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Sivasankara Mudaliar and anr. Vs. Amaravathi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1938Mad157; (1938)1MLJ146
AppellantSivasankara Mudaliar and anr.
RespondentAmaravathi Ammal and anr.
Cases ReferredBhagwandas v. Rivett
Excerpt:
- - where the executors failed to accept office, in the absence of a duly constituted administrator, the plaintiff cannot recover possession of any properties left by the testator save those which were specifically bequeathed to her under the will and the decree in so far as it directed delivery of possession of properties other than those to which she was entitled is wrong. nor could it well have been;.....office, the legal position was that so far as realty is concerned, it vested in the heir until a legal representative was duly constituted. as observed by williams in his book on real property:an heir-at-law is the only person in whom the law of england vested property whether he would or not. as the estate cannot therefore remain in abeyance, 'where there is no executor, the estate descended to the heir pending the appointment of an administrator'. (william's r.p., 24th edn., pp. 101 and 102.)4. this position was made clear by lord north in john v. john (1898) 2 ch. 573 where the learned judge at p. 576 pointed out that until probate was taken, the estate remained:where the law makes the legal estate go when a man died intestate that is, in the heir-at-law.5. in a later case, in re.....
Judgment:

Venkataramana Rao, J.

1. This appeal raises a question of some importance. It relates to the rights of an heir-at-law with reference to an estate left by a testator where the executors appointed under his will decline to accept office. The facts necessary for the disposal of the exact point in controversy in the suit may be briefly stated. The plaintiff - first respondent - Amaravathi Ammal was the widow of one Balasundara Mudali. He died on the 9th February, 1919, leaving him surviving his widow and his last will and testament dated 19th November, 1918. In the said will he said that he became divided in status from his brother the first defendant--the 1st appellant Sivasankara Mudali, that some properties were divided and as regards the other properties, he had been getting equally the income derived from them. He made several dispositions in the said will and among others bequeathed certain immovable properties and monies to his widow Amaravathi. He also provided for certain charities and appointed one Ratna Mudali and Jagannadha Mudali as his executors. Subsequent to the execution of the said will, through the intervention of the mediators, some of the immovable properties of the family were divided and two lists were drawn up specifying separately the properties that fell to each and the two lists were signed by both the brothers. The date of the lists is 30th December, 1918. The case of the plaintiff is that in pursuance of the said division the said Balasundara Mudali was in possession and enjoyment of the said properties. Immediately after the death of Balasundara, the first appellant Sivasankara Mudali began to set up that his brother died undivided and disputed the possession of Balasundara with reference to the properties that fell to his share. Thereupon the plaintiff presented for registration the said two lists, but it was opposed by Sivasankara and this led to a litigation which lasted till 1931, and was finally disposed of by a judgment in a Letters Patent Appeal dated 20th October, 1931, in her favour. Before the close of this litigation, as twelve years from her husband's death were about to expire, she filed the present suit on 19th November, 1930, for recovery of possession of the properties left by her husband. She recited the said will and the bequests in her favour and also the fact that the executors did not accept office. She therefore alleged that as heir and legatee she is entitled to sue and recover the properties left by her husband for the purpose of carrying out all the directions in his will and she also further stated that she was willing to carry out the charities in accordance therewith. She set out in the several schedules to the plaint the properties whereof she sought possession. In the first schedule she specified the immovable properties which fell to the share of Balasundara at the division of the 30th of December, 191.8. In the second schedule she specified the properties still to be divided between Balasundara and the 1st appellant and claimed a half share therein. In the third schedule, she specified the businesses wherein Balasundara and the first appellant were partners and claimed half a share in the monies and profits due therefrom. The second appellant - the second defendant in the suit - is the undivided son of the first appellant. Both of them denied the will and also pleaded that the deceased Balasundara died undivided and that the will left by him was inoperative. They further pleaded that the suit as laid was incompetent as she was neither the executrix nor the duly constituted administratrix under the law; that, if at all, she could only recover the properties specifically bequeathed to her under the will. They also raised the plea of limitation.

2. As already stated, the two executors Ratna Mudali and Jagannatha Mudali did not accept office and by the date of the suit Ratna Mudali was dead and Jagannatha, who was alive, was made the third defendant in the suit. On 30th January, 1935, before the trial began, he was transposed as the second plaintiff. The learned Subordinate Judge held that Balasundara died divided in status leaving a will, that the suit was competent and that she (plaintiff) could recover possession of the estate left by her husband and further any defect that there was in the original frame of the suit was cured by the transposition of Jagannatha as the second plaintiff. He held that, so far as the immovable properties left by the testator were concerned, there was no question of limitation but in regard to the claim for the profits of the businesses specified in the third schedule, the suit was barred by limitation. He accordingly gave a decree for the immovable properties as claimed in the first and second schedules and also a specific sum of Rs. 500 which was claimed in Sch. VI as being a certain sum of money deposited with a certain Nidhi, empowering her to draw that amount. This appeal has been preferred by defendants 1 and 2.

3. The main argument addressed by the learned Counsel for the appellants Mr. T.M. Krishnaswami Aiyar related to the competency of the suit by the plaintiff, the first respondent. His contention is briefly this. Where the executors failed to accept office, in the absence of a duly constituted administrator, the plaintiff cannot recover possession of any properties left by the testator save those which were specifically bequeathed to her under the will and the decree in so far as it directed delivery of possession of properties other than those to which she was entitled is wrong. The question is, is this contention tenable? If this case were governed by English Law, there can be no question that the suit would be competent so far as the immovable property is concerned. Before Lord Birkenhead's Act, where an executor dies or fails to accept office, the legal position was that so far as realty is concerned, it vested in the heir until a legal representative was duly constituted. As observed by Williams in his book on Real Property:

An heir-at-law is the only person in whom the law of England vested property whether he would or not. As the estate cannot therefore remain in abeyance, 'where there is no executor, the estate descended to the heir pending the appointment of an administrator'. (William's R.P., 24th Edn., pp. 101 and 102.)

4. This position was made clear by Lord North in John v. John (1898) 2 Ch. 573 where the learned Judge at p. 576 pointed out that until probate was taken, the estate remained:

Where the law makes the legal estate go when a man died intestate that is, in the heir-at-law.

5. In a later case, In re Griggs : Ex parte School Board for London (1914) 2 Ch. 547, Lord Cozens-Hardy, M.R., observed:

Until there is a personal representative, the property vests in the heir. He could recover the rents and maintain actions for trespass.

6. This statement of the law has been always accepted to be correct and has been recently affirmed by the Privy Council in Macleay v. Treadwell (1937) A.C. 626 where Lord Blanesburgh at pp. 641 and 642 remarked thus:

Under Section 6 of the New Zealand Act of 1879 the vesting of the real estate of a deceased person in the executor is, as will have been seen, to take effect immediately upon 'the granting of probate of the will or administration of the estate or an order to administer the estate' of the deceased. But not before. And in Victoria, under the Administration Act, 1872, of that State, No. 427, Section 6 - a section admittedly indistinguishable from this Section 6 of the New Zealand Act of 1879 - it was held as long ago as 187S in Larkin v. Drysdale (1875) 1 V.L.R. 164 that there was in that section nothing to destroy the status of the old heir-at-law between the death of the deceased and grant of administration to his estate, and an action of ejectment brought during that interval by the heir-at-law in respect of the property of the deceased was accordingly there sustained. The correctness of the principle enunciated in Larkin v. Drysdale (1875) 1 V.L.R. 164 was not canvassed by the respondents here. Nor could it well have been; it is fundamental; it has been applied in England in analogous circumstances under the Land Transfer Act, 1897, when in In re Griggs : Ex parte School Board for London (1914) 2 Ch. 547 Lord Cozens-Hardy, M.R., observed : 'Until there is a personal representative, the property vests in the heir'.

7. The question is, is there anything to preclude the applicability of that doctrine in this country to a mofussil will such as the one now in question? Whatever may be the state of the Indian Law, before the enactment of the Hindu Wills Act and Probate and Administration Act, which were intended to embody the principles of English Jurisprudence, at any rate after the said enactments, there is nothing to preclude the applicability of the principles of English Law. The principle that, until an administrator is duly constituted an heir-at-law can recover the estate, has been applied by the Indian High Courts. In Rajah Parthasarathy Appa Rao v. Rajah Venkatadri Appa Rao : (1922)43MLJ486 , Kumarasami Sastri, J., observed thus:

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.

8. It is an instructive case. A testatrix died leaving a will appointing an executor. On the date of the will the property which she left thereunder was the subject-matter of a pending litigation wherein she was the plaintiff. The executor did not accept office. The heirs-at-law brought themselves on the record as the legal representatives at the same time alleging that in case the will left by the testatrix was found to be true, they would deliver possession of the properties to the legatees just as the plaintiff in this case said that she would carry out the directions in the will. They continued the litigation and brought it to a successful termination and recovered the property which she disposed of under the will. After such recovery the legatees under the will sued the heirs-at-law for recovery of possession of the estate and the suit was held to be in time. One of the arguments advanced by the heirs-at-law in that case was that inasmuch as there was a will they were not the legal representatives of the testatrix and the recovery by them could not be deemed to be on behalf of the legatees and it was the duty of the legatees to have themselves brought on the record or got a duly constituted administrator appointed to carry on the litigation and therefore they must be deemed to have been in possession of the estate adversely to the estate. It was in combating this argument Kumaraswami Sastri, J., made the observations cited above and held that as the executor did not accept office, the heir-at-law was the proper person to come on the record and continue the litigation. The same view was taken in the Calcutta High Court in Basunta Kumar Chuckerbutty v. Gopal Chunder Das (1914) 18 C.W.N. 1136. It was held in that case that it is competent to a legal heir to maintain a suit for the benefit of the estate so long as any other claimant does not establish his rights to the same under the will. This view has been again affirmed in a recent decision in Gopal Lal Chandra v. Amulyakumar Sur I.L.R. (1931) Cal. 911 where the legal heirs were held competent to maintain a suit on a mortgage in the name of the deceased testator until an administrator was duly constituted (p. 916). In this country there is no distinction made between realty and personalty and therefore the entire estate, both movable and immovable property, left by the deceased must be deemed to vest in the heir-at-law until an administrator is duly constituted. Vide Antony Cruz Gonsalves v. Mathis Boopalrayan : (1910)20MLJ984 . A legatee does not represent the estate and he has no direct right of action against the person who is claiming adversely to the estate. Therefore to preserve and safeguard the estate, a right of action must vest in somebody to prevent an adverse claim against the estate and the heir-at-law is the person in whom the law vests the estate whether he will or hot even under Hindu Law. Therefore there is nothing to preclude an heir-at-law to maintain an action in ejectment or otherwise recover possession of the estate left by testator. The heir-at-law, if he likes, can get himself appointed administrator, but he is not bound to do so. It is open to legatees to have an administrator duly constituted. As soon as such an administrator is constituted, the estate would be divested from the heir-at-law and the person competent to maintain a suit on behalf of the estate will be such administrator.

9. An argument has been advanced by Mr. Krishnaswami Aiyar based on Section 17 of the Limitation Act. He contends that Section 17 uses the expression 'legal representative' which must be deemed to connote an executor or an administrator and this is a clear indication of the intention of the legislature that in cases where a testator dies leaving a will, the heir-at-law could not be the person in whom the law would vest the estate. It seems to us that Section 17 does not throw any light on the question in issue as it does not say who a 'legal representative' within the meaning of the section is. Again, the argument in our opinion proceeds upon a misconception of the true meaning of the expression 'legal representative' in the section. There is no definition of the expression 'legal representative' in the Limitation Act. According to the plain language of Section 17, legal representative would also include an heir. Legal representative is one who represents in law the estate of the deceased and in whom the legal personalty of the deceased is deemed to continue. He may be an heir, executor or administrator. Where a person died intestate, it cannot be said that the legal representative of the deceased in Section 17 would not include an heir and that no limitation would run if there was an heir capable of suing. Herein must be noted the distinction between English and Indian Law. Under the English law:

If the statute has not begun to run during the life time of an intestate, then it does not begin to run until letters of administration to his estate have been taken out. Vide Burdick v. Garrick (1870) 5 Ch. App. 233.

10. This is because the personalty did not vest in the next of kin under the early English Law and later in the Court of Probate until an administrator is constituted, but under the Indian Law the movable property vests in the heir-at-law. All that Section 17 contemplates is that if there is no legal representative who is capable of suing, the statute of limitation would not run. The heir-at-law may be a minor in which case limitation would not run by virtue of Section 6 but as soon as an administrator of the estate is constituted, limitation would begin to run against him and the fact that there is an heir-at-law who is a minor would not prevent the operation of the law of limitation. This position is made clear by Section 17, Clause 2, which deals with a suit against a legal representative of a deceased person. There, there is no qualification to the effect that he must be capable of being sued, because an heir-at-law, whether a minor or not, an executor or administrator, all of them are capable of being sued. That the expression 'legal representative' is not intended to be confined to an executor or administrator seems to be clear from the decision in Rivett-Carnac v. Goculdas Sobhanmull I.L.R. (1895) 20 Bom. 15 which has been affirmed by the Privy Council in Bhagwandas v. Rivett-Carnac . That was a case of dissolution of partnership. The suit was by the administrator of a deceased partner claiming the assets of partnership for recovery of amount due to him. The partner died in 1889 having dissolved the partnership. The suit was instituted in 1894. Prima facie, the suit would be barred by limitation under Article 106 of the Limitation Act. It was contended that as the letters of administration were granted to the estate of the deceased partner and an administrator was duly constituted only in March, 1894, under Section 17 of the Limitation Act the time could only be deemed to have run from this date. Candy, J., before whom the case came on for trial, took the view that though after the grant of the letters no person other than the administrator can act as the representative of the deceased partner, there was no reason why a person claiming to be the heir of the deceased partner should not have filed the suit and he therefore held that the suit was barred. In that case the heir-at-law was a minor. When the matter came up on appeal, the learned Judges who heard the appeal took the view that as the heir-at-law was a minor, there was no legal representative capable of suing until letters of administration were granted and therefore the suit must be deemed to be in time. They interpreted the words 'capable of suing' as meaning not under a disability to sue and infancy would be such a disability. It is thus clear that the learned Judges would have upheld Candy, J.'s decision if it were not for the fact that the heir-at-law was a minor. This view was affirmed by the Privy Council vide Bhagwandas v. Rivett-Carnac . It seems to us therefore that the argument based on Section 17 of the Limitation Act is not a tenable one.

11. We are therefore of the opinion that the suit by the plaintiff was competent. There is no other point of substance in the appeal and none has been pressed before us in the view we have taken of the competency of the suit. In the result, the appeal fails and is dismissed with costs.


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