Skip to content


Abrupammal Vs. Thoyammal (Deceased) by His Representative C. Meenambal Ammal - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in117Ind.Cas.122
AppellantAbrupammal
RespondentThoyammal (Deceased) by His Representative C. Meenambal Ammal
Excerpt:
civil procedure code (act v of 1908), sections 2(11), 47 - execution proceedings--person sought to be proceeded against as legal representative of deceased judgment-debtor denying--representative character--question, whether can be gone into in execution. - .....j.1. this is an application for the execution of the decree against the respondent who is not the legal representative of the deceased defendant under the hindu law. a decree was obtained by the plaintiff against the deceased defendant which made the amount payable a charge upon certain immoveable property. the decree was passed in april, 1925. the defendant surrendered her estate to her husband's reversioners on the 8th of december, 1925, and the reversioners sold the property to the respondent on the 12th january, 1926. the widow died on the 8th of june, 1926. the respondent is sought to be brought on record as her legal representative. as it is admitted that she is not the legal representative under the hindu law, the case has to be brought under section 2, clause (11) of the code of.....
Judgment:

C.V. Kumaraswami Sastriar, J.

1. This is an application for the execution of the decree against the respondent who is not the legal representative of the deceased defendant under the Hindu Law. A decree was obtained by the plaintiff against the deceased defendant which made the amount payable a charge upon certain immoveable property. The decree was passed in April, 1925. The defendant surrendered her estate to her husband's reversioners on the 8th of December, 1925, and the reversioners sold the property to the respondent on the 12th January, 1926. The widow died on the 8th of June, 1926. The respondent is sought to be brought on record as her legal representative. As it is admitted that she is not the legal representative under the Hindu Law, the case has to be brought under Section 2, Clause (11) of the Code of Civil Procedure read with Section 47. Section 2, Clause (11), defines 'legal representative' as 'a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and, where a party sues or is sued, in a representative character the person on whom the estate devolves on the death of the party so suing or sued'. Section 47 provides that 'all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.' Clause (3) says: 'Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.' The respondent's contention is that the property in dispute was not the property of the defendant, that she had only a widow's interest during her lifetime, that on her death the reversioners became entitled to the property, that her surrender was a valid surrender, that she was a bona fide transferee from the reversioners and that after the surrender the property not being the property of the widow, they are not the legal representatives under Section 2, Clause (11), as they have not intermeddled in her estate. The learned Master disposed of the application on the ground that he could not go into the question in execution and that the defendant could not go behind the decree. I am unable to accept this contention. On the facts of the case which I have set out, the foundation of the liability of the respondent in execution is the character of the legal representative within the definition of Section 2, Clause (11). When that is denied it is difficult to see how execution could issue without determining the necessary facts. That this is a question which must be dealt with in execution and not in a separate suit is clear from Section 2, Clause (11). This is not a case of going behind the decree. The question for decision is the character of a party which in turn depends on the title to the property the possession of which will make the person liable to be proceeded against in execution. It is, no doubt, open to the decree holder to show that the surrender was taken subject to the charge created and that whatever might have been the position if they had succeeded to the property apart from the surrender the contract between the parties has made the transaction binding on them as such irrespective of the widow's powers to deal with her husband's properties. If that is so, of course the alienation by the reversioners will be subject to the charge created or it is open to them to show that the property belonged to the widow absolutely. There is no question here of life-estate, but who will be her representative under Section 2, Clause (11). If these facts are not proved and if the surrender is valid and not subject to the charge, it is difficult to see how it can be said that the respondent is the legal representative. Again assuming that the surrender is not valid, now that the widow is dead and the reversioners have succeeded under the Hindu Law, the question may arise under the Transfer of Property Act whether the alienation by the reversioners would hot be valid. I think these questions must be determined in execution under Section 47 and each party is entitled to prove the case which he set up.

2. In these circumstances I set aside the order of the Master and direct him to proceed with the application in the light of the observation made by me. Costs will follow the event.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //