Soundaratharamal and Another vs Narayanaswami Aiyar and Others

Spencer, J.—The 1st plaintiff in this suit is the widow of a native Christian named Doraiswami Pillai. She was appointed executrix of his will

dated 11th October 1898 and obtained probate on the 3rd of January 1903 in the High Court. Plaintiffs 2 to 4 are persons who have purchased

certain properties of the testator which are included in Schedules B and C. The properties in A schedule are those which are retained in the

possession of the 1st plaintiff. The 1st Plaintiff claims that, in her capacity, as executrix of the will of her deceased husband, she has unrestricted

power, u/s 269 of the Indian Succession Act, to dispose of his property for meeting necessary expenses in such a manner as she may think fit. The

testator died on the 15th of September 1899 leaving four sons and four daughters. The will provided that the property should neither be sold nor

divided until all the sons were married and until they attained proper age and that upon this happening there should be an equal division among

them. The youngest son Dasa Pillai mortgaged his interest in these properties by three mortgage deeds of the year 1912, Exs. F. G. and II at a time

when he was according to the plaint, still a minor. The defendant sued him on the mortgages and obtained a decree against him in O.S. No. 190 of

1913. The present suit has been brought for a declaration that the suit properties belong to the plaintiffs and are not liable to be, sold in execution

of the decree obtained against Dasa Pillai and for an injunction against the decree-holder from bringing them to sale. The District Munsif gave the

plaintiff a decree as prayed for. On appeal the Subordinate Judge confirmed the Lower Court''s decree as regards properties in Ex. B and

dismissed the suit as regards A schedule properties comprised in Ex. C.

We think that there is no valid reason for making such a distinction. It is clear from the admissions in the plaint that some of the properties still

remain in the possession of the executrix and that her administration of the deceased''s estate has not been completed. The estate remains vested in

her until the properties are distributed (See Rangammal v. Sandanunal 9 M.L.J. 338) . So far as anything to the contrary has been said in

Adustippatti Venkata Rao v. Sami Pillai (1912) M.W.N 56 the observations are obiter dicta. Until the shares of the legatees have been determined

and allotted, it would be premature to say that Dasa Pillai can have no saleable interest. It is not alleged in the plaint that the possession of the

plaintiff''s has been interfered with in any way, and it cannot be regarded as a cloud upon the plaintiff''s title that the defendant has treated one of

the legatees under the will as having some interest in the property devised under the will when he has done so only in proceedings to which that

legatee alone was a party. If one legatee or a purchaser of his interest seeks to obtain actual possession of his share of the estate, he must do so in

the proper course of the administration, or, failing that, he must bring an administration suit for the purpose making the executrix under the will a

party. Whatever a third party may do in the course of the execution of decrees to which the plaintiffs are not parties will not affect their interests in

the suit property. Under these circumstances, we do not think it would be advisable to grant any declaration or injunction in plaintiff''s favour. They

are not entitled to any declaration until the defendant does something that will prejudicially affect their own titles.

The Second Appeal is therefore dismissed. The memorandum of objections is allowed and the plaintiff''s suit is dismissed. In view of the

contentions raised in paragraphs 8 and 9 of the written statement and in paragraphs 3 and 4 of the memorandum of objections, we direct that each

party do bear their own costs throughout.

Ramesam, J.

Without expressing an opinion on any of the questions raised in the case, I agree with my learned brother in holding that, at present, it would not

be advisable to grant any declaration or injunction in plaintiff''s favour. 1 concur in the order proposed by him.