Decided on February 25,1955



- (1.) THESE Second Appeals arise from a suit O. S. No. 1104 of 1120 instituted by the plaintiffs for cancellation of an order passed on an obstruction petition filed by the defendant. The properties described in the plaint schedule belonged to one Vedakannu Nadar. Items Nos. 1 to 5 had been mortgaged by him in favour of the plaintiffs' father. The plaintiffs sued vedakannu Nadar for the mortgage amount in O. S. No. 192 of 1109 and obtained a decree, copy of which is Ext. E. Vedakannu Nadar died after the date of the decree and his only daughter was impleaded as his legal representative in execution. Item Nos. 6 to 18 were attached in execution and all the properties were purchased by the plaintiffs in court sale held on 19. 1. 1119. Ext. F is copy of the sale certificate. When the plaintiffs applied for delivery of possession they were obstructed by the defendant who claimed to be in possession under a Will of Vedakannu Nadar Ext. 1 dated 31. 2. 1104. The obstruction was upheld by the execution court and this suit was filed for setting aside the said order. The plaintiff's case was that the Will had not come into effect, that Vedakannu Nadar's daughter Kannambal was in possession of the estate after his death and that the execution sale held with Kannambal on the party array was valid. The contention of the defendant was that the Will was operative and that he was the legal representative of Vedakannu Nadar, that kannambal had no interest in the property and that the sale which was conducted without the defendant on the party array was inoperative. The trial court held that the defendant was not entitled to prefer an obstruction petition under R. 94 of 0. 21 of the Travancore Code of Civil Procedure and that the defendant was not in possession of the properties. It was also held that since the attachment was held during the life-time of the judgment-debtor the sale was valid. The suit was accordingly decreed in terms of the plaint. The defendant appealed to the District Court and the appeal was allowed in respect of items Nos. 6 to 8. As regards items No. 1 to 5 it was held that the sale was valid and operative as these were properties charged under the decree. The plaintiffs have preferred s. A. No. 277 of 1954 against this decree and the defendant's appeal in respect of items Nos. 1 to 5 is S. A. No. 344 of 1954. The second appeals were heard together.
(2.) WHEN these Second Appeals were heard it was stated that the question whether an execution sale held with the wrong legal representative on the party array was valid had been heard by a Full Bench and that the decision of these Second Appeals might await the opinion of the Full bench. It is however now represented that the Full Bench has not decided this question as the decision turned on some other points. The decision of these Second Appeals depends on the validity of the sale in execution of O. S. No. 192 of 1109. It may be necessary to state a few facts preceding the court sale. Vedakannu Nadar had a wife and an only daughter Kannambal. He was not properly maintaining his wife and daughter. He executed a gift deed in favour of the defendant some time before 1104. His wife and daughter therefore filed a suit O. S. No. 304 of 1104 against him and the defendant in this case for cancellation of the gift deed and for recovery of maintenance past and future. That suit was instituted on 20. 2. 1104 and was decreed on 19. 12. 1104. Some time after this Vedakannu murdered his wife. He was duly tried, convicted and executed for this offence. The Will on which the defendant relies was executed on 31. 2. 1104. Even the defendant was not aware of the existence of the Will at the time of Vedakannu's death and it is the defendant's case that he came to know of it only in the year 1111. The person who would have succeeded to Vedakannu in case of intestate succession was Kannambal. It was in these circumstances that Kannambal was impleaded in execution as the legal representative of Vedakannu. It is not specifically pleaded by the defendant that the plaintiffs were aware of this will when they made Kannambal a party to the execution proceedings as a legal representative of the judgment-debtor. The trial court found that the defendant was not in possession of the assets left by Vedakannu. It has to be stated that the definition of "legal representative" in the Travancore Code of civil Procedure which was in force when the execution proceedings were pending did not include an intermeddler with the estate of the deceased. The defendant was only a legatee under the Will and at least for two years after the death of the judgment-debtor he was not even aware of the fact that he was a legatee. Possession of the properties therefore naturally must have been with Kannambal and not with the defendant. The defendant has no consistent case as to how and when he obtained such possession. In one part of his deposition he stated that possession had been given to him under the gift deed and that he had surrendered such possession to Vedakannu even before the date of execution of the Will. In another part of his testimony he stated that he continued to be in possession. It is in evidence that he filed a criminal case against Kannambal and her husband for theft on the ground that they had harvested paddy from a property of which he was in possession under the Will. This case was thrown out. In these circumstances I am inclined to accept the finding of the trial court that the defendant was not in possession of these properties while the execution proceedings were going on. Even if there was a valid Will it cannot be said that Vedakannu's daughter was not a legal representative. The fact that the defendant's name was substituted in the revenue records in the year 1111 or that the 4th plaintiff married Kannambal in the year 1115 cannot lead to an inference that the plaintiffs were aware of the existence of the Will. There is the further question whether a legatee who did not obtain possession of the properties bequeathed to him is a legal representative. In these circumstances it has to be held that execution with Kannambal on the party array was conducted bonafide. It was held by this court in Varki Acha v. Thomman Anna, 1949 K. L. T. , that when execution proceedings are conducted with a wrong legal representative on the party array or without impleading one of the legal representatives the sale would be valid unless the failure to bring on record the true legal representative was due to fraud or collusion on the part of the decree-holder. This decision is based on the earlier decisions of the High court of Travancore as well as that of the Privy Council in Malkarjun v. Narhari I. L. R. 25 Bom. 357. It was not shown that the decision in Varki Acha v. Thomman Anna has been overruled by any later decision of this court. In krishnankutty Warrier v. Bhadranayagam 1951 K. L. T. 725 the facts were different. There a decree was obtained without bringing on record the parties on whom one-half of the estate of a deceased daughter had devolved. Annie Maria fernandez v. Mathevan Madhavi 1955 K. L. T. 46 was a case of total want of representation in the suit of the estate after the death of the debtor. Following the decision in Varki Acha v. Thomman Anna I hold that the execution sale in O. S. No. 192 of 1109 is valid and binding on the estate. In this view the distinction between properties charged under the decree and those attached in execution does not arise.
(3.) IN the result in reversal of the decree of the lower appellate court S. A. No. 277 of 1954 is allowed and the decree of the trial court is restored. S. A. No. 349 of 1954 is dismissed. There will be no order as to costs.;

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