1952 (10) TMI 48 - HC - Indian Laws

Summary

Issues Involved:
1. Declaration of title to possession of property.
2. Right to manage the property under the will.
3. Possession and limitation.
4. Vesting of property in the executor.
5. Applicability of the Limitation Act.

Detailed Analysis:

1. Declaration of Title to Possession of Property:
The plaintiff sought a declaration of his title to possession of property formerly belonging to his deceased father-in-law, Sheopragash Singh, and recovery thereof. The Additional Subordinate Judge, Muzafferpur, dismissed the suit, leading to this appeal. The plaintiff claimed he was dispossessed on or about 7-6-1944 after his attempt to get registered in Register D failed in the Land Registration Courts. The defendant denied the plaintiff's right under the will to hold and manage the property and argued that the plaintiff had not been in possession since Sheopragash's death, making the suit time-barred.

2. Right to Manage the Property Under the Will:
Sheopragash Singh's will created a life interest for his two widows and appointed the plaintiff as executor, giving directions regarding estate management. The plaintiff claimed entitlement to manage the properties, meet necessary expenses, and support the widows. The Subordinate Judge affirmed the plaintiff's right to manage the property but ruled against him on possession and limitation.

3. Possession and Limitation:
The plaintiff did not apply for probate until 1938, alleging the will was mislaid. Probate was granted in 1939 with a qualification that the executor could not interfere with the widow's life estate without due process of law. The High Court expunged this note in 1940, stating that a probate court is only concerned with whether the will has been proved satisfactorily. Subsequent litigation, including proceedings under Section 144, Criminal P.C., and attempts for mutation in Register D, consistently found that Dharohar Kuer was in possession of the property. The Subordinate Judge's finding on possession was not seriously contested by the plaintiff's counsel on appeal.

4. Vesting of Property in the Executor:
The executor's title vests upon the testator's death, not upon the grant of probate. Section 211 of the Indian Succession Act, 1925, states that the executor is the legal representative of the deceased and the property vests in him as such. This vesting occurs when the testator dies, not when probate is granted. The court emphasized that probate authenticates the executor's right but does not create it. The executor's title is derived from the will, and he can sue to enforce rights arising under the will at any time after the testator's death, provided probate is obtained before the decree.

5. Applicability of the Limitation Act:
The plaintiff's suit was governed by Article 142 of the Limitation Act, relating to suits for possession when the plaintiff has been dispossessed. Alternatively, if Article 120 applied, the limitation would be six years from when the right to sue accrued. The court held that limitation runs against the executor from the testator's death, as the executor is the legal representative from that time. The court rejected the argument that the testator intended the executor to manage the property only after obtaining probate, finding no such sequence in the will.

Conclusion:
The appeal was dismissed with costs, affirming the Subordinate Judge's decision. The court concluded that the executor's title vests upon the testator's death, and limitation runs from that time, not from the grant of probate. The plaintiff's right to manage the property was acknowledged, but his claim to possession was time-barred.