NATESA SASTRIGAL Vs. ALAMELU ACHI

JUDGEMENT

(1.) On 3rd March 1933, one Sivakami Achi obtained an order for restitution against another, Sivaramakrishna Aiyar, in respect of a sum of Rs. 5280 odd. On 29th August 1933, Sivaramakrishna Aiyar died leaving a will dated 1st December 1918 by which he disposed of his properties in various ways. One of the properties dealt with under the will is a house in Kumbakonam. He gave a life estate in this house to his widow Dharmambal and the remainder to Kuppalu Ammal and her heirs. This Kuppalu Ammal, it may be mentioned, was a daughter of Dharmambal's sister. In November 1933 Dharmambal orally surrendered her life estate in the house in favour of Kuppalu Ammal. In 1940 Kuppalu died and thereafter her sons--they are the appellants before us-- obtained possession of the house. Sivakami Achi died in September 1938 and her interests devolved on her daughter Alamelu Achi. On 7th February 1942 Alamelu Achi filed E. A. No. 196 of 1942 in the Court of the District Munsif of Mayavaram praying that the decree be transmitted for execution to the Court of the District Munsif, Kumbakonam. In that E. A., Dharmambal was shown as respondent 2 in place of her deceased husband, Sivaramakrishna Aiyar. She took the objection that the decree was barred by limitation, While this E. A. was pending, Alamelu Achi filed another application, which was numbered as E. A. No. 372 of 1942 in which she prayed that four other persons might be added as respondents 3 to 6. Of these four persona, two shown as respondents 3 and 4-- are the brother's sons of Sivaramakrishna Aiyar and the other two--shown as respondents 5 and 6--are the sons of Kuppalu. By an order made on 18th September 1942, E. A. No. 372 of 1942 was allowed and the four persons named therein were added as legal representatives of Sivaramakrishna Aiyar. On the same day E. A. No. 196 of 1942 was dismissed as barred by limitation. Against this order Alamelu Achi filed an appeal in A. 3. No. 159 of 1942 on the file of the Sub-Court of Mayavaram. But that appeal was unsuccessful. She then came to this Court in C. M. S. A. No. 226 of 1943. That appeal was heard by Byers J. who reversed the decision of the Courts below on the question of limitation and remanded the E. A. to the executing Court for further disposal according to law. Before Byers J. an attempt was made to canvass the correctness of the finding given in E. A. No. 372 of 1942 to the effect that the appellants before us are the legal representatives of Sivaramakrishna Aiyar. On this matter, the learned Judge stated as follows :

(2.) The main point, which Mr. Jagadisa Aiyar for the appellants tried to make may be thus stated: The appellants are persons who have got the property as the heirs of a legatee of a portion of the estate of Sivaramakrishna Aiyar. Such persons have never been held to be legal representatives of the testator and the learned Judge erred in taking the view he did. In reply Mr. Srinivasan stated: (i) the decision in E. A. No. 372 of 1942 was final and the view of Govindarajachari J. and the Courts below on that point is not correct; (2) the appellants are persons who have intermeddled with the estate of Sivaramakrishna Ayyar and therefore the legal representatives of his estate ; and (3) legatees, even heirs of legatees, can be properly regarded as the legal representatives of the testator.

(3.) The first objection raised by Mr. Srinivasan need not detain us long. As held both by the District Munsif and the Subordinate Judge, E. A. No. 372 of 1942 was really in the nature of an interlocutory application in E. A. No. 196 of 1942. A reference to the B diary in E. A. No. 196 of 1942 shows that E, A. No. 372 was filed during the pendency of E. A. No. 196 and that the latter application was to add new parties in E. A. No. 196. Both were disposed of the same day. As E. A. no. 196 of 1942 was dismissed, an appeal against the order recorded in E. A. No. 372 of 1942 would have been wholly purposeless. In this connection Mr. Jagadisa Aiyar read to us the following passage from the decision of the Privy Council in Maharajah Moheshur Singh v. Bengal Government, 7 M. I. A. 283 at p. 302 : (3 W. R. 45 P. C.) :