Sadasiva Aiyar, J.
1. The plaintiff is the appellant. Her paternal uncle Narayanasawmi Chetty died in March 1899 leaving a Will dated May 1898. Under the terms of that Will, the plaint lands (11 and odd acres) were given to the plaintiff and to the plaintiffs; mother (the 2nd defendant). The plaintiff was to take 4 acres 36 cents absolutely and the 2nd defendant to take the remaining 6 acres 65 cents for life with reversion to the plaintiff. Narayanasawmi Chetty also left a widow, the 3rd defendant, to whom other properties were left by his Will. He owed money at his death to one B.M. Marakayar. That creditor, not knowing the existence of the Will and having to bring his suit for the debt before it was barred, filed Small Cause Suit No. 1068 of 1899 soon, after the death of Narayanasawmy Chetty treating his widow (3rd defendant) and his illegitimate son as the heirs and legal representatives of Narayanasawmy Chetty. He also found that the 3rd defendant was in possession of the plaint land item No. 2 (7 acres and 74 cents). He obtained a decree and in execution brought item No. 2 to sale and at that sale, the 5th defendant became the purchaser in 1901 and obtained possession as such Court auction-purchaser in July 1901 ejecting the 3rd defendant.
2. The executor mentioned in the Will (of Narayanasawmi Chetty) who is the 1st defendant in this suit, took no steps till 1903 to administer the Will or to get possession of Narayansawmy Chetty's properties as executor. The plaintiff has brought this suit as a legatee under the Will of Narayanasawmy Chetty to recover 4 acres 36 cents out of the plaint 11 acres 1 cent, and her contention is that the decree obtained by the Marakayar creditor against the estate of Narayanasawmi Chetty in a suit to which neither the plaintiff nor the executor (1st defendant) was made a party defendant, was not binding on her or the estate and that the sale proceedings held in execution of that decree conveyed no title to the purchaser (5th defendant).
3. It is unnecessary to consider the plaintiff's claim to plaint item 1, as her dispute with the 4th defendant in respect of that item was abandoned (by a compromise) in the Court of first instance. Both the lower Courts dismissed the suit as against the 5th defendant and the plaint item No. 2 in his possession, on the ground that the decree of 1899 obtained by the creditor against the 3rd defendant (and against the testator's illegitimate son) and the execution proceedings in that suit were binding on; the estate of the deceased and, therefore, on the plaintiff and on the 1st defendant.
4. Mr. G.S. Ramachandra Aiyar contended on the authority of Kaliappan Servai Karan v. Varadrajulu 3 Ind. Cas. 737 : 19 M.L.J. 651 that where a wrong person was impleaded. as legal representative of a deceased debtor in a suit brought after the death of the debtor, execution could not validly issue against the properties which had vested in the proper legal representative and that the proper legal representatives in this case as regards the plaint item No. 2 were the legatees under the Will, namely, the plaintiff and the 2nd defendant. At least, that was how I understood the learned Vakil's argument at the commencement of this case. However, during the course of the argument, Section 4 of the Probate and Administration Act came under discussion, that section stating that the 'executor of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.' Mr. G.S. Ramachandra Aiyar thereupon argued that as the executor, 1st defendant, was not made a party to the Small Cause Suit of 1899, the execution taken out against the plaint properties conveyed no title to the purchaser.
5. It is unnecessary for me to express a final opinion on the question decided in Kaliappan Sarvai Karan v. Vardarajulu 3 Ind. Cas. 737 : 19 M.L.J. 651. What was decided in that case, was that the true legal representative cannot, after the decree, be brought on the record for the purpose of execution and that the deceased debtor's property in his hands, cannot be attached and sold in that same suit. In Kali Charan Nath v. Sukhada Sundari Devi 30 Ind. Cas. 824 : 22 C.L.J. 272 : 20 C.W.N. 58, Mookerjee, J., decided a similar case to that in Kaliappan Sarvai Karan v. Vardarajulu 3 Ind. Cas. 737 : 19 M.L.J. 651 on similar reasons and held that the remedy for the decree-holder who had obtained a decree against the wrong legal representative is 'either to have the decree vacated, the suit restored' and the proper legal representative brought on the record and a new decree made against him 'or to institute a suit on the judgment and to obtain a decree thereon against' the true legal representative and then to execute the new decree against the property which had vested in the true legal representative.. As regards these two cases, it seems to me with the greatest respect that they do not give sufficient weight to the observations of their Lordships of the Privy Council in several cases, that decree-holders and purchasers in Court auction, should not be deprived of their legitimate rights on bare technicalities where the merits are clearly, in their favour. In General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Singh 14 M.I.A. 605 : 20 E.R. 912, their Lordships said: These proceedings certainly illustrate what was said by Mr. Doyne and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a decree.' In that case, A obtained a decree against B's widow, B having died pending the suit. The interest of the widow was sold in execution. The contention of the respondent was that the widow did not represent the estate as the deceased debtor had left a son. Their Lordships, however, held that the estate itself, that is, the right of the deceased debtor in the property was properly, sold as that was intended to be sold and the proceedings had all been conducted bona fide. Mr. G.S. Ramchandra Aiyar, however, distinguished the present case and the case of Kaliappan Servai Karan v. Vardarajulu 3 Ind. Cas. 737 : 19 M.L.J. 651, from the Privy Council case and other similar cases on the ground that where the debtor's wrong representative was sued in the first instance (and was not brought in as a legal representative owing to the debtor's dying during the pendency of the suit), the sale of the deceased debtor's property in execution will not pass the debtor's interests. As I said before, Kaliappan Servai Karan v. Vardarajulu 3 Ind. Cas. 737 : 19 M.L.J. 651 decided only that execution proceedings, if objected to by the right-representative who had not been made a party to the suit before decree, should be, dismissed and not that if the wrong representative had been bona fide added or sued and a decree had been obtained and the property of the deceased had been brought to sale, the sale itself was invalid and could not affect the estate of the deceased. In that same volume a case Ramasawmi Chettiar v. Oppilamani Chetti 4 Ind. Cas. 1059 : 19 M.L.J. 671, is reported which was argued by eminent Vakils on both sides and it was held therein that a decree-holder may select from among several rival claimants to the estate of his judgment-debtor, any one whom he believes honestly to have the best prima facts title as legal representative and that that representation in the absence of fraud or collusion will be sufficient to validate sales held in execution and to convey the title of the deceased judgment-debtor through such sales. The broad principle of the decision in that case clearly seems to me to apply to the present case.
6. I would further remark that under the definition of 'legal representative' in the new Civil Procedure Code of 1908, the 3rd defendant might be properly treated till 1901 as the proper legal representative of her husband Narayanasawmy Chetty so far as the plaint item No. 2 is concerned and could be sued as such legal representative so as to obtain a valid decree against her in order to make item No. 2 validly liable for the satisfaction of the decree-debt. Section 2, Clause 11, Civil Procedure Code says that 'legal representative' includes any person who intermeddles with the estate of the deceased. Taking it that the 1st defendant was also a proper legal representative as the person in whom the estate legally vested, the 3rd defendant who was in possession of item No. 2 and, therefore, intermeddled with the estate, can likewise be treated as the 'legal representative' of Narayanasawmi Chetty till she lost possession of item No. 2 in consequence of the delivery proceedings in 5th defendant's favour. No doubt, the definition of 'legal representative' in the Act of 1908 was not found in the old Civil Procedure Code. But it seems to me that the definition is based on sound legal principles which were appplicable even before the new Code was enacted. As regard the case in Siva Bhagiam v. Palani Padiachi 4 M. 401. was doubtless held in that case that, a person who was in possession of the,, deceased's estate and who was sued as his legal representative, could not validly represent the estate so as to pass a valid' title to the Court auction-purchaser who purchased the property in her hands in execution of the decree passed against her as such legal representative. With the greatest respect, I dissent from that ruling and I think it must be taken as impliedly overruled by the decision in Ramasawmi Chettiar v. Oppilamani Chetty 4 Ind. Cas. 1059
7. In the result, I would dismiss the second appeal with costs.
8. I agree. This case seems to me to be covered by the decision in General Manager of the Raj Dhurbhunga v. Maharajah Coomar Ramaput Singh 14 M.I.A. 605 : 20 E.R. 912, it being a suit against the estate of the deceased.