1. In our opinion the Subordinate Judge was right in holding that the estate of the deceased zemindar was Sufficiently and properly represented by his natural father Krishnaswamy Panikondar for the purpose of the execution proceedings under our consideration, At the death of the zemindar in 1900, Krishnaswamy Panikondar was in possession of the zemindari and claim. ed title thereto under a Will of the deceased. Some remote Sapindas of the zemindar claimed to be his heirs and denied the genuineness of the Will, but the District Registrar registered it after a severe contest (to quote the Subordinate Judge). The Sapindas then sold their claims to the appellant.
2. Now the 1st respondent having obtained in the life-time of the zemindar an order for the sale of the property mortgaged to him had, in order to bring the property to sale, to apply for execution against the legal representative of the mortgagor. He knew that the true legal representative in the eye of the law was one of the rival claimants but he did not know which. It was not contended that he was bound to wait until a decision had been obtained or a settlement arrived at on all the conflicting claims of the rivals or, it may be, of speculators who might have purchased those claims or portions of them. To compel the creditor so to wait would, as was pointed out, in an analogous case, Janaki v. Dhanu Lall 14 M.k 454 put it in the power of his debtor's representatives to deprive him altogether of his dues of the simple expedient of delaying the settlement of the question who is the representative.' Mr. Krishnaswamy Aiyar's contention seemed to be in effect that the creditor must, if he does not wait, pick out the legal representative from among the rivals at his peril. If in the course of years it be finally decided that one of the other claimants is entitled in law to succeed to the estate, all the proceedings had in the interval, are, if not null and void, voidable at the option of the finally successful claimant.
3. We do not find anything in the judgment of the Privy Council in Khiarajmal v. Daim 2 A.L.J. 71 to compel us to accept this contention. Their Lordships recognise that representation for the purposes of litigation may be incomplete and yet sufficient, and though they confine their observations on this point to cases in which all the representatives are the members of a family, the case before them being of that kind, they do not lay it down that those cases exhaust the matter but rather indicate that the sufficiency of the representation may be in part a question of fact The estate of Naurez, they say at page 315, was not represented 'either in law or in fact.'
4. The first respondent had in this case before its to chose whether to apply for execution against one of several rival claimants, or against them all together. It seems to us that in selecting one he has made the choice of a course which is obviously the most convenient course, and which is in accordance with the principles on which the law must be applied where, as here, there is no power to give letters of administration to a creditor vide Janaki v. Dhanu Lall 14 M.k 454. 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. It is not necessary to go the full length of the decision in Kadir Mohideen Marakkayar v. Muthukrishna Aiyar 26 M.k 230 which does not relate to execution proceedings; but the principle of Section 368 of the Civil Procedure Code of 1882, by which the plaintiff nominates the representative of the defendant, who is appointed by the Court subject to intervention of rival claimants, seems applicable also to the appointment of a representative in execution proceedings. And the principle of selecting from among rival claimants those who have the best prima facie right, is recognised in the India Law. When there are rival claimants to an estate, the law allows the Court in certain circumstances to select the one having prima facie the best title and to empower him to collect outstanding debts of the estate, and to give good discharge to debtors (Section 7(3) of the Succession Certificate Act).
5. The same principle may well be applied to a case in which disputes among claimants to an estate threaten to prevent a judgment-creditor from realising within a reasonable time the fruits of his decree.
6. And here the first respondent nominated as representative the claimant who held possession and whose claim had the support of the District Registrar's decision after enquiry --the other claimants being out of possession and apparently not agreed among themselves which was the heir or whether all were heirs together. He clearly selected the one having the best prima facie title, and one too who was in every other respect the most competent to represent all the claimants in the particular proceeding then in progress. Krishanasawmi Panikondar had conducted on behalf of the deceased zemindar the litigation with the first respondent on his mortgage, and was evidently, as knowing all the facts the best able to resist the execution if resistance was in any way honestly possible. 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, Krishnasawmy Panikondar should not be held to have sufficiently represented his natural son's estate in fact.
7. Mr. Sundara Aiyar cited several cases, which we do not think it necessary to discuss. in support of the view that the claimant in possession may represent the estate, and on the other side Mr. Krishnasawmi Aiyar referred us to Chathakelan v. Govinda Karuniar 17 M.k 186. This case, however, is clearly distinguishable from the present on the ground that the stranger in possession of the assets there, was not a claimant of the estate to which the assets belonged. Vide Chuni Lal Bose v. Osmand Beeely 30 C.k 1044.
8. Reliance was placed on Sambasiva Chetty v. Veera Perumal Mudaly 28 M.k 361 as showing that the true legal representative cannot intervene in a proceeding after decree; but that case decides only that the representative cannot initiate the proceedings. Here neither the Sapindas of the deceased zemindar nor their transferee intervened before 1904, (when the application of the appellant was held to be too late) and it is very possible that they, and the receiver appointed in 1903, were satisfied with the representation of the estate by Krishnasawmy Panikondar. However that may be, there is nothing that we can see, in the procedure indicated by the Code of 1882 as applicable to proceedings after decree, which would make it inequitable or illegal to accept Krishnasawmi Panikondar as a sufficient and proper representative in this case. Nor do we think the appointment of a receiver in 1903 can make any difference, at the most it was irregular to proceed without him, but the. interests which he was appointed to protect did not cease, upon his appointment, to be represented by Krishnasawmi Panikondar, and he did not apply to be made a party to the Execution proceedings. There is no other substantial question in the case. Assuming it to be, open to the appellant to raise the question of limitation, he fails to show that there is any bar. The case was at first put on the ground that the 4th application (that of the 17th October 1899) being unverified was not in accordance with law and that consequently the 5th dated the 23rd March 1900) and all succeeding applications are barred by limitation. This case fails when it is seen that the interval between the 3rd application (dated the 23rd April 1897) and the 5th (dated the 23rd March 1900) is less than three years.
9. Then it was contended that the 3rd application was itself not in accordance with law as it was not accompanied by a verified statement of property. The contention based on this fact was not substantiated by reference to the record. Sale was ordered on the 3rd application on the. 23rd March 1897, and on the 26th of April in the same year, a verified statement was called for. 'We are not prepared to assume in the absence of evidence what the Court treated as in accordance with law as an application which was not so at the time when the order was made on it. It has not been shown to us that the verified statement called for in April 1897 was not furnished before the 23rd of August of that year. The next preceding application (the 2nd) was in 1896; so that in no case was the 3rd barred by time. It is thus unnecessary to discuss the question whether an unverified application may not be called in aid to save limitation.
10. The objections to the sale taken under Section 311 of the Code of 1832, are of no avail for two reasons. They fail when it is held that Krishnasawmi Panikondar represented the estate sufficiently, and they fail whether he did so or not because there is not the slightest proof that the sale caused loss to the appellant. It was contended on the strength of an observation in Krishnayya v. Unnissa Begam 15 M. k 399 that we ought to hold that substantial injury is the necessary result, to the true legal representative of a sale of his property behind his back. But apart from the fact that the observation cannot be universally true, there is this difference here that a person perfectly competent and prima facie anxious to protect the interests of the legal representative was a party to the proceedings. As a matter of fact it was decided by the Subordinate Judge on enquiry that the property sold was worth in the market only Rs. 21,000, while at the sale it fetched Rs. 43,000. The appeal is dismissed with costs.