Rangaswami Naicker vs Rangammal (died) by proposed L.R., K.R. Venkataswami Naidu

Venkataraman, J.—This appeal arises out of proceedings in the execution of the decree in O. S. No. 431 of 1962 on the file of the District

Munsif, Coimbatore. The suit was instituted by one Rangammal, a Hindu widow, against her husband''s brother''s son, Rangaswami Naicker, the

appellant herein, to recover possession of 3.36 acres of land in a village in Coimbatore. The suit was compromised on 28-6-1963, according to

which the plaintiff was entitled to a specified extent of 1 acre 12 cents and the defendant to the remainder. Rangammal, however, died the very

next day after the decree. Earlier, on 17-10-1962, she had executed a registered will in favour of her brother, Venkataswami Naidu, bequeathing

the subject-matter of the suit, namely, 3.36 acres and another house, not concerned in the suit. The will, of course, would take effect only on her

death. Founding on the will, the legatee, Venkataswami Naidu, filed E. P. No. 860 of 1963, out of which this appeal arises, to execute the decree.

In column 1, he described himself as legal representative of the deceased Rangammal, the decree-holder. In column 11, he prayed that he might be

recognised as the heir (legal representative) of the decree-holder Rangammal, and possession might be delivered to him under Order 21, Rule 35,

C. P. C.,

The judgment-debtor, Rangaswami Naicker, resisted the petition on the grounds (1) that the will was not genuine, (2) that its genuineness had to

be established in proceedings other than in execution of O. S. No. 431 of 1962 and (3) that but for the will he would be the heir-at-law of

Rangammal under the Hindu law.

The question whether the genuineness of the will could be gone into in the execution proceedings was tried as a preliminary point The learned

District Munsif held that it could be gone into in the execution proceeding itself in view of Sections 47 and 146 C. P. C. The view was upheld on

appeal by the learned District Judge. Hence this further appeal by Rangaswami Naicker. The contention of his learned counsel is that

Venkataswami Naidu should be referred to a separate suit to establish the will and only thereafter he could be allowed to execute the decree. No

authority however is cited for this proposition and this proposition is opposed to the statutory provisions like Sections 47 and 146, C. P. C. When

Venkataswami Naidu claims to be the legal representative of the decree-holder Rangammal and further claims to be entitled to execute the decree

in that capacity, the question has necessarily to be tried u/s 47 by the executing Court Section 47(2), no doubt, says that the executing Court may

treat a proceeding under that section as a suit, but where the question is one primarily relating to execution, there is no need to convert it into a suit.

Apart from this there is no provision of law which ousts the jurisdiction of the executing Court u/s 47, C. P. C. Thus Section 213 of the Indian

Succession Act will not apply so as to oust the jurisdiction of the executing Court, because it clearly enacts that so far as a will made by a Hindu is

concerned, it will only apply where the will is of the classes specified in Clauses (a) and (b) of Section 57, and if we turn to Clauses (a) and (b) of

Section 57, they refer to a will executed within the city of Madras or relating to property situated in Madras city. But here, the will was executed

outside the city of Madras and the properties also are situated in Coimbatore District. Hence Section 213 will not apply. See also the decision in

Behari Lal Ram Charan Vs. Karam Chand Sahni and Others, .

It is thus clear that it is the executing Court which has to determine whether Venkataswami Naidu is the legal representative u/s 47. A question

may arise about the exact provision under which the Court may proceed. The possible provisions are Order 21, Rule 16, and Section 146, C. P.

C. Order 21, Rule 16, C. P. C., will not apply because the will does not assign the decree; in fact, it does not refer to the suit at all. Hence there

has not been any assignment in writing or by operation of law under Order 21, Rule 16, C. P. C. according to the criterion laid down by their

Lordships of the Supreme Court in Jugalkishore Saraf Vs. Raw Cotton Co. Ltd., . But, Venkataswami Naidu can maintain the petition u/s 146, C.

P. C. as a person claiming under Rangammal. This is clear from the above decision itself and also the decision in the The Andhra Bank Ltd. Vs. R.

Srinivasan and Others, where their Lordships held that even a partial legatee under a will can be legal representative u/s 2(11) C. P. C.

It has been held in a number of cases following Jugalkishore Saraf Vs. Raw Cotton Co. Ltd., that where a transferee of the subject-matter of the

suit is not a transferee of the decree and therefore cannot apply under Order 21, Rule 16, C. P. C., he can nevertheless apply u/s 146 C. P. C., to

execute the decree. See Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, ; Chinnan Kesavan Vs. Gouri Amma, , Mani Davasia v.

Varkey Scaria, 1960 Ker LT 1077, Ram Nath Modi and Others Vs. Anardei Devi and Others, , Satyanarayan Vs. Sindhu Bai Sharma, and

Ponniah Pillai Vs. T. Natarajan Asari, . There is only one decision in which a dissenting note has been struck and that is by Jagadisan, J., in

Sampath Mudaliar v. Sakuntala Animal, (1964) 2 MLJ 563 ILR (1964) Mad 363, where the learned Judge held that once a decree is passed,

unless there is an assignment in writing of the decree to satisfy Order 21, Rule 16, C. P. C., Section 146 cannot be invoked and that Section 146

would be controlled by Order 21, Rule 16, C. P. C. For the reasons discussed in the decisions cited above, I respectfully dissent from the view

taken by Jagadisan, J., and agree with the view of Kailasam, J., in Ponniah Pillai Vs. T. Natarajan Asari, , that as pointed out by their Lordships of

the Supreme Court, Section 146 is very wide in its terms and would permit a transferee like the respondent herein to maintain an execution

petition, even though the decree as such has not been transferred to him under Order 21, Rule 16, C. P. C. Their Lordships have emphasised that

Section 146, C. P. C. will apply so long as there is no prohibition to the contrary. There is no such prohibition here. It may also be pointed out that

Das, J., points out at pages 1405 and 1406 in Jugalkishore Saraf Vs. Raw Cotton Co. Ltd., that in such a case, it is the duty of the executing

Court alone u/s 47 to determine the question whether the transferee person seeking to execute the decree could be said to claim under the decree-

holder u/s 146.

It is quite clear therefore that the executing Court is the proper Court to determine the question whether the will Ss genuine and the property in

question was bequeathed to the claimant Venkata- swami Naidu thereunder. The appeal is therefore dismissed, but without costs. No leave.