Adusupatti Venkata Rao, Executor to the estate of the deceased Ramanuja Ammal vs Sawmi Pillai and Others

The District Judge is wrong in holding that because the Administrator General who had obtained probate of the will of the deceased father of

David Pillai, the judgment debtor, was not a party to the Execution Petition under which attachment was ordered in September 1900 the

attachment must be treated as illegal and cannot form the basis of a sale. The attachment, as we understand, was of the interest of David Pillai in

the lands of the testator situated in a particular locality on the supposition that David Pillai was solely entitled to those lands including the property in

dispute. Subsequent thereto the estate has been divided among the different devisees and legatees, the property now sought to be sold falling to the

share of David Pillai. That being so, it is difficult to see why the attachment, which still subsists, should be regarded as of no avail with respect to

property that fell to the share of David Pillai. It does not seem to us to be reasonable to hold the attachment of a judgment-debtor''s property to be

illegal because property which did not in fact belong to the judgment-debtor has also been included in the attachment. Nor do we think there is

force in the argument of the lower courts that, because the estate of the judgment-debtor''s father was in the hands of the Administrator-General,

the judgment-debtor had no interest in the bequest which he receives under his father''s will on the date of attachment. A bequest, unless the

testator intended otherwise, as in the case of a contingent bequest, becomes vested in interest in the devisee or legatee from the date of the

testator''s death although he may not be entitled to receive what has been bequeathed to him except in due course of administration. This, we may

point out is clear from the provisions of Sections 91, 106 and 107 of the Indian Succession Act upon general principles relating to construction of

wills. See Jarman on Wills, Vol. II, p. 1357. In this connection we may observe that there is a dictum in Srirangaammal v. Sendammal ILR (1900)

M. 216 referred to by both the courts, which is apparently construed to mean that in cases under the Indian Succession Act the heir of a deceased

person has no saleable interest in the heritage until an administrator has distributed the estate in due course of administration. The language used by

the learned Judges in that case, which is rather vague, is perhaps capable of this construction, but we do not think that is what was meant; for we

do not know of any provision in the Indian Succession Act which contemplates any such result. An heir or a legatee may not be entitled to

possession of what he inherits or is bequeathed to him except in the proper course of administration, but that does not mean that he acquires no

interest till then. Perhaps all that the learned Judges in that case intended to lay down was that an heir under the Indian Succession Act has no right

to any specific property belonging to the estate until it has been allotted to him in the course of administration. Then there is another fact relied on

by the lower courts in support of the view that the attachment of September 1900 was void, viz., that the Administrator-General was not a party to

the execution petition on which the attachment was ordered. No doubt he ought to have been made a party to the application, but the omission, it

seems to us, cannot form a valid ground of objection to the present application on the part of the judgment-debtor. No objection was taken to the

attachment at the time it was made on that ground; if it had been taken the defect could have been remedied in time. The estate of the judgment-

debtor''s father has now, as we understand, been fully administered and the Administrator General has nothing further to do with the estate, and as

the attachment still subsists the application for sale must be regarded as in order. We may mention that, apart from the dictum already referred to,

the decision in the case reported in Srirangammal v. Sendammal ILR (1900) M. 216 has no application to the present case. In Srirangammal v.

Sendammal ILR (1900) M. 216. what was decided was, that a suit for partition by the assignee of the devisees under the will would not lie until

the estate has been administered. Bhalji Bhimji v. Administrator-General of Bombay ILR (1898) Bom. 428 is also distinguishable from the present

case. There a decree was obtained against a person as the heir and legal representative of the devisee''s estate while the estate had become vested

in the Administrator-General. The Administrator-General was not a party to the suit, and it was in execution of that decree that the estate of the

deceased was attached without notice to the Administrator-General. It was held that neither the decree nor the attachment was binding upon the

Administrator-General, but no such question arises in the present case as the estate has been fully administered and the decree against David Pillai

was in his individual capacity and not as legal representative of his father. It appears, however, that the respondents Nos. 2, 3 and 5 preferred a

claim to some of the properties sought to be sold and that that claim has been allowed.

The result, therefore, will be that the appeal will be allowed with costs as against the 1st respondent and dismissed with costs as against

respondents 2,, 3, and 5 and the Execution Petition No. 774 of 1906 will be remitted to the District Munsif for disposal according to law.