SIVASANKARA MUDALIAR Vs. AMARAVATHI AMMAL

JUDGEMENT

(1.) This appeal raises a question of some importance. It relates to the rights of an heir-at-law with reference to an estate left by a testator where the executors appointed under his will decline to accept office. The facts necessary for the disposal of the exact point in controversy in the suit may be briefly stated. The plaintiff - first respondent - Amaravathi Ammal was the widow of one Balasundara Mudali. He died on the 9 February, 1919, leaving him surviving his widow and his last will and testament dated 19 November, 1918. In the said will he said that he became divided in status from his brother the first defendant--the 1 appellant Sivasankara Mudali, that some properties were divided and as regards the other properties, he had been getting equally the income derived from them. He made several dispositions in the said will and among others bequeathed certain immovable properties and monies to his widow Amaravathi. He also provided for certain charities and appointed one Ratna Mudali and Jagannadha Mudali as his executors. Subsequent to the execution of the said will, through the intervention of the mediators, some of the immovable properties of the family were divided and two lists were drawn up specifying separately the properties that fell to each and the two lists were signed by both the brothers. The date of the lists is 30 December, 1918. The case of the plaintiff is that in pursuance of the said division the said Balasundara Mudali was in possession and enjoyment of the said properties. Immediately after the death of Balasundara, the first appellant Sivasankara Mudali began to set up that his brother died undivided and disputed the possession of Balasundara with reference to the properties that fell to his share. Thereupon the plaintiff presented for registration the said two lists, but it was opposed by Sivasankara and this led to a litigation which lasted till 1931, and was finally disposed of by a judgment in a Letters Patent Appeal dated 20 October, 1931, in her favour. Before the close of this litigation, as twelve years from her husband's death were about to expire, she filed the present suit on 19 November, 1930, for recovery of possession of the properties left by her husband. She recited the said will and the bequests in her favour and also the fact that the executors did not accept office. She therefore alleged that as heir and legatee she is entitled to sue and recover the properties left by her husband for the purpose of carrying out all the directions in his will and she also further stated that she was willing to carry out the charities in accordance therewith. She set out in the several schedules to the plaint the properties whereof she sought possession. In the first schedule she specified the immovable properties which fell to the share of Balasundara at the division of the 30 of December, 191.8. In the second schedule she specified the properties still to be divided between Balasundara and the 1 appellant and claimed a half share therein. In the third schedule, she specified the businesses wherein Balasundara and the first appellant were partners and claimed half a share in the monies and profits due therefrom. The second appellant - the second defendant in the suit - is the undivided son of the first appellant. Both of them denied the will and also pleaded that the deceased Balasundara died undivided and that the will left by him was inoperative. They further pleaded that the suit as laid was incompetent as she was neither the executrix nor the duly constituted administratrix under the law; that, if at all, she could only recover the properties specifically bequeathed to her under the will. They also raised the plea of limitation.

(2.) As already stated, the two executors Ratna Mudali and Jagannatha Mudali did not accept office and by the date of the suit Ratna Mudali was dead and Jagannatha, who was alive, was made the third defendant in the suit. On 30 January, 1935, before the trial began, he was transposed as the second plaintiff. The learned Subordinate Judge held that Balasundara died divided in status leaving a will, that the suit was competent and that she (plaintiff) could recover possession of the estate left by her husband and further any defect that there was in the original frame of the suit was cured by the transposition of Jagannatha as the second plaintiff. He held that, so far as the immovable properties left by the testator were concerned, there was no question of limitation but in regard to the claim for the profits of the businesses specified in the third schedule, the suit was barred by limitation. He accordingly gave a decree for the immovable properties as claimed in the first and second schedules and also a specific sum of Rs. 500 which was claimed in Sch. VI as being a certain sum of money deposited with a certain Nidhi, empowering her to draw that amount. This appeal has been preferred by defendants 1 and 2.

(3.) The main argument addressed by the learned Counsel for the appellants Mr. T.M. Krishnaswami Aiyar related to the competency of the suit by the plaintiff, the first respondent. His contention is briefly this. Where the executors failed to accept office, in the absence of a duly constituted administrator, the plaintiff cannot recover possession of any properties left by the testator save those which were specifically bequeathed to her under the will and the decree in so far as it directed delivery of possession of properties other than those to which she was entitled is wrong. The question is, is this contention tenable? If this case were governed by English Law, there can be no question that the suit would be competent so far as the immovable property is concerned. Before Lord Birkenhead's Act, where an executor dies or fails to accept office, the legal position was that so far as realty is concerned, it vested in the heir until a legal representative was duly constituted. As observed by Williams in his book on Real Property: An heir-at-law is the only person in whom the law of England vested property whether he would or not. As the estate cannot therefore remain in abeyance, where there is no executor, the estate descended to the heir pending the appointment of an administrator . (William's R.P., 24 Edn., pp. 101 and 102.)