SOUNDARATHARAMAL Vs. NARAYANASWAMI AIYAR

JUDGEMENT

(1.) The 1 plaintiff in this suit is the widow of a native Christian named Doraiswami Pillai. She was appointed executrix of his will dated 11 October 1898 and obtained probate on the 3 of January 1903 in the High Court. Plaintiffs 2 to 4 are persons who have purchased certain properties of the testator which are included in Schedules B and C. The properties in A schedule are those which are retained in the possession of the 1 plaintiff. The 1 Plaintiff claims that, in her capacity, as executrix of the will of her deceased husband, she has unrestricted power, under Section 269 of the Indian Succession Act, to dispose of his property for meeting necessary expenses in such a manner as she may think fit. The testator died on the 15 of September 1899 leaving four sons and four daughters. The will provided that the property should neither be sold nor divided until all the sons were married and until they attained proper age and that upon this happening there should be an equal division among them. The youngest son Dasa Pillai mortgaged his interest in these properties by three mortgage deeds of the year 1912, Exs. F. G. and II at a time when he was according to the plaint, still a minor. The defendant sued him on the mortgages and obtained a decree against him in O.S. No. 190 of 1913. The present suit has been brought for a declaration that the suit properties belong to the plaintiffs and are not liable to be, sold in execution of the decree obtained against Dasa Pillai and for an injunction against the decree-holder from bringing them to sale. The District Munsif gave the plaintiff a decree as prayed for. On appeal the Subordinate Judge confirmed the Lower Court's decree as regards properties in Ex. B and dismissed the suit as regards A schedule properties comprised in Ex. C.

(2.) We think that there is no valid reason for making such a distinction. It is clear from the admissions in the plaint that some of the properties still remain in the possession of the executrix and that her administration of the deceased's estate has not been completed. The estate remains vested in her until the properties are distributed (See Rangammal v. Sandanunal (1899) I.L.R. 23 Mad 216 : 9 M.L.J. 338). So far as anything to the contrary has been said in Adustippatti Venkata Rao V/s. Sami Pillai (1912) M.W.N 56 the observations are obiter dicta. Until the shares of the legatees have been determined and allotted, it would be premature to say that Dasa Pillai can have no saleable interest. It is not alleged in the plaint that the possession of the plaintiff's has been interfered with in any way, and it cannot be regarded as a cloud upon the plaintiff's title that the defendant has treated one of the legatees under the will as having some interest in the property devised under the will when he has done so only in proceedings to which that legatee alone was a party. If one legatee or a purchaser of his interest seeks to obtain actual possession of his share of the estate, he must do so in the proper course of the administration, or, failing that, he must bring an administration suit for the purpose making the executrix under the will a party. Whatever a third party may do in the course of the execution of decrees to which the plaintiffs are not parties will not affect their interests in the suit property. Under these circumstances, we do not think it would be advisable to grant any declaration or injunction in plaintiff's favour. They are not entitled to any declaration until the defendant does something that will prejudicially affect their own titles.

(3.) The Second Appeal is therefore dismissed. The memorandum of objections is allowed and the plaintiff's suit is dismissed. In view of the contentions raised in paragraphs 8 and 9 of the written statement and in paragraphs 3 and 4 of the memorandum of objections, we direct that each party do bear their own costs throughout. Ramesam, J.