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Chaturbujadoss Kushaldoss and Sons Vs. Minor Rajamanicka Mudali by Father and Next Friend Ekambara Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1930Mad930; (1931)60MLJ97
AppellantChaturbujadoss Kushaldoss and Sons
RespondentMinor Rajamanicka Mudali by Father and Next Friend Ekambara Mudaliar and anr.
Cases Referred and Gnanambal Ammal v. Veeraswami Chetty
Excerpt:
- - . 4. his case is that the 1st defendant was well aware when he instituted c. 81 of 1921 that he was the true legal representative and the residuary legatee under the will, of the deceased parthasarathi mudali, and knowing that, he instituted that suit in collusion with sengalani ammal, the widow, in fraud of the plaintiff's rights, and that she allowed the decree for the principal and interest to be passed ex parte without contesting the claim for interest which she could have success fully resisted if the case had been properly conducted. reading the evidence of these two witnesses carefully i fail to see any real inconsistency in their statements. iv, a letter from the 1st defendant to parthasarathi mudali, dated 30th april, 1920, distinctly states that interest will be charged.....madhavan nair, j.1. the 1st defendant is the appellant in appeal no. 250. of 1925 and he is the decree-holder in c.s. no. 81 of 1921 on the file of the high court, madras. the 2nd defendant is the appellant in appeal no. 332 of 1925 and he is the auction purchaser of the properties sold in execution of the decree in c.s. no. 81 of 1921. these appeals arise out of a suit instituted by the plaintiff for a declaration that the decree in c.s. no. 81 of 1921 and the attachment and sale held in execution of that decree are not binding on him.2. the facts are briefly these. one parthasarathi mudali who was doing business in yarn and cloths had dealings with the 1st defendant, kushaldoss & sons, and owed them a considerable sum of money. he died on the 18th may, 1920, leaving a will, dated 14th.....
Judgment:

Madhavan Nair, J.

1. The 1st defendant is the appellant in Appeal No. 250. of 1925 and he is the decree-holder in C.S. No. 81 of 1921 on the file of the High Court, Madras. The 2nd defendant is the appellant in Appeal No. 332 of 1925 and he is the auction purchaser of the properties sold in execution of the decree in C.S. No. 81 of 1921. These appeals arise out of a suit instituted by the plaintiff for a declaration that the decree in C.S. No. 81 of 1921 and the attachment and sale held in execution of that decree are not binding on him.

2. The facts are briefly these. One Parthasarathi Mudali who was doing business in yarn and cloths had dealings with the 1st defendant, Kushaldoss & Sons, and owed them a considerable sum of money. He died on the 18th May, 1920, leaving a will, dated 14th May, 1920. By this will the plaintiff, his nephew, was given the whole estate of the testator subject to the other dispositions mentioned in it. After the death of Parthasarathi Mudali, his widow Sengalani Ammal applied on 5th October, 1920, for a succession certificate in order to enable her to collect the outstandings due to him. The plaintiff's father as his guardian objected to the issue of the certificate. But an order was passed in favour of the widow as the counter-petitioner said that he intended to file a separate suit to establish his rights under the will and that he had no objection to the petitioner being given the certificate provided she furnished substantial security. On 22nd December, 1920, O.S. No. 65 of 1921 on the file of the Court of the Subordinate Judge of Vellore was filed by the plaintiff to establish his rights. It was disposed of in his favour on 24th April, 1922. Meanwhile, on 31st January, 1921, that is, after the institution of O.S. No. 65 of 1921, the present 1st defendant filed C.S. No. 81 of 1921 on the file of the High Court against Sengalani Ammal, the widow of the deceased .Parthasarathi Mudali as representing her husband's estate, for the recovery of money due from Parthasarathi Mudali. The suit was heard and decided ex parte on 30th March, 1921, i.e., before the disposal of O.S. No. 65 of 1921. The decree directed that

Sengalani Ammal,. the defendant . . . . . do from and out of the assets of her deceased husband Parthasarathi Mudali, come to her hands do pay to the plaintiffs the sum of Rs. 3,518-11-0, etc.

3. This decree was transferred for execution to the Court of the District Munsif of Ranipet on 3rd July, 1922, and sale of the suit properties was posted to 28th August, 1922. As the plaintiff had by that time obtained a decree in his favour he intervened in execution proceedings and wanted to be brought on record in order to oppose the execution, but as his petition was filed on the day fixed for sale of the properties it was dismissed as being too late. The sale proceeded and the 2nd defendant, purchased the suit properties for a sum of Rs. 3,850. It is the decree in C.S. No. 81 of 1921 on the file of the High, Court and the execution sale in favour of the 2nd defendant which the plaintiff now contends do not bind him..

4. His case is that the 1st defendant was well aware when he instituted C.S. No. 81 of 1921 that he was the true legal representative and the residuary legatee under the will, of the deceased Parthasarathi Mudali, and knowing that, he instituted that suit in collusion with Sengalani Ammal, the widow, in fraud of the plaintiff's rights, and that she allowed the decree for the principal and interest to be passed ex parte without contesting the claim for interest which she could have success fully resisted if the case had been properly conducted. These grounds are alleged to show that the decree obtained by the 1st defendant against Sengalani Ammal could not be regarded as a decree obtained bona fide and without fraud or collusion and therefore cannot bind the plaintiff who is the real heir of Parthasarathi Mudali. It is also alleged that the execution proceedings in connection with the sale of the properties were, not carried on bona fide. These allegations are denied by the defendants. The claim of the 1st defendant for the principal sum is admitted by the plaintiff.

5. The learned Subordinate Judge found that in the matter of the institution of the suit there was no collusion between the 1st defendant and Sengalani Ammal and that there was no evidence that the 1st defendant was actuated by any fraudulent motive in instituting the suit against the widow. He held that interest was, rightly claimed in that suit by the 1st defendant and the claim for interest, therefore, cannot be considered to be a fraud perpetrated upon the estate of Parthasarathi Mudali. Notwithstanding these findings, the learned Subordinate Judge came to the conclusion that the decree was not obtained bona fide and cannot bind the present plaintiff on the ground that the 1st defendant had opportunities of finding out the true legal representative of the deceased Parthasarathi Mudali and that he instituted the suit without making sufficient enquiries. His conclusion might be stated in his own words:

The conclusion that must be adopted is that C.S. No. 81 of 1921 was instituted against Sengalani Ammal without enquiry as to who was Partha-sarathi's real heir when there was every opportunity to make such enquiry and when if such enquiry had been made in the right spirit and in the proper way it would disclose the fact. It cannot be regarded as a suit instituted bona fide against the widow as heir.

6. As regards the 2nd defendant's participation in the proceedings, the learned Judge held that he purchased the suit properties knowing that there was a will set up by the plaintiff constituting him as the legal heir of Parthasarathi Mudali. He also held that the 2nd defendant had no hand in the matter of filing C.S. No. 81 of 1921 and that the properties purchased by him were not sold for an inadequate price. As a result of these findings a decree was given in favour of the plaintiff as prayed for.

7. In appeal it is argued on behalf of the appellants that the circumstances of the case would show that the 1st defendant instituted this suit against Sengalani Ammal in the full belief that she was the true legal representative, of the deceased Parthasarathi Mudali and that he made sufficient enquiries before instituting the suit; and that his conduct in connection with the suit and its proceedings was throughout bona fide. On behalf of the plaintiff-respondent it is argued that the Judge's finding that interest was properly decreed in the prior suit is not supported by the evidence, and that the properties were sold for an inadequate price, and that even if it is held that the decree against the widow was obtained by the 1st defendant bona fide and without fraud and collusion, in law the decree is not binding on him as it was not obtained against him, he being the true legal representative of the deceased Parthasarathi; and that if binding at all, it will be binding only as regards items 3 and 4 which are in the possession of the widow. It was also argued having regard to Section 52 of the Transfer of Property Act, effect should not have been given to the decision in C.S. No. 81 of 1921, as it was decided during the pendency of O.S. No. 65 of 1921, which ended in his favour.

8. I shall first deal with the question whether the claim for interest was rightly allowed by the Court in C.S. No. 81 of 1921. The learned Subordinate Judge has found in favour of the appellant on this point. 1 cannot say that the evidence in the case does not support the conclusion of the Subordinate Judge. The witnesses who speak in support of the claim for interest are D.Ws. 1 and 2. Their evidence is to the effect that Parthasarathi Mudali was liable to be charged interest on his money dealings with the 1st defendant's firm and that he was not charged interest for a considerable time; but that in 1919 he was specifically told that he would be charged interest in future. Reading the evidence of these two witnesses carefully I fail to see any real inconsistency in their statements. It is true, as may be seen from the accounts, that Parthasarathi Mudali was not charged interest up to 1919; but the liability to pay interest always existed and that was enforced from 1919 onwards. Exs. I, IV and V support the 1st defendant's claim for interest in C.S. No. 81 of 1921. In Ex. I, the patti, dated 19th April, 1920, it is stated that interest will be charged on the amount specified in it at. the rate of 9 per cent, per annum. Ex. IV, a letter from the 1st defendant to Parthasarathi Mudali, dated 30th April, 1920, distinctly states that interest will be charged up to date. Ex. V, a card, dated 10th June, 1920, was written subsequent to the death of Parthasarathi Mudali. It is curious that by that time though the 1st defendant must have known about the death of Parthasarathi Mudali, the card was addressed to him. No satisfactory explanation has been given for this proceeding, but I am not satisfied that this is an indication of fraudulent conduct on the part of the 1st defendant. This letter also says that if the account is not settled, interest will be recovered. In thus declaring that interest will be claimed this is quite consistent with Exs. I and IV. As no large amount was due from Parthasarathi Mudali to the 1st defendant in 1919, the demand for interest thereafter may no doubt appear to be somewhat unreasonable. But it does not follow from this that the defendant's evidence regarding the agreement on the part of Parthasarathi Mudali to pay interest thereafter should necessarily be disbelieved as the liability to pay interest always existed though it was not enforced till 1919. This point is dealt with by the learned Subordinate Judge in paragraph 11 of his judgment. On the whole I am inclined to 'agree with him on his finding on this point. It therefore follows, the claim for principal being admitted, that Sengalani Ammal's failure to resist C.S. No. 81 of 1921 was in no way detrimental to the interests of the estate of Parthasarathi Mudali.

9. The next question for consideration is whether the 1st defendant knew at the time when he instituted the suit that a will was left by Parthasarathi Mudali and that the plaintiff was his true legal heir. The plaintiff's case that the death of Parthasarathi Mudali and the fact that he died leaving a will were brought to the notice of the 1st defendant soon after Parthasarathi's death has been disbelieved by the learned Subordinate Judge. It was not seriously argued by the respondent that on this point the learned Subordinate Judge's conclusion is wrong. The 1st defendant's case is that he knew of the death of Parthasarathi only in July, 1920, when he went to his village and sold some of his properties. But it is clear from the evidence as pointed by the learned Subordinate Judge that he must have known about it some time earlier in June but this does not affect the bona fides of his conduct in instituting the suit against the widow. The evidence does not show that the 1st defendant or his agents knew anything about the succession certificate proceedings before the institution of the suit. When his agents went to the village of Parthasarathi in July, 1920, the evidence is to the effect that they learnt that Parthasarathi's only heir was Sengalani Ammal, his widow; that they did not hear anything about the will and that they obtained the keys of the shop of Parthasarathi from Sengalani Ammal. Some yarn was sold on that occasion and the 1st defendant was able to realise a sum of Rs. 1,500 towards his dues. It appears from the plaint that Sengalani Ammal is in possession of items 3 and 4, though the point is disputed by the respondent. I do not think it can be seriously contended that she was not in (possession of these items when the 1st defendant instituted his suit. But for the will it is clear that Sengalani Ammal would be the heir of Parthasarathi entitled to represent his estate. This fact coupled with other facts already referred to that Sengalani Ammal was in possession of some items of property belonging to her husband, that the keys of the shop were obtained from her, may well be considered as sufficient justification for the conduct of the 1st defendant in instituting the suit against her as Parthasarathi's legal representative. The Subordinate Judge does not say that the 1st defendant's agents refrained from making any enquiries. His opinion seems to be that if they had made fuller enquiries they might probably have known of the existence of the will and that the plaintiff was the real heir of the deceased. Probably this might have been so. But I cannot accept the argument having regard to the circumstances referred to above, that the 1st defendant's failure to prosecute more detailed enquiries should necessarily lead to the conclusion that in instituting the suit against the widow he was not acting bona fide. All the facts then known to him and present before his mind pointed out that Sengalani Ammal was the legal representative of the deceased. The agents of the 1st defendant seem to have made some enquiries though the evidence on the point is not quite definite. In this connection it is important to notice that the 1st defendant does not improve his position in any way by making the widow the legal representative of the deceased Parthasarathi and by refraining from making enquiries as to who his true legal heir is. The learned Subordinate Judge has found that there was no collusion of any kind between the widow and the 1st defendant in the matter of the institution of the suit. We have not been referred to any evidence in support of any collusion. It is admitted that the amount claimed except as regards interest was really due from Parthasarathi to the 1st defendant and as regards interest we have found that the claim has been substantiated. In these circumstances why should the 1st defendant not to have sued the plaintiff as a defendant in C.S. No. 81 of 1921 instead of the widow if he really knew that there was a will and that the plaintiff was really the legal representative of Parthasarathi No satisfactory answer has been given by the respondent to this question except that the suit was brought at the instigation of some of the enemies of the deceased Parthasarathi. In these circumstances I cannot agree with the opinion of the Lower Court that it cannot be regarded that C.S. No. 81 of 1921 was instituted bona fide against a wrong heir. In my opinion the evidence in the case shows abundantly that the suit C.S. No. 81 of 1921 was instituted by the 1st defendant bona fide against the widow as the legal heir of the deceased Parthasarathi and that there is nothing fraudulent in the conduct of the 1st defendant or the widow in connection with the proceedings in the suit and that the decree was obtained without fraud and collusion.

10. As regards the value realised at the time of the sale, I agree with the learned Subordinate Judge that the value is not inadequate. He has considered the matter in paragraph 17 of his judgment, and 1 do not think I can add anything to that discussion.

11. For the above reasons, I would hold that the widow Sengalani Ammal sufficiently represented the estate of the deceased Parthasarathi in C.S. No. 81 of 1921 and that the decree in that suit is binding on the plaintiff.

12. Mr. Viswanatha Aiyar next argues as a proposition of law that even if C.S. No. 81 of 1921 was instituted by the 1st defendant bona fide against a wrong heir and even if there be no fraud or collusion between the parties in respect of that suit, still the decree passed in the suit cannot be considered binding on the true legal representative (that is, the plaintiff) and if it is binding at all, it will be binding only with respect to the properties of the deceased which were in possession of the widow at the time of the suit, that is, only items 3 and 4 in the suit. In support of this argument he relied strongly on Madavarayudu v. Subbamma : (1916)31MLJ222 , Gnanambal Ammal v. Veerasami Chetti (1915) 29 M.L.J. 698, Kaliappan Servaikaran v. Varadarajulu I.L.R. (1909) M. 75 : 19 M.L.J. 651, Srinivasa Aiyangar v. Kanthimatlh Ammal I.L.R. (1910) M. 465, Bachu Soorayya v. Toonudoori Chinna Anjaneyalu (1918) 36 M.L.J. 106 and Angadi Mallappa v. Neelana Gotudra Kare Gowd (1925) 50 M.L.J. 442.

13. The question how far and under what circumstances a decree passed against a wrong heir of a deceased person will bind his true heir has been considered in various cases. Prima fade a decree will bind only the parties to it or those claiming through them; but there are exceptions to this rule. The Courts have held that in certain circumstances when one who is not the true legal representative of a deceased person is impleaded as his legal representative then a decree passed against him in his character as the legal representative of the deceased would be binding on the true representative though he is not a party to it. The suit may have been instituted against the wrong legal representative at the very commencement or the wrong legal representative may have been brought on record during the pendency of the suit or after the decree and for purposes of execution. An examination of these cases will show that in deciding the point the learned Judges put before themselves the question whether the estate was sufficiently represented by the alleged legal representative on record as the important factor for consideration and this, they answered in the affirmative, if it was found that the suit was instituted bona fide against the alleged legal representative and the decree was obtained without any fraud or collusion between the parties.

14. In The General Manager, of the Raj Durbhunga v. Maharaja Coomar Ramaput Singh (1872) 14 M.I.A. 605 : 20 E.R. 912 the suit was brought against, a. widow as the mother and guardian of her son who was then a minor, to recover arrears of rent due from his deceased father. It was held by the Judicial Committee that the decree obtained against the widow as the legal representative of her husband was binding on the son, who in law was the true legal representative of the deceased, though the suit was not prosecuted against him-

15. The Privy Council decision entirely approved of the decision in Johan Chunder Mitter v. Baksh Ali Soudagur Mar. Beng. A.C. 614. In that case, which is the earliest one mentioned in the Reports.; it was held that the decree obtained against a Hindu widow: for her husband's debt was binding on the son who was not a party to the suit. It would seem from the Reports that the plaintiff knew of the existence of the son when he sued the widow. The judgment shows that the question for consideration was whether' the widow sufficiently represented the estate of the deceased. This is really the point that has to be decided in cases of this description.

16. In Kadir Mohideen Marakkayar v. Muthukrishna Aiyar I.L.R. (1902) M. 230 : 12 M.L.J. 368 the defendant died during the pendency of the suit and only one of his sons was brought on record as his legal representative. It was held that the share of the second son also was bound by the decree in the suit notwithstanding the fact that he was not joined in the suit as one of the legal representatives of his deceased father. The learned Judges based their conclusion on the following reasoning:

In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate.

17. It is true that this is not a case where a person was wrongly brought on record as the legal representative but it lays down a general principle.

18. In Khiarajmal v. Daim (1904) L.R. 32 IndAp 23 : I.L.R. 32 C. 296 (P.C.) the judicial Committee pointed out that the question whether the estate is or is not properly represented is not a mere question of form but of substance. That also was not a case where a wrong legal representative was brought on record in the place of the deceased person, but it, was a case in which some of the legal representatives were brought on record with respect to one of the deceased persons and no legal representative was brought on record with respect to another person. In the case of the one, their Lordships held that the estate was sufficiently represented while in the other case they held that it was not represented at all.

19. In Ramasummi Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671 the defendant died after the decree and the plaintiff in the course of the execution proceedings brought on record as his legal representative one of two persons who appeared to have a better title at that time. It was held that the sale of properties in execution of the decree with such a person on record would bind the person who was subsequently found to be a true legal representative. The principle on which the decision is based is thus stated by the learned Judges:

The creditor must, if he is not to be liable to lose his money, be permitted to apply for execution against that one of the rival claimants whom he honestly and reasonably believes to be the legal representative; and if the person so nominated, though it may turn out afterwards that he is not the true legal representative, is yet competent in fact to represent the estate, if his interests in respect of the proceeding in question are identical with those of his rivals, and if he acts without fraud or collusion, it is hard to see any reason why his representation should not be held to be sufficient.

20. Later on speaking of the representation of the estate by the wrong person being brought on record they observe as follows:

His interests were absolutely identical in this matter with those of his rivals and he was better able than they to protect them. There existed, therefore, no reason why if one of the claimants was to represent the estate it. should not be he, and no fraud or collusion has been proved in this case to vitiate his representation. There is then no good reason why as the person with the best prima facie title, and holding possession of the property, Krishnaswami Panikondar should not be held to have sufficiently represented his natural son's estate in fact.

21. In my opinion there is no justification for confining the principle enunciated in this decision only to those cases where a wrong representative is brought on record in the course of the execution proceedings. The question to be considered whether it arises in the course of execution proceedings or in the course of the suit is this: whether the estate of the deceased person was sufficiently represented by the legal representative who has been actually brought on record. I think the same principle should govern all cases where a wrong representative has been brought on record, where such representative has been added in the course of the suit or in the course of the execution proceedings. The same consideration should apply also to a case where the suit itself is instituted against the wrong legal representative at the very commencement. The principle of the decision in Ramaswami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671 has been applied to a case in Gnanambal Ammal v. Veerasami Chetti (1915) 29 M.L.J. 698, where the suit itself was instituted against a wrong legal representative of the deceased person as in the case before us. Referring to these decisions Sadasiva Aiyar, J., in that case observes as follows:

In that same volume (Ramaswami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671, a case is reported which was argued by eminent Vakils on both sides and it was held therein that a decree-holder may select from among several rival claimants to the estate of his judgment-debtor any one whom he believes honestly to have the best prima facie title as legal representative and that that representation , in the absence of fraud or collusion will be sufficient, to validate sales held in execution and to convey the title of the deceased judgment-debtor through such sales. The broad principle of the decision in that case clearly seems to me to apply to the present case.

22. If the principle of the decision in Ramaswami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671 applies to the case before us, as I think it does, there can be no doubt having regard to the findings given above that the decree against the widow who has a prima facie title to represent the estate and whose interests in respect of the suit are identical with those of the plaintiff must be considered to be binding on the plaintiff. It was argued that the decisions in Ramaswami Chettiar v. Oppilamani Chetty I.L.R. (1909) M. 6 : 19 M.L.J. 671 and in the prior cases are no longer good law as the wording of Section 368 of the old Code which was in force when those cases were decided has been altered in the present Code. Order 22, Rule 4 is no doubt differently worded but I do not think it was intended to introduce any new principle by the alteration in the language. As pointed out in Dip Narain Rai v. Lachman Upadhiya I.L.R. (1925) A. 466 Order 22, Rule 4 reproduces with no change in principle Section 368 of the old Code as amended in 1888.

23. In Kaliappan Servaikaran v. Varadarajulu I.L.R. (1909) M. 75 : 19 M.L.J. 651, a case very much relied on by the respondent, a suit was brought against A, the widow of the deceased person as his representative and a decree was passed directing the recovery of the sum sued for from the estate of the defendant's deceased husband in her hands. Another person B brought a suit against A to establish his title to the property of the deceased and having obtained a decree in his favour took possession of the estate. The decree-holder then sought to execute the decree, against B under section 252 of the Code of Civil Procedure. It was held that the decree was not against the estate but against A, the legal representative, and was capable of execution only against A and her representatives. Thus stated, the decision no doubt supports the respondent, but Sadasiva Aiyar, J , points out the true scope of this decision in Gnanambal Ammal v. Veeraswami Chetty2 to be this: what was decided in that case was that the true legal representative cannot, after decree, be brought on the record for purpose of execution and that the deceased debtor's property in his hands cannot be attached and sold in that same suit. Further on, he points out that the decision is not to be taken as having decided that if the wrong representative had been bona fide added or sued and a decree had been obtained and the property of the deceased had been brought to sale, the sale itself was invalid, and could not affect the estate of the deceased (see page 703).

24. If the decision is not read in this way, it really will not be reconcilable with the decisions in The General Manager of the Raj Durbhunga v. Maharaja Coomar Ramaput Singh7 and Ramaswami Chettiar v. Oppilamani Chetty11. In this view, it is clear that this decision does not support the respondent. Further, in the present case, the respondent has not obtained possession of the properties in executidn of his decree. The decision in Srinivasa Aiyangar v. Kanthimathi Animal4 followed Kaliappan Servaikaran v. Varcedarajulu3 and does not require further comment.

25. In Gnanambal Ammal v. Veeraswami Chetty2, the case just referred to, 'where a creditor of the estate ignorant of the true state of affairs, sued the widow in possession and the illegitimate son who would have been the legal representative but for a will left by the debtor under which the 1st defendant was constituted executor and the plaintiff a legatee and obtained a decree and in execution the property in possession of the widow was purchased by the plaintiff, it was held that the sale was binding against the plaintiff.' In that case the suit itself was instituted against the alleged legal representative of the deceased person and that legal representative, his widow, was in possession of one item of his properties The question was whether the decree obtained against the widow which related to this item was binding on the true heir. The learned Judges relied upon Ramaswami Chettiar v. Oppilamani Chetty I.L.R. (1909) M. 6 : 19 M.L.J. 671 and the decision of. the Privy Council in The General Manager of the Raj Durbhunga v. Maharaja Coomar Ramaput Singh (1872) 14 M.I.A. 605 : 20 E.R. 912 in. support of their conclusion that the sale was binding against him and in doing so they referred to the 'broad , principle' of the decision in Ramaswami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671 already referred to. They also rely on the definition of the term 'legal representative' in the new Code of Civil Procedure. I am mentioning this circumstance to show that the decision in that case was based not solely on the ground that the widow was a legal representative of the deceased person as being in possession of the item of properties involved in the . suit but was based also upon the broad principle that if the wrong heir is sued bona fide and the decree is not tainted with fraud and collusion, then the true heir is also bound by that decree. The words 'I would further remark' in para. 2 at page 703 would show that the definition of. 'legal representative' in the new Civil Procedure Code was relied on only as an additional reason in support of the conclusion arrived at by applying the general principle enunciated in Ramaswami Chettiar v. Oppilamani Chetty I.L.R. (1909) M. 6 : 19 M.L.J. 671 and The General Manager of the Raj Durbhunga v. Maharaja Coomar Ramaput Singh (1872) 14 M.I.A. 605 : 20 E.R. 912. This decision was referred to in Bachu Soorayya v. Toomuloori Chinnti Anjaneyalu (1918) 36 M.L.J. 106, to which also Sadasiva Aiyar, J., was a party! The judgment in this case, also makes it clear that the new definition of the legal representative was relied on only as a supplemental ground in support of the conclusion arrived at in Gnanambal Ammal v. Veeraswami Chetty (1915) 29 M.L.J. 698. These two cases, Gnanambal Ammal v. Veeraswami Chetty (1915) 29 M.L.J. 698 and Bachu Soorayya v. Toomuloori Chinna Anjaneyalu (1918) 36 M.L.J. 106, do not in my view support the proposition contended for by the respondent's counsel that if the electee in question can be held to be binding, it will be binding only with respect to items 3 and 4 which are in the possession of the widow, for these cases approve the broad principle stated in Ramaswami Chettiar v. Oppilamani Chetty I.L.R. (1909) M. 6 : 19 M.L.J. 671 and. The General Manager of the Raj Durbhunga v. Maharaja Coomar Ramaput Singh (1872) 14 M.I.A. 605 : 20 E.R. 912 which do not limit the application of the principle in the way- contended for by the respondent..

26. The decision in Madavarayudu v. Subbamma : (1916)31MLJ222 is the case strongly relied on by the respondent in support of his plea that the decree passed against the wrong heir of the deceased will not in any Circumstance be effective against the true heir. If that decision lays down that proposition, then certainly the decision is opposed to the prior decisions of this Court; but an examination of that case will show that it is perfectly consistent with the prior decisions of this Court and that it does not support the appellant. In that case when the defendant mortgagor against whom the suit was instituted died, his divided brother's son was brought on the record as his legal representative while the true legal representative was his daughter. No reason was assigned as to why she was ignored. The person brought on record as the legal representative was practically a stranger. In the circumstances, the learned Judges held that the decree obtained against such a person cannot be binding on the true legal representative. In the course of their judgment, the learned Judges after referring to The General Manager of the Raj Durbhunga v. Maharaja Coomar Ramaput Singh (1872) 14 M.I.A. 605 : 20 E.R. 912 make the following observation:

In any case the widow against whom the proceedings were continued had a 'present interest' to protect and consequently that decision is within the principle enunciated in Ramaswami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671.

27. This shows that they approved of the decision in Ramaswami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671 which lays down, the broad principle I have already referred to. The decision in Madavarayudu v. Subbamma : (1916)31MLJ222 must be read with reference to its special facts. So long as the daughter the true legal representative was alive, the person who was actually made legal representative in the suit had no interest in the property and no reason was given as to why the daughter, the real legal representative, was overlooked by the plaintiff; prima facie a decree obtained against a person in such circumstances can never be described as a decree obtained bona fide and without fraud or collusion between the parties to the suit. The decision in Angadi Mallappa v. Neelana Gowdra Kare Gowd (1925) 50 M.L.J. 442 does not go further than Madavarayudu v. Subbamma : (1916)31MLJ222 and must be read with special reference to the facts of the case. Attention may be drawn to the observations of Srinivasa Aiyangar, J., about this decision in Kolaremathu Amma v. Madhavi Ammal (1927) M.W.N. 894. If a person who is practically in the position of an absolute stranger and who has no sort of right to represent the deceased is made a party to a suit and a decree is obtained against him as representing the deceased such a decree, however bona fide the suit may be, cannot bind the real heir. This is all what the decisions in Madavarayudu v. Subbamma : (1916)31MLJ222 and Angadi Mallappa v. Neelana Gowdra Kare Gowd (1925) 50 M.L.J. 442 mean. These decisions cannot possibly apply to the case of a widow who in the absence of a will is the legal representative of her deceased husband and against whom a decree has been obtained bona fide by the creditor.

28. Many of the above decisions have been fully considered in a recent decision of this Court in Sanna Govappa v. Rodda Sawna Govappa (1928) 30 L.W. 778, in which the learned Judges have enumerated all the circumstances in which a decree obtained against the wrong heir of a deceased person can be considered effective; against the true heir who was not made a party to the suit {see pages 783 and 784); various decisions of single Judges of this Court and a few decisions of other Courts, Garapati Gangaraju v. Pandyala Somanna (1926) M.W.N. 213, Narasimaiah v. Jawantharaj Sowcar (1926) 52 M.L.J. 299 Abdulla Sahib v. Vageer Beevi Ammal : AIR1928Mad1199 , Lalsa Rat v. Udit Rai A.I.R. 1924 A. 717 : 75 I.C. 114, Preynraj v. Javarmal (1912) 15 Bom. L.R. 41, Pukhraj v. Jamsetji I.L.R. (1926) B. 802 and Jagarnath v. Mt. Bibi Amir-un-nissa : AIR1928Pat197 were brought to our notice. But having regard to the cases above discussed which are decisions of this Court by benches of two Judges, I do not think it is necessary to examine them. Now to sum, up, the widow who was sued as the legal representative in C.S. No. 81 of 1921, was, but for the will, the true legal representative of the deceased; she was also in possession of at least two items of his properties. Her interests in defending the suit were identical with those of the plaintiff-respondent. The suit was instituted without any fraud or collusion between the parties. No more sum than was properly due from the deceased was claimed in that suit and as we have now found, the decree was obtained bona fide and without any fraud or collusion. In these circumstances it must be held that according to the decisions of this Court the widow sufficiently represented the estate of the deceased in C.S. No. 81 of 1921 and that the decree obtained in it and the execution proceedings are binding on the plaintiff in respect of all the four items of: property involved in the present suit. It was lastly argued that with reference to Section 52 of the Transfer of Property Act., the attachment and sale of the properties in execution of the decree in C.S. No. 81 of 1921' should not be given effect to, having regard to the fact that the- suit was decided during the pendency of O.S.No; 65 of 1921 instituted by the plaintiff. This point was not raised in the Lower Court and does not seem to have been ever raised in any of the cases discussed above. In my view, the argument is clearly untenable. If, as we have found, the widow was properly used as the legal representative of the deceased Parthasarathi in C.S. No. 81 of 1921 and if she sufficiently represented his estate, it is clear that the decision in that suit cannot affect the rights of the present plaintiff in any way for he claims the property only as the legal representative of the deceased Parthasarathi, and the interests of both the widow and himself are identical as regards the subject-matter of the litigation in C.S. No. 81 of 1921. The decision in that suit being in effect a decision against the plaintiff himself, it is difficult to see how that decision can affect his rights, as the legal heir of the deceased as declared in O.S. No. 65 of 1921.

29. In the result both the appeals are allowed with costs here and in the Lower Court. In the circumstances of this case I hold that the next friend shall also be liable with the plaintiff for costs.

Reilly, J.

30. This appears to me a vexatious suit. It is admitted that the principal of the debt, for which the firm called defendant 1 in this suit got a decree in C.S. No. 81 of 1921 on the file of the High Court, was due from the estate' of Parthasarathi Mudali. I agree that we have no sufficient reason to differ from the findings of the learned Subordinate Judge that the interest included in that decree was also due from Parthasarathi and that the part of Parthasarathi's property which was sold in execution of that decree was not sold for an inadequate price. The result is that for Parthasarathi's debt, a not excessive part of Parthasarathi's estate has been sold in execution. That can have done no harm to the plaintiff, who is Parthasarathi's residuary legatee. But the plaintiff is trying to upset the execution sale and to escape the payment of the debt on the ground that defendant 1 in C.S. No. 81 of 192i did not implead Parthasarathi's proper representative as he impleaded Parthasarathi's widow, Sengalani Ammal, instead of the plaintiff. The learned Subordinate Judge has found that defendant 1 was guilty of no fraud nor collusion in the matter, and indeed, though fraud and collusion were alleged in the plaint, they were not properly pleaded and the allegations in that respect might well have been ignored; The learned Subordinate Judge has also found that defendant 1, when the firm brought the suit, did not know that Parthasarathi had left a will. Nevertheless he has found that the firm did not bring the suit against the widow as Parthasarathi's legal representative in good faith, because they did not make sufficient inquiry before doing so. I agree that that finding is wrong. Wills are not yet so common among the country people of this Presidency that a creditor whose debtor dies can be expected to inquire whether the debtor has left a will and what its dispositions are, if no one gives him information that a will has been made. In this case the creditor found that the debtor had left a widow but no children, that the widow was in possession of the debtor's shop and its contents and that she made several part payments towards the debt. The will, which was eventually found to have been validly made by Parthasarathi, was not mentioned in any Court until 6 months after Parthasarathi died and was not then brought to defendant l's notice. In the circumstances defendant 1 appears to have acted in good faith in making the widow Parthasarathi's representative in C.S. No. 81 of 1921, and the extravagant suggestions which have been made before us that defendant 1, a firm of very wealthy Guzerati merchants in Madras, had a motive for suing a wrong representative appear to me baseless. And, if defendant 1 had pushed inquiries further, what would have been discovered? It would have been found that 6 months after Parthasarathi's death the minor plaintiff's father on his, behalf had asserted in answer to the widow's application to the District Court of North Arcot for a succession certificate that Parthasarathi had left a will, but had made no application for letters of administration; the widow had denied the genuineness of the will, and the District Judge had given her a succession certificate to collect amounts due to Parthasarathi's estate. The plaintiff through his father had then filed a suit, O.S. No. 65 of 1921, in the Vellore Subordinate Judge's Court, against the widow and two others for a declaration that he was entitled to Parthasarathi's property as residuary legatee under the will and for the recovery of Parthasarathi's property from them. If defendant 1 had known all that, the firm might still reasonably have maintained that, pending that litigation, the proper person for them to sue was Parthasarathi's widow, to whom the District Judge had issued a succession certificate; and such a choice among possible representatives of Parthasarathi could not have been attacked as improper.

31. But it is urged for the plaintiff that it has turned out subsequently, as he eventually succeeded in O.S. No. 65 of 1921, that the widow was not Parthasarathi's representative and therefore the decree obtained by defendant 1 in the High Court suit is ineffective. I may remark that even now in strictness there is no one who can be sued as completely representing Parthasarathi's estate, as no one has ever applied for letters of administration. But, though it has turned out subsequently that the widow has no right to Parthasarathi's property, she was sued by defendant 1 in good faith, and at that time she had an existing interest to defend that suit--indeed she was quite as much interested to do so as the plaintiff would have been. Then what ground have we for saying that a decree obtained against her as Parthasarathi's representative for a debt due from Parthasarathi is not binding on Parthasarathi's estate? The principle in such cases appears to me to be found in the Durbhuga case (1872) 14 M.I.A. 605 : 20 E.R. 912. But, as the facts of that case are rather obscurely stated and have; often been misunderstood in some particulars, I think it is better to refer to Johan Chunder Mitter v. Buksh Ali Soudagur Mar. Beng. A.C. 614, with which their Lordships of the Privy Council say in the Durbhunga case (1872) 14 M.I.A. 605 : 20 E.R. 912 they entirely agree. In that case a decree was obtained against a Hindu widow for her husband's debt, though he had left a son. It was held that the sale of her husband's property in execution of that decree was valid and bound the son. It does not appear that the widow ever set up any right against her son, and the report shows that the plaintiff knew of the son's existence when he chose to sue the widow. What Peacock, C.J., emphasized in that case was that the debt was her husband's and the property sold was her husband's. The widow was treated as having sufficiently represented her husband's estate. In many later cases the essential question whether the deceased's estate has been sufficiently represented appears to have been obscured by other considerations, and legal representatives have been treated as if it were their own rights and not the rights of the person whom they represent that were in question. I agree with my learned brother that the proper principle is to be found in Kadir Mohideen Marakkayar v. Muthukrishna Aiyar I.L.R. (1902) M. 230 : 12 M.L.J. 368, Ramaswami Chettiar v. Oppildmani Chetty I.L.R. (1909) M. 6 : 19 M.L.J. 671 and Gnanambal Ammal v. Veeraswami Chetty (1915) 29 M.L.J. 698. I do not think it necessary to discuss cases of the Bombay High Court or other Courts which adopt the view that the crucial question is whether the right heir or successor is on record, not whether the deceased's estate is sufficiently represented. And to my mind the question whether the representative on record is actually in possession of any of the deceased's property is not of importance except as throwing light on the question of the plaintiff's good faith. If a plaintiff in good faith sues a person who appears to him to be the proper legal representative of his deceased debtor and that representative has an existing interest to defend the estate and there! is no fraud nor collusion in the proceedings, then a decree so obtained is binding on the deceased's estate whoever may be actually entitled to the residue of the estate after the debts have been paid. That appears to me to be both good sense and good law as laid down by the Privy Council.

32. It has been urged that the change of wording between Section 368 of the Code of Civil Procedure of 1882 and Order 22, Rule 4 of the present Code affects the validity of the old decisions on the subject. That contention appears to me to be entirely mistaken. The words of the Code of 1882 and that of 1859 may perhaps be taken to have given more freedom to a plaintiff in bringing on record the representative he chose and the words of the present Code to throw more responsibility in the matter on the Court. But that certainly cannot make a decree obtained after impleading a representative approved by the Court of less effect against the deceased's estate.

33. It has been suggested for the plaintiff that, as the decree of the High Court in C.S. No. 81 of 1921 only directed the widow to pay 'out of the assets of her deceased husband, Parthasarathi Mudali, come to her hands,' at any rate it cannot be executed against any property not in her possession, and that, as out of the four items sold in execution only items 3 and 4 were in her possession, the sale of items 1 and 2 in execution must be invalid. But that form of decree, which is the usual form of decree against executors and administrators, is adopted only to make it clear that the decree is not to be executed against the representative, executor and administrator personally and that he is not directly responsible under the decree for property of the deceased which he has not yet recovered. It does not prevent the decree being executed against property of the deceased which has not been reduced to possession by the representative, executor or administrator. Items 1 and 2 in this case are admittedly Parthasarathi's property, and in my opinion they could be validly sold in execution of the decree in CS. No. 81 of 1921.

34. The last contention for the plaintiff is that, as his suit, O.S. No. 65 of 1921, was instituted before CS. No. 81 of 1921, the sale in execution of the decree in CS. No. 81 of 1921 is invalidated on the principle of lis pendens. That I agree is mistaken. Although in O.S. No. 65 of 1921 the plaintiff incidentally obtained a decree that the widow and other defendants in that suit should deliver possession of items 3 and 4 to him and an injunction restraining them from interfering with his possession of items 1 and 2, the whole basis of his decree was the declaration, for which he sued, that he was the residuary legatee under Parthasarathi's will, that is, that he was entitled to the residue of Parthasarathi's estate after the payment of Parthasarathi's debts and the other legacies. The sale of items 1--4 in execution in no way affected his right as residuary legatee. The right of Parthasarathi's creditors to the satisfaction of his debts was paramount to the rights of any of the parties to O.S. No. 65 of 1921 and did not indeed affect their rights.

35. Finally I may add that, if I had--as I have not--any reason to doubt the technical validity of the sale of items 1--4 in execution of the decree in CS. No. 81 of 1921, in my opinion it would still not be proper to make for the plaintiff the declarations which he has sought in this suit that that decree and its execution are null and void against him. The plaintiff is not, as Mr. Viswanatha Aiyar in his argument represented him to be, the owner of Parthasarathi's property. He is merely the residuary legatee, entitled to the remainder of Parthasarathi's estate after all Parthasarathi's debts and the other legacies have been satisfied. It is not for him to say what parts of Parthasarathi's property shall go in satisfaction of his debts. By the execution of the decree in CS. No. 81 of 1921 Parthasarathi's just debt has been paid out of Parthasarathi's property. The plaintiff's interest in the residue of Parthasarathi's estate has not been affected in any way. If the declarations for which he prays and which the Subordinate Judge has made were allowed to stand, defendant 1's just claim would be most seriously delayed and possibly defeated and the plaintiff would obtain a most unjust advantage. Such declarations would in the circumstances be obviously inequitable,' and in my opinion no use of judicial discretion could justify them.

36. I agree that both these appeals must be allowed and the plaintiff's suit dismissed with costs in both Courts. In my opinion the plaintiff should pay the costs of both defendants 1 and 2 (2 sets) in both Courts. As I have said, the suit appears to me entirely vexatious. It is the plaintiff's next friend, his father, who is responsible for it. Instead of straight forwardly propounding Parthasarathi's will and applying fiat Letters of Administration under which he would have been bound to pay Parthasarathi's debts, including this debt due to defendant 1, before the plaintiff could touch the estate, he has tried to defeat a creditor by this suit on technical and vexatious grounds. In the circumstances I think the plaintiff's father also should be made personally liable for the costs of defendants 1 and 2 in both Courts. I would suggest that he alone should be made liable for the costs but for the fact that it is represented that he is a man of small means and thereby the defendants might be prevented from realising their costs in full.


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