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Rangaswami Naicker v. Rangammal (Died) By Proposed L R K.R Venkataswami Naidu.
Summary of Opinion
Factual and Procedural Background
The suit (O. S. No. 431 of 1962, District Munsif, Coimbatore) was instituted by Rangammal, a Hindu widow, against her husband's brother's son, Rangaswami Naicker (the appellant), to recover possession of 3.36 acres of land. The suit was compromised on 28-6-1963, by which Rangammal was allotted 1 acre 12 cents and the defendant the remainder. Rangammal died the day after the decree. Prior to the compromise (on 17-10-1962) she had executed a registered will in favour of her brother, Venkataswami Naidu, bequeathing the 3.36 acres and another house (the latter not concerned in the suit).
Relying on the will, the legatee Venkataswami Naidu filed E. P. No. 860 of 1963 to execute the decree. In the petition he described himself as the legal representative of the deceased decree-holder and prayed to be recognised as heir (legal representative) of Rangammal and for delivery of possession under Order 21, Rule 35, C.P.C.
The judgment-debtor, Rangaswami Naicker, resisted the execution petition on grounds that (1) the will was not genuine, (2) the genuineness had to be established in proceedings other than execution, and (3) absent the will he would be heir-at-law under Hindu law. The executing Court (District Munsif) held the genuineness of the will could be gone into in execution proceedings under Sections 47 and 146 C.P.C.; this view was upheld by the District Judge. The present appeal challenges that conclusion.
Legal Issues Presented
- Whether the genuineness of the will can be inquired into in execution proceedings under the executing Court's powers (notably Section 47 C.P.C.).
- Whether a person claiming under a will (here, Venkataswami Naidu) can maintain an execution petition under Section 146 C.P.C. even though the decree itself has not been assigned under Order 21, Rule 16, C.P.C.
- Whether Section 213 of the Indian Succession Act ousts the jurisdiction of the executing Court in the circumstances of this case.
Arguments of the Parties
Judgment-debtor (Rangaswami Naicker)
- The will is not genuine and its genuineness cannot be determined in execution proceedings.
- The genuineness of the will must be established in proceedings other than execution of O. S. No. 431 of 1962 (i.e., in a separate suit).
- In the absence of a valid will, he would be the heir-at-law under Hindu law and thus entitled to the property.
Claimant/Applicant (Venkataswami Naidu)
- He described himself as the legal representative of the deceased decree-holder and sought recognition as heir (legal representative) and delivery of possession under Order 21, Rule 35, C.P.C.
- Implicit in the petition is the contention that he can execute the decree as a person claiming under the decree-holder and that the executing Court may determine that claim under Section 47 and Section 146, C.P.C.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Beharilal v. Karamchand | Cited in relation to the applicability of Section 213 of the Indian Succession Act. | Referenced to support the view that Section 213 does not apply to the present case (will executed outside Madras city and properties situated outside Madras city). |
| Jugalkishore Saraf v. Raw Cotton Ltd. | Criterion laid down by their Lordships regarding assignment under Order 21, Rule 16, C.P.C. | Applied to hold Order 21, Rule 16 inapplicable here because the will did not assign the decree or refer to the suit; used to explain why Section 146 remains available. |
| Andhra Bank Ltd. v. Srinivasan | Holds that even a partial legatee under a will can be a legal representative under Section 2(11), C.P.C. | Used to support the proposition that Venkataswami Naidu, as a legatee, can be regarded as a legal representative and can claim under Section 146. |
| Saila Bala Dassi v. Nirmala Sundari Dassi | Where transferee of subject-matter is not transferee of decree, he may still apply under Section 146, C.P.C. | Placed among authorities that support allowing a transferee who is not assignee of the decree to maintain execution under Section 146. |
| Chinnan-kesavan v. Gouri Amma | Support for the proposition that Section 146 permits execution by transferees who have not been assigned the decree. | Relied on as part of the consistent line of cases allowing Section 146 petitions by such transferees. |
| Mani Davasia v. Varkey Scaria | Support for the proposition that Section 146 permits execution by transferees who have not been assigned the decree. | Cited as further authority following Jugalkishore Saraf that Section 146 is available to transferees. |
| Ram-nath v. Anardei Devi | Support for the proposition that Section 146 permits execution by transferees who have not been assigned the decree. | Included in the list of cases applying the principle that Section 146 allows such execution petitions. |
| Satyanarayana v. Sindhu Bai Sharma | Support for the proposition that Section 146 permits execution by transferees who have not been assigned the decree. | Cited as part of the body of authority upholding availability of Section 146 to transferees. |
| Ponniah Pillai v. Nataraja | Support for the proposition that Section 146 permits execution by transferees who have not been assigned the decree. | Relied upon as another case in the line permitting execution under Section 146 by transferees. |
| Sampath Mudaliar v. Sakuntala Animal | Contains a dissenting note (Jagadisan, J.) holding that Section 146 cannot be invoked unless there is an assignment in writing satisfying Order 21, Rule 16, C.P.C. | The court records the dissent and expressly dissents from Jagadisan, J.'s view, aligning with the majority view that Section 146 is wide and permits such execution petitions. |
Court's Reasoning and Analysis
The court proceeded step-by-step as follows:
- Jurisdiction to determine who is the legal representative of the decree-holder in execution lies with the executing Court under Section 47, C.P.C.; when a person claims to be the legal representative and seeks to execute a decree in that capacity, the executing Court must determine that question under Section 47.
- Section 47(2) allows the executing Court to treat proceedings under Section 47 as a suit, but where the question is primarily one relating to execution, there is no need to convert the proceedings into a separate suit; no provision ousts the executing Court's jurisdiction under Section 47.
- Section 213 of the Indian Succession Act does not oust the executing Court's jurisdiction here because, as the opinion notes, Section 213 applies only to wills of the classes specified in Clauses (a) and (b) of Section 57 (wills executed within Madras city or relating to property situated in Madras city). The will in this case was executed outside Madras city and the properties are in Coimbatore District; therefore Section 213 is inapplicable.
- Order 21, Rule 16, C.P.C. does not apply because the will does not assign the decree and does not refer to the suit; thus there has been no assignment in writing or by operation of law under that Rule according to the criterion in Jugalkishore Saraf v. Raw Cotton Ltd.
- Section 146, C.P.C. is available to a person claiming under the decree-holder. The court relied on authority (including Jugalkishore Saraf and Andhra Bank Ltd. v. Srinivasan) to hold that even a partial legatee may be regarded as a legal representative and that Section 146 is wide enough to permit such a transferee to maintain an execution petition, even if the decree itself has not been assigned under Order 21, Rule 16.
- The court noted a line of cases following Jugalkishore Saraf which permit a transferee of the subject-matter (who is not a transferee of the decree) to proceed under Section 146 to execute the decree. The court expressly rejected the narrower dissenting view in Sampath Mudaliar v. Sakuntala Animal that Section 146 is controlled by Order 21, Rule 16.
- Having concluded that the executing Court is the proper forum to determine whether Venkataswami Naidu is the legal representative and whether the will is genuine and operative to bequeath the property to him, the court dismissed the appeal.
Holding and Implications
APPEAL DISMISSED; the appeal is dismissed, but without costs. (The opinion also records "No leave.")
Direct consequences and implications stated by the court:
- The executing Court (under Section 47, C.P.C.) is the appropriate forum to determine whether the claimant (Venkataswami Naidu) is the legal representative of the decree-holder and whether the will is genuine and bequeaths the suit property to him.
- Order 21, Rule 16, C.P.C. does not apply on the facts because there was no assignment in writing of the decree; nevertheless Section 146, C.P.C. permits a person claiming under the decree-holder to maintain execution proceedings.
- Section 213 of the Indian Succession Act does not apply to oust the executing Court's jurisdiction in this case because the will and property are outside Madras city as those terms are used in the Act.
- The decision follows an established line of authorities permitting execution under Section 146 by transferees who have not been assigned the decree; the court explicitly rejects a contrary dissenting view in Sampath Mudaliar v. Sakuntala Animal.
The opinion addresses the proper exercise of execution jurisdiction and the availability of Section 146 to persons claiming under a decree-holder; it does not purport to lay down any novel rule beyond applying and aligning with existing authorities on these points.
1. 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.,
2. 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.
3. 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 under Section 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 under Section 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 Beharilal v. Karamchand, .
4. It is thus clear that it is the executing Court which has to determine whether Venkataswami Naidu is the legal representative under Section 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 v. Raw Cotton Ltd., . But, Venkataswami Naidu can maintain the petition under Section 146, C. P. C. as a person claiming under Rangammal. This is clear from the above decision itself and also the decision in the Andhra Bank Ltd. v. Srinivasan, where their Lordships held that even a partial legatee under a will can be legal representative under Section 2(11) C. P. C.
It has been held in a number of cases following Jugalkishore Saraf v. Raw Cotton 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 under Section 146 C. P. C., to execute the decree. See Saila Bala Dassi v. Nirmala Sundari Dassi, ; Chinnan-kesavan v. Gouri Amma, , Mani Davasia v. Varkey Scaria, 1960 Ker LT 1077, Ram-nath v. Anardei Devi, , Satyanarayana v. Sindhu Bai Sharma, and Ponniah Pillai v. Nataraja, . 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 Mad LJ 563=ILR (1964) 2 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 , 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 that in such a case, it is the duty of the executing Court alone under Section 47 to determine the question whether the transferee person seeking to execute the decree could be said to claim under the decree-holder under Section 146.
5. 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.
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