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Adusupatti Venkata Rao Executor to the Estate of the Deceased Ramanu Jaammal Vs. Swami Pillai and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.795
AppellantAdusupatti Venkata Rao Executor to the Estate of the Deceased Ramanu Jaammal
RespondentSwami Pillai and ors.
Cases ReferredBhaiji Bhimji v. Administrator
Excerpt:
attachment - execution--devisee's interest--probate taken by administrator-general-administrator-general not made party in execution. - .....because the administrator general, who had obtained probate pf the will of the deceased father of david pillai, the judgment-debtor, was not a party to the execution-petition under which attachment was ordered in september, 1900, the attachment mast be treated as illegal and cannot form the basis of a sale. the attachment, as we understand, was of the interest of david pillai in the lands of the testator situated in a particular locality on the supposition that david was solely entitled to those lands including the property in dispute. subsequent thereto, the estate has been divided among the different devisees and legatees, the property now sought to be sold falling to the share of david pillai. that being so, it, is difficult to see why the attachment, which still subsists, should be.....
Judgment:

1. The District Judge is wrong in holding that because the Administrator General, who had obtained Probate pf the Will of the deceased father of David Pillai, the judgment-debtor, was not a party to the execution-petition under which attachment was ordered in September, 1900, the attachment mast be treated as illegal and cannot form the basis of a sale. The attachment, as we understand, was of the interest of David Pillai in the lands of the testator situated in a particular locality on the supposition that David was solely entitled to those lands including the property in dispute. Subsequent thereto, the estate has been divided among the different devisees and legatees, the property now sought to be sold falling to the share of David Pillai. That being so, it, is difficult to see why the attachment, which still subsists, should be regarded as of no avail with respect to property attached to Divid Pillai. It, does not seem to us to be reasonable to hold the attachment of a judgment-debtor's property to be illegal because property which did not in fact belong to the judgment-debtor had also been included in the attachment. Nor do we think there is force in the argument of the lower Court that because the estate of the judgment, debtor's father was in the hands of the Administrator-General, the judgment-debtor had no enterest in the Inquest which he receiver under his father's Will on the date of attachment. A bequest, unless the testator intended otherwise as in the case of a contigent bequest, becomes vested in interest in the devisee or legatee from the data of the etestator's death although he may not be entitled to receive what had been bequeathed to him except in due course of administration. This, we may point out, is clear from the provisions of Sections 91, 106 and 107 of the Indian Succession Act upon general principles relating to construction of Wills: See Jarman on Wills, Vol. II, page 1357. In this connection we may observe that there is a dictum in. Srirangammal v. Sandamal 23 M.p 216 referred to by both the Courts which is apparently construed to mean that in cases under the Indian Succession Act, the heir of a deceased person has no saleable interest in the heritage until an administrator has distributed the estate in due course of administration. The language used by the learned Judges in that case, which is rather value, is perhaps capable of this construction, but we do not think that is what was meant; for we do not know of any provision in the Indian Succession A oh which contemplates any such result. An heir or a legatee may not be entitled to possession of what, he inherits or is bequeathed to him except, in the proper course of administration but that does not mean that he acquires no interest till then Perhaps, all that the learned Judge in that case intended to lay down was that an heir under the Indian Succession Ant has no right to any specific property belonging to the estate until if, has been allotted to him in the course of administration. Then, there is another fact relied on by the lower Courts in support of the view that the attachment of September, 1900, was void, viz., that the Administrator-General was not a party to the execution-petition on which the attachment was ordered. 'No doubt, he ought to have been made a party to the application but the omission, it seems to us, cannot form a valid ground of objection to the present application on the part of the judgment-debtor. No objection was taken to the attachment at the time it was made on that ground; if it had been taken, the defect could have been remedied in time. The estate of the judgment-debtor's father has now, as we understand, been fully administered and the Administrator-General has nothing further to do with, the estate and as the attachment still subnets the application for sale must be regarded as in order. We may mention that, apart from the dictum already referred to, the door-don in the case reported in Srirangammal v. Sandamal 23 M.p 216 has no application to the present case. In Srirangammal v. Sandamal 23 M.p 216 what was decided wag that a suit for partition by the assignee of the devisees under the Will would not lie until the estate has been administered. Bhaiji Bhimji v. Administrator-General of Bombay 23 428 is also distinguishable from the present case. There a decree was obtained against a person as the heir and legal representative of the devisee's estate while the estate had become vested in the Administrator General. The Administrator-General was not a party to the suit, and it was in execution of decree that the estate of the deceased was attached without notice to the Administrator-General. It was held that neither the decree nor the attachment was binding upon the Administrator-General but no such question arises as the estate has been fully administered and the decree against David Pillai was in his individual capacity and not as legal representative of his father. It appears, however, that, the respondents Nos. 2, 3 and 5 preferred a claim to s true of the properties sought to be sold and that claim has been allowed.

2. The result, therefore will be that appeal will be allowed wish cists as against the 1st; respondent and disturbed with costs as against respondents Nos. 2, 3 and the Execution-Petition No. 774 of 1906 will de remitted to the District Munsif for disposal according to law.


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