Citation Codes

Equivalent Citations

citation codes

Case Number

O.S.A No. 59 of 1947.

Attorney(S)

Messrs. A.V Viswanatha Sastri, C.A Md. Ibrahim and T.S Santhanam for Appt.
Messrs. S. Suryaprakasam, N. Rajeswara Rao, B. Jagannadha Das and C.V Dikshitulu for Respts.

Judges

Horwill
Govindarajachari, JJ.

Acts

clause (c) of R. 1 of O. 45 of the O.S Rules,
S. 302 of the Indian Succession Act
O. 45, R. 1(f) of the O.S Rules
3(f) of O. 55 of the Rules

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Smart Summary

Structured Summary of the Opinion (Delivered by Govindarajachari J.)

Factual and Procedural Background

Dr. Doraiswami Pillai executed a will dated 9 September 1929 and died on 26 January 1930. Probate of the will was granted to Nagammal, the testator's widow, who was appointed sole executrix. By paragraph 7 of the will the house known as "Meena Lodge" (No. 3 Audiappa Mudali Street, Vepery) was devised in defined shares: one-fourth to the testator's daughter Meenambal Ammal (the plaintiff) and the remaining three-fourths among his sons Ramalingam, Gopalaswami, Arunachalam, Rathnam and another daughter Gnanambal Ammal (defendants 2–5). Arunachalam survived the testator but later died; defendants 6–11 are his legal representatives. The originating summons in question was converted into a suit and a judgment was given by Chandrasekhara Aiyar J.; the present matter is an appeal against that judgment.

Paragraph 7 of the will sets out multiple contingencies concerning management and enjoyment of Meena Lodge — (1) while Meenambal remained unmarried and Nagammal was alive, (2) after Nagammal's death if Meenambal remained unmarried, (3) Meenambal marrying during Nagammal's lifetime, and (4) after Nagammal's death and Meenambal's marriage. A separate sub‑paragraph provided that "if the joint ownership and enjoyment become at any time impossible" the executor(s) should sell Meena Lodge and distribute the proceeds among the testator's children.

At the time the originating summons was filed Meenambal had married and Nagammal was alive, a factual state falling within the third contingency identified in the will. The originating summons sought, among other things, a direction for sale of the house. The first defendant (the executrix Nagammal) supported the originating summons; the third defendant opposed it. The learned Judge ordered a sale; defendants 2 and 3 appealed against that decision.

Legal Issues Presented

Whether, in an originating summons under O. 45 of the O.S. Rules, the learned Judge had the power to direct a sale of the property when it is disputed whether the executrix has the power under the will to sell.
Whether the will, read as a whole and in particular the sub‑paragraph empowering the executor(s) to sell "if the joint ownership and enjoyment become at any time impossible," conferred on the executrix a present and exercisable power of sale in the factual circumstances existing when the originating summons was filed (i.e., Meenambal married and Nagammal alive).
Whether the originating summons was maintainable under O.45, R.1 (notably clauses (c), (f) and (g)) of the O.S. Rules, and alternatively whether S.302 of the Indian Succession Act provided a proper basis for the court's directions.

Arguments of the Parties

Arguments advanced by defendants 2 and 3 (Appellants) — Mr. Viswanatha Sastri

Contended that the learned Judge, sitting on an originating summons, had no power to direct a sale unless it was first held that the executrix had the power to sell under the will.
Relied on the decision in Re Robinson Pickard v. Wheater to argue that under the relevant rules the Court can approve a sale only when executors or trustees could themselves have made such a sale.
Emphasized the clause that directs distribution of sale proceeds "among my said children" and argued that exclusion of the widow from distribution suggested the testator intended sale only at a time when the widow was no longer alive.

Arguments advanced for the executrix and supporting parties — Mr. Jagannatha Das

Submitted that Meenambal, as a devisee, could ask for a direction to the executrix to sell under clause (c) of R.1 of O.45 (i.e. asking the executrix to do a particular act in their character as executrix).
Argued that the executrix could seek the court's approval of a contemplated sale under O.45, R.1(f), and that a legatee's application for direction was appropriate if the executrix could have applied herself.
Pointed to S.302 of the Indian Succession Act as an alternative statutory basis permitting the High Court to give directions to an executor regarding the estate; he noted this provision would prima facie apply but did not insist on resting the judgment upon it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Robinson Pickard v. Wheater	Authority for the proposition that, under the rules governing originating summonses, the Court can approve a sale only when the executors or trustees could themselves have made the sale (as stated by Pearson J.).	The court treated this decision as establishing the preliminary proposition that, if the executrix had no power to sell under the will, the learned Judge could not properly order a sale on originating summons. The court therefore considered whether the will did, in fact, confer a present power of sale on the executrix and concluded that it did; once that conclusion was reached the technical objection based on Re Robinson Pickard v. Wheater fell away and the sale direction was held to be maintainable.

Court's Reasoning and Analysis

The court began by identifying the crux of the controversy as whether the will conferred on the executrix a power to sell Meena Lodge in the factual circumstances extant when the originating summons was instituted. The learned Judge below had ordered a sale but had not expressly recorded a view on the executrix's power; the appellate court therefore undertook the interpretative exercise.

The court examined the sale sub‑paragraph of clause 7 which provides that "if the joint ownership and enjoyment become at any time impossible" the executor(s) shall cause Meena Lodge to be sold and proceeds distributed among the children. The court interpreted the phrase "at any time" broadly and refused to read the sale provision as restricted to the single contingency consisting of both the death of the widow and the marriage of Meenambal. Two interpretive inferences guided the court:

The explicit language empowering the "executor or executors" to sell indicates an intention that the power be exercisable during the lifetime of the executrix (i.e., not only after the executrix's death).
The fact that the will directs distribution of sale proceeds exclusively among the children does not compel the conclusion that sale was intended only after the widow's death; the will otherwise gives the widow an enjoyment (a right to receive a portion of rent) which applies only so long as the house is not sold and which the executrix can terminate only by electing to exercise the power of sale (which necessarily would extinguish the widow's right of enjoyment).

The court therefore held that the sale clause "cuts across" the earlier contingent provisions and creates a power exercisable by the executrix when joint ownership and enjoyment have become impossible. The factual finding — not disputed before the court — that frequent quarrels between the executrix and the legatees had made joint ownership and enjoyment impossible satisfied the precondition for exercise of the sale power.

On procedural maintainability the court analyzed the originating summons provisions of O.45, R.1. It noted:

Clause (f) of R.1 permits approval of a sale or other transaction;
Clause (c) permits a devisee to seek a direction to the executrix to do a specific act (such as to sell); and
Clause (g) permits determination of questions arising in administration of the estate or trust and could therefore embrace disputes as to the executrix's power.

Putting these aspects together, and having concluded that the will did confer a present power of sale on the executrix which was exercisable in the then circumstances, the court found no objection to the first prayer in the originating summons (the direction for sale). The court further observed that S.302 of the Indian Succession Act also prima facie authorized the High Court to give directions to an executor but declined to rest the decision on that provision because the matter fell properly within O.45, R.1.

The court expressly limited its determination to the question of the direction for sale and did not decide how far other prayers in the originating summons fell within the scope of O.45, R.1.

Holding and Implications

Holding: The court's final disposition was that the appeal failed and was dismissed with costs. The core ruling can be stated as: The appeal is dismissed with costs.

Implications:

Direct effect on parties: The order of the learned Judge directing sale of Meena Lodge stands because the appellate court concluded that the will granted the executrix a present power to sell the property when joint ownership and enjoyment had become impossible, and that the originating summons provided a proper procedural vehicle for seeking that direction. The technical objection based on the need to show that the executrix herself could have sold before the court approved a sale was answered by the court's construction of the will in favour of a present power.
Procedural note: The court held that the matter fell within O.45, R.1 (clauses (c), (f) and (g)), and although S.302 of the Indian Succession Act was identified as an alternative basis for making directions to an executor, the judgment was not founded on that statutory provision.
On precedent/new law: The opinion applied established interpretive principles and applied Re Robinson Pickard v. Wheater to frame the issue, but it did not purport to lay down any novel legal principle or overrule existing authority. The decision is confined to construing the particular will and holding that the executrix had the requisite power to sell in the circumstances described; the court did not state a broader precedent beyond the application of existing rules and authorities.

Note: This summary is confined strictly to the matters addressed in the provided opinion and does not add information beyond that text.

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D. Gnanambal And Another v. Sreemathi Meenambal Sundaram And Others.

(Delivered by Govindarajachari. J.)

This is an appeal against the judgment of Chandrasekhara Aiyar J. in an originating summons converted into a suit.

One Dr. Doraiswami Pillai died on 26th January 1930 after having executed a will dated 9th September 1929. Probate was issued to Nagammal, the widow of the testator and the sole executrix under his will. It is unnecessary to set out the terms of the will in any detail. By paragraph 7 of the will the testator bequeathed the house described as “Meena Lodge” No. 3 Audiappa Mudali Street, Vepery, to his daughter Meenambal Ammal for a one-fourth share, the remaining three-fourths share being bequeathed to his sons Ramalingam, Gopalaswami, Arunachalam and Rathnam and another daughter Gnanambal Ammal for their absolute use and benefit. Meenambal is the plaintiff in the suit. Nagammal is the first defendant while Gnanambal, Ratnam, Ramalingam and Gopalaswami are respectively the 2nd, 3rd, 4th and 5th defendants. Arunachalam survived the testator but subsequently died and defendants 6 to 11 are his legal representatives. The first defendant supported the originating summons while the third defendant opposed it.

The clause in the will bequeathing the house to Meenambal and to the testator's other children is declaredly subject to the limitations specifically mentioned later in the will. These limitations were occasioned by two considerations. At the time of the execution of the will the daughter Meenambal was unmarried and provision had therefore, to be made for her education, maintenance etc. Provision had also to be made for the maintenance of the testator's widow, Nagammal. In a desire to make this two-fold provision the testator gave directions in the subsequent sentences in paragraph 7 of the will as to how the property was to be managed and enjoyed. Without setting out these provisions with any particularity it may be stated that there were four contingencies which the testator thought of. The first contemplated the period during which Meenambal may remain unmarried, Nagammal being alive. Another contingency was that Nagammal may die and Meenambal may still remain unmarried. A third possible situation was that Meenambal may get married during the lifetime of Nagammal while the fourth contingency would arise after the death of Nagammal and the marriage of Meenambal.

It is common ground that Meenambal was married before the filing of the suit. It is also admitted on both sides that the state of things which existed at the time when the originating summons was filed, that is to say, the period after the marriage of Meenambal and during the lifetime of Nagammal, corresponds to the third of the contingencies mentioned above. The concerned clause of the will provided that after Meenambal's marriage the house should be let by Nagammal and that the rents should be divided by giving Meenambal 1/4th share and distributing the remaining 3/4th share among the five other children and the widow. After giving these several directions for the management and enjoyment of “Meena Lodge” during the four stages or periods already enumerated the testator provided in a separate sub-paragraph of Cl. 7 for the sale of the house and distribution of the sale proceeds. This sub-paragraph may be set out in full:

“Again if the joint ownership and enjoyment become at any time impossible I direct my executor or executors during the said time shall cause the said ‘Meena Lodge’ to be sold away for the highest price and the proceeds thereof shall be similarly distributed among my said children and that they shall thereafter become the absolute owners of their several shares above mentioned.”

The discussion before us principally centred round the construction of this provision. We may now state how the construction of this clause becomes material for the disposal of the appeal.

The contention of Mr. Viswanatha Sastri the learned Advocate for defendants 2 and 3 who have filed this appeal is that in an originating summons the learned Judge had no power to direct, as he has done, a sale of the house. It is argued that the learned Judge should have first decided whether the executrix Nagammal has power to sell under the clause which has been quoted and that it is only if the executrix has such power that the Court may order a sale. In support of this argument Mr. Viswanatha Sastri relied on a decision in Re Robinson Pickard v. Wheater (1) in which it was held by Pearson J. that under R. 3(f) of O. 55 of the Rules of the Supreme Court corresponding to O. 45, R. 1(f) of the O.S Rules of this Court the Court can approve of a sale only when the executors or trustees of a will or deed to which the originating summons relates could have made one themselves. O. 45, R. 1 of the O.S Rules of this Court runs as follows:

“The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument or any of them, and any parson claiming to be interested in the relief sought as creditor, devisee, legatee, heir or legal representative or as cestui qui trust under the trusts of any deed or instrument, or as claiming by assignment or otherwise, under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable before the Judge sitting in Chambers for such relief of the nature or kind following as may by the summons be specified and the circumstances of the case may require, (that is to say), the determination without an administration of the estate or trust, of any of the following questions or matters:—

(e) directing the executors, administrators, or trustees to do or abstain from doing, any particular act in their character as such executors, administrators or trustees;

(f) the approval of any sale, purchase, compromise or other transaction and,

(g) the determination of any question arising in the administration of the estate or trust.”

If the executrix has no power to sell it must be taken under the ruling in Re Robinson Pickard v. Wheater , that it is not competent to the learned Judge to make the order now under appeal.

The real question, therefore, is whether the will provided for a sale of the house by the executrix in the circumstances existing on the date of the suit. The learned Judge has not considered this aspect of the case and has not recorded his opinion. But we have had a full discussion as to the true interpretation of the relevant clause and notwithstanding some obscurity in its language we have come to the conclusion that there is power in the executrix to sell and that it is now exercisable. It will be noticed that after providing for several contingencies in the first sub-paragraph of paragraph 7 of the will the testator goes on in the second sub-paragraph to provide that if the joint ownership and enjoyment becomes at any time impossible his “executor or executors” should cause the house to be sold. There is no reason why full effect should not be given to the words “At any time” and why this clause should be read only as applying to the last of the contingencies contemplated by the will, namely, the marriage of Meenambal and the death of Nagammal. The very fact that the testator directed his executrix to sell the house is some indication that the power is exercisable during her lifetime and is therefore not restricted to the fourth stage which as a matter of fact, arises only after the death of the executrix. Mr. Viswanatha Sastri laid some emphasis upon the direction in the clause that the proceeds of the sale shall be distributed among the children of the testator and argued that since the widow of the testator is not to participate in the distribution there is an indication that the sale should take place at a time when the widow is no longer alive. This argument is answered by the provision at the very commencement of the will whereby the devisees of the house are the testator's children alone to the exclusion of the widow. It is quite probable therefore that if the house came to be sold the testator intended that the sale proceeds should be distributed among the devisees along and that his widow should have no share in them. The enjoyment of a portion of the rent of the house in certain contingencies by his widow is no doubt provided for but that enjoyment can be had only when the house is not sold. Moreover the right of enjoyment reserved to the widow in those contingencies cannot be terminated without her concurrence because the direction to sell is only to the executrix and it is only if the executrix is willing to sell the property and thereby extinguish her right of enjoyment that the sale can take place. We have, therefore, no doubt that the clause empowering the executrix to sell the property is a clause which cuts across the preceding sentences and the several contingencies contemplated therein. If the executrix has power to sell, the technical objection as to the maintainability of the originating summons disappears.

It is not now disputed that owing to the many and frequent quarrels between the executrix and the legatees which the learned Judge has described, joint ownership and enjoyment of the house has become impossible.

As has been pointed out by Mr. Jagannatha Das, learned Advocate for the executrix, Meenambal as a devisee under the will can, under clause (c) of R. 1 of O. 45 of the O.S Rules, ask for a direction to the executrix to do a particular act, namely, to sell the property. That in fact is what she asked for. It is not denied that the executrix can seek the approval of the Court to any contemplated sale which may be either by private treaty or by public auction so that if the executrix could have filed an application under O. 45, R. 1(f) there can be no objection to an application being made by a legatee for a direction that the executrix should sell the property.

The originating summons presumed a power in the executrix to sell the property in the circumstances existing at the time of its institution. This power no doubt is denied by defendants 2 and 3 but even if there is any question as to whether the executrix has the requisite power or not the determination of this question will legitimately fall under clause (g) of R. 1 of O. 45 of the O.S Rules.

Whichever way we may look at it, therefore, there is in our opinion no objection to the first prayer in the originating summons. We are now confining ourselves merely to the direction which the learned Judge has given in regard to the sale of the property. It is unnecessary for us to say whether and how far the other prayers in the originating summons fall within the scope of an application made under O. 45, R. 1.

It has, further been pointed out by Mr. Jagannatha Das that the proceeding is maintainable also under S. 302 of the Indian Succession Act which provides that where probate or Letters of Administration in respect of any estate has or have been granted under the Act the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof. This provision too would prima facie seem to be applicable, but it is unnecessary to rest our judgment on S. 302 of the Indian Succession Act as in our opinion the first prayer in the originating summons falls within the proper scope of an application under O. 45, R. 1 of the O.S Rules.

The result is that the appeal fails and is dismissed with costs.

N.R.R

D. Gnanambal And Another v. Sreemathi Meenambal Sundaram And Others.

Structured Summary of the Opinion (Delivered by Govindarajachari J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Arguments advanced by defendants 2 and 3 (Appellants) — Mr. Viswanatha Sastri

Arguments advanced for the executrix and supporting parties — Mr. Jagannatha Das

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

D. Gnanambal And Another v. Sreemathi Meenambal Sundaram And Others.

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