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PETITIONER: K LEELAVATHY BAI & ORS.

       Vs.

RESPONDENT: P V GANGADHARAN & ORS.

DATE OF JUDGMENT:       17/03/1999

BENCH: S.Saghir Ahmad, N.Santosh Hegde

JUDGMENT:

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

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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

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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

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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

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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.