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Subramonian Nadar Padmanabhan Nadar v. Chinnan Nadar Chellakkan Nadar And Others
Structured Summary of the Opinion (Vaidialingam, J.)
Factual and Procedural Background
The plaintiffs obtained a mortgage decree against Vedakannu Nadar in O.S. No. 192 of 1109 (decree dated 29-3-1109) and initiated execution proceedings to enforce mortgage rights and a personal decree. Vedakannu Nadar was subsequently executed (capital punishment carried out on 154-1109). In the execution, the plaintiffs brought on record Kannammai (also spelled Kannammal), the daughter of Vedakannu Nadar, who at that time was the only legal heir and was in possession of the deceased's properties. The plaintiffs purchased the properties in execution (sale certificate Ex. F dated 13-11-1119) and attempted to take possession, but the defendant obstructed, claiming rights under a will (Ex. I) purportedly executed by Vedakannu Nadar on 31-12-1104.
The executing court accepted the defendant's contention and dismissed the execution petition for possession (order Ex. A dated 18-7-1120). The plaintiffs then sued to set aside that order. At trial the court held for the plaintiffs, finding that impleading the daughter as the deceased's legal representative in execution proceedings was proper and that the defendant either did not know of the will or did not intervene despite knowledge (different findings on timing of awareness). The appellate court reversed as to items 6–18 (non-mortgaged properties) on the ground that the estate had not been properly represented, but upheld the trial court regarding mortgaged items 1–5. Both parties filed second appeals. Mr. Justice Joseph (in the second appeal) restored the trial court decree in favour of the plaintiffs, relying in part on earlier Division Bench authority. The present appeal by the defendant challenges that restoration; because of conflicting Travancore-Cochin High Court authorities, the matter was heard by a Full Bench.
Legal Issues Presented
- Whether the estate of Vedakannu Nadar was properly represented in the execution proceedings by bringing Kannammai (his daughter and sole legal heir) on record, such that the execution sale and subsequent proceedings bind the defendant.
- Whether the conflict in Travancore-Cochin High Court authorities (the Division Bench decision in V. Acha v. Maravanthuruthu Pakuthy, 1949 Ker LT 1 (AIR 1950 Trav.-Co. 1), and the later Full Bench decision in Chacko Pyli… v. Iype Varghese…, 1955 Ker LT 739 (AIR 1956 Trav.-Co. 147 (FB))) required reconsideration in the present appeal or mandated a different outcome on the facts of this case.
Arguments of the Parties
Appellant's Arguments (Defendant — represented by Mr. K.N. Narayanan Nair)
- Contended that the Division Bench authority relied upon by Justice Joseph (1949 Ker LT 1 : AIR 1950 Trav.-Co. 1) cannot sustain the conclusion that impleading the daughter amounted to proper representation because that Division Bench decision had been overruled by a later Full Bench in 1955 Ker LT 739 : AIR 1956 Trav.-Co. 147 (Full Bench).
- Challenged the judgment of Justice Joseph restoring the trial court decree; sought to upset factual findings adverse to the defendant (though the Full Bench expressed reluctance to permit reargument on those findings of fact in this further appeal).
Respondent's Arguments (Plaintiffs — represented by Mr. T.S. Krishnamoorthi Iyer)
- Accepted that the earlier Division Bench decision had been overruled by the later Full Bench decision, but contended that the Full Bench's views (1955 Ker LT 739 : AIR 1956 Trav.-Co. 147) were erroneous and ought to be reconsidered by this Court.
- Asserted that the plaintiffs acted bona fide in impleading the daughter (Kannammal), were unaware of any will or of the defendant's rights at the time of impleading, and that Kannammal was in actual possession and had taken all available defences in the execution proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| V. Acha v. Maravanthuruthu Pakuthy, 1949 Ker LT 1 : (AIR 1950 Trav.-Co. 1) | Authority concerning whether impleading some persons can amount to substantial representation of an estate in execution proceedings. | The judgment of Justice Joseph relied upon this Division Bench ruling to support the conclusion that the plaintiffs' impleading of the daughter amounted to proper representation of the deceased's estate. The Full Bench summary records that this earlier decision had subsequently been overruled by a later Full Bench. |
| Chacko Pyli… v. Iype Varghese…, 1955 Ker LT 739 : (AIR 1956 Trav.-Co. 147) (Full Bench) | Full Bench ruling that overruled the earlier Division Bench authority on the question of substantial representation in execution proceedings. | Noted by the Full Bench in the present case as having overruled the 1949 Division Bench decision. The defendant relied on this overruling; the plaintiffs asked for reconsideration of the Full Bench view. The Full Bench in the present opinion did not decide the correctness of this Full Bench authority because it held that the question of substantial representation did not arise on the facts of this case. |
| Malkarjun v. Narahari, HR 25 Bom 357 (Privy Council) | Privy Council authority referred to on matters relating to representation in execution proceedings (as one of several decisions considered by Justice Joseph). | Justice Joseph had referred to this Privy Council decision (among others) in his reasoning; the present Full Bench notes that such higher authority and other decisions would require careful and exhaustive consideration if the point of the Full Bench decision's correctness were directly before them. However, because of the specific factual findings, the Full Bench did not undertake that exhaustive review here. |
Court's Reasoning and Analysis
The Full Bench statement of reasoning proceeds in a series of factual and analytical steps:
- Procedural posture: The matter was referred to a Full Bench because the second appeal involved reliance on a Division Bench decision that had been overruled by a later Full Bench decision of the Travancore-Cochin High Court. The correctness of that later Full Bench decision was contested by the respondents, thus necessitating Full Bench consideration.
- Factual findings accepted: The Full Bench emphasized that there were categorical findings of fact recorded by the trial court and accepted by Justice Joseph in the second appeal. Those findings include: Kannammal was the deceased's daughter and sole legal heir (subject to the asserted will); Kannammal was in actual possession of the properties; the plaintiffs were unaware of any will or of the defendant's rights at the time they impleaded Kannammal; the plaintiffs conducted execution proceedings bona fide and without fraud or collusion; and the defendant either was not aware of or did not intervene in the execution proceedings despite later awareness.
- On the precedential conflict: Although the earlier Division Bench authority (1949 Ker LT 1) had been relied upon by Justice Joseph, and although that earlier authority had been overruled by a later Full Bench (1955 Ker LT 739), the Full Bench in the present case declined to engage in full reconsideration of the correctness of those authorities because it concluded that the legal question of "substantial representation" did not arise on the particular facts before them.
- Evidential sufficiency and deference on facts: The Full Bench stated it would not be inclined to permit reargument on findings of fact made by Justice Joseph in the second appeal. The court held that the factual findings against the defendant were amply supported by the record and therefore dispositive of the appeal.
- Practical application: Because the facts established that the deceased's daughter was the legal heir in possession, that the plaintiffs proceeded bona fide, and that the defendant did not contest the execution while it was ongoing, the court concluded that there was no occasion on the present record to decide the broader doctrinal conflict between the earlier Division Bench and later Full Bench authorities.
Holding and Implications
Holding: The Full Bench confirmed the judgment of Mr. Justice Joseph restoring the trial court decree and DISMISSED THE APPEAL.
Immediate implications:
- The plaintiffs' suit (to set aside the executing court's order and to enforce their rights) was decreed and the trial court's decree (as restored by Justice Joseph) stands.
- The parties were ordered to bear their own costs in this appeal (expressly recorded by the Full Bench).
Broader precedent: The Full Bench expressly declined to resolve the doctrinal conflict between the earlier Division Bench decision and the later Full Bench decision because it held the question of substantial representation did not arise on the facts. The opinion does not announce a new rule resolving that conflict; it disposes of the appeal on the factual findings accepted by the court.
End of summary.
Vaidialingam, J.:— In this appeal on behalf of the defendant-appellant, Mr. K.N Narayanan Nair, learned counsel, challenges the decree and judgment of our learned brother, Mr. Justice Joseph, restoring the decree of the trial court.
2. The matter was referred for decision by a Full Bench in view of the fact that certain principles laid down by a Division Bench judgment of the Travancore-Cochin High Court reported in V. Acha v. Maravanthuruthu Pakuthy, 1949 Ker LT 1 : (AIR 1950 Trav.-Co. 1) and followed by the learned Judge, in the disposal of the second appeal have been overruled by a subsequent Full Bench of the Travancore-Cochin High Court reported in Chacko Pyli… v. Iype Varghese…., 1955 Ker LT 739 : (AIR 1956 Trav.-Co. 147) (FB). The correctness of the latter decision of the Full Bench was challenged by Mr. T.S Krishnamoorthi lyer, learned counsel for the plaintiff-respondent. In view of this attack made against the Full Bench judgment as such, it was considered necessary to consider this appeal by a Full Bench of this court and that is why the matter has come before us. A few facts may be stated in order to appreciate the circumstances under which the second appeal came to be filed in this court. The plaintiff appears to have obtained a mortgage decree against one Vedakannu Nadar and there is no controversy that items 1 to 5 were mortgaged by the said Vedakannu Nadar in favour of the plaintiffs' father. In execution of the decree obtained by the plaintiffs to enforce the rights under the mortgage, namely, O.S No. 192 of 1109, they took out proceedings in execution for getting delivery of the properties. It is also seen that in execution of the personal decree that they had obtained against Vedakannu Nadar the plaintiffs had also attached certain other properties of the mortgagor apart from the properties mortgaged, namely, items 6 to 18.
3. The date of the decree in O.S 192 of 1109 is 29-3-1109 as will be seen from the copy of the decree, Ex. E. It is also seen that this Vedakannu Nadar was an accused in a criminal case, having been charged with committing the murder of his wife, and he was tried by the appropriate criminal courts and ultimately sentenced to be hanged by the neck and the sentence itself was carried out on 154-1109.
4. Therefore, it will be seen that Vedakannu Nadar was executed after the date of the decree, Ex. E, obtained by the plaintiffs.
5. In the proceedings taken by the plaintiffs for executing the decree they brought on record Kannammai, daughter of the said Vedakannu Nadar. There can be no doubt that at the time she was the only legal heir of Vedakannu Nadar.
6. Execution proceedings were continued with Kannammal on record and ultimately the properties were purchased by the plaintiffs as will be seen from the sale certificate, Ex. F, dated 13-11-1119. The plaintiffs attempted to take possession of the properties purchased by them in execution of the decree but the defendant caused obstruction. The defendant claimed rights in respect of the properties which were the subject of execution proceedings under a will, Ex. I, stated to have been executed by Vedakannu Nadar on 31-12-1104 and it was his contention that inasmuch as proceedings in execution had not been taken by impleading him on record, the entire execution proceedings should be declared null and void and they are not binding as against him or as against the properties to which he has become entitled on the basis of the will, Ex. I. The executing court upheld the claim made by the defendant and overruling the objections of the plaintiffs dismissed the execution petition for granting possession of the properties.
7. The plaintiffs in turn instituted the present suit out of which this appeal now arises for setting aside the order passed by the executing court under Ex. A dated 18-7-1120.
8. The main controversy in the suit was as to whether there has been a proper representation of the estate of Vedakannu Nadar in execution proceedings by his daughter being brought on record as his legal representative.
9. The trial court accepted the case of the plaintiffs and held that inasmuch as the daughter of Vedakannu Nadar was the legal heir and who was in complete possession of the entire properties of Vedakannu Nadar, the proceedings taken in execution by impleading her as the legal representative of the deceased person was quite proper and in this view negatived the defence raised by the defendant that the proceedings were not binding as against him.
10. There is also one other finding in the decree of the trial court to the effect that the defendant himself was not aware of either the execution of the will by Vedakannu Nadar in his favour on 31-2-1104 or of his being entitled to any rights under that will. But there is another finding to the effect that the defendant was aware of some rights under the will in or about 1111, but he took no steps whatsoever to intervene in execution proceedings and therefore he has no right to ask for the proceedings being held invalid so far as he is concerned. It is thus that the trial court decreed the suit.
11. There was an appeal against the decree and Judgment of the trial court and the appellate court reversed the decree of the trial court on the ground that the estate could not be said to have been properly represented inasmuch as the defendant was not made a party in the execution proceedings, at any rate, so far as items 6 to 18 were concerned. But so far as plaint items 1 to 5 which were the subject of the mortgage were concerned, even the appellate court was prepared to accept the contention of the plaintiff that the question of representation or Improper representations does not arise because there was already a charge created by the decree of the trial court.
12. But so far as items 6 to 18 were concerned, the appellate court reversed the decree of the trial court and held in favour of the defendant.
13. Both the plaintiff and the defendant appear to have filed second appeals attacking that part of the judgment of the appellate court which was against them.
14. Our learned brother, Mr. Justice Joseph ultimately has reversed the decree of the appellate court and restored that of the trial court. That is, the plaintiffs' suit has been decreed. The learned Judge is of the view that the plaintiffs had taken proceedings in execution by impleading Kannammai bona fide and were not aware of the rights of any person like the defendant under the will stated to have been executed by Vedakannu Nadar. Our learned brother is also of the view that on the date when execution proceedings were commenced by the plaintiffs Kannammai was in possession of the properties and she has also taken all defences available to her in respect of the proceedings taken in execution. Our learned brother is also of the view that the case of the defendant that he has been in possession of the property cannot be accepted and in fact the view of the learned Judge is that the defendant was not in possession of the properties while the execution proceedings were going on.
15. After recording these findings on facts as against the defendant and in favour of the plaintiffs, our learned brother has come to the conclusion that in the circumstances of this case it cannot be stated that there has been no proper representation of the estate of Vedakannu Nadar in execution proceedings. No doubt, it is also seen that our learned brother has placed reliance upon the Division Bench ruling of the Travancore Cochin High Court reported in 1949 Ker LT 1 : (AIR 1950 Trav.-Co. 1) which relates to the question as to whether there can be in law a substantial representation of the estate of a person in execution proceedings. The learned Judge after referring also to the decision of the Privy Council in Malkarjun v. Narahari, HR 25 Bom 357 (PC) and certain other decisions has ultimately come to the conclusion that the plaintiffs' suit must be decreed as prayed for.
16. It is this judgment of our learned brother that is attacked by Mr. K.N Narayanan Nair, learned counsel for the appellant.
17. Mr. K.N Narayanan Nair, learned counsel, urged that the decision in 1949 Ker LT 1 : (AIR 1950 Trav.-Co. 1) mainly on the basis of which our learned brother has coma to the conclusion that thr representation of Vedakannu Nadar's estate is proper by the impleading of his daughter as legal representative cannot be sustained in view of the fact that the said Division Bench Ruling has been overruled by a later Full Bench decision of the Travancore-Cochin High Court reported in 1955 Ker LT 739 : (AIR 1956 Trav.-Co. 147 (FB)). That the decision in 1949 Ker LT 1 : (AIR 1950 Trav.-Co. 1) has been overruled is a fact by the later Full Bench decision referred to above cannot be controverted. In fact, Mr. T.S Krishnamoorthi Iyer, learned counsel for plain-tiffs-respondents, does not also challenge the fact that the earlier decision has been overruled by the later Full Bench decision. But Mr. T.S Krishnamoorthi Iyer, learned counsel, urges that the views expressed by the Full Bench in 1955 Ker LT 739 : (AIR 1956 Trav.-Co. 147) (FB) are erroneous and has to be reconsidered by this Court.
18. If the point directly arises for consideration about the correctness or otherwise of the decision of the learned Judges of the Full Bench in 1955 Ker LT 739 : (AIR 1956 Trav.-Co. 147), the matter, in our opinion, will have to be considered very carefully and rather exhaustively also after having due regard to the various decisions governing this matter, some of which are Privy Council decisions also. But in our view in this case the question of substantial representation or otherwise does not at all arise in view of the categorical findings recorded by the trial court as against the defendant-appellant and accepted by our learned brother Mr. Justice Joseph in the second appeal. No doubt, there was an attempt by Mr. K.N Narayanan flair to challenge the findings recorded by our learned brother. We are not certainly inclined to permit an argument on a finding of fact recorded by our learned brother in this further appeal.
19. We are also satisfied that the findings arrived at by the learned Judge on facts are amply borne out by the materials available on record.
20. Both the decision in 1949 Ker LT 1 : (AIR 1950 Trav.-Co. 1) and the later Full Bench decision in 1955 Ker LT 739 : (AIR 1956 Trav.-Co. 147) (FB) were passed under different circumstances, the question as to whether when admittedly there were certain persons who were owners of the properties as co-owners the Impleading of only some of them can be stated to be a representation of the entire estate. That question does not at all arise before us because as we have mentioned earlier there is no question of substantial representation of the estate of Vedakannu Nadar arising for consideration in this appeal.
21. There is no controversy that Kannammal, the daughter of Vedakannu Nadar, was the legal heir but for the will that no doubt appears to have been executed by the deceased under Ex. 1. The plaintiffs were not aware of the execution of any will nor were they aware of the rights of the defendant at the time they brought on record the daughter of Vedakannu Nadar. There is also the further finding that the daughter of Vedakannu Nadar, who was his legal heir, was in actual possession of the properties and the findings are also to the effect that the defendant had no possession of the properties at the time when execution proceedings were taken and when Kannammal was impleaded as the legal representative of the deceased Vedakannu Nadar. It is rather curious that the person now contesting the execution proceedings, basing his rights on Ex. I executed by Vedakannu Nadar was himself, even according to his own evidence, not aware at all of the execution of the will or of his rights under the will at all, a any rate, till 1111. Even after becoming aware of his rights under the will though execution proceedings were being taken he never chose to intervene and contest the execution proceedings which were being continued as against the daughter of Vedakannu Nadar. The further finding also is that the plaintiffs were continuing the execution proceedings bona fide and without any fraud or collusion between him and the person who was on record, namely, the daughter of Vedakannu Nadar. Therefore, we will only wind up the discussion on this aspect by repeating what we have stated earlier, namely, the question of substantial representation of the estate or otherwise does not arise in these proceedings in view of the very specific and categorical findings recorded by the trial court as against the defendant and accepted by our learned brother. It follows that in the circumstances of this case the plaintiffs acted correctly and properly in impleading the legal their of Vedakannu Nadar who was in possession of the properties left by the deceased.
22. The decree and judgment of our learned brother are confirmed and this appeal dismissed. The parties will bear their own costs in this appeal.
HF/K.S.B
23. Appeal dismissed.
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