first
appellate court on the first question. However, it seems the said question was
also seriously canvassed by the defendants before the High Court, taking
recourse to the provisions of Order 41 Rule 22 of the Code of Civil Procedure.
The High Court after considering the materials on record and hearing the
arguments of the parties, held on the first question that the document of
mortgage Ex. A-1, is in fact only a rental arrangement of the buildings, and
the transaction under the said document comes within the purview of the
Buildings (Lease and Rent Control) Act.
Hence,
the possession of the defendants was protected under the said Act de hors the
mortgage claim.
In
regard to the second question also, the High Court came to the conclusion
holding that the private sale executed by the two executors on 10.1.1964 in favour
of the fourth defendant would prevail over the court sale dated 27.7.1964 in favour
of the plaintiff. The contention of the plaintiff that the private sale in favour
of the defendant was in violation of the court's order of attachment dated
24.11.1961, was also rejected, holding that the attachment in question did not
bind the executors of the Will since at least one of them was not party to the
decree which was sought to be executed, and also in view of the fact that the
decree sought to be attached was personal only against the younger Sadanandan
and in view of the provisions of Section 60 of the C.P.C., there could be no
attachment in execution of the decree of properties belonging to persons other
than the judgment debtor. Reliance was also placed on the provisions of Order
21 Rule 54 of the Code. It was also held that the attachment would not confer
any title in favour of the person who gets the property attached. The High
Court considered the question whether the executors of the Will can transfer
the property left behind by the testator, and relying upon Section 211(1) of
the Indian Succession Act it held that an executor or an administrator of the
Will steps into the shoes of a legal representative of a testator for all
purposes, and all property of the deceased vests in the executors as such. It
further relied upon Section 307(1) of the Indian Succession Act which provides
that an executor or an administrator has power to dispose of the property of
the deceased vested in him under Section 211, either wholly or in part, in such
manner as it may think fit unless the said right is restricted by the testament
itself. On the basis of the findings recorded above, the High Court dismissed
the appeal of the plaintiffs.
Before
us, on behalf of the appellant-plaintiffs, Mr. V R Reddy, learned senior
counsel, has reiterated the contentions that were urged before the High Court.
He also contended that the property bequeathed being specific and one of the
executors, who was also a legatee, having given his assent, though impliedly,
the same is sufficient to divest the interest of the executors in the property
as envisaged by Section 333 of the Act. Elaborating the contention it was
argued that by the conduct of the executor elder Sadanandan it should be deemed
that the property had been divested from the executors and the same had vested
in the legatees. If so, the property had become available for attachment and
court sale. This argument of the learned counsel is based on the fact that the
elder Sadanandan had executed a possessory mortgage as per Ex. A-1 on 6.1.1955
and this act of the elder Sadanandan who was also an executor, had divested the
rights of the executors in the property and had made the property available for
court sale since the same had vested in the legatees. Learned counsel also
contended that at any rate since younger Sadanandan had suffered a personal
decree in O.S. No.63/56, at least his share in the suit property was available
for court auction.
Mr.
TLV Iyer, learned senior counsel appearing on behalf of the contesting
respondents, countered the arguments on behalf of the appellants by stating
that the judgment under appeal did not call for any interference. He further
argued that after the relinquishment of his rights by the third executor, Mr. Paramasivan,
there were still two executors namely the widow of the testator - Suseela - and
the elder son Sadanandan. Learned counsel further contended that in law an
executor of a Will becomes a legal representative of the deceased testator and
the property vests in them. He further elaborated his argument by contending
that if there are more than one executor then all the executors should act
jointly and one executor cannot act to the exclusion of another. Therefore, in
his submission, assuming for argument's sake, the execution of Ex. A-1 by elder
Sadanandan was an act amounting to an assent. The same is not valid in law
inasmuch as it was only a unilateral act of one of the executors and unless and
until the other executor - Smt. Suseela - joins the elder Sadanandan to
establish a collective assent, there could be no divesting of the property
since such collective acts have not been alleged or established, there could be
no divesting of the property as contended by the appellants. Learned counsel in
support of his argument has relied upon a judgment of this Court in First
Additional Income Tax Officer, Kozhikode v.
Mrs. Suseela Sadanandan & Anr. (57 ITR 168). We have carefully considered
the arguments advanced on behalf of the parties. We will first address
ourselves to the argument of the appellant that there has been an assent on the
part of the executors, consequently the suit property had vested in the
legatees and therefore, the sale of the suit property by the executors on
10.1.1964 was an invalid sale. Thus, the suit property was legally available
for court sale. On facts, there is no dispute that the testator had originally appointed
3 persons as executors of his Will, and after the relinquishment of his duties
as executor by Mr. Paramasivan, still two other executors were left, namely, Smt.
Suseela and Mr. ED Sadanandan (elder one) who continued to be the joint
executors of the Will in question. Under Section 211 of the Act, these two
executors became the legal representatives of the deceased testator for all
purposes and the properties bequeathed vested in these two executors. Until and
unless the said executors assent, the title of the property would not pass on
to the legatee. (See Sec. 332 of the Act). Of course, in law, by the assent of
the executor the title of a specific property would pass on to the legatee and
this assent could be verbal, express or implied. (See Sec. 333 of the Act). The
appellants want us to infer that such an assent of the executor could be
inferred from the act of elder Sadanandan in executing a possessory mortgage
Ex. A-1 in favour of S V Sivaramakrishna Iyer by which act the elder Sadanandan
had acted as a legatee which conduct is sufficient to infer at least the
implied assent of the executor to the transfer of title in favour of the
legatees.
If so,
in the eye of law, title of the property had vested in the legatees. Hence, the
property in dispute was available in execution for satisfaction of the decree
in OS No.63/56. In our opinion, this pre-supposes the fact that the action of
the lone executor would suffice to confer the title of the executors on the
legatees. We are unable to agree with this proposition of law. Under Section
211 of the Act the property of the deceased testator vests in all the executors
and if there are more than one executor, all of them together become legal
representatives of the deceased testator. In such a situation, it is futile to
contend that the estate of the deceased testator could be either controlled or
represented by one of the legal representatives of the deceased to the
exclusion of other legal representatives. We find support for this conclusion
of ours from the judgment of this Court, referred to above, which is
incidentally a case arising out of the same Will which is involved in this
case. The view expressed in that case, though arising out of income-tax
proceedings, applies on all fours to the facts of this case also. This Court in
that case held : "If there are more than one executor of a deceased person
all of them will be his representatives, and for the purpose of section 24B(2),
all of them only can represent the estate of the deceased." On facts,
there is no dispute that one of the executors, namely, Mrs. Suseela did not
join the other executor in execution of Ex. A-1. Hence, the act of elder Sadanandan
in executing Ex. A-1 would not in any manner amount to assenting to vesting of
the bequeathed property on the legatees because the elder Sadanandan could not
have represented the estate independently to the exclusion of other legatee.
Any such unilateral act of the sole executor, when there are more than one
executor, would not bind the estate of the deceased. The contention of the
appellant based on Section 311 of the Act also, according to us, does not in
any way help the case of the appellant.
Though
Section 311 says that in the absence of any direction to the contrary in the
case of several executors, powers of all may be exercised by any one of them
but this Section itself says that such exercise of power by one of the
executors should be by any one of them who has proved the Will. On the date of
execution of Ex. A-1. In this case, the Will in question was not even probated
much less by elder Sadanandan to attract the enabling provision of Section 311.
Therefore, in our opinion, the act of elder Sadanandan cannot be protected
under Section 311 of the Act and the said act cannot be construed as grant of
an implied assent as contemplated in Sections 332 and 333 of the Act.
If
this be so, the right of a legatee will remain to be an incohate right in
legacy and the executors will continue to have their right under the Will.
Therefore, the executors having obtained the probate on 3.1.1963, the sale made
by them on 10.1.1964 in favour of the Kerala Transport Co. is valid and is not
in any way inhibited or restricted by the attachment order of the executing
court dated 19.12.1961 since all the executors were not parties to the
execution proceedings nor was there any personal decree against them.
If as
found by us that the sale of the suit property on 10.1.1964 was a valid sale
then the said property was not available for court sale. Consequently, by
purchasing the property in court sale dated 17.9.1962, the appellants did not
acquire any right, title or interest in the suit property.
In
view of our finding that younger Sadanandan had only an incohate right in the
suit property, the contention of the appellant that at least to the extent of
his share, the court sale should be upheld, cannot also be accepted.
In
view of the finding given by us with regard to the validity of the private sale
executed by Smt. Suseela and elder Sadanandan on 10.1.1964 and our consequential
finding on the validity of the court sale, the question pertaining to the
tenancy does not survive for our consideration. In this view of the matter, the
judgment and decree of the High Court does not call for any interference and
the same is affirmed by dismissing this appeal. No costs.
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