T.C. Raghavan, J.
1. The sole question for consideration in the second appeal is whether the estate of deceased Padmanabhan Narayanan was sufficiently and effectively represented in O. S. No. 217 of 1123. A few facts may be stated.
2. The suit properties belonged to the Arayan Vilakathu Valia Veedu, and these properties along with other were outstanding on a mortagage with Fadmanabhan Narayanan on a document of 1104. There were two additional charges also in his favour on the same properties. Narayanan executed a sub-mortgage in favour of the 1st defendant, whose heirs are the other defendants, and also put him in possession of suit item 5. Subsequently, Narayanan purchased the properties from the mortgagors, agreeing that he would discharge the sub-mortgage and put the mortgagors in possession of item 5 within a particular time. On the allegation that Narayanan did not comply with the condition, the mortgagors resold the properties to the 1st defendant.
2a. Narayanan filed O.S. No. 40 of 1122 for recovery of item 5 from the 1st defendant; and the 1st defendant filed O.S. No. 217 of 1123 against Narayanan for redemption of the mortgage and settling accounts on the basis of the sale deed he obtained from the mortgagors. Before Narayanan entered appearance in the second suit he died. The 1st defendant at first impleaded Lakshmi Thank-amma, the daughter of Narayanan, and subsequently he also impleaded Arumughom Bhargavan, the husband of Lakshmi Thankamma, and Govindan Velap-pan, who were alleged to be the executors under the will left by Narayanan.
Lakshmi Thankamma was originally declared ex parte; but later on it was set aside. Ultimately, when the suit came up for disposal, neither Lakshmi Thankamma nor Arumughom Bhargavan appeared. Though Govindan Velappan filed a written statement, he also did not appear, nor did his counsel appear at the hearing. Consequently, the suit was decreed in terms of the plaint recording a finding that the matter was settled between the 1st defendant on the one hand and Thankamma and Bhargavan on the other. The present suit has been laid by the members of the tavazhi of Thankamma on the allegation that the decree in O. S. No. 217 of 1123 is not binding on them, as the estate was not sufficiently represented, and that there was fraud and collusion between the 1st defendant and Thakamma and Velappan.
3. The defendants contended, inter alia, that the will executed by Narayanan in 1121 was revoked by another will in 1124, under which the suit properties were bequeathed to Thankamma in her individual right. They also contended that the plaintiffs did not derive any title to the suit properties under the will and therefore the estate of Narayanan was fully and effectively represented by Thankamma in O. S. No. 217 of 1123. The farther contention of the defendants was that Bhargavan and Velappan were executors under the will and since they were also impleaded in O. S. No. 217 of 1123, the estate of Narayanan was again effectively represented. They also denied the allegation of fraud and collusion between the 1st defendant and Thankamma and her husband.
4. The trial Court held that the will of liar, namely Ex. P-7 was not revoked in 1124 and it was therefore the last will and testament left by Narayanan. The trial Court further held that; under that will the properties, including the suit properties, devolved on Thankamma's tavazhi, so that Thankamma was not entitled to them absolutely. On the question of representation of the estate left by Narayanan, the trial Court held that by the impleading of Thankamma and also of the executors under the will the estate was sufficiently represented. It may be incidentally stated that the trial Court held that Bhargavan and Velappan were executors according to the tenor under the will of Narayanan.
5. In appeal the lower appellate Court agreed with the findings of the trial Court excepting on the question of effective representation of the estate in the earlier suit. It held on that question that Bhargavan and Velappan had no general powers of administration of the estate and therefore they were not executors according to the tenor under the will. The lower appellate Court also held that Thaukamma did not effectively represent the estate of Narayanan, as her substitution in the earlier suit was avowedly against the interests of the tavazhi of the plaintiffs. In second appeal, the defendants question the correctness of the said reversing decision of the lower appellate Court.
6. Mr. K. V. Suryanarayana Iyer, the learned advocate of the appellants, presents the case in two ways. His first contention is that Bhargavan and Velappan were executors according to the tenor under the will of Narayanan and therefore they were competent to represent the estate sufficiently. 'To appoint an executor', says Swinburne, 'is to place one in the stead of the testator, who may enter to the testator's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts, and performance of his will.' (vide P. 3 of Williams on Executors and Administrators 14th Edn.).
Thus an executor is placed in the stead of the testator and he has right of action against the testator's debtors and has also right to dispose of the goods of the testator towards the payment of his debts and the performance of his will. An executor need not be expressly nominated; and if by necessary implication the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors. That the same is the position under the Indian Succession Act is evident from Section 222(2) thereof. Such an executor by necessary implication is usually called executor according to the tenor, and the question whether a person is executor according to the tenor or not depends upon the construction of the particular will.
7. But there is a distinction between a trustee and an executor, in that the former has only the power to pay what is vested in him as trustee to the persons for whose use he holds it, but has no general power to receive and pay what is due to and from the estate, which is the office of the latter (vide paragraph 13, p. 12 of Williams). The same proposition appears in Halsbury's Laws of England (3rd Edn., Vol. 16, p. 124, in paragraph 180) :
'where it cannot be gathered from the will that the person named as trustee is required to pay the debts of the testator, and generally to administer his estate, he is not entitled to probate.'
Thus the test for finding out whether a person is an executor according to the tenor is to find out whether he is, by necessary implication, nominated by the testator in his stead to generally administer the estate and to pay the testator's debts and to receive his dues in the performance of his will.
8. In paragraph 6 of Ex. P-7 Bhargavan and Velappan are directed to collect the income from the estate for two years, after the death of the testator, and to make certain payments to several individuals. This is the only provision whereby Bhargavan and Velappan are jointly directed to do anything under the will. In paragraph 11 the names of persons and the amounts to be paid to them from the income are mentioned; and there reference is made to Velappan and Kochappi Shreedharan and not to Bhargavan and Velappan. Secondly, it does not appear even from the recitals in paragraph 6 that Bhargavan and Velappan are given any right to jointly administer the estate and to collect the dues and pay the debts of the testator or to attend to his obsequies. Paragraph 15 gives directions to Velappan and Shreedharan regarding the performance of the testator's obsequies as well as his mother's; and paragraph 16 recites that if there are any debts to be paid by the testator, they must be discharged by Velappan and Sree-dharan. From these recitals it is clear that the only right conferred on Bhargavan and Velappan is under paragraph 6 and that is only to collect the income from the properties for two years and distribute the same among the several individuals as mentioned in paragraph 11. This, as rightly pointed out by the learned District Judge, is not a general power of administration of the estate; but it only shows that Bhargavan and Velappan are trustees and they have only the power to pay what is vested in them as trustees to the particular persons for whose use they hold it. They have no general power to receive and pay what is due to and from the estate and therefore they are not executors according to the tenor.
9. The other aspect of the case that is pressed by Mr. Suryanarayana Iyer is that the impleading of Lakshmi Thankamma in O. S. No. 217 of 1123 was itself sufficient to represent the estate of Narayanan. He advances the proposition that where a defendant dies and the plaintiff brings a person on record, whom he alleges to be the legal representative of the deceased defendant, such person sufficiently represents the estate of the deceased for the purpose of the suit. The learned counsel goes further and contends that even if such person substituted is a wrong legal representative, even then the estate will be sufficiently represented for the purpose of the suit.
In support of this proposition he cites the early decision of the, Madras High Court in Kadir Mohideen Marakkayar v. Muthukrishna Ayyar, ILR 26 Mad 230. In that case it was held that when a defendant died and the plaintiff brought a person on record alleging that he was the legal representative of the deceased defendant, such person sufficiently represented the estate of the deceased for the purpose of the suit, and in the absence of fraud or collusion, the decree passed in the suit would bind the estate. That proposition is well established as is evident from Khiarajmal v. Daim, ILR 32 Cal 296 (PC).
These decisions have been followed in other cases as well and I shall refer only to two of them : Kalanda Behari v. Kunhipakki, AIR 1930 Mad 69 and Chaturbhujadoas Kushaldoss and Sons v. Rajamanicka Mudali, AIR 1930 Mad 930. If the plaintiff, bona fide and without any fraud or collusion, brought a person on record as the legal representative of the deceased defendant, such person, in spite of his being only one of the legal representatives or being even a wrong legal representative, may sufficiently represent the estate for the purpose of the suit.
10. But in this case the impleading of Lakshmi Thankamma as the legal representative of Narayanan does not appear to be bona fide and beyond fraud or collusion. The 1st defendant's case in the written statement is that the will of 1121 was replaced by another in 1124 and ander that will Thankamma got the properties absolutely. The alleged will of 1124 is not forthcoming; and under the will of 1121 undisputedly the properties allotted under the C schedule thereof go to Thankamma and her santhanams, so that the properties were bequeathed to Thankamma tavazhi. If this was the position s--and it was undoubtedly so--the recital, in the impleading petition that Thankamma alone was entitled to the properties was not bona fide. Thereafter, Bhargavan and Velappan were impleaded as executors and no attempt was made to implead Kochappi Shreedharan. Thankamma in the first instance remained ex parte; and even after the ex parte order was set aside, she did not contest the suit.
Thankamma and her husband Bhargavan entered into the compromise, Ex. P 9, accepting the position that the properties allotted under the will devolved on Thankamma absolutely, and took some amount from the 1st defendant. Velappan, who filed a written statement, also did not contest the suit to the end. Ultimately, the 1st defendant, who was the plaintiff in O. S. No. 217 of 1123, formally examined his agent (kariastha) on his side, marked some documents and obtained a decree in his favour. It is evident, from the circumstances and facts stated above, that the impleading of Thankamma was not bona fide and beyond fraud and collusion. In such circumstances, the principles laid down in the decisions cited by Mr. Suryanarayana Iyer cannot be applied to the present case. Therefore, the estate of Narayanan was not sufficiently and effectively represented in O. S. No. 217 of 1123 and the decision of the lower appellate court is correct.
11. The second appeal fails and is dismissed but, in the circumstances, without costs.