Case: K Leelavathy Bai &amp; Ors Vs. P V Gangadharan &amp; Ors

by the executors on 10.1.1964 was an invalid sale. Thus, the suit property was legally available for court sale. 9. On facts, there is no dispute that the testator had originally appointed 3 persons as executors of his Will, and after the relinquishment of his duties as executor by Mr. Paramasivan, still two other executors were left, namely, Smt. Suseela and Mr. E.D. Sadanandan (elder one) who continued to be the joint executors of the Will in question. Under Section 211 of the Act, these two executors became the legal representatives of the deceased testator for all purposes and the properties bequeathed vested in these two executors. Until and unless the said executors assent, the title of the property would not pass on the legatee. (See Sec. 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 Sec. 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 O.S. 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 became legal representatives of the deceased testator. In such a situation, it is futile to contend that the estate of the deceased testator could be either controlled or represented by one of the legal representatives of the deceased to the exclusion of other legal representatives. We find support for this conclusion of ours from the judgment of this court, referred to above, which is incidentally a case arising out of the same Will which is involved in this case. The view expressed in that case, though arising out of income-tax proceedings, applies on all fours to the facts of this case also. This Court in that case held : "If there are more than one executor of a deceased person all of them will be his representatives, and for the purpose of section 24B(2), all of them only can represent the estate of the deceased." 10. On facts, there is no dispute that one of the executors, namely, Mrs. Â? Suseela did not join the other executor in execution of Ex. A-1. Hence, the Â? act of elder Sadanandan in executing Ex. A-1 would not in any manner amount to Â? assenting to vesting of the bequeathed property on the legatees because the Â? elder Sadanandan could not have represented the estate independently to the Â? exclusion of other legatee. Any such unilateral act of any single executor the sole executor, Â? when there are more than one executor, would not bind the estate of the Â? deceased. The contention of the appellant based on Section 311 of the Act Â? also, according to us, does not in any way help the case of the appellant. Â? Though Section 311 says that in the absence of any direction to the contrary Â? in the case of several executors, powers of all may be exercised by any one of Â? them but this Section itself says that such exercise of power by one of the Â? executors should be by any one of them who has proved the Will, on the date of Â? execution of Ex. A-1. In this case, the Will in question was not even Â? probated much less proved by elder Sadanandan to attract the enabling Â? provision of Section 311. Therefore, in our opinion, the act of elder Â? Sadanandan cannot be protected under Section 311 of the Act and the said Act Â? cannot be construed as grant of an implied assent as contemplated in Sections Â?37Â?3 Â?Å 332 and 333 of the Act. If this be so, the right of a legatee will remain to Â? be an incohate right in legacy and the executors will continue to have their Â? right under the Will. Therefore, the executors having obtained the probate on Â? 3.1.1963, the sale made by them on 10.1.1964 in favour of the Kerala Transport Â? Co. is valid and is not in any way inhibited or restricted by the attachment Â? order of the executing court dated 27.11.1961 since all the executors were not Â? parties to the execution proceedings nor was there any personal decree against Â? them. If as found by us that the sale of the suit property on 10.1.1964 was Â? valid sale then the said property was not available for court sale. Â? Consequently, by purchasing the property in court sale dated 17.9.1962, the Â? 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 incohate 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. On facts, there is no dispute that the testator had originally appointed 3 persons as executors of his Will, and after the relinquishment of his duties as executor by Mr. Paramasivan, still two other executors were left, namely, Smt. Suseela and Mr. E.D. Sadanandan (elder one) who continued to be the joint executors of the Will in question. Under Section 211 of the Act, these two executors became the legal representatives of the deceased testator for all purposes and the properties bequeathed vested in these two executors. Until and unless the said executors assent, the title of the property would not pass on the legatee. (See Sec. 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 Sec. 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 O.S. 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 became legal representatives of the deceased testator. In such a situation, it is futile to contend that the estate of the deceased testator could be either controlled or represented by one of the legal representatives of the deceased to the exclusion of other legal representatives. We find support for this conclusion of ours from the judgment of this court, referred to above, which is incidentally a case arising out of the same Will which is involved in this case. The view expressed in that case, though arising out of income-tax proceedings, applies on all fours to the facts of this case also.On facts, there is no dispute that one of the executors, namely, Mrs. Â? Suseela did not join the other executor in execution of Ex. A-1. Hence, the Â? act of elder Sadanandan in executing Ex. A-1 would not in any manner amount to Â? assenting to vesting of the bequeathed property on the legatees because the Â? elder Sadanandan could not have represented the estate independently to the Â? exclusion of other legatee. Any such unilateral act of any single executor the sole executor, Â? when there are more than one executor, would not bind the estate of the Â? deceased. The contention of the appellant based on Section 311 of the Act Â? also, according to us, does not in any way help the case of the appellant. Â? Though Section 311 says that in the absence of any direction to the contrary Â? in the case of several executors, powers of all may be exercised by any one of Â? them but this Section itself says that such exercise of power by one of the Â? executors should be by any one of them who has proved the Will, on the date of Â? execution of Ex. A-1. In this case, the Will in question was not even Â? probated much less proved by elder Sadanandan to attract the enabling Â? provision of Section 311. Therefore, in our opinion, the act of elder Â? Sadanandan cannot be protected under Section 311 of the Act and the said Act Â? cannot be construed as grant of an implied assent as contemplated in Sections  Â?37Â?3 Â?Å 332 and 333 of the Act. If this be so, the right of a legatee will remain to Â? be an incohate right in legacy and the executors will continue to have their Â? right under the Will. Therefore, the executors having obtained the probate on Â? 3.1.1963, the sale made by them on 10.1.1964 in favour of the Kerala Transport Â? Co. is valid and is not in any way inhibited or restricted by the attachment Â? order of the executing court dated 27.11.1961 since all the executors were not Â? parties to the execution proceedings nor was there any personal decree against Â? them. If as found by us that the sale of the suit property on 10.1.1964 was Â? valid sale then the said property was not available for court sale. Â? Consequently, by purchasing the property in court sale dated 17.9.1962, the Â? 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 incohate 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.