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TMI Blog1930 (5) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ons mentioned in it. After the death of Parthasarathi Mudali, his widow Sengalani Ammal applied on 5th October, 1920, for a succession certificate in order to enable her to collect the outstandings due to him. The plaintiff's father as his guardian objected to the issue of the certificate. But an order was passed in favour of the widow as the counter-petitioner said that he intended to file a separate suit to establish his rights under the will and that he had no objection to the petitioner being given the certificate provided she furnished substantial security. On 22nd December, 1920, O.S. No. 65 of 1921 on the file of the Court of the Subordinate Judge of Vellore was filed by the plaintiff to establish his rights. It was disposed of in his favour on 24th April, 1922. Meanwhile, on 31st January, 1921, that is, after the institution of O.S. No. 65 of 1921, the present 1st defendant filed C.S. No. 81 of 1921 on the file of the High Court against Sengalani Ammal, the widow of the deceased .Parthasarathi Mudali as representing her husband's estate, for the recovery of money due from Parthasarathi Mudali. The suit was heard and decided ex parte on 30th March, 1921, i.e., before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest was, rightly claimed in that suit by the 1st defendant and the claim for interest, therefore, cannot be considered to be a fraud perpetrated upon the estate of Parthasarathi Mudali. Notwithstanding these findings, the learned Subordinate Judge came to the conclusion that the decree was not obtained bona fide and cannot bind the present plaintiff on the ground that the 1st defendant had opportunities of finding out the true legal representative of the deceased Parthasarathi Mudali and that he instituted the suit without making sufficient enquiries. His conclusion might be stated in his own words: The conclusion that must be adopted is that C.S. No. 81 of 1921 was instituted against Sengalani Ammal without enquiry as to who was Partha-sarathi's real heir when there was every opportunity to make such enquiry and when if such enquiry had been made in the right spirit and in the proper way it would disclose the fact. It cannot be regarded as a suit instituted bona fide against the widow as heir. 6. As regards the 2nd defendant's participation in the proceedings, the learned Judge held that he purchased the suit properties knowing that there was a will set up by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y real inconsistency in their statements. It is true, as may be seen from the accounts, that Parthasarathi Mudali was not charged interest up to 1919; but the liability to pay interest always existed and that was enforced from 1919 onwards. Exs. I, IV and V support the 1st defendant's claim for interest in C.S. No. 81 of 1921. In Ex. I, the patti, dated 19th April, 1920, it is stated that interest will be charged on the amount specified in it at. the rate of 9 per cent, per annum. Ex. IV, a letter from the 1st defendant to Parthasarathi Mudali, dated 30th April, 1920, distinctly states that interest will be charged up to date. Ex. V, a card, dated 10th June, 1920, was written subsequent to the death of Parthasarathi Mudali. It is curious that by that time though the 1st defendant must have known about the death of Parthasarathi Mudali, the card was addressed to him. No satisfactory explanation has been given for this proceeding, but I am not satisfied that this is an indication of fraudulent conduct on the part of the 1st defendant. This letter also says that if the account is not settled, interest will be recovered. In thus declaring that interest will be claimed this is quite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his dues. It appears from the plaint that Sengalani Ammal is in possession of items 3 and 4, though the point is disputed by the respondent. I do not think it can be seriously contended that she was not in (possession of these items when the 1st defendant instituted his suit. But for the will it is clear that Sengalani Ammal would be the heir of Parthasarathi entitled to represent his estate. This fact coupled with other facts already referred to that Sengalani Ammal was in possession of some items of property belonging to her husband, that the keys of the shop were obtained from her, may well be considered as sufficient justification for the conduct of the 1st defendant in instituting the suit against her as Parthasarathi's legal representative. The Subordinate Judge does not say that the 1st defendant's agents refrained from making any enquiries. His opinion seems to be that if they had made fuller enquiries they might probably have known of the existence of the will and that the plaintiff was the real heir of the deceased. Probably this might have been so. But I cannot accept the argument having regard to the circumstances referred to above, that the 1st defendant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove reasons, I would hold that the widow Sengalani Ammal sufficiently represented the estate of the deceased Parthasarathi in C.S. No. 81 of 1921 and that the decree in that suit is binding on the plaintiff. 12. Mr. Viswanatha Aiyar next argues as a proposition of law that even if C.S. No. 81 of 1921 was instituted by the 1st defendant bona fide against a wrong heir and even if there be no fraud or collusion between the parties in respect of that suit, still the decree passed in the suit cannot be considered binding on the true legal representative (that is, the plaintiff) and if it is binding at all, it will be binding only with respect to the properties of the deceased which were in possession of the widow at the time of the suit, that is, only items 3 and 4 in the suit. In support of this argument he relied strongly on Madavarayudu v. Subbamma (1916)31MLJ222 , Gnanambal Ammal v. Veerasami Chetti (1915) 29 M.L.J. 698, Kaliappan Servaikaran v. Varadarajulu I.L.R. (1909) M. 75 : 19 M.L.J. 651, Srinivasa Aiyangar v. Kanthimatlh Ammal I.L.R. (1910) M. 465, Bachu Soorayya v. Toonudoori Chinna Anjaneyalu (1918) 36 M.L.J. 106 and Angadi Mallappa v. Neelana Gotudra Kare Gowd (1925) 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration was whether' the widow sufficiently represented the estate of the deceased. This is really the point that has to be decided in cases of this description. 16. In Kadir Mohideen Marakkayar v. Muthukrishna Aiyar I.L.R. (1902) M. 230 : 12 M.L.J. 368 the defendant died during the pendency of the suit and only one of his sons was brought on record as his legal representative. It was held that the share of the second son also was bound by the decree in the suit notwithstanding the fact that he was not joined in the suit as one of the legal representatives of his deceased father. The learned Judges based their conclusion on the following reasoning: In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate. 17. It is true that this is not a case where a person was wrongly brought on record as the legal representative but it lays down a general principle. 18. In K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... best prima facie title, and holding possession of the property, Krishnaswami Panikondar should not be held to have sufficiently represented his natural son's estate in fact. 21. In my opinion there is no justification for confining the principle enunciated in this decision only to those cases where a wrong representative is brought on record in the course of the execution proceedings. The question to be considered whether it arises in the course of execution proceedings or in the course of the suit is this: whether the estate of the deceased person was sufficiently represented by the legal representative who has been actually brought on record. I think the same principle should govern all cases where a wrong representative has been brought on record, where such representative has been added in the course of the suit or in the course of the execution proceedings. The same consideration should apply also to a case where the suit itself is instituted against the wrong legal representative at the very commencement. The principle of the decision in Ramaswami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6 : 19 M.L.J. 671 has been applied to a case in Gnanambal Ammal v. Veerasami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish his title to the property of the deceased and having obtained a decree in his favour took possession of the estate. The decree-holder then sought to execute the decree, against B under section 252 of the Code of Civil Procedure. It was held that the decree was not against the estate but against A, the legal representative, and was capable of execution only against A and her representatives. Thus stated, the decision no doubt supports the respondent, but Sadasiva Aiyar, J , points out the true scope of this decision in Gnanambal Ammal v. Veeraswami Chetty2 to be this: what was decided in that case was that the true legal representative cannot, after decree, be brought on the record for purpose of execution and that the deceased debtor's property in his hands cannot be attached and sold in that same suit. Further on, he points out that the decision is not to be taken as having decided 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 (see page 703). 24. If the decision is not read in this way, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decree. The words I would further remark in para. 2 at page 703 would show that the definition of. legal representative in the new Civil Procedure Code was relied on only as an additional reason in support of the conclusion arrived at by applying the general principle enunciated in Ramaswami Chettiar v. Oppilamani Chetty I.L.R. (1909) M. 6 : 19 M.L.J. 671 and The General Manager of the Raj Durbhunga v. Maharaja Coomar Ramaput Singh (1872) 14 M.I.A. 605 : 20 E.R. 912. This decision was referred to in Bachu Soorayya v. Toomuloori Chinnti Anjaneyalu (1918) 36 M.L.J. 106, to which also Sadasiva Aiyar, J., was a party! The judgment in this case, also makes it clear that the new definition of the legal representative was relied on only as a supplemental ground in support of the conclusion arrived at in Gnanambal Ammal v. Veeraswami Chetty (1915) 29 M.L.J. 698. These two cases, Gnanambal Ammal v. Veeraswami Chetty (1915) 29 M.L.J. 698 and Bachu Soorayya v. Toomuloori Chinna Anjaneyalu (1918) 36 M.L.J. 106, do not in my view support the proposition contended for by the respondent's counsel that if the decree in question can be held to be binding, it will be binding only with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was given as to why the daughter, the real legal representative, was overlooked by the plaintiff; prima facie a decree obtained against a person in such circumstances can never be described as a decree obtained bona fide and without fraud or collusion between the parties to the suit. The decision in Angadi Mallappa v. Neelana Gowdra Kare Gowd (1925) 50 M.L.J. 442 does not go further than Madavarayudu v. Subbamma (1916)31MLJ222 and must be read with special reference to the facts of the case. Attention may be drawn to the observations of Srinivasa Aiyangar, J., about this decision in Kolaremathu Amma v. Madhavi Ammal (1927) M.W.N. 894. If a person who is practically in the position of an absolute stranger and who has no sort of right to represent the deceased is made a party to a suit and a decree is obtained against him as representing the deceased such a decree, however bona fide the suit may be, cannot bind the real heir. This is all what the decisions in Madavarayudu v. Subbamma (1916)31MLJ222 and Angadi Mallappa v. Neelana Gowdra Kare Gowd (1925) 50 M.L.J. 442 mean. These decisions cannot possibly apply to the case of a widow who in the absence of a will is the legal represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not raised in the Lower Court and does not seem to have been ever raised in any of the cases discussed above. In my view, the argument is clearly untenable. If, as we have found, the widow was properly used as the legal representative of the deceased Parthasarathi in C.S. No. 81 of 1921 and if she sufficiently represented his estate, it is clear that the decision in that suit cannot affect the rights of the present plaintiff in any way for he claims the property only as the legal representative of the deceased Parthasarathi, and the interests of both the widow and himself are identical as regards the subject-matter of the litigation in C.S. No. 81 of 1921. The decision in that suit being in effect a decision against the plaintiff himself, it is difficult to see how that decision can affect his rights, as the legal heir of the deceased as declared in O.S. No. 65 of 1921. 29. In the result both the appeals are allowed with costs here and in the Lower Court. In the circumstances of this case I hold that the next friend shall also be liable with the plaintiff for costs. H.D.C. Reilly, J. 30. This appears to me a vexatious suit. It is admitted that the principal of the deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the widow Parthasarathi's representative in C.S. No. 81 of 1921, and the extravagant suggestions which have been made before us that defendant 1, a firm of very wealthy Guzerati merchants in Madras, had a motive for suing a wrong representative appear to me baseless. And, if defendant 1 had pushed inquiries further, what would have been discovered? It would have been found that 6 months after Parthasarathi's death the minor plaintiff's father on his, behalf had asserted in answer to the widow's application to the District Court of North Arcot for a succession certificate that Parthasarathi had left a will, but had made no application for letters of administration; the widow had denied the genuineness of the will, and the District Judge had given her a succession certificate to collect amounts due to Parthasarathi's estate. The plaintiff through his father had then filed a suit, O.S. No. 65 of 1921, in the Vellore Subordinate Judge's Court, against the widow and two others for a declaration that he was entitled to Parthasarathi's property as residuary legatee under the will and for the recovery of Parthasarathi's property from them. If defendant 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased's estate has been sufficiently represented appears to have been obscured by other considerations, and legal representatives have been treated as if it were their own rights and not the rights of the person whom they represent that were in question. I agree with my learned brother that the proper principle is to be found in Kadir Mohideen Marakkayar v. Muthukrishna Aiyar I.L.R. (1902) M. 230 : 12 M.L.J. 368, Ramaswami Chettiar v. Oppildmani Chetty I.L.R. (1909) M. 6 : 19 M.L.J. 671 and Gnanambal Ammal v. Veeraswami Chetty (1915) 29 M.L.J. 698. I do not think it necessary to discuss cases of the Bombay High Court or other Courts which adopt the view that the crucial question is whether the right heir or successor is on record, not whether the deceased's estate is sufficiently represented. And to my mind the question whether the representative on record is actually in possession of any of the deceased's property is not of importance except as throwing light on the question of the plaintiff's good faith. If a plaintiff in good faith sues a person who appears to him to be the proper legal representative of his deceased debtor and that representative has an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I agree is mistaken. Although in O.S. No. 65 of 1921 the plaintiff incidentally obtained a decree that the widow and other defendants in that suit should deliver possession of items 3 and 4 to him and an injunction restraining them from interfering with his possession of items 1 and 2, the whole basis of his decree was the declaration, for which he sued, that he was the residuary legatee under Parthasarathi's will, that is, that he was entitled to the residue of Parthasarathi's estate after the payment of Parthasarathi's debts and the other legacies. The sale of items 1--4 in execution in no way affected his right as residuary legatee. The right of Parthasarathi's creditors to the satisfaction of his debts was paramount to the rights of any of the parties to O.S. No. 65 of 1921 and did not indeed affect their rights. 35. Finally I may add that, if I had--as I have not--any reason to doubt the technical validity of the sale of items 1--4 in execution of the decree in CS. No. 81 of 1921, in my opinion it would still not be proper to make for the plaintiff the declarations which he has sought in this suit that that decree and its execution are null and void against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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