Dhanalakshmi Ammal vs Vaduvambalammal

Ramamurti, J.—This appeal has been preferred by the first Defendant in Civil Suit No. 110 of 1960, against the judgment and decree of Kailasam J. The Respondent herein filed the suit in forma pauperis for a decree for possession of the properties set out in Schedule A appended to the plaint, and for mesne profits. The property in question is house, ground and premises bearing Door No. 114, Mount Road, measuring about 2 grounds 2,169 square feet.

In order to fully and correctly appreciate the points that arise for decision, it is necessary to refer to the prior history and the chain of events which led up to the institution of the present suit.

The property in dispute, along with other properties originally belonged to one Munuswamy Naicker. The genealogical tree set forth here shows the relationship between the parties:

Munuswamy aforesaid died in 1924 leaving a Will, dated 25th March 1922. There is serious controversy regarding the true and correct interpretation of some of the provisions of the said Will, but for the present it is sufficient to say that under the said Will, Munuswamy bequeathed his properties (including the suit property) to his wife and his grand-sons (his daughter's sons). Under clauses 3, 8 and 6, the testator has made a provision, that after his life-time, the properties shall be taken and enjoyed by his wife, Kuppammal, without any powers of alienation, that after her lifetime (the widow's life-time) the properties shall be taken by his daughter's sons (hereinafter called legatees) Balakrishnan, Gnanasundaram and Marimuthu, who were born then, along with any male issue that may be born to his daughter, in equal shares, and that if at the time when the grand-sons aforesaid take the family properties (after the life-time of Kuppammal) any of them happened to be a minor, his daughter Vaduvambal and her husband, Velu Naicker, shall act as executors in respect of the properties and manage the tame and handover possession of the same to the daughter's sons on their ceasing to be minors. After the death of Munuswamy Naicker, his daughter, Vaduvambal Ammal (the Plaintiff in the present litigation) and her husband Velu Naicker obtained probate of the Will in Testamentary Original Suit No. 9 of 1925, claiming to be executors appointed thereunder. Acting and functioning as executors, they have made several alienations of the properties dealt with under the Will, both during the minority of the grand-sons, as well as after they became majors, and, in some of them, the latter have also joined as co-executants. It is sufficient to mention that one of the points in the suit relates to the legal effect and validity of some of these alienations.

One Govindarajulu Naidu owned large extent of properties, of an extent of about 2 cawnies in Mount Road. Under a sale deed, dated 9th March 1899, Munuswamy Naicker (the testator) purchased the suit property (bearing Door No. 114, Mount Road) of an extent of 2 grounds 2,169 square feet and on 11th September 1902, he obtained the Collector's certificate No. 1891 for the property so purchased, i.e., for R.S. No. 3027, measuring 130 feet east to west and 54 feet north to south lying to the north and east of the rest of the property retained by Govindarajulu Naidu, the vendor. Later, on 28th May 1908, Munuswamy Naicker purchased from Govindarajulu the rest of the property, an extent of 1 cawnie 21 grounds and 757 square feet bearing (Old Nos. 112, 114), New Nos. 113, Mount Road. He also obtained the Collector's certificate on 27th August 1909, for this property which became R.S. No. 11/1A. The R.S. No. of the property purchased under the first sale deed of the year 1899 became R.S. No. 11/2. The quit-rent receipts and the extracts from the relevant revenue registers show that for sometime quit rent was collected separately for the two properties, the first property bearing R.S No. 11/2 and the other property, i.e., the bigger property bearing R.S. No. 11- 1A. The entries in the revenue records after 1920 show that both the properties aforesaid were clubbed together as of a total extent of 1 cawnie 14 grounds 1,537 square feet bearing R.S. No. 11-1. The position, therefore, was that originally the two properties bearing R.S. No. 11-1A of an extent of 1 cawnie 21 grounds 757 square feet and R.S. No. 11/2 of an extent of 2 grounds 2,169 square feet were clubbed together into R.S.

No. 11/1 of the total extent of 1 cawnie 14 grounds 1,537 square feet, the rest of the property having been by that time acquired by Government for public purposes bearing R.S. No. 11/1B and 11/10. Originally the quit-rent that was paid for the bigger property R.S. No. 11/1A was Rs. 7- 14-0 and for the smaller property (suit property) R.S. 11/2 Rs. 2-0-0 and after both the properties were clubbed together as R.S. No. 11/1 the quit-rent which was paid and collected was Rs. 9--14--0. The entries in the revenue registers also show that the Collector's certificate No. 2722 takes in both the properties, the consolidated quit rent payable being Rs. 9--14--0.

The testator was having dealings with one Vasa Varadiah Chetty, and after the death of the testator, his widow and his daughter, Vaduvambal Ammal and her husband Velu Naicker (who acted as executors and guardians of their minor children) continued the dealings and borrowed moneys from Vasa Varadiah Chetty from time to time. On 25th December 1958, Kuppammal aforesaid, Velu Naicker and Vaduvambal acting for themselves as executors as well as guardians of the minor children, Balakrishnan, Gnanasundaram, Marimuthu and Dhanalakshmi, created a mortgage by deposit of title deeds to secure a sum of Rs. 50,479-14-6, which was then found due to Vasa Varadiah Chetty after settlement of all the previous transactions. Five items of properties were covered by the mortgage by deposit of title deeds and item 3 relates to Door Nos. 112 and 114, Mount Road of an extent of 1 cawnie 20 grounds and 1,616 square feet. One of the questions that arise for determination in the present litigation is whether this mortgage by deposit of title deeds included the suit item, i.e., Door No. 114, Mount Road of an extent of 2 grounds, 2,169 square feet. On 16th September 1930, the mortgagee Vasa Varadiah Chetty created a sub-mortgage in favour of one Alwar Chetty for a sum of

Rs. 14,000 and amongst others the properties which were mortgaged to him under the mortgage by deposit of title deeds, were also furnished as security. It may be mentioned that in the deed of sub-mortgage executed by Vasa Varadiah Chetty, the property was described as bearing Re-survey No. 11/1 and Collector's certificate No. 2722 containing 1 cawnie 20 grounds 1,616 square feet with the statement that an extent of 8 grounds 1,298 square feet was acquired under the Land Acquisition Act for certain public purposes. On 15th December 1931, Vasa Varadiah Chetty, the mortgagee, filed the suit, Civil Suit No. 623 of 1931 claiming a sum of Rs. 70,455-7-8 as the balance due under the equitable mortgage, dated 25th December 1928. In that suit he had impleaded the two executors, Velu Naicker and his wife Vaduvambal, Kuppammal the widow, and the three grand-sons, the legatees under the will, as well as the grand-daughter of the testator. He also impleaded Alwar Chetty, the sub-mortgagee aforesaid. The suit was contested by the members of the family, who raised all kinds of unfounded and untenable pleas of fact and law, but, ultimately, Wadsworth J., passed a preliminary decree in favour of the mortgagee, Vasa Varadiah Chetty on 11th November 1932, which wan followed by a final decree, dated 25th July 1933. It may be mentioned that in the Schedule item 2 of the preliminary decree and the final decree, the property is described as bearing Old Survey No. 1327 and New Survey No. 11/1 bearing the Collector's certificate No. 2722, of an extent of 1 cawnie 20 grounds 1,616 square feet with the statement that an extent of 8 grounds 1,298 square feet was acquired under the Land Acquisition Act for public purposes. One B.R. Chakravarthi was appointed receiver in Application No. 1672 of 1932 in Civil Suit No. 623 of 1931 and subsequently he was removed and one M.K. Rajagopalachari was appointed receiver in pursuance of an order, dated 30th November 1933, in Application No. 3401 of 1933.

At about the same time Alwar Chetty, the sub-mortgagee, filed a suit, viz., Civil Suit No. 605 of 1931, for recovery of the amount due to him.

In that suit Alwar Chetty, the sub-mortgagee, had impleaded Vasa Varadiah Chetty and all the members of the family of the testator--the widow, the son-in-law, the daughter and the grand children. The suit was tried along with Civil Suit No. 623 of 1931 and a preliminary decree was passed on the same date 11th November 1932. In execution of the decree in Original Suit No. 605 of 1931, the suit property was also brought to sale by the sub-mortgagee, and to avert the sale, Vaduvambal, her husband, Velu Naicker, and the legatees executed a mortgage in favour of one V.L.

Varadaraj on 27th April 1937 for a sum of Rs. 21,000 with which the decree debt due to the sub-mortgagee Alwar Chetty was satisfied. It is very significant to note that this mortgage in favour of V.L. Varadaraj, it is expressly recited that the suit property was also included in the mortgage in favour of Vasa Varadiah Chetty as well as in the sub-mortgage in favour of Alwar Chetty.

In the meanwhile, sometime in September 1931, all the representatives of the testator, Munuswamy Naicker, including the daughter Vaduvambal and her husband, Velu Naicker had created a mortgage by deposit of title deeds of the suit property and other items in favour of one Chidambaram Chetty. His widow, Alamelu Ammal obtained a decree on that equitable mortgage on 5th November 1937, in Civil Suit No. 38 of 1934 and was bringing the properties to sale. The suit property was also actually sold in execution of that decree (Civil Suit No. 38 of 1934) on 30th October 1941. At that juncture, the three grandsons of the testator (the legatees under the will sold the suit property to one Nathmull Sowcar on 29th November 1941 and he deposited the requisite amount under Order XXI, Rule 89, CPC for payment to the decree holder, Alamelu

Ammal. After some Court proceedings the execution sale was ultimately set aside in pursuance of an order passed on 29th June 1942, in Original Side Appeal No. 12 of 1942, with the result that Nathmull Sowcar became the owner of the suit property claiming title under the aforesaid sale. In the sale deed, Vaduvambal and her husband Velu Naicker had not joined, and one of the questions that arise for consideration relates to this aspect of these two not joining in the sale deed. When Nathmull Sowcar applied for delivery of possession, he was referred to a separate suit for working out his rights.

By about the same time Mr. Ranganatha Sastri, Advocate, was appointed receiver at the instance of V.L. Varadaraj, in pursuance of the provision contained in the mortgage deed in his favour. Vasa Varadiah Chetty also took out an application, Application No. 2761 of 1940 in Civil Suit No. 623 of 1931, for appointing the same person Ranganatha Sastri as receiver for the properties comprised in his mortgage and an order to that effect was passed by the Master on 31st January 1941. In Application No. 2292 of 1942, to which all the members of the family were parties, V.L. Varadaraj obtained an order of Court that Mr. Ranganatha Sastri the receiver in possession of the suit properties, should be empowered to sell the properties and that out of the net sale proceeds realised by him, the amount due to V.L. Varadaraj should be paid, and the balance, if any, should be paid, to Vasa Varadiah Chetty, the decree holder in Civil Suit No. 623 of 1931. The receiver proclaimed the properties for sale and by the sale of one of the items on 30th September 1943, the debt of V.L. Varadaraj was satisfied. The receiver attempted to sell the suit property, but because Nathmull Sowcar raised some objection it was not sold.

After the satisfaction of the debt due to V.L. Varadaraj, Mr. Ranganatha Sastri continued to remain in possession of the rest of the properties which admittedly included the suit properties also as receiver appointed in Application No. 2761 of 1940, in Vasa Varadiah Chetty's suit, Civil Suit No. 623 of 1931. It is not disputed before us, and the accounts maintained by the receiver and which have been produced show that among other items, the receiver was throughout in possession of the suit property and has been collecting rents due therefrom. Nathmull Sowcar who was referred to a separate suit to work out his rights filed the suit, Civil Suit No. 64 of 1943, for a declaration that he was the owner of the suit property and that his rights would not be affected by the mortgage decree in Civil Suit No. 623 of 1931 (Vasa Varadiah Chetty's suit) on the ground that the suit property has been fraudulently included in the mortgage decree. In that suit Civil Suit No. 64 of 1943, he impleaded, among others, the three grandsons of the testator, Vasa Varadiah Chetty and V. L. Varadaraj. He did not implead the daughter, Vaduvambal and her husband Velu Naicker. Chandrasekhar Ayyar J., by his judgment, dated 22nd November 1943, dismissed the suit holding that there was no mistake in the decree passed in Vasa Varadiah Chetty's mortgage suit, Civil Suit No. 623 of 1931, that the intention of all the parties concerned was undoubtedly to include the suit property as one of the items of mortgage and that, in any event, at that stage the validity of the decree could not be questioned. Nathmull filed an appeal Original Side Appeal No. 6 of 1944, against the judgment of Chandrasekhar Ayyar J., and the same was dismissed by this Court by its judgment, dated 3rd November 1944. While Original Side Appeal No. 6 of 1944 was pending, the receiver, Mr. Ranganatha Sastri was bringing the properties (including the suit properties) to sale for the realisation of the amount due in Civil Suit No. 623 of 1931 and a consent order was passed on 6th March 1944 in Application No. 1068 of 1944. In that application Nathmull Sowcar was the Applicant while Mr. Ranganatha Sastri, the receiver, and Balu Gramani, the assignee-decree-holder from Vasa Varadiah Chetty were the Respondents. The consent order was to the effect that the receiver shall proceed to sell the properties without any reserve and the parties shall look merely to the sale proceeds for the satisfaction of their claims and that the decree-holder shall be given leave to bid and set off. It also provided that in other respects the order of the Master, dated 21st December 1942, and made in Application No. 2292 of 1943 in Civil Suit No. 623 of 1931, authorising the receiver to sell the properties shall stand. In pursuance of this consent order, the receiver sold the suit properties to one Nataraja Pillai for a sum of RS. 6,050. But Nathmull Sowcar raised certain objections and as a result of the same, Nukhiraman J., passed an order on 15th December 1944, in Application No. 2367 of 1944, hat the sale in favour of Nataraja Pillai aforesaid shall stand confirmed if he paid to the receiver as consideration for the gale an additional sum of Rs. 4,450 within two days, i.e., on or before 17th December 1944. The said Nataraja Pillai paid the balance of Rs. 4,450 even on the same day, i.e., 15th December 1944, thus fully complying with the condition imposed by Kunhiraman J. On 19th January 1945, Mr. Ranganatha Sastri executed a sale deed for a sum of Rs. 10,500 setting out in main the aforesaid details. In the sale deed it is expressly recited that in consideration of Rs. 10,500 paid by the, purchaser, Mr. Ranganatha Sastri, in his capacity as Commissioner appointed by the Court conveys and assigns all the right, title and interest of Vasa Varadiah Chetty, the assignee, Balu Gramani and B.K. Nathmull Sowcar. One of the questions that arise for determination relates to the precise extent of title and right that has been acquired by the purchaser Dhanalakshmi Ammal under the sale deed, dated 19th January .1945.

On 3rd August 1945, the representatives of the testator (the son-in-law, the daughter and the three grandsons) filed Application No. 1396 of 1945 in Civil Suit No. 623 of 1931, for an order that the sale of the suit property by the receiver should be set aside, and that the auction-purchaser should be directed to re-deliver the property to the Applicants on the main ground that the suit property was not included in the mortgage-decree in Civil Suit No. 623 of 1931, and that the sale by the receiver of this property was illegal and in excess of execution and that it should be re-delivered back. Kunhiraman J., dismissed the said application by his judgment, dated 7th November 1946, taking the view that the judgment in Nathmull Sowcar's case, Civil Suit No. 64 of 1943 operated as res judicata and that in any event after the sale in favour of Nathmull Sowcar the Applicants had no locus standi to maintain the application. Thereupon, appeal, Original Side Appeal No. 5 of 1947, was preferred and Satyanarayana Rao and Viswanatha Sastri JJ., by their judgment, dated 16th March 1949, dismissed the appeal taking the view that the application No. 1396 of 1945 u/s 47 CPC was incompetent and misconceived and that the appropriate remedy, if any, was only be way of a separate suit. The learned judges have alto taken the view that the decision in Civil Suit No. 64 of 1943 would not operate as res judicata. They however, left open the question as to how far the sale in favour of Nathmull Sowcar deprived the Applicants of any right to agitate the question and whether the Applicants had any locus standi to file the application as there were not sufficient materials before them, i.e., the entire Will of Munuswami was not before them.

The present suit has been filed in forma pauperis by Vaduvambal Ammal (daughter of the testator) on 19th January 1957, for possession of the suit property and mesne profits. The first Defendant is the purchaser, Dhanalakshmi Ammal in whose favour the sale deed, dated 19th January 1945, had been executed, Defendants 2 and 3 are the surviving grandsons of the testator, the fourth Defendant is the grand-daughter of the testator and the fifth Defendant is Nathmull Sowcar who purchased the suit property under the sale deed dated 29th November 1941.

We have perused the entire records and we have no hesitation in mentioning, at the outset, that this suit, which is filed in forma pauperis, is a purely speculative one, deriving inspiration from interested and designing persons who have been fully conversant with all the details of the various Court proceedings, referred to above. The Plaintiff who is an ignorant old lady has been set up and instigated to indulge in this frivolus litigation, simply, taking advantage of some discrepancies which had crept in, regarding the description of the properties in the several Court proceedings. It is obvious that such intimate knowledge of the prior proceeding is fully exploited in this litigation. There are absolutely no merits whatsoever, nor any shadow of justice in the Plaintiffs'' claim.

The main ground relied upon in this plaint is that the suit property was not comprised in the mortgage which formed the subject matter of the suit, Civil Suit No. 623 if 1931, that the preliminary and final decrees therein did not cover the said property and that, therefore, the sale deed executed by the receiver on 19th January 1945 in Civil Suit No. 623 of 1931, conveying the suit property to the purchaser was illegal and void.

The Plaintiff further claims that of the two executors appointed under the will as she alone is alive, she is entitled to maintain the suit by reason of the probate issued in Testamentary Original Suit No. 9 of 1925. In the plaint the cause of action is alleged to have arisen on 19th January 1945, the date of the sale deed and the suit is filed 12 years thereafter, just on the last day, 19th January 1957, claiming the possession of the purchaser as being wrongful from 19th January 1945.

The suit was contested by the purchaser, Dhanalakshmi Ammal, the first Defendant and Nathmull Sowcar, the fifth Defendant. The main ground of defence of the purchaser is that the suit property was included both in the mortgages, dated 25th December 1928, as well as in the suit Civil Suit No. 623 of 1931, that it was included in the preliminary decree and in the final decree and that the receiver was, therefore quite competent to convey to the purchaser full title to the suit property. The suit was also resisted on the ground that after the sale deed executed by the three legatees in favour of Nathmull Sowcar on 29th November 1941, the executors or the legatees, had no subsisting interest, right or title to the suit property and that on a proper understanding of the several Court proceedings it was clear that so far as the first Defendant purchaser was concerned she had secured a clear title to the property leaving the parties to work out their rights as against the sale proceeds. In view of the uniform course of conduct and prior actings, of all the parties concerned, it was claimed, that the Plaintiff was estopped from making any claim to the suit property and that whatever right she had, came to an end when the third grandson attained majority in the year 1937. The suit was also resisted on the ground that the receiver was in possession of the suit property ever since 1941 and that the first Defendant had perfected her title by continuous uninterrupted open adverse possession and that in any event the Plaintiff's suit should be dismissed as the Plaintiff had no possession of the suit property at any time within 12 years prior to the institution of the suit. Lastly, it was contended that as the mortgage, dated 25th December 1928, was executed to discharge binding debts, the first Defendant, who is the purchaser in pursuance of orders of Court passed in Civil Suit No. 623 of 1931, would be entitled to be subrogated to the rights of the mortgagee and that the Plaintiff would not be entitled to recover possession without making restitution to the first Defendant in respect of moneys paid by her for purchasing the property.

Kailasam J., has decreed the suit holding that the suit property was not comprised in the mortgage, nor in the preliminary or final decrees passed in Civil Suit No. 623 of 1931, and that the sale by the receiver would not, therefore, convey any title to the purchaser in regard to the suit property.

The learned Judge has held that as the suit was filed on the last day within twelve years from the date of sale, the suit was in time. The learned Judge has not recorded any finding as to whether the Plaintiff was in possession of the suit property within twelve years prior to the suit. He has also not given any considered finding on the question as to whether the first Defendant had not perfected her title by adverse possession and enjoyment of the property for over 12 years. On the question of title the learned Judge has taken the view that as the Plaintiff, ''Vaduvambal, had not joined in the sale deed executed in favour of Nathmull Sowcar, she was entitled to maintain the present suit as the surviving executrix, on the ground that the administration of the estate is still incomplete.

After a consideration of the arguments advanced by Counsel on both sides and on a perusal of the entire records, with great respect to the learned Judge we are unable to agree with his view.

The following are the main points which were argued by Counsel on both fides that arise for determination in the present appeal:

1.(a) What is the precise extent of power and authority conferred upon the Plaintiff and her husband under the provisions of the Will ? Have they been appointed executors in the legal sense of the term, and, if so, what is the duration of their office?

(b) On a proper interpretation of the Will, what is the precise nature of the right and interest created in favour of the legatees?

(c) What is the legal effect of the grant of the probate to the Plaintiff and her husband in Testamentary Original Suit No. 9 of 1925, in the light of the provisions contained in the Will?

(d) In any event, has the Plaintiff any subsisting interest, right or title in regard to the suit property after the legatees had sold the same to the fifth Defendant, Nathmull Sowcar in 1941?

(e) Has not the Plaintiff and her husband assented to the bequests vesting in the legatees and is there any estoppel arising from the circumstances of the case and the acting of the parties preventing the Plaintiff from making the present claim?

Has the Plaintiff proved possession of the suit property within 12 years of the suit?

Has not the first Defendant perfected her title by adverse possession for over the statutory period?

(a) Is the suit property included in and covered by the equitable mortgage, dated 25th December 1928, in favour of Vasa Varadiah and in the preliminary and final decrees in Civil Suit No. 623 of 1931?

(b) In any event, has the Plaintiff any claim against the suit property or is she confined only to a right to the sale proceeds having regard to the terms of the order, dated 6th March 1944 in Application No. H''68 of 1944 in Original Side Appeal No. 6 of 1944 in pursuance of which the sale took place?

Is the Plaintiff entitled to recover possession of the property without a liability to give restitution in respect of the moneys paid as consideration for the sale held by the receiver?

Is the Plaintiff entitled to any mesne profits?

We shall first take up for consideration all the aspects of the matter covered by points 1(a) to 1(e) set out above. It is necessary to set out the following relevant clauses of the will:

(1) Now, at present, my wife Kuppammal, my sole daughter Vaduvambal Animal, her husband Vela Naicker, the said Vaduvambal Animal's sons and my daughter's sons, viz., (i) minor Balakrishnan, aged 8 years, (ii) minor Gnanasundaram, aged 5 years, (iii) minor Marimuthu, aged 3 years and the said Vaduvambal Animal's daughter and my grand-daughter (daughter's daughter) Dhanalakshmi, aged 11 years (all these) are living in my family. I have no here excepting the said persons. In respect of our family properties, division took place between me and my brother Parthasarathi Naicker by registered deed even on the 2nd of March 1898; since then, we have been in respective enjoyment (of our shares of property) neither (of us) having any concern in the share of property of the other. The entire properties described in the schedule hereunder belong exclusively to me.

(2) After I divided from my brother, I purchased with my self-earned money, in the name of my wife the said Kuppammal the fruit-tree garden containing the house, backyard and the well, measuring in extent about 6 grounds and 950 square feet bearing Old Survey Nos. 3992, 3099, Re-survey Nos. 1326 and 1329 and situated within these, viz., east of the said Muthia Mudali street, west of Babu Mudaliar's garden, south of Singara Mudali's house and north of the garden of Appadurai Mudaliar and others and of the house of Doraiswami Mudaliar bearing No. 21 in the aforesaid street, being the house in which I live at present, and the fruit-tree garden measuring in extent about 3 grounds and 1,893 square feet bearing Old Survey Nos. 3067 and 3065 Re-survey No. 1331/1 and 2, bearing door Nos. 26 in the aforesaid street and situated within these, i.e., west of the said street, east of the garden of Appadurai Mudali and others; north of the garden of the said Appadurai Mudali and others and south of the house of Ponnuswami Mudali and others and I (also) settled the title deed (of the properties) in the name of the aforesaid person herself.

Therefore, the said Kuppammal shall, as long as she lives, enjoy the aforesaid properties, without making alienations of any kind, effecting repairs, etc., to secure the properties from deterioration and paying the Municipal quit-rent and taxes. Afterwards, my daughter's daughter the said Dhanalakshmi Ammal shall, as long as she lives, enjoy as aforesaid, without making alienations of any kind. After her, the male issue, if such there be, of the said Dhanalakshmi Ammal shall take and enjoy the properties. If the said Dhanalakshmi Ammal should have no such male issue, my daughter's sons, viz., the said Balakrishnan, Gnanasundaram and Marimuthu and such other male issue as may hereafter be born to the said Vaduvambal Ammal--these shall take the said properties in equal shares and enjoy them.

(3) Further the properties now belonging to me and described in the schedule hereunder, were all of them acquired by me as my self-acquisitions; the deeds thereof were executed in my name and the properties have been in my exclusive possession. After my life time my wife, if she happens to survive me, shall herself take possession of and enjoy all the said schedule mentioned properties as long as she lives, effecting repairs thereof to keep them from deterioration, paying the taxes and generally protecting them; without making alienations of any kind. After her life-time, my daughter's ions aforementioned, viz., Balakrishnan Gnanasundaram and Marimuthu and the male issue that may hereafter be born to my daughter Vaduvambal Ammal (all these) shall take in equal shares and enjoy the said properties.

(4) While enjoying as aforesaid, my wife shall keep my daughter, her husband and her issue in my family alone, shall educate, perform the marriages and such other auspicious ceremonies of my grandsons and grand-daughters suitably to the income of the estate, and shall protect them.

(5) When my daughter's sons take my entire properties after the life-time of my wife Kuppammal, they shall maintain their mother and my daughter the said Vaduvambal Ammal and her husband suitably to the status of the family and shall also assist with money for the expenses of the marriages, etc., of the said persons'' daughters and shall have the marital Ceremonies properly conducted. In case my daughter's sons act contrary to the aforesaid provisions, or my daughter Vaduvambal Ammal and her husband Velu Naicker do not like to live with their Sons and quarrel with them the properties mentioned as item 4 of the properties mentioned in the schedule hereunder, shall be handed over to the possession of my daughter Vaduvambal Ammal and of her husband. They shall enjoy the said properties as long as they live, and after them my daughter's sons shall take in equal shares the said properties.

(6) If, at the time of my grandsons taking my family properties aforesaid, my grandsons or any of them be minors, my daughter Vaduvambal Ammal and her husband Velu Naicker shall act as executors to my aforesaid estate and manage the properties. On my daughter's sons ceasing to be minors, they shall hand over possession to them.

N.B. - Description and schedue of properties omitted. The schedule to the Will contains 12 items of immovable properties with all the details-- door No., Survey No., Collector's certificate, extent, etc., and the suit property is item 2 of the schedule.

On a proper and correct interpretation of the relevant clauses of the Will extracted above, we are clearly of the opinion that the Plaintiff and her husband have not been appointed executors in the legal sense of the term, even though the testator has loosely described them as such in the Will in question, Section 2, Sub-clause (c) of the Procession Act defines executor as person to whom the execution of the last Will of a deceased person is by the testator's appointment confined.

In order to constitute a person an executor under a Will, it must appear on a reasonable construction thereof that the testator intended that he should collect his assets, pay his debts and funeral expenses and discharge and distribute the legacies contained in the Will. From the provisions of the Will it must be clear that the testator intended to vest the properties in the executor for being administered by him in accordance with the provisions of the Will so as to satisfy the condition that the execution of the Will has been confided in him. The duties directed to be performed by the executor must necessarily appertain to the office of the executor. In the Will in question there is not a word from first to last about payment of the debts of the testator, which is the main test to find out whether a person has been appointed executor under the Will. The mere fact that certain duties were cast upon the Plaintiff and her husband terming them as executors will not clothe them with the status of executors unless the clear intention of the testator was to vest the estate in the executor and the duties which have been cast upon them pertained to the office of an executor.

The only duty that has been cast upon the Plaintiff and her husband under the will is to manage the properties bequeathed to the grandsons, that too, only on the particular contingency of any of the grandsons being minors at the time of the death of Kuppamma, the widow of the testator. The properties are not vested in them as executors, and the only duty that is cast upon them is to manage the properties for safeguarding the interests of the minors. No other power or authority or right or duty or obligation is cast upon the executors. It is significant to notice that even this power or duty to manage is only on a contingency and the bequest in favour of the grandsons is preceded by a life estate in favour of the widow.

In regard to the properties dealt with in Clause 2, a life estate has been created in favour of the widow without powers of alienation, the vested remainder to be taken by the testator's grand-daughter through his daughter, similarly as a life estate, and after her death, by her male issues. With regard to this portion of the Will the Plaintiff and her husband have not been associated in any manner. With regard to the properties set out in the schedule to the Will, on the death of the testator, the widow is straightaway entitled to take possession of the properties and enjoy the same, though without any powers of alienation. During the lifetime of the widow the Plaintiff and her husband have no right or authority or power over the properties in question and they cannot possibly put forward any claim as executors. Clause 3 which contains the provision for some disbursements again provides that these expenses are to be incurred only by the testator's wife. If at the time of the death of Kuppammal all the grandsons had attained majority, the Plaintiff and her husband will have no right whatsoever with regard to the possession and enjoyment of the properties. The significant absence of any provision (a) for collection of debts and assets of the testator; (b) to discharge all his debts or incur funeral and other expenses and (c) any power to incur debts, taken along with the fact that the duty that has been east upon them is a simple duty of managing the properties for a limited time, leaves no room for doubt, that they were not executors appointed under the Will, though termed as such.

It is established law that the question as to whether a person has been constituted an executor under a Will has to be decided not by reference to the label used in the Will but with reference to the powers and duties conferred upon him. Reference may first be made to the decision in Taran Singh Hazari v. Ramratan Tewari ILR (1903) Cal. 89. In that case the testator gave his properties to his minor son Ramratan Tewari and appointed one Gauri Lebi as executrix to his estate, expressly describing her such, and directed that she should remain in charge of the estate during the minority of his son. The executrix took out probate of the Will, and after managing the estate for some time, handed over the same to the Court of Wards. A suit was brought by the manager of the Court of Wards on behalf of the minor legatee Ramratan Tewari upon a mortgage bond executed by one Taran Singh in favour of Gauri Debi, the executrix. The suit was resisted by the mortgagor on the ground chat after the Will was probated, the estate vested in the executrix and the Court, of Wards had no right to sue, so long as the probate had not been revoked. The question, therefore, arose whether Gauri Debi was constituted as an executrix under the Will of the testator and it was held that she was merely appointed as manager of the minor's estate and not as an executrix. It is sufficient to extract the following observations at pages 92 and 93:

We have beard the learned vakil at great length in support of his contentions, but we are unable to accept them as valid. No doubt, after Gauri Debi had taken out probate of the will, she estate of the deceased would under the law vest in her as executrix for the purpose of carrying out her duties as such, and those duties would be generally to collect the debts due to the estate to pay the debts due from the estate, to pay off legacies and other bequests, etc., and then to make over the property to the residuary legatee. It would be no part of her duties as executrix to manage the property for the benefit of the minor till he attained majority. The position and duties of an executor in this country are not very well understood, and considerable confusion exists as to duties of the executor in administering the estate. The duties of the executor are to administer the estate of the deceased only so far and so long as to enable him to carry out the terms of the will of which he is executor. After the property has ceased to be the estate of the deceased and has become the property of the residuary legatee under the will, the executor as such has no authority to manage the estate on his behalf. Under the will the beneficial interest in the property vested in the minor as soon as the testator died, and Gauri Debi was appointed at executrix to manage the property till the minor attained majority. In describing her as executrix for this purpose there has in our opinion been a confusion or misinterpretation of the term "executrix". What was intended appears to us to be that she should as executrix administer the estate and see that the terms of the will were carried out, and, this being done, that she should manage the property covered by the will, not as executrix under the will and administration of the deceased's estate, but as manager for the minor till he attained majority. The intention clearly was to appoint her to be manager of the minor's estate. We think that in interpreting the will we must have regard not merely to the words used but to the evident intention of the testator.

Reference may next be made to the decision in Seshamma v. Chennappa ILR (1897) Mad. 467. In that case the testator executed a Will providing for adoption to be made by his widow and bequeathing his properties to his adopted son, and at the same time providing for the management of the properties by his son-in-law and father-in-law till the adopted son attained majority and became capable of managing the estate. The question arose whether the aforesaid two persons were entitled to maintain a suit as executors for recovery of certain jewels entrusted to the Defendants by the testator and it was held that they were not appointed as executors, but were merely directed to protect the property during the minority of the adopted son. The legal position was stated thus at page 468:

We are not satisfied that this is a ease in which the Plaintiffs would he entitled to probate as executors by implication. The duties which the Plaintiffs are directed to perform are not specifically the duties of an executor. It is not the administration of the estate which they are told to carry out. But rather it is as guardians of the child whose adoption is contemplated that they are intended to act. We think, it is quite clear, that there was no intention to vest any property in them. They were only directed to protect the property during the minority. For these reasons we think that the suit is wrongly brought in the name of the Plaintiffs as executors.

In Gopal Dass Agarwallah v. Budree Dass Svreka ILR (1906) Cal. 657 the testator executed a Will with the direction that on his death one Gopal Dass shall become the owner of the estate left by the testator and that until the said Gopal Dass attained majority certain persons shall remain as trustees. Following Seshamma v. Chennappa ILR (1867) Mad. 467 the learned Judges held that there was no appointment of executors as the duties which were directed to be performed did not appertain to those of an executor. The same view has been emphasised in Bagchi v. Hrishikesh Sanyal ILR (1949) All. 66 and in Sardar Singh v. Chakrapani Acharya ILR (1946) All. 398 that a person cannot be said to have been constituted an executor under a Will if the testator has not imposed upon him (sic) functions, even though he has named or described him as executor in the Will. To sum up, therefore, we are clearly of the opinion that a bare duty or right to manage the estate, on a contingency, and that too, expressly for a limited period, cannot possibly amount to an appointment of an executor in the legal sense of the term.

Even assuming that there has been an appointment of joint executors under the Will, their office clearly came to an end at the latest in 1937 when the third grandson Marimuthu attained majority, whether the period of distribution is to be taken as the date of the death of the widow or the date when the eldest grandson attained majority. The issue of probate is conclusive only on the question of the factum and validity of the Will and if any dispute arisen a Court will undoubtedly have power to look into the original Will for the purpose of construing its provisions.

Learned Counsel for the Respondent in the several stages of his arguments laid repeated stress upon the fact that as the probate has been issued in an unqualified form, its terms are conclusive and final, operating as a judgment in rem u/s 41 of the Indian Evidence Act. He further contended, that so long as the probate has not been I evoked or cancelled, no objection can be entertained that there has been no appointment of executors under the Will satisfying the requirements of law or that the appointment was only for a limited period. After an examination of the relevant cases, in the light of general principles governing the rights of the beneficiaries under a Will, vis-a-vis an executor, we are of the view that there is no substance in this argument. It proceeds upon some misconception and an incomplete and imperfect understanding of the effect of the grant of probate. In D''Huart v. Harkness 55 E.R. 660, 661, Sir John Romilly M.R., observed that:

It is true that the effect of probate is not conclusive as to what this Court must hold to be its construction as to the rights to the property disposed of by the will, but it is conclusive to this extent, that the instrument admitted to probate is the will of the testator.

The matter has been examined in a Bench decision in Raj Rani Thakurani v. Th. Dwarka Nath Singh ILR (1946) Luck. 314.

In that case the Plaintiffs, the heirs--at--law of the testator, filed a suit for a declaration that a Will of which the Defendants had obtained a probate was inoperative, and the Defendants had no right or title or interest in the properties dealt with under the Will on the ground that; (i) the testator had no animus testandi to make the Will, (ii) the bequest was conditional and default having been made in the fulfilment of the condition it failed ; (iii) the character of the legatee has been transformed into that of a bare trustee for the heirs-at-law. The Defendants relied upon the grant of probate as a conclusive bar in respect of all the questions raised by the Plaintiffs. The Bench held that the probate was conclusive only to the limited extent that the instrument admitted to probate was the Will of the testator, but that it was not conclusive with regard to the construction as to rights of properties disposed of by the Will. It was, therefore, held that so far as the questions 2 and 3 were concerned, the decision of the Probate Court did not constitute res judicata as those questions foil outside the jurisdiction of the Court of Probate. It is sufficient to refer to the elaborate discussion of the matter, with reference to the relevant English and the Indian cases (commencing from page 323 of the report).

There is no provision in the Succession Act setting out any forma of probate in regard to limited grants and the form prescribed under the Original Side Rules of our Court also does not provide any form for a limited grant. In order to determine the nature of the grant, whether limited or unlimited we have to look into the provisions of the Will. Vide Kaloo v. Mst. Bibi (sic) AIR 1921 Pat. 313. The appointment of executor may be either absolute or qualified. It is absolute when It constituted certainly and immediately without any limitation in point of time.

It may be qualified by limitations as to the time or place or the subject matter whereon the office is to be exercised. The qualification of limitation provided in the Will may specify when the person appointed shall begin or when he shall cease to be an executor. A testator may appoint a person to be his executor for a particular period of time only, as during five years next after his decease or during the minority of his son, or the widowhood of his wife, or until the death or marriage of his son. Vide Williams on Executors and Administrators, fourteenth condition, at pages 19 and 20. The author refers to a case In re Bond v. Faikny 2 Cas. Temp. Lec. 371 which has great resemblance to the facts of the instant case. In that case a widow was appointed executrix and residuary legatee for life with remainder as to the residue to the nieces of the testator and by a codicil it was provided that in case she married again she and the nieces should agree on proper persons to be trustees to whom she was directed to assign all the real and personal estate in trust for the uses of the Will and it was held that her executorship expired on her second marriage. Vide also Halsbury's Laws of England, simonds edition, volume XVI, page 125, Paragraph 184 for instances of conditional and determinable appointments of Executors. It may be noticed that in all these cases the office of executorship came to an end automatically by the mere force of the terms of the Will and not by reason of any subsequent order of Court either by revoking the probate of by removing the executor.

Reading the several clauses of the Will as a whole, we have no hesitation in holding that the testator never intended his daughter and her husband to perform any of the duties of the executor, in order to administer the estate at any point of time. We are unable to accept the argument of the learned Counsel for the Respondent that there is an appointment of executor by the tenor or by implication. It is needless to mention that no terms can be implied into the Will so as to outweigh the express provisions contained therein.

We see no substance whatsoever in the oft repeated argument of learned Counsel for the Respondent that as the form of probate that has been used (according to the form prescribed by the Original Side Rules; is unqualified and unlimited the executors are entitled to function ad infinitum despite the attaining of majority of the legatees, on the ground that there are still debts to be discharged and that the judgment of a probate Court is a judgment in rem and that till the probate is revoked the representative title of the executors to the estate of the testator cannot be questioned by anybody and that the right to maintain the suit to recover the suit property still continues to inhere in her. We have no hesitation in rejecting this argument as it is violently opposed to all principles of justice and would completely defeat and frustrate the intentions of the testator, in first place, it must be borne in mind that the probate that is issued is for the purpose of administering the estate according to the provisions of tide Will. An executor appointed under a Will cannot claim any right to act contrary to or in express violation of the specific provisions of the Will. As already observed, the grant of probate cannot affect the right of the beneficiaries as specified in the Will, as the decision of the probate Court does not involve any adjudication of the rights of the parties under the Will. The tact, assuming it to be so (which is not the case here), that the probate Court while granting the probate for that limited purpose construes the Will, and holds that a particular person has been appointed as executor, cannot prevent or operate as a bar to the beneficiaries under the Will from establishing their rights in a separate suit. Reference may first be made to the Bench decision of the Allahabad High Court in Rajendra Chandra Mitra v. Manick lal Ghapak (1911) 8 All. L.J. 1063 in which the conflicting claims and rights of the beneficiaries under the Will as against an executor who has obtained a probate came up for decision. In that case the testator appointed one Rajendra Chandra as the sole trustee and executor of his Will under which he had bequeathed his properties to one Manicklal to be adapted to him by his senior wife. The Will also provided that the executor shall hand over the properties to his adopted son on his attaining majority and if the adopted son carried out the directions of the Will, namely, to continue his studies up to M.A. standard and be honest and faithful to the testator's wives. Both the adopted son as well as the executor named in the Will applied for probate in separate proceedings, but the Court of Probate granted probate only to Rajendra Chandra, the executor. Later, the adopted son, the legatee, filed a suit for a declaration that the title to the property specified in the Will vested in him and for an injunction restraining the executor from interfering with the former's title and possession. One of the main points related to the effect of the probate granted to the executor. It was held that the Defendant's executorship automatically came to an end as soon as the legatee attained majority and that the grant of probate was no bar to the civil suit. The learned Judges followed two Bench decisions of the Calcutta High Court in Arunmoyi Dasi v. Mohendra Nath Wadadar ILR (1893) Cal. 888 and in Jagannath Prasad Gupta v. Runjit Singh ILR (1897) Cal. 354. In the former case, the Court of Probate granted letters of administration to certain persons holding them to be residuary legatees on a construction of the Will in question. The widow who had unsuccessfully opposed the grant filed the suit for establishing her rights on a proper construction of her late husband's Will and it was held that the judgment of the Court of Probate could not be regarded as concluding the widow from establishing her rights on a proper construction of the Will. In Jagannath Prasad Gupta v. Runjit Singh ILR (1897) Cal. 354 it was held that when the Court of probate granted letters of administration to the Defendant in preference to the Plaintiff on a construction of the Will, such an order is not a bar to the Plaintiff establishing his rights under the Will. Dealing with the argument that so long as the grant has not been revoked no other person has any title to the estate, the learned Judges stated the law thus at page 369:

It was contended for the Appellant that the grant of letters of administration to the Defendant by the order of the High Court, dated the 11th of September 1886, is a bar to the appointment of the Plaintiff as shebait, so long as the grant of administration is not revoked. We do not consider this contention to be of much force. The order granting letters of administration to the Defendant is, u/s 41 of the Evidence Act and Section 69 of the Probate and Administration Act, conclusive proof of the representative title of the Defendant against all debtors of the deceased, Rani Annapurna, and all persons holding property which belonged to the deceased. But the object of the proceedings under the Probate and Administration Act is to determine only the question of representation of the deceased for the purpose of administering the estate and not for the purpose of determining any question of inheritance or of the right to be appointed as shebait. A reference to Sections 2, 3, 4, 6 and 37 of the Probate and Administration Act, which authorise the grant of letters of administration to persons who may not be the heirs of the deceased, well bears out the view we take, which also receives support from the observations is the judgment of this Court in Arunmoyi Dasi v. Mohendra Nath Wadadar ILR (1897) Cal. 354. The order granting letters of administration to the Defendant is therefore no bar to this suit, the decree in which will supersede the grant.

We may next refer to another Bench decision of the Calcutta High Court in Sankar v. Biddutlata (1918) 28 Cal. L.J. 271 in which the learned Judges held that the duties of an executor are to administer the estate of the deceased only so far and so long as to enable him to carry out the terms of the Will of which he is the executor and that after the property has ceased to be the estate of the deceased and has become the property of the legatee under the Will, the executor as such has no authority to manage the estate on his behalf. It was held that the fact that there were still debts to be discharged and the fact that a probate granted was subsisting would not operate as a bar to the beneficiary asserting his rights as per the Will. There is no warrant for the view that once a grant of probate or letters of administration has been made it continues for ever unless subsequently revoked.

On an examination of the relevant provisions of the Succession Act, in the light of the general principles of law governing Wills, we are of the opinion that there is no substance in the contention of the learned Counsel for the Respondent that the Plaintiff is entitled to function and assert her rights as executrix even though the legatees attained majority as early as 1937 and have clearly become entitled to possession of the property. As observed already, the appointment of executor is only for the purpose of administration of the estate strictly in accordance with the provisions of the Will and it cannot possibly curtail or cut down the rights of the beneficiaries to deal with their interest in the estate. All these aspects had been considered by a Bench of the Calcutta High Court in Kulwanta Bewa v. Karam Chand Soni ILR (1939) 1 Cal. 21. In that case the testator died leaving a Will bequeathing his properties to his sons and his widow obtained letters of administration. While that was subsisting, a mortgage was executed by the widow along with her sons, the legatees under the Will. But the widow had not obtained the previous sanction of the District Judge for executing the mortgage in her capacity as administratrix. The suit on the mortgage was resisted on the ground, inter alia, that by reason of the grant the widow as administratrix was the only person competent to deal with the estate, i.e., to execute the mortgage in question and that as she had not executed the mortgage in that capacity after obtaining the requisite sanction of the District Judge the mortgage was invalid though the legatees had also joined in the mortgage. The widow, the administratrix had no other beneficial interest in the estate of the testator under the Will and the entire beneficial interest was bequeathed to the sons of the testator. The learned Judges stated the law thus at page 34:

Even supposing that, as a result of the grant of administration, the adminstratrix as the legal representative of the deceased was the only person competent to deal with the estate, it has still to be seen for how long this power of the administratrix would continue to the exclusion of the right of the beneficiaries. As already pointed out, all that Section 216 of the Succession Act provides is that until the grant is recalled or revoked, no other person will have the right to act as representative of the deceased, but the rights to represent the estate for the purposes specified in that section is not the same as the right to deal with the boneficial interest in the estate. Even taking the section as it stands, it is doubtful whether this may be regarded as lending any countenance to the proposition--once an administrator, always an administrator. The moment administration is completed, the purpose of the grant will have been fulfilled, and und the administrator would virtually become functus officio. It seems only reasonable to hold that thereupon the grant would stand revoked in effect, if not by a formal order of Court.

In the instance case the Will does not contemplate any management or administration of the estate by the executors on the attainment of majority of the minors and they have no right to exercise any right in regard to the estate thereafter. From their point of view the administration was over and the purpose of the grant has been completely fulfilled. Under the terms of the Will the executors have no power to incur debts and even if any debts had been incurred, the creditors may have a right against the estate in the hands of the beneficiaries if it is established that the debts were incurred for purposes binding upon the estate. That is a question purely between the creditors and the beneficiaries. But that cannot possibly entitle the executors to retain possession of the estate without delivering the same to the legatees. The title of the legatees to the vested interest in the properties accrued to them the moment the testator died and they have become legal owners of the properties. The fact that their enjoyment is postponed or deferred till all of them attained majority does not in any way effect their ownership to the properties which they are perfectly competent to deal with. A wrongful retention of possession of the properties by the executors contrary to the terms of the Will cannot possibly affect the rights of the beneficiaries. The executors who have committed a wrong and defaulted in failing to hand over possession of the properties to the legatees as per the provisions of the Will cannot take advantage of their own wrong and contend that the beneficiaries have no right to deal with the properties. It is obvious that there must be a limit to the authority of an executor appointed under a Will. A contrary view would result in startling and absurd results and gross injustice, as it would enable an executor to retain possession of the property by not discharging the debts.

Different considerations might possibly arise in a particular situation if a dispute arises between the beneficiaries under the Will and a bonafide alienee who might have entered into any transaction with the executor relying upon the unlimited grant of the probate overlooking that the Will specified a period of termination. When, and under what circumstances, the alliance can rely upon the probate in the face of the express terms of the Will is a different question with which we are not now concerned. We have no hesitation in holding that there is not the slightest warrant either in authority or in principle for the extreme contention that an executor can claim rights in derogation of the terms of the Will as against the beneficiaries. Above all, we are of the opinion that in view of the express terms of the Will specifically providing for the termination of their office, there is no scope for applying any rules for determining whether the administration can be said to be complete when there are debts outstanding. In other words, these considerations are irrelevant when the Will itself expressly provides for the duration and termination of the office of the executors. It, therefore, follows that in any event, in view of the sale-deed executed by the legatees in favour of Nathmull Sowcar, the fifth Defendant the Plaintiff has no subsisting right or title to maintain the suit.

Even otherwise, we are of the opinion that the bequest created in favour of the legatees is a specific one and an inference of assent on the part of the executors to the vesting of the properties in the legatees necessarily flows from the facts and circumstances of the case and the conduct of the executors themselves. On this part of the case, learned Counsel for the Respondent contended that the bequest to the grand-sons was not a specific one and, therefore, the doctrine of assent of the executors for validating the title of the legatees cannot be invoked. Here again, on a consideration of the relevant provisions of the Will (touching the bequests in question) we are of the clear opinion that the bequest is a specific bequest. The testator first gives certain specific items to his widow and his grand-daughter. Next he gives the properties described in the schedule to the Will to his grand-sons mentioning the details of the properties, boundaries'' extent, etc. On the death of the testator, the grand-sons would get only the properties described in the schedule and not any other property. In this connection it may be mentioned that from the evidence it is clear that the testator was carrying on a prosperous abkari business naturally consisting of stock-in-trade, debts and liabilities and other business assets. That business is not covered by this Will. Any other properties not mentioned in the schedule attached to the Will along with the business assets would be taken by the widow as the heir at law on intestate succession, and not by the grand-sons under the provisions of the Will. The preamble of the relevant clause, Clause 3, of the Will, states as follows:

Further the properties now belonging to me and described in the schedule hereunder...were all...acquired by me....in my name and...have been in my exclusive possession. After my life-time, my wife...shall herself take possession of and enjoy all the said schedule mentioned properties as long as she lives...after her life time my daughter's sons...shall take in equal shares and enjoy the said properties.

The argument of the learned Counsel for the Respondent that under this clause a residuary bequest has been created is wholly untenable and cannot be accepted. The opening words of Clause 6, If, at the time of my grandsons taking my family properties aforesaid, providing for the management of the properties during the minority of the grand-sons again reinforce that the bequest is a specific one.

It is unnecessary to refer to any case law as the question essentially turns upon the interpretation of the provisions of the Will in the instant case.

The terms of the Will, in our opinion, clearly satisfy the definition in Section 142 of the Succession Act. Section 146 of the Succession Act has no application to the instant case as the bequest in question is not the bequest of the residue of the testator's property along with an enumeration of some items of property. In the instant case the testator has used, sufficient, precise, language identifying the properties by sufficient description and clearly manifesting an intention that they should be enjoyed as indicated in the description, seperately by the egatees. The properties sot out in the schedule are not in any way mixed up or connected with the rest of the estate of the testator, A specific legacy must be something forming part of the testator's estate at the same time distinct from the-whole of his estate, and this test is amply satisfied in the instant case.

There is the further fact that the properties which are bequeathed to the legatees are all immovable properties with details of description and it is settled law that in the case of a bequest of immovable property the legacy is always regarded as specific. In the case of a real estate a devise whether of a specific property or by way of a residue is specific. (Vide XVI Halsbury, Page 317, Paragraph 610 (Simonds edition), Vide also In re Rowe Bennetts v. Eddy (1941) Ch. 343 and In re Ridley Deed. Nicholson v. Nicholson (1950) 1 Ch. 415 in which it was held that a devise of real property even though it comprised the entirety of the estate of the testator would be a specific bequest. This view that in the case of a devise of immovable property the bequest would be held to be a specific bequest was taken by a Bench of this Court in (Julia Mary) Margaret Fernandez

Vs. Severina Sobina Coelho, following the English law on the subject. Section 133 of the Succession Act X of 1865, corresponding to Section 146 of the present Act of 1925 came up for consideration in that case, and the learned Judges observed as follows at page 420:

The learned vakil for the Appellant contended that in Section 133 of the Indian Succession Act the word ''articles'' should be construed not as referring to items of movable property, but to all kinds of property, and that the section should be read, as if instead of the word ''articles'' the word ''items'' was repeated. This is opposed to the rules of interpretation of statutes. Further, it is a well-established principle of English Law that the bequest of immovable property is specific (see The bald on Wills, 7th Edition, page 153 and also Williams on Executors, 11th edition, page 926). We cannot hold that the great English lawyers, who were responsible for the enactment of the Indian Succession Act, made a deliberate departure from the rule of English Law, which is based on common sense and failed to indicate such departure by apt words.

Learned Counsel for the Respondent cited certain decisions and also drew our attention to the statement of the law in Basu Succession Act, third edition, pages 321, 498 and 700. We think that they are not of much relevance to the instant case as the terms of the Will dealt within those cases were completely different.

We, therefore, over-ruling the contention of the learned Counsel for the Respondent, hold that the bequest in favour of the legatees is a specific bequest.

We are also of the view that there has been the requisite assent of the executors as specified in Section 332 of the Succession Act so as to complete the title of the legatees. The law does not require any particular form for expressing the assent by the executors and the assent can either be express or inferred from the course of conduct of the parties. When it is said that an executor assents to a bequest, it does not mean that he assents to the dispositions of the testator but that he assents to its taking effect upon the specified property. Principles which will have to be applied with regard to Wills in which executors are appointed in general terms without any limit of time as to the duration of their office will have no application to cases in which the Will expressly specifies the time limit as to the duration of the executorship of a person. If under a Will, a person is appointed an executor for a limited point of time and it also provides that on the expiry of the time limit, the executor should hand over possession of the properties to the beneficiaries, the executors should be deemed to have assented, even when he applied for probate, to the bequest vesting in the legatee on the happening of such contingency as specified in the Will. An executor cannot approbate and reprobate and in such cases, an assent on the part of the executor has to be necessarily implied as a matter of law. Having taken possession of the properties under the Will as an executor, the executor suffers under a legal disability from contending that the legatees have not become the full owners of the properties on the contingency specified.

Even otherwise, we are of the view that the facts of the case as disclosed in the records clearly lead to the inference of assent on the part of the executors. If the legatees had no title because the administration is still incomplete, why should they be joined in the several alienations and in the Court proceedings in the presence of the executors. The suit property was already sold in execution of the decree in Civil Suit No. 38 of 1934 and, but for the efforts taken by Nathmull, the property would have been lost for ever and once for all. The executors were parties to all the proceedings in Civil Suit No. 38 of 1934 and the inference is irresistible that they knew full well that their sons had sold the property to Nathmull and that at the latter's instance the sale was set aside and the entire mortgage decree being fully satisfied. The decree in Civil Suit No. 38 of 1934 provides that in case of deficiency after the sale of the hypotheca the mortgagee will be entitled to a personal decree against the executors and also to a decree against the other assets in their hands. It is significant to note that clause 9 of the decree provides that on the realisation of the amount due to the Plaintiff the latter should return to the first Defendant the pair of thuds which was pledged as security. In this context, it is impossible to contend that the executors did not have the benefit of the sale deed executed by the legatees in favour of Nathmull. There can be no doubt whatsoever that the estate and the executors had received the full benefit, of the sale price and the latter must be deemed to have assented to the

same. With great respect, Kailasam J. has not considered this aspect of the matter from a correct stand point as he took the view that the bequest was not a specific one and the doctrine of assent would not, therefore, apply.

It is not an inflexible rule that till the debts and liabilities are completely discharged the doctrine of assent will not apply. The correct legal position and the relevant case law has been examined in a recent Bench decision of this Court consisting of the learned Chief Justice and Srinivasan J., in Commissioner of Income Tax v. Estate of Ramaswami ILR (1962) Mad. 380 in which after an examination of the case law, it was held that the administration cannot be said to be incomplete merely because debts and liabilities remained undischarged. The learned Chief Justice stated the law thus at Page 387:

Under Section 211 of the Indian Succession Act, an executor under the Will of a deceased person will be his legal representative for all purposes and the property of the deceased would vest in him as such executor. The executor derives his title from the Will and he is, therefore, the legal representative of the deceased person representing him from the date of his death. He will be in possession of the properties covered by the Will in his own right as the representative of the deceased and not on behalf of or as a trustee for the legatees. As an executor, he will be responsible for the payment of the funeral expenses of the testator and for the satisfaction of the debts left by him; his liability however will extend only to the extent of the estate left by the deceased. Till the estate is administered by paying the funeral expenses, debts, etc., the legacies could not normally be distributed. But this rule cannot be regarded as an inflexible one. For example, there may be cases where the debts themselves are disputed; or it may become expedient to vest the property in the legatee even before the debts are discharged. It will be a very inconvenient state of things if one were to hold that till the last pie of the debts left by the deceased is paid, the executor could not pay over the legacies to the legatees. An executor can certainly insist that till the administration of the estate is complete, the residuary legatee should not call upon him to pay the legacies.

But it will always be open to the executor himself to pay or deliver possession of the properties to the legatee in accordance with the terms of the

Will. Even without so doing he can by an act of his, vest the legal or beneficial interest in the property in the legatee. For example, he can convey the properties in accordance with the terms of the Will to the legatees. Even apart from conveyance, he can by assent vest the beneficial interest in the property in the legatee. By assent it is meant, not an assent to the testator's disposition but an assent to such disposition taking effect, i.e., for vesting the property from the executor in the legatee. It is therefore implicit in the term assent that the executor is willing to vest the property in the legatee. Normally, an executor being liable to pay the debts of the deceased, might not be willing to vest the property in the legatee till the debts are paid and the administration is complete. But nothing prevents him in law from so vesting the property even before the debts are paid.

Following the principles of this decision we hold that after the attainment of majority of the legatees, the executors were merely functioning as defacto trustees, after having shed their character as executors, and that, in any event; by associating the sons in the various alienations and in the Court proceedings the executors must be deemed to have recognised the title of the legatees.

We may in this connection refer to a Bench decision of the Lahore High Court in AIR 1930 138 (Lahore) in which it was held that where the executor joined the legatees in a suit it was held to be an implied assent and it completed the legatee's title to the property. For all the reasons mentioned above, we are unable to concur with the view of the learned Judge.

We shall now take up points 2 and 3, namely, whether the Plaintiff has proved possession within 12 years and whether the first Defendant has perfected her title by adverse possession. On this aspect of the matter, the learned Judge has merely held that the suit is not barred by limitation, as it was filed within 12 years from the date of the execution of the sale deed by the receiver. There is no discussion or consideration of the evidence.

As observed earlier, the documentary evidence conclusively establishes that the receiver took possession of the suit property, amongst others, about the year 1940-41 and that he has been collecting the rents therefrom and was also paying the municipal and other taxes thereon. The accounts of the receiver which has been filed and marked as exhibit D-14 in this case place the matter beyond doubt. In fact learned Counsel for the Respondent did not controvert this factual position. After the debt due to V.L. Varadaraj was paid and satisfied the receiver continued in possession of the suit property also in pursuance of the order in Application No. 2761 of 1940 in Civil Suit No. 623 of 1931. The receiver has collected the rents from the suit property with the result, that the Plaintiff, at any rate, thereafter lost possession of the property. If the property was included in the mortgage in favour of Vasa Varadiah, the receiver's possession may be on behalf of the real owner. But when the Plaintiff contends that the suit property in the possession of the receiver was not included in the mortgage, she cannot claim the receiver's possession as her possession. The argument that the possession of the receiver who is an Officer of Court cannot be adverse against the Plaintiff does not advance the position of the Plaintiff. The rents have been collected and accounted to the mortgagee with the result that the mortgagee must be deemed to be in possession ousting the Plaintiff during that period. It may be that the Plaintiff may have a right to claim mesne profits from the mortgagee for having wrongfully obtained possession of the property when not included in the mortgage, but that is not the same thing as saying that the receiver's possession is that of the Plaintiff. On the facts it has to be held that the Plaintiff lost possession of the suit property as early as 1941, at any rate, when the debt of V.L. Varadaraj was satisfied, so that the Plaintiff had not made out possession of the property within 12 years prior to the suit.

In any event, we are of the opinion that the Plaintiff must be held to have lost possession at least from 15th December 1944, when the Court passed an order confirming the sale in favour of Nataraja Gramani in Application No. 2367 of 1944 in Civil Suit No. 623 of 1931. From that date the property must be deemed to have come into the possession of Nataraja Gramani and the first Defendant, with the consequence that by 25th December 1956, the first Defendant had perfected her title by adverse possession extinguishing the Plaintiff's rights, if any. Learned Counsel for the Respondent, however, contended that the material date is not the date when the Court confirmed the sale, but it is only 19th January 1945, when the receiver executed the sale deed in favour of the first Defendant and that the suit, having been filed on 19th January 1957, within 12 years from the date of the sale deed, is in time. His main point was that the sale by the receiver in this case is governed by the incidents of a private sale under the Transfer of Property Act, that, it cannot be regarded as a Court sale or a sale in execution of a decree and that the title to the property would pass to the purchaser only after complying with the formalities of execution and registration of the sale deed as provided under the Transfer of Property Act. A sale by a receiver under the orders of a Court who is an Officer of Court is no doubt not a sale in execution of a decree so as to attract all the incidents of an execution sale, but at the same time it is not to be regarded as a sale by private treaty in all its aspects. An examination of the case law both in England and in America shows that the view has been taken that when an offer made by the prospective purchaser to the receiver, or to any other officer conducting the sale, has been confirmed by the Court, and the entire sale price had been deposited as per orders of Court, the sale deed, though executed later in point of time, will date back and take effect from the anterior date when the offer by the purchaser was accepted and the sale confirmed by the Court after payment of the full purchase price.

Independently of the question of title dating back, it has also been held that the possession of a receiver is regarded as possession on behalf of the purchaser from the date on which the purchase ought to have been completed by the execution of the sale deed. This is obviously on the principle founded upon justice and good sense, that a delay on the part of the Court or on the part of any of its officers should not affect or prejudice the rights of parties. In LXXV Corpus 876, para 244, the law is stated citing the case of County Corporation of Maryland v. Semmes

182 ALT. Rep. 273, that the confirmation of the sale is retroactive and commonly relates back to the day on which sale was actually made. Vide also Alderson on receivers, page 816, Section 603 where the law is stated thus:

It has been held by the Supreme Court of the United States that the authority conferred by the Court upon the receiver to sell, carries with it the authority to give to the purchaser evidence of the transfer of title; and, while the contract of purchase is not binding upon a receiver until the sale is confirmed by the Court, a deed executed by him before the confirmation, although undoubtedly irregular, is not void but is only voidable. If the deed be executed, after the confirmation it would take effect by relation, as of the day of sale, and if confirmation should be refused, a deed already executed would become inoperative.

The learned author also refers to the case Koontz V. Northern Bank 16 Wall. 196, 201 in which it was held that a deed executed after the confirmation of the sale takes effect by relation as of the day of sale. Reference may also be usefully made to the decision Joseph Clayton Ld. In

Re. Smith v. The Co. (1920) 1 Ch. 257 in which Peterson J., while dealing with the incidents of a sale conducted under the directions of Court stated the matter thus at pages 264 and 265:

It is, I think, of some importance that the position of the highest bidder at an auction sale made under the direction of the Court should be remembered. One signs a bidding paper stating that he bid the sum set opposite to his name for and became the purchaser, of the lots specified in the particulars, and this with the certificate by the auctioner that the result of the sale is truly set out in the bidding paper and that he has received the deposits mentioned in the schedule is transmitted to chambers. The Master then certifies that the property has been put up for sale and that the persons named in the schedule to the certificate were the highest bidders for and they are allowed by the Judge to be the purchasers of the respective lots set opposite to their names in the schedule at the prices mentioned in the schedule. There is thus no memorandum or contract of sale signed by the vendor as in the ordinary case of sale by auction. As in the present case, the particulars and conditions intimate that the sale is by order of the Court, and that one of the Masters will certify the result of the sale, that the purchaser may attend to settle the certificate, that the certificate will then in due course be signed and filed and become binding. For many years this, or substantially this, has been the course adopted in sales by the Court. There is a series of decisions which establish that the purchaser was not entitled to the benefit of his purchase until the certificate of the result of the sale had become binding, but when the certificate became binding it related back to the date of the sale. See Daniell's Chancery Practice seventh edition, 855; Sudgen's Vendor and Purchasers thirteenth edition 79; Twigg v. Fifield 13 Ves. 517, Anonymous 2 Ves. 559, Ex parte Minor 11 Ves. 559 Anson v. Towgood 1 Jac. & W. 637, Vesey v. Elwood 3 D. & War. 74, M. Culloch v. Gregory 23 J.Ch. 656.

In Twigg v. Fifield 13 Ves, 517 it was held that the purchaser will be entitled to the benefit of his purchase and the income from the property from the time of the confirmation of the sale and when he paid the entire purchase money.

In the instant case the entire purchase money of Rs. 10,500 had been paid by 15th December 1944, and the Court acting through the receiver having received the said sum can hold the property in custodia legis for the benefit of the purchaser only. It is true that under English law an interest in immovable property is created in favour of a prospective purchaser even before the execution of the sale deed, while in India an agreement of sale does not create any interest in immovable property. This difference, however, does not in any way affect the applicability of the principle established in the English decisions referred to above. The title of the purchaser is held to date back to the date of the confirmation of the sale mainly on the ground that when an officer of Court conducts a sale and when the entire purchase price has been paid by the purchaser, any delay on the part of the officer of Court in implementing the sale by executing a formal deed should not prejudice the rights of the purchaser who relies upon the order of the Court. In fact that is the reason why in some of the cases the view has been taken that no formal sale deed even is really necessary and that the order of confirmation of Court and the payment of the entire purchase price are sufficient to convey title to the purchaser.

Learned Counsel for the Respondent drew our attention to the case in In re Bartlett 16 Ch. D. 561. We do no think it in any way supports the contention urged by him; further, this case has been considered in In re : Joseph Clayton, Limited Smith v. The Company (1920) I Ch. 257 referred to above. It stands to common sense and is in accord with elementary justice that when the purchaser has paid the entire purchase price the collection of the rents of the property thereafter by the receiver must ensure for the benefit of that purchaser.

Regarding point 4(6) we are of the opinion that when the sale is held expressly under orders of Court with a direction that the rights of parties should be confined only to the sale proceeds, it is clear that the property which is in the custody of the Court has been sold with a view to give a free title to the purchaser so far as the property was concerned. It must not be overlooked that the order Was passed in Civil Suit No. 623 of 1931 to which the present Plaintiff was also a party and the property was sold by the receiver who was appointed in that suit. When the receiver sells the property under the directions of the Court there is an implicit representation to the purchaser to secure to him a free title. The fact that the Plaintiff was not expressly made a party at the time when the order for sale was made cannot affect the rights of the purchaser. It may only be an irregularity and so long as the order for sale stands, the Plaintiff cannot make any complaint. Her remedy, if any is only to apply to the Court to set aside the order for sale. The arguments of learned Counsel for the Respondent on this aspect of the matter overlooks the fact that this order for sale was made with the receiver as a party. It is not necessary that every time when an order is passed by Court with regard to the properties in the custody of the receiver all the parties whose interests the receiver represents should be impleaded. In such a situation the receiver represents all the parties and no objection can be raised against the validity of the order for sale on the ground that any particular party was not impleaded eo nomine party to the proceeding in which the order for sale was passed by Court.

We heard arguments at some length from Counsel on both sides regarding point 4(a) and we are of opinion that even though some mistakes and discrepancies have occurred the suit property was included and covered by the equitable mortgage, as well as the preliminary and final decree in Civil Suit No. 623 of 1931. We have no doubt in our minds that so far as the mortgagors were concerned they did intend to include the suit property also under the equitable mortgage. The recitals in the mortgage deed executed by the mortgagors and their grandsons in favour of V.L.

Varadaraj on 27th April 1937, place the matter beyond doubt. Again when the property was sold to Nathmull, it was clearly on the footing that the suit property was included in the mortgage in favour of Vasa Varadiah Chetty. When the sub-mortgagee Alwar Chetty filed his suit, Original Suit No. 605 of 1931, which was tried along with Civil Suit No. 623 of 1931, the decree that was passed in favour of Alwar Chetty included the suit property and this can only be explained on the basis that the suit property was included in the original mortgage as well. Otherwise it is understandable how a sub-mortgagee can get a decree for sale of the suit property. The discrepancy was no doubt noticed in the sale proceedings in Original Suit No. 605 of 1931, and rectified. At that time none of the members of the family objected that this property should not be brought to sale, which surely they would have done if it had not been included in the original mortgage. Above all the conduct of the receiver in taking possession of the suit property, amongst others, and collecting the rents and profits without any objection from any of the members of the family is conclusive proof that the mortgagor's intention was to include the suit property also in the security in favour of Vasa Varadiah. The fact that there was some doubt or controversy as to whether the sale deed of the suit property was handed over to the mortgagee Vasa Varadiah and as to when exactly it was handed over cannot affect the legal position. Learned Counsel for the Respondent made some point about the fact that the suit property after it was purchased was under a mortgage in favour of the Nidhi. But this does not help the Respondent, as there is no proof that this mortgage in favour of the Nidhi was subsisting throughout and as to when it was discharged. At any rate there is no evidence as to the state of affairs at the time of the mortgage in favour of Vasa Varadiah. The bulk of the title deeds, over 30 in number, relating to both the properties appear to have been handed over to the mortgagee, so as to create a valid mortgage. If the idea was to include the suit property also in the security it is not necessary that all the title deeds of all the properties should be handed over to the mortgagee. It is sufficient if the deeds deposited bona fide related to the property and are material evidence of the title and it is not necessary that all the title deeds should be deposited. (Mulla, Transfer of Property Act, fourth edition page 359.) The burden of proof is undoubtedly upon the Plaintiff and she has not adduced evidence as to what exactly were the title deeds that were handed over to Vasa Varadiah Chetty. It is obvious that the true effect and the interpretation of the particulars about the properties, boundaries, extent, door numbers, etc., as mentioned in the several Court proceedings will have to be determined with reference to the title deeds that were handed over. The Plaintiff in the suit has significantly failed to throw any light on this question. When the decree in Civil Suit No. 605 of 1931, was amended the property mortgaged was described as 1 cawnie, 14 grounds, 1,537 square feet and this can be explained only on the basis that the mortgage comprised both the smaller and the bigger property. If the mortgage comprised the bigger property alone the area would have been mentioned as 1 cawnie and 12 grounds. The properties are contiguous, situated in the same place, and belonging to the same owner. Such evidence as there is shows, the mortgagors never made any distinction with regard to the suit property. The intention that can be gathered from all the circumstances and the probabilities of the case, having due regard to the fact that the property was in the enjoyment of the mortgagors as one item having been clubbed together as bearing one Survey Number 11/1 and paying consolidated quit-rent of Rs. 9.14 and that receiver also was in possession of the same is, that the mortgage comprised of both the items.

Taking the description itself it cannot be said that it takes in the bigger property only. The survey numbers, the door numbers and the extent do not by any means correspond solely to the bigger item. As observed earlier, when the mistake was pointed out by the office of the High Court in execution proceedings in Civil Suit No. 605 of 1931, the description in the mortgage was taken to comprise both the smaller and the bigger property. Even the very records which learned Counsel for the Respondent relied upon show, that the parties, have not adhered either to the old survey numbers and old door numbers solely or to new survey numbers but have clubbed and mixed up both. The first Respondent simply wants to take advantage of some discrepancy. When there is some mistake or error, the intention of the parties will have to be ascertained, and in this case it is best ascertained by their own admission in the mortgage deed in favour of V.L. Varadaraj in the year 1937.

In any event, the parties by their own conduct having allowed the receiver to enter into possession on the footing that the suit property was comprised in the mortgage would be estopped from contending to the contrary when the receiver has sold the property, and a bona fide purchaser has purchased the same relying upon the order of the Court and the possession of the receiver. By reason of their inaction and indifference and on account of their acquiescence of the receiver taking possession of the property the mortgagors would be clearly estopped from urging the present plea.

Learned Counsel for the Respondent placed considerable reliance upon the Bench judgment of this Court in Original Side Appeal No. 5 of 1947, exhibit P-25, as supporting his contention. We have carefully perused the judgment. With great respect to the learned Judges we do not find it of much assistance as there is simply a statement in that judgment that the item now in dispute was not included in that mortgage. Further, a perusal of the judgment shows that the learned Judges have almost taken it for granted that this property was not included in the mortgage. There is no discussion whatsoever on the question.

It only remains to deal with points 5 and 6. The property was brought to sale for the realization of the amount due in Civil Suit No. 623 of 1931, which is the mortgage decree, and the Plaintiff as the executrix undoubtedly had the benefit of that payment. When a sale which takes place under orders of Court is vitiated by some irregularity or mistake on the part of the Court, the party who seeks to set aside the sale should on principles of equity give restitution as a condition for setting aside the sale. When a purchase is set aside the purchaser will undoubtedly be entitled to be subrogated to the mortgagee whose debt was satisfied with the purchase price. Either on the principle of subrogation or on general principles of equity and justice, the Plaintiff cannot recover possession of the property without refunding the price paid by the first Defendant. From the above it follows that till the Plaintiff makes restitution, the possession of the first Defendant cannot be said to be wrongful so as to make her liable for mesne profits. So long as the Plaintiff has not deposited the amount payable by way of restitution, the first Defendant will be entitled to continue in possession. We, therefore, hold that the first Defendant is not liable for mesne profits.

Both sides have filed applications for reception of additional evidence consisting of documents of Court proceedings. As all the relevant facts of the various proceedings appear in the documents already filed and exhibited, we think there is no need to admit additional evidence, particularly when there is no agreement between the parties.

Before parting with the appeal, we think it necessary to advert to the thoroughly dishonest conduct which is being pursued by the Plaintiff up to the present moment and her husband till his lifetime. The records of various Court proceedings disclose the sorry and despicable course of conduct on their part. They had borrowed large sums of money on mortgages by deposit of title deeds, but when the respective creditors filed suits to enforce their claims, the Plaintiff and her husband (who claim to be executors) had no scruples in putting forward wholly false and untenable pleas.

They even went to the extent of denying the very deposit of title deeds and the factum of the borrowings. Learned Judges of this Court who tried those proceedings had no hesitation in negativing all such frivolous and unfounded pleas. At every stage of the numerous proceedings of the several creditors all the members of the family (the executors and the legatees) made common cause with complete oneness, and raised every conceivable obstacle to delay and obstruct the course of those proceedings. Taking the present litigation, it must be noticed that the so called estate of Munuswamy Naicker had once received the benefit of the sale in favour of Nathmull under which a large sum of money was paid by Nathmull.

Again, under the receiver's sale in favour of the first Defendant, a large sum of Rs. 10,500 has gone to the benefit of the estate towards the discharge of the mortgage decree. The son-in-law, Velu Naicker was adjudged an insolvent long ago and he is dead. The testator died in 1924, and after a lapse of 40 years, the argument is advanced with all seriousness that the administration of the estate is still incomplete and that the beneficiaries have no right to the properties bequeathed to them under the Will. It is sheer dry technicality with vengeance. It will be a deplorable and lamentable state of law and a sheer mockery of justice if such a plea were to be countenanced.

For all the reasons mentioned above, with great respect, we are unable to concur with the view taken by Kailasam J. We reverse the judgment and decree of the learned Judge and set aside the same and dismiss the Plaintiff's suit with costs of the Appellant throughout. The Respondent shall pay the Court-fee due to the Government.