1. The subject-matter of this appeal is property which admittedly once belonged to one Ramachandra Aiyar. In O.S. No. 5 of 1905 a money decree was obtained against Ramachandra Aiyar. In 1910 Ramachandra Aiyar died. By 1915 the rights of the decree-holder had passed to the present 1st defendant. The suit property was sold in execution of the decree at defendant l's instance on 11th July, 1917 and was purchased by one Venkatarama Aiyar who obtained delivery through Court on 3rd February, 1918. In June, 1918, Venkatarama Aiyar sold the property to defendant 2 from whom some years later defendants 3, 4 and 5 obtained mortgage rights. The present suit was brought by the plaintiff on 1st February, 1930, claiming to be the adopted son of Ramachandra Aiyar, for the recovery of the property on the ground that the sale in 1917 having been held in proceedings to which he was not a party did not bind him, and was null and void in that the estate of his father Ramachandra Aiyar was not properly represented in those proceedings.
2. The facts in regard to the representation of Ramachandra Aiyar's estate in the execution, petition, are as follows:
Defendant 1 first attempted to implead a person named as, Subramania Aiyar and stated to be Ramachandra Aiyar's adopted son. Notice was not apparently served on any such person who admittedly did not exist with that name. Then he filed an affidavit in February 1916 in which he stated that the adopted son is said to have died about May 1915' and that Ramachandra Aiyar's only heir was 'his daughter-in-law' Lakshmi Ammal. Notice after notice was issued to Lakshmi Ammal and finally she was added by the Court as legal representative of Ramachandra Aiyar. She remained ex parte throughout. She was in fact the widow not of any adopted son, but of a predeceased natural son of Ramachandra Aiyar so that the statement that she was Ramachandra Aiyar's heir is not correct.
3. On these facts it was contended by the plaintiff that defendant had deliberately and fraudulently kept the knowledge of the execution petition from him, but no attempt was made to prove this, and both Courts find that there is nothing at all to show that defendant l's actions were not bona fide. The second appeal has accordingly been argued on the common ground that defendant 1 honestly attempted to implead the correct legal representative.
4. Plaintiff's name is Ramaswami Aiyar. His adoption was challenged in the suit, but both Courts found in favour of it, and that fact too is now common ground.
5. There can be little doubt that plaintiff has no practical grievance at all in this suit, and relies entirely on legal technicalities. His plaint gives no hint whatever of the reason for his 12 years of supposed ignorance except the bare statement. 'I have been in Karur for a long time'. He does not assert that if he had had notice of the execution petition he could have done anything to avert the sale or influence the price which it fetched. He has not ventured to give any evidence. The learned District Munsiff indeed shrewdly suspects that plaintiff was well aware of the execution petition and deliberately chose to take no action to save his property, and though there is no proof of this knowledge, I feel sure that the District Munsiff is right.
6. These equitable considerations cannot however prevent an examination of the legal position. The learned District Munsiff held that this case is governed by the principles laid down by the Privy Council in Malkarjun v. Narhari and that it cannot be said that the sale was without jurisdiction. In appeal the learned Subordinate Judge held, without considering Malkarjun v. Narhari that the true criterion was whether the person impleaded as legal representative had any present interest to defend the estate. In so holding he relied upon certain passages in Chaturbujadoss Kushaldoss & Sons v. Rajamanicka Mudali (1930) 60 M.L.J. 97. Holding further that Lakshmi Ammal had no such interest (this rinding cannot seriously be challenged) he reversed the decree of the learned District Munsiff and decreed the suit.
7. It is conceded by the learned Advocate for the plaintiff that unless the sale in 1917 can be shown to be without jurisdiction his client has no case. That in all cases in which a person without any interest to defend the estate is impleaded as legal representative there is want of jurisdiction cannot be put forward as a ruie of law because in Malkurjun v. Narhari the person actually impleaded was impleaded in spite of his own renunciation of all interest in the estate and yet the sale was held good until set aside. The true method of approach to this case therefore seems to me to be to analyse the reasoning of Malkarjun v. Narhari and see whether it applies or not. That reasoning is this. It is the Court's duty to receive an application for execution against the legal representative of the deceased judgment-debtor and to issue notice to the person put forward as legal representative by the decree-holder and to decide, if necessary, whether that person is the legal representative or not. If it decides that that person is the true legal representative when in fact he is not, that is, merely a wrong decision, and a Court has jurisdiction to decide wrong as well as right. Now the only point which differentiates Malkarjun v. Narhari from the present case is this. In Malkarjun v. Narhari the proposed legal representative appeared in response to the notice served upon him and objected to his being impleaded and the Court overruled his objection. In the present case Lakshmi Ammal did not appear, and the Court accepted her as the legal representative in her absence. This difference, it is argued by the learned Advocate for the respondent is fundamental but I cannot see on what principle a Court which has jurisdiction to declare a man to be a legal representative after hearing from him, has no jurisdiction to make the same order if he remains ex parte.
8. It is contended for the respondent that in two later rulings the Privy Council has so interpreted Malkarjun v. Narhari as to make it inapplicable to the facts of the present case. The first of these is Khiarajmal v. Daim (1904) L.R. 32 IndAp 23 : I.L.R. 32 Cal. 296 (P.C.). There is no doubt (see p. 314) reference is made to the Judges, 'accepting without question' statements that Amirbaksh was legal representative of Naurez and that Alahnaaraz was his guardian, but this was in a suit and not by an order in an execution petition and in fact Alahnawaz was not Amirbaksh's guardian. It was therefore a case in which whatever Amirbaksh's connection with Naurez's estate may have been. Naurez's estate could not possibly be represented by a minor for whom no guardian ad litem had been appointed and therefore the estate was in law represented not by a wrong legal representative but by no one. The other case is Raghunath Das v. Sundar Das Khetri There the distinguishing factors were (i) that no proper notice was served upon the legal representative and (M) that the respondents were responsible for this irregularity, factors neither of which exist in this present case.
9. It seems tome therefore that neither Khiarajmal v. Daim (1904) L.R. 32 IndAp 23 : I.L.R. 32 Cal. 296 (P.C.) nor Raghunath Das v. Sundar Das Khetri is of any assistance to the respondent in the present appeal. They do not touch the fundamental requisites of jurisdiction, that the Court should issue notice to the proposed legal representative and that the Court should direct execution to proceed against him (Order 21, Rules 22 and 23). Incidentally also they are both instances where the opposite party cannot plead bona fide conduct.
10. I am therefore of opinion that the learned District Munsiff was right when he held that Malkarjun v. Narhari applies to the facts of this case. I set aside the decree of the learned Subordinate Judge and allow this appeal dismissing plaintiff's suit with costs of the contesting defendants throughout.
11. Leave Refused