GNANAMBAL AMMAL Vs. VEERASAMI CHETTY

JUDGEMENT

(1.) The plaintiff is the appellant. Her paternal uncle Narayanasawmi Chetty died in March 1899 leaving a Will dated May 1898. Under the terms of that Will, the plaint lands (11 and odd acres) were given to the plaintiff and to the plaintiffs; mother (the 2nd defendant). The plaintiff was to take 4 acres 36 cents absolutely and the 2nd defendant to take the remaining 6 acres 65 cents for life with reversion to the plaintiff. Narayanasawmi Chetty also left a widow, the 3rd defendant, to whom other properties were left by his Will. He owed money at his death to one B.M. Marakayar. That creditor, not knowing the existence of the Will and having to bring his suit for the debt before it was barred, filed Small Cause Suit No. 1068 of 1899 soon, after the death of Narayanasawmy Chetty treating his widow (3rd defendant) and his illegitimate son as the heirs and legal representatives of Narayanasawmy Chetty. He also found that the 3rd defendant was in possession of the plaint land item No. 2 (7 acres and 74 cents). He obtained a decree and in execution brought item No. 2 to sale and at that sale, the 5th defendant became the purchaser in 1901 and obtained possession as such Court auction- purchaser in July 1901 ejecting the 3rd defendant.

(2.) The executor mentioned in the Will (of Narayanasawmi Chetty) who is the 1st defendant in this suit, took no steps till 1903 to administer the Will or to get possession of Narayansawmy Chetty s properties as executor. The plaintiff has brought this suit as a legatee under the Will of Narayanasawmy Chetty to recover 4 acres 36 cents out of the plaint 11 acres 1 cent, and her contention is that the decree obtained by the Marakayar creditor against the estate of Narayanasawmi Chetty in a suit to which neither the plaintiff nor the executor (1st defendant) was made a party defendant, was not binding on her or the estate and that the sale proceedings held in execution of that decree conveyed no title to the purchaser (5th defendant).

(3.) It is unnecessary to consider the plaintiff s claim to plaint item 1, as her dispute with the 4th defendant in respect of that item was abandoned (by a compromise) in the Court of first instance. Both the lower Courts dismissed the suit as against the 5th defendant and the plaint item No. 2 in his possession, on the ground that the decree of 1899 obtained by the creditor against the 3rd defendant (and against the testator s illegitimate son) and the execution proceedings in that suit were binding on; the estate of the deceased and, therefore, on the plaintiff and on the 1st defendant.