TMI Blog1999 (3) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... is wife, his elder son E.D. Sadanandan and a Chartered Accountant by name Paramasivan as executors of his Will. One of the executors, namely, Paramasivan later on relinquished his status as an executors. Therefore, the remaining two executors, namely, widow of the testator - Suseela and their elder son E.D. Sadanandan filed O.P. No. 231 of 1963 for probating the Will. The High Court before which the probate proceedings were initiated, granted the probate on 12.11.1963. It has come on record that the suit property in question was earlier leased to one S.V. Sivaramakrishana Iyer and during the pendency of the lease, the eldest son E.D. Sadanandan mortgaged the property with possession in favour of the original lessee S.V. Sivaramakrishna Iyer, son of S.G. Venkitachala Iyer for a consideration of ₹ 1,000 for a period of 12 years. It has also come on record that one Ramdass filed a money suit being O.S. No. 63/56 before the Subordinate Judge at Calicut against a Company by name Standard Cotton Silk Co. Ltd., of which the widow of Late Sadanandan - Suseela - and her eldest son E.D. Sadanandan were Directors along with the younger son Sadanandan, The said suit came to be decreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, came to be dismissed and the legal representatives of the original plaintiffs are now before this Court in this civil appeal. 4. In the appeal before the High Court, two points were canvassed for its consideration, namely, (I) whether the first defendant is entitled to the tenancy rights as pleaded by him; (ii) whether the prior sale by the executors will prevail or whether the court sale will have preference over it. Even though with regard to the first question, both the trial court and the lower appellate court had held against the defendants. In view of the fact that the lower appellate court had held in favour of the defendants on the second question, no separate appeal was preferred by the defendants with regard to the findings rendered by the first appellate court on the first question. However, it seems the said question was also seriously canvassed by the defendants before the High Court, taking recourse to the provisions of Order 41 Rule 22 of the CPC. The High Court after considering the materials on record and hearing the arguments of the parties, held on the first question that the document of mortgage Ex. A-1, is in fact only a rental arrangement of the buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors, who was also a legatee, having given his assent, though impliedly, the same is sufficient to divest the interest of the executors in the property as envisaged by Section 333 of the Act. Elaborating the contention it was argued that by the conduct of the executor elder Sadanandan it should be deemed that the property had been divested from the executors and the same had vested in the legatees. If so, the property had become available for attachment and court sale. This argument of the learned Counsel is based on the fact that the elder Sadanandan had executed a possessory mortgage as per Ex. A-1 on 6.1.1955 and this act of the elder Sadanandan who was also an executor, had divested the rights of the executors in the property and had made the property available for court sale since the same had vested in the legatees. Learned Counsel also contended that at any rate since younger Sadanandan had suffered a personal decree in O.S. No. 63/56, at least his share in the suit property was available for court auction. 7. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the contesting respondents, countered the arguments on behalf of the appellants by stating that the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. (See Section 332 of the Act). Of course, in law, by the assent of the executor the title of a specific property would pass on to the legatee and this assent could be verbal, express or implied. (See Section 333 of the Act), The appellants want us to infer that such an assent of the executor could be inferred from the act of elder Sadanandan in executing a possessory mortgage Ex. A-1 in favour of S.V. Sivaramakrishna Iyer by which act the elder Sadanandan had acted as a legatee which conduct is sufficient to infer at least the implied assent of the executor to the transfer of title in favour of the legatees. If so, in the eye of law, title of the property had vested in the legatees. Hence, the property in dispute was available in execution for satisfaction of the decree in OS No. 63/56. In our opinion, this pre-supposes the fact that the action of the lone executor would suffice to confer the title of the executors on the legatees. We are unable to agree with this proposition of law. Under Section 211 of the Act the property of the deceased testator vests in all the executors and if there are more than one executor, all of them together become legal representatives of the deceas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by them on 10.1.1964 in favour of the Kerala Transport Co. is valid and is not in any way inhibited or restricted by the attachment order of the executing court dated 27.11.1961 since all the executors were not parties to the execution proceedings nor was there any personal decree against them. If as found by us that the sale of the suit property on 10.1.1964 was a valid sale then the said property was not available for court sale. Consequently, by purchasing the property in court sale dated 17.9.1962, the appellants did not acquire any right, title or interest in the suit property. 11. In view of our finding that younger Sadanandan had only an inchoate right in the suit property, the contention of the appellant that at least to the extent of his share, the court sale should be upheld, cannot also be accepted. 12. In view of the finding given by us with regard to the validity of the private sale executed by Smt. Suseela and elder Sadanandan on 10.1.1964 and our consequential finding on the validity of the court sale, the question pertaining to the tenancy does not survive for our consideration. In this view of the matter, the judgment and decree of the High Court does not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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