VARKEY ACHA Vs. THOMEN ANNA

JUDGEMENT

(1.) The legal representatives of the deceased first defendant are the appellants. On the strength of the hypothecation bond executed by the father of defendants 1 to 3 the decree in this case was obtained on 5.1.1098 against the hypotheca with these defendants on record. Subsequently the first defendant died on 27.9.1105. To the execution proceedings conducted prior to that date the first defendant had not raised any objection. Subsequent to his death the decree holder continued the execution proceedings with defendants 2 and 3 alone on record who were stated to be the first defendants legal representatives also. Two items in the decree were sold in Court auction on 4.2.1115 and purchased by the decree holder. His assignee got delivery of those properties through Court on 12.4.1118. On 15.8.1118 the widow and two daughters of the first defendant applied to the execution Court for redelivery of the properties, their main contention being that the execution proceedings conducted without bringing them on record as legal representatives of the first defendant are void. That application was at first allowed by the execution Court. The auction purchasers assignee took the matter in appeal to the High Court in A.S. 468 of 1120. That appeal was allowed and the order of the execution Court was set aside and the matter remanded for fresh disposal after allowing the parties a chance to adduce evidence on the question whether the execution proceedings were conducted in good faith or not. After taking such evidence and considering the same the lower Court has come to the conclusion that the decree holder conducted the execution proceedings in good faith and that his omission to bring on record the widow and daughters of the first defendant was not the result of any dishonest motive to obtain any undue advantage or gain. Accordingly their application for re-delivery of the properties has been dismissed. The appeal is against that order. The respondent has filed an objection memorandum in respect of the finding recorded by the lower Court that the decree holder did not make proper and due enquiries to find out the real legal representatives of the deceased first defendant.

(2.) The defendants in this case are Christians governed by the Christian Succession Act. It follows therefore that defendants 1 to 3 who succeeded to the estate of their deceased father had distinct and separate interest in such estate. On the death of the first defendant leaving a widow and children his interest could not devolve on defendants 2 and 3. Thus it is clear that the recording of defendants 2 and 3 as legal representatives of the first defendant in the execution proceedings in this case was wrong. The question for determination is whether these execution proceedings have to be deemed to be entirely void on account of such wrong representation of the interest of the first defendant in the properties sold. The decree in this case was for a debt of the father of defendants 1 to 3, who was the original owner of the decree properties. The decree was charged on these properties. These defendants took those properties subject to that debt. When the execution proceedings were conducted against those properties, defendants 2 and 3 were on record to represent the estate of their deceased father. All that can be said is that there was a wrong or defective representation of the interest of the first defendant who died only after the passing of the decree in the case. It is settled law that such execution proceedings are binding on the true legal representatives also unless it is shown that the failure to bring them on record was due to any fraud or collusion on the part of the decree holder. The case law bearing on the question has been fully discussed in David v. John (26 TLJ 1124) and it was held that where execution proceedings were conducted bona fide by the decree holder with only some of the legal representatives of the deceased judgment debtor on record, the sale cannot be treated as a nullity but has to be considered as binding upon the entire estate of the deceased man. The dictum laid down by the Privy Council in Malkarjun v. Narhari ( ILR 25 Bom. 337 ) that a judicial sale could not be treated as invalid and as a nullity even though a wrong person has been brought on record in the execution proceedings in the place of the deceased judgment debtor, was accepted and followed in David v. John. The validity of the execution proceedings in the present case has to be tested in the light of these principles. The plea of the decree holder is that the execution proceedings were conducted by him in the bona fide belief that defendants 2 and 3 were the legal representatives of the deceased first defendant. As PW 1, he swears that on the death of the first defendant he made enquiries of defendants 2 and 3 as to who were his legal representatives. They represented to him that they were the first defendants legal representatives and that the entire estate of their deceased father was in their management. The fact that such estate was being managed by defendants 2 and 3 after the death of the first defendant is not disputed by the present petitioners. PW 2 is a person who was well-acquainted with defendants 1 to 3 and also with the decree holder. To PW 2 also the decree holder made enquiries to find out who were the legal representatives of the first defendant and this witness also made the decree holder believe that defendants 2 and 3 were the first defendants legal representatives. There is nothing to show that the decree holder was actuated by any bad faith in believing and acting upon such representation made to him by PW 2 and defendants 2 and 3. It is contended on behalf of the appellants that PW 2 is very much interested in the second defendant and that he was trying to help the second defendant to the prejudice of the real heirs of the first defendant. Even if this position is to be accepted that will not show that the decree holder was aware of any such want of good faith on the part of PW 2. Apart from this aspect of the matter, a reading of the evidence of PW 2 does not warrant the inference that he was wilfully making a wrong representation to the decree holder with the idea of defeating the legal representatives of the first defendant. The mere fact that the properties sold in execution of the decree in this case has been subsequently purchased by the second defendants wife cannot by itself lead to the inference that the execution proceedings were conducted in a defective manner at the instance of the second defendant. The Court sale in this case was confirmed on 6.3.1115 and subsequently the decree holder-auction-purchaser assigned his rights in favour of a third person and such assignee got delivery of the properties on 12.4.1118. It was only some time later that the second defendants wife purchased these properties from that assignee. It is also seen that a substantial portion of the properties sold in Court auction had already been sold in revenue auction and that the auction-purchasers assignees could not get delivery of such portion of the properties. It is also seen that even though the decree was charged on eleven items, two items alone were sold in Court auction. These circumstances would also indicate that the decree holder was not acting with any intention of defeating the judgment debtors or their legal representatives and that the irregularities committed in the execution proceedings were only the result of bona fide mistakes. Under such circumstances the Court-sale in this case cannot be deemed to be null and void. On the other hand, in view of the principles mentioned above, the sale and execution proceedings have to be accepted as valid and as binding on the interest of the first defendant also in the properties sold. The lower Court was therefore right in holding that the application for re-delivery of the properties put in by the widow and daughters of the first defendant is unsustainable.

(3.) In the result the order of the lower Court is confirmed and this appeal is dismissed with costs. The objection memorandum is allowed.