1. This appeal arises out of proceedings in the execution of the decree in O. S. No. 431 of 1962 on the file of the District Munsif, Coimbatore. The suit was instituted by one Rangammal, a Hindu widow, against her husband's brother's son, Rangaswami Naicker, the appellant herein, to recover possession of 3.36 acres of land in a village in Coimbatore. The suit was compromised on 28-6-1963, according to which the plaintiff was entitled to a specified extent of 1 acre 12 cents and the defendant to the remainder. Rangammal, however, died the very next day after the decree. Earlier, on 17-10-1962, she had executed a registered will in favour of her brother, Venkataswami Naidu, bequeathing the subject-matter of the suit, namely, 3.36 acres and another house, not concerned in the suit. The will, of course, would take effect only on her death. Founding on the will, the legatee, Venkataswami Naidu, filed E. P. No. 860 of 1963, out of which this appeal arises, to execute the decree. In column 1, he described himself as legal representative of the deceased Rangammal, the decree-holder. In column 11, he prayed that he might be recognised as the heir (legal representative) of the decree-holder Rangammal, and possession might be delivered to him under Order 21, Rule 35, C. P. C.,
2. The judgment-debtor, Rangaswami Naicker, resisted the petition on the grounds (1) that the will was not genuine, (2) that its genuineness had to be established in proceedings other than in execution of O. S. No. 431 of 1962 and (3) that but for the will he would be the heir-at-law of Rangammal under the Hindu law.
3. The question whether the genuineness of the will could be gone into in the execution proceedings was tried as a preliminary point The learned District Munsif held that it could be gone into in the execution proceeding itself in view of Sections 47 and 146 C. P. C. The view was upheld on appeal by the learned District Judge. Hence this further appeal by Rangaswami Naicker. The contention of his learned counsel is that Venkataswami Naidu should be referred to a separate suit to establish the will and only thereafter he could be allowed to execute the decree. No authority however is cited for this proposition and this proposition is opposed to the statutory provisions like Sections 47 and 146, C. P. C. When Venkataswami Naidu claims to be the legal representative of the decree-holder Rangammal and further claims to be entitled to execute the decree in that capacity, the question has necessarily to be tried under Section 47 by the executing Court Section 47(2), no doubt, says that the executing Court may treat a proceeding under that section as a suit, but where the question is one primarily relating to execution, there is no need to convert it into a suit. Apart from this there is no provision of law which ousts the jurisdiction of the executing Court under Section 47, C. P. C. Thus Section 213 of the Indian Succession Act will not apply so as to oust the jurisdiction of the executing Court, because it clearly enacts that so far as a will made by a Hindu is concerned, it will only apply where the will is of the classes specified in Clauses (a) and (b) of Section 57, and if we turn to Clauses (a) and (b) of Section 57, they refer to a will executed within the city of Madras or relating to property situated in Madras city. But here, the will was executed outside the city of Madras and the properties also are situated in Coimbatore District. Hence Section 213 will not apply. See also the decision in Beharilal v. Karamchand, .
4. It is thus clear that it is the executing Court which has to determine whether Venkataswami Naidu is the legal representative under Section 47. A question may arise about the exact provision under which the Court may proceed. The possible provisions are Order 21, Rule 16, and Section 146, C. P. C. Order 21, Rule 16, C. P. C., will not apply because the will does not assign the decree; in fact, it does not refer to the suit at all. Hence there has not been any assignment in writing or by operation of law under Order 21, Rule 16, C. P. C. according to the criterion laid down by their Lordships of the Supreme Court in Jugalkishore Saraf v. Raw Cotton Ltd., : 1SCR1369 . But, Venkataswami Naidu can maintain the petition under Section 146, C. P. C. as a person claiming under Rangammal. This is clear from the above decision itself and also the decision in the Andhra Bank Ltd. v. Srinivasan, : 3SCR391 where their Lordships held that even a partial legatee under a will can be legal representative under Section 2(11) C. P. C.
It has been held in a number of cases following Jugalkishore Saraf v. Raw Cotton Ltd., : 1SCR1369 that where a transferee of the subject-matter of the suit is not a transferee of the decree and therefore cannot apply under Order 21, Rule 16, C. P. C., he can nevertheless apply under Section 146 C. P. C., to execute the decree. See Saila Bala Dassi v. Nirmala Sundari Dassi, : 1SCR1287 ; Chinnan-kesavan v. Gouri Amma, : AIR1959Ker180 , Mani Davasia v. Varkey Scaria, 1960 Ker LT 1077, Ram-nath v. Anardei Devi, : AIR1964Pat311 , Satyanarayana v. Sindhu Bai Sharma, : AIR1965AP81 and Ponniah Pillai v. Nataraja, : AIR1968Mad190 . There is only one decision in which a dissenting note has been struck and that is by Jagadisan, J., in Sampath Mudaliar v. Sakuntala Animal, (1964) 2 MLJ 563 ILR (1964) Mad 363, where the learned Judge held that once a decree is passed, unless there is an assignment in writing of the decree to satisfy Order 21, Rule 16, C. P. C., Section 146 cannot be invoked and that Section 146 would be controlled by Order 21, Rule 16, C. P. C. For the reasons discussed in the decisions cited above, I respectfully dissent from the view taken by Jagadisan, J., and agree with the view of Kailasam, J., in : AIR1968Mad190 , that as pointed out by their Lordships of the Supreme Court, Section 146 is very wide in its terms and would permit a transferee like the respondent herein to maintain an execution petition, even though the decree as such has not been transferred to him under Order 21, Rule 16, C. P. C. Their Lordships have emphasised that Section 146, C. P. C. will apply so long as there is no prohibition to the contrary. There is no such prohibition here. It may also be pointed out that Das, J., points out at pages 1405 and 1406 in : 1SCR1369 that in such a case, it is the duty of the executing Court alone under Section 47 to determine the question whether the transferee person seeking to execute the decree could be said to claim under the decree-holder under Section 146.
5. It is quite clear therefore that theexecuting Court is the proper Court todetermine the question whether the willSs genuine and the property in questionwas bequeathed to the claimant Venkata-swami Naidu thereunder. The appeal istherefore dismissed, but without costs.No leave.