1. These two appeals are at the instance of the plaintiffs. Appeal from Appellate Decree No. 1356 of 1944 arises out of Title Suit No. 95 of 1942 in which the plaintiffs ask for a declaration of their title to the disputed land and for confirmation of their possession; and they also ask for an injunction restraining defendants 1 to 4 from proceeding with a certain mutation case instituted under the Land Registration Act. Appeal from Appellate Decree No. 1357 of 1944 arises out of Title Suit No. 88 of 1942 in which the plaintiffs pray for a declaration that defendants 5 and 6 are tenants under them in respect of kha schedule land of the plaint and ask for an injunction restraining defendants 1 to 4 from withdrawing the money which had been deposited by defendants 5 and 6 under the provisions of Section 149, Bengal Tenancy Act.
2. The facts which are material for the purpose of these two appeals are these: One Nripendra Bala had a moiety share in Touzi No. 192 of the 24-Parganas Collectorate. Defendants 1 to 4 instituted a suit, viz. No. 328 of 1937 against Nripendra Bala and obtained a decree on 2-8-1938. Before the decree, however, Nripendra Bala died living a will by which she bequeathed the disputed property to her daughter Saraswati and appointed her son Durga Charan as the exesutor. During the pendency of the suit, Nripendra Bala's pleader was requested to supply the names of the heirs of Nripendra Bala, and the pleader supplied the name of Durga Charan as the heir. Thereafter Durga Charan was substituted in the place of Nripendra Bala not as an executor to Nripendra Bala's will, but in his personal capacity as heir. Durga Charan accepted the written statement filed by his mother on 29-4-1938 and eventually the suit was decreed, as already stated, on 2-8-1938. In execution of this decree, the disputed property was sold on 15-6-1939, and the sale was confirmed on 17-7-1939. It further appears that on 26-8-1938 there was an order for probate being granted in favour of Durga Charan of Nripendra Bala's will. On 13-9-1989 the probate was actually issued by the Probate Court to Durga Charan on payment of the deficit probate duty.
3. It also appears that the plaintiffs of the present suits brought a money suit against Nripendra Bala which was registered as money Suit No. 37 of 1936. In this suit, on Nripendra Bala's death, her son Durga Charan was impleaded as executor, and the legatee Saraswati, was also impleaded as a legatee under the will. In execution of the decree obtained by the plaintiffs in Suit No. 87 of 1936 the plaintiffs purchased the game property on 9-10-1939.
4. The question which has arisen in these two suits is which of these two sales will prevail. If the sale at which defendants 1 to 4 purchased be a valid sale, the plaintiffs' claim in the two suits is liable to be dismissed; both the Courts below have taken that view and have dismissed the plaintiffs' suits; and against the decisions of the Courts below, the plaintiffs have preferred the present second appeals.
5. On behalf of the appellants, Mr. Bose has argued that having regard to the fact that in the defendant's suit there was no valid order for substitution of the legal representatives of Nripendra Bala and having regard to the further fact that shortly before the sale in execution of the decree obtained by defendants 1 to 4, one of the said defendants had come to know about the will left by Nripendra Bala, the sale at which the defendants purchased must be held to be invalid, at any rate it did not pass title of the legatee Saraswati to defendants 1 to 4. In support of this contention, Mr. Bose has relied upon the decision of the Judicial Committee in Khiaraj Mal v. Daim, 32 I. A. 23; (32 Cal. 296 P. C.) where it was observed at page 33 that the Court had no jurisdiction to sell the property of persons who were not parties to the proceeding or properly represented on the record, and Mr. Bose has relied upon another passage at page 36 where their Lordships held that a person who had notice of all the facts cannot rely upon the principle that the Courts of law should be inclined in favour of the title of persons who buy under a judicial sale.
6. With regard to this point it is to be observed that in an earlier case the Privy Council had also to consider the question whether the title to an estate would pass to an auction purchaser even if the real person was not impleaded in the suit. In the case of General Manager of Raj Durbungh v. Ramaput Singh, 17 W. R. 459, it was held that rent decree obtained by the zemindar against a widow of the deceased tenant as guardian of her infant son and without impleading that son was binding upon the, estate and that the estate of the deceased when sold in execution of the decree thus obtained passed the interest of the widow as well as of the son because the widow fully represented the estate.
7. The Courts below have negatived the point made by the plaintiffs in the present suits by relying upon two decisions of the Madras High Court. The first decision relied upon is Sanna Govappa v. Rodda Sanna Govappa, : AIR1929Mad482 and the second decision relied upon by the Courts below is the decision of the same High Court in Chaturbhujdoss Kushaldoss & Sons v. Raja manicka Mudali A. I. R. (17) 1930 Mad. 930 : (129 I. C. 469). In both these decisions all the earlier authorities on the subject have been carefully reviewed, and it has been held that if a plaintiff in good faith sues a person who appears to him to be the proper legal representative of the deceased debtor, and there is no fraud or collusion in the proceeding, then a decree so obtained is binding on the deceased's estate whoever may be the actual legal representative ; the essential question to be considered in such cases is whether the estate of the deceased person was sufficiently represented by the legal representative who had been brought on the record.
8. But Mr. Bose has raised a farther point that though the decree obtained by defendants 1 to 4 might have been a good decree, the sale in execution was bad in law, because shortly before the sale, one of those defendants had come to know about the will. With regard to this point Mr. Mukherjee appearing for the respondent has argued that on the date of the sale, i. e. on 15-6.1939, Durga Charan, the son of Nripendra Bala, who was appointed the sole executor under her will had no title to represent the estate, because on that date, he had not obtained the probate of the will executed by Nripendra Bala, and in support of this proposition, Mr. Mukherjee has relied upon the decision of this Court in Lakhya Dasya v. Umakanto, 14 C. W. N. 256: (2 I. C. 818) in which it has been held that an executor who had obtained an order for the grant to him of probate, but took no further steps to complete the grant and who in no way intermeddled with the estate cannot property represent the estate in a suit brought against it; the decree purporting to have been passed against such an executor does not bind the estate. Mr. Mukherjee has also relied upon the decision in Mohamidu Mohideen Hadjjar v. Ptichey 1894 A.C. 437 : (63 L. J. P. C. 90) in which Lord Macnaghten observed as follows at page 442:
'A creditor of a deceased debtor cannot sue a parson named as executor in the will of the deceased unless he has either administered, that is intermeddled with the estate, or proved the will.'
Upon these authorities, Mr. Mukherjee argues that the executor in the present case having obtained the grant as late as 13-9-1939, could not have been impleaded as a party to the suit or execution proceeding before the sale which took place on 15-6-1939.
9. Mr. Bose has placed before us the decision of the Judicial Committee in Venkata Subamma v. Ramayya where it has been held that in the case of a Hindu to which the Hindu Wills Act, 1870 does not apply, the estate of the testator vests in the executor, if he accepts office, from the date of the testator's death, and he has the powers of an executor under the Probate and Administration Act, 1881, even though probate has not been obtained. With regard to this case, it is to be noticed that it deals with the powers of the executor to dispose of the property of the deceased testator under Section 90, Probate and Administration Act, which corresponds to Section 307, Succession Act, and this decision is an authority for the proposition that an alienation made by an executor before the grant of probate is validated if the probate is subsequently granted.
10. Upon the authorities it seems to us that in the case of suits, it has been held that an executor cannot represent the estate in a suit or proceeding till probate has been actually obtained by him. In this view of the matter, as in the present case, the executor Durga Charan did not obtain the grant of probate on the date of sale in favour of defendants 1 to 4 he was not competent to represent the estate of the deceased Nripendra Bala, and we accordingly hold that tbe person who was actually brought on the record by defendants 1 to 4 in their suit was actually competent to represent the estate. The view taken by the Courts below is accordingly upheld, and these appeals are dismissed with costs.
R.P. Mookerjee, J.
11. I agree.