Holding

When there are multiple executors, all must act jointly; a unilateral act of one executor does not constitute the assent required under Sections 332/333 to vest title in legatees, rendering the private sale by the executors after probate valid and the subsequent court sale ineffective.

Summary

The testator S.P. Sadanandan bequeathed specific property to his two sons and appointed his wife, elder son and a chartered accountant as executors. After the chartered accountant relinquished, the widow and elder son remained as joint executors and obtained probate. The elder son executed a possessory mortgage of the property during a lease, and the property was later attached in execution of a decree against a company of which the widow and both sons were directors. The executors sold the property privately on 10 January 1964, after which a court sale was held on 27 July 1964. The dispute centered on whether the unilateral mortgage by one executor implied assent under Sections 332/333 of the Indian Succession Act, thereby vesting title in the legatees and making the property liable to attachment and court sale, and whether the private sale by the executors was valid. The Supreme Court held that with multiple executors, all must act jointly; a unilateral act does not constitute assent, and the property remained vested in the executors until their collective assent. Consequently, the private sale after probate was valid and the later court sale could not confer title. The appeal was dismissed.

Issues considered

Whether the execution of a possessory mortgage by one executor amounts to implied assent under Sections 332/333 of the Indian Succession Act, thereby vesting title in the legatees.
Whether a single executor can bind the estate of the deceased when there are multiple executors.
Whether the attachment order under the Civil Procedure Code binds the executors and invalidates their private sale.
Whether a court sale under Order 21 of the CPC can override a prior private sale by the executors after probate.
Whether Section 311 of the Indian Succession Act applies to the powers exercised by the executors in this case.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 54, s. Order 41 Rule 22, s. Section 60
Indian Succession Act, 1925s. 211, s. 307, s. 311, s. 332, s. 333

Subjects

SuccessionExecutorsProbatePossessory MortgageAttachmentCourt SalePrivate SaleImplied AssentIndian Succession ActCivil Procedure CodeProperty Law

Judgment

•· K LEELAVATHY BAI AND ORS. A
v.
P.V. GANGADHARAN AND ORS.

MARCH 17, 1999
B
(S. SAGHIR AHMAD AND N. SANTOSH HEGDE, JJ.]

Succession Act, 1925-Sections 211, 333, 307 and 311-loint executors
of a Wil/-Father bequeathing property to two sons under a will appointing
his wife and elder son as executors-/'ossessory mortgage of bequeathed
property was executed by one of the two joint executors-Held, not sufficient c
to bind the bequeathed property prior to the probate of the property-Further
held, that despite such mortgage, the executors retained their rights under the
will and the legatees' right remained incohate-Therefore, after obtaining the
probate, if the executors sold the property privately, such private sale was
valid-Obtaining of decree by any person against a company of which the D
testator's widow and his two sons were directors, jointly against the two sons
~
and not agaimt the widow and only one of the sons was made personally
liable-Held, court sale of the bequeathed property in question in execution
of such decree even subsequent to such private sale was ineffective and in-
capable of prevailing over the same--Civil Procedure Code, 1908, Order 21.
E
S, bequeathed a certain property belonging to him jointly with his
sons E and J. S appointed his wife, elder son and a third person as
executors of the will but later on the third person relinquished his status
as executor. The remaining two executors obtained probate of the will. The
said property was leased to a person. During the pendency of tile lease, E F
mortgaged the said property with possession in favour of the original
lessee. Later one R filed a suit against a certain company of which the
widow of the testator, E and J were directors in which a decree was passed
against E and J regarding the assets of the company. However, E was not
made personally liable and there had no decree against the widow as she
had not beei:i impleaded while there was personal decree against J. In G
execution of the decree, the property in question was attache~ on
27.11.1961. On 10.1.1964, the attached property was sold by widow and E.
" Subsequently, in execution of the decree obtained by R, the attachetl
property was sold by way of court sale on 27.7.1964. The objections filed
against the court auction were rejected by the court and it auctioned the H
1197
1198 SUPREME COURT REPORTS (1999] 1 S.C.R.

A property and a sale certificate was issued in favour of the auction-pur- .,
chaser wbo was later given symbolic possession. Thereafter, the auction ·
purchaser filed a suit for redemption of the mortgage which was decreed
by the trial court. The aggrieved defendants preferred first appeals before
the District Judge, which were allowed. In the meantime, original plaintiff
having died, his legal representatives filed a second appeal before the High
B Court and it was dismissed. Hence, this appeal hy the legal representatives
of the original plaintiffs.

It was inter alia contended by the appellant that the property be-
queathed being specific and one of the executors, who was also a legatee,
c having given his implied assent was sufficient to divest the interest of the
executors in the property as envisaged by Section 333 of the Act. On the
other hand it was contended by the respondents that in law an executor of
a Will becomes a legal representative of the deceased testator and the
property would vest in them.

D
Dismissing the appeal, this Court
~

HELD : 1.1. Admittedly after the relinquishment of duties by one of
the three persons appointed by the testator as executors of his will, two ·
executors were left who continued to be the joint executors of the will in
E
question. Under Section 211 of the Succession Act, 1925, these two ex-
ecutors became the legal representative of the deceased testator for all
purposes and the bequeathed properties vested in these two executors.
Until and unless the said executors assented, the title of the property would
not pass on to the legatee. Of course, under Section 333, such an assent
F could be verbal, express or implied. The appellant's contention that the
conduct of E as a legatee in executing the possessory mortgage of the suit
property in favour of the original lessee was sufficient to infer at least an
implied assent of the executor to the transfer of title in favour of the
legatees, cannot be upheld. In view of Section 211, it is futile to contend
G 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 the other legal representatives. [1204-B-F]
"
First Additional Income Tax Officer v. Mrs. Susheela Sadanandan &
H Anr., 57 ITR 168, relied on.
K. LEELAVATHY BAI v. P.V. GANGADHARAN [SANTOSH HEGDE, J.] 1199

1.2. Admittedly, one of the executors, namely, the testator's widow di_d A
not join E in execution of the possessory mortgage. Hence, the act of E in
executing the same would not in any manner amount to assenting to vesting
of the bequeathed property on the legatees. Any such unilateral act of a
single executor when there are more than one executor would not bind the
estate of the deceased. Even Section 311 does not in any way help the case
of the appellants. The will in question was not even probated much less by B
~ E to attract Section 311. Hence, the right of a legatee will remain to be an
incohate right in legacy and the executors will continue to have their right
under the will. Therefore, the executors having obtained the probate prior
to the sale made by them is valid and is not in any way inhibited or
restricted by the attachment order of the executing court. [1205-D-E] c
13. Consequently, by purchasing the property in court sale prior to
the date of grant of probate, the appellants did not acquire any right, title or
interest in the suit property. Since, J has 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. [1205-G] D
CIVIL APPELLATE JURISDICTION : CiVil Appeal No. 2138 of
" 1987.

From the Judgment and Order dated 26.11.86 of the Kerala High
Court in S.A. No. 681 of 1982. E

V.R. Reddy, F. Anam, E.M.S. Anam, Sunil Murarka and Anoop Nair
for the Appellants.

T.L.V. Iyer, R.N. Keshwani, S. Prasad and A. Raghunath for the
Respondents . F
•
The Judgment of the Court was delivered by
..
SANTOSH HEGDE, J. This appeal by special leave is preferred .
against the judgment and decree of the High Court of Kerala dated
26.11.1986 made in S.A. No. 681/82F.
G

The suit pertains to 50 cents of land, two buildings along with some
superstructure situated in Calicut city. Originally, the suit property
belonged to one S.P. Sadanandan who had executed a Will on 23.6.48,
bequeathing properties owned and possessed by him. Under this Will he H
1200 SUPREME COURT REPORTS [1999] 1 S.C.R.
(.
A bequeathed the suit scheduled properties jointly to two of his sons, namely, ·'
Earnest Devadas Sadanandan and his younger brother J G Sadanandan.
The suit property was enumerated as Item No.10 to Schedule 'A' to the
Will. Sadanandan, who died on 10.7.1948, had originally appointed his wife,
his elder son E D Sadanandan and a Chartered Accountant by name

B Paramasivan as executors of his Will. One of the executors, namely,
Paramasivan later on relinquished his status as an executore. 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
c 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 r
mortgaged the property with possession in favour of the original lessee S
~
V Sivaramakrishna Iyer, son of S.G. Venkitachala Iyer for a consideration
I
of Rs.1,000 for a period of 12 years. It has also come on record that one •
D 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.
.t
~

Ltd., of which the widow of Late Sadanandan - Suseela - and her eldest '
son E D Sadanandan were Directors along with the younger son Sadanan-
'
dan. The said suit came to be decreed wherein a decree was passed jointly
against the elder and the younger sons, regarding the assets of the Com-
E •
pany. However, elder Sadanandan was not personally made liable and
there was no decree against the widow Suseela who was not a party to the
suit while there was a personal decree against younger Sadanandan. In
execution of the said decree, the present suit properties along with other .
items were attached on 27.11.1961 by an order of the court. It has also
F come on record that a notice of attachment was issued on 30.11.61 detailing ~-

the properties attached which included the present suit property also. It
has also come on record that on 10.1.1964 the suit properties which were
attached, as stated above, were brought for sale privately by widow Suseela
and the elder son Sadanandan in favour of Kerala Transport Co. repre-
G sented by its partner P.V. Swamy. Consequent to the decree and execution
proceedings in the suit filed by the above stated Ramdass in OS No.63 of
1956, the attached properties were brought for court auction on 17.9.62
and the properties were actually sold in public auction on 27.7.1964, a date ,..
subsequent to the private sale referred to above. The objections filed
H against the court auction being reje.cted by the executing court, a sale '!
~
K. LEELAVATHY BAI v. P.V. GANGADHARAN [SANfOSH HEGDE, J.] 1201

,. certificate was issued on 2.9.1964 in favour of the auction purchaser and A
since the property was under mortgage and in possession of third party, a
symbolic possession was given to the auction purchaser on 19.12.1964.

The auction purchaser thereafter filed a suit for redemption of the
mortgage being OS No.158 of 1968 on the file of the Milnsif, Kozhikode B
(Calicut), praying for, inter alia, that he be permitted to deposit the
mortgage amount and redeem the property in question which right of
redemption according•to him, was acquired by him pursuant to his pur-
chase of this property in court auction. The said suit of the plaintiff came
to be decreed by the judgment and decree dated 19.9.1980 of the trial court
negativing the defence of the defendants. The aggrieved defendants c
preferred first appeals before the District Judge, Kozhikode which came
to be substantially allowed by a judgment and decree· of the first appellate
court dated 31.3.1982. In the meantime, the original plaintiff having died,
his legal representatives filed a second appeal referred to above, before the
High Court of Kerala which, as stated above, came to be dismissed and D
the legal representatives of the original plaintiffs are now before this Court
in this civil appeal.

In the appeal before the High Court, two points were canvassed for
its consideration, namely, (I) whether the first defendant is entitled to the E
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 F
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 Code of Civil Procedure. The High Court after
considering the materials on record and hearing the arguments of the G
parties, held on the first question that the document of mortgage Ex. A-1,
is in fact only a rental arrangement of the buildings, and the transaction
;a
under the said document comes within the purview of the Kerala Buildings
(Lease and Rent Control) Act. Hence, the possession of the defendants
J was protected under the said Act de hors the mortgage claim. H
1202 SUPREME COURT REPORTS [1999) 1 S.C.R.
A In regard to the second question also, the High Court came to the
conclusion holding that the private sale executed by the two executors on
10.1.1964 in favour of the fourth defendant would prevail over the rourt
sale dated 27.7.,_1964 in favour of the plaintiff. The contention of the plaintiff
that the private sale in favour of the defendant was in violation of the
B court's ·order of attachment dated 24.ll.196i, was also rejected, holding
that the attachment in question did not bind the executors of the Will since
at least one of them was not party to the decree which was sought to be
executed, and also in view of the fact that the decree sought to be attached
was personal only against the younger Sadanandan and in view of the
C provisions of Section 60 of the C.P.C., there could be no attachment in
execution of the decree of properties belonging to persons other than the
judgment debtor. Reliance was also placed on the provisions of Order 21
Rule 54 of the Code. It was also held that the attachment would not confer
any title in favour of the person who gets the property attached. The High
Court considered the question whether the executors of the· Will can
D transfer the property left behind by the testator, and relying upon Section
211(1) of the Indian Succession Act it held that an executor or an ad-
ministrator of the Will steps into the shoes of a legal representative of a
testator for all purposes, and all property of the deceased vests in the
executors as such. It further relied upon Section 307(1) of the Indian
E Succession Act which provides that an executor or an administrator has
power to dispose of the property of the deceased vested in him under
Section 211, either wholly or in part, in such manner as it may think fit
unless the said right is restricted by the testament itself. On the basis of
the findings recorded above, the High Court dismissed the appeal of the
p plaintiffs.

•
Before us, on behalf of the appellant-plaintiffs, Mr. V.R. Reddy,
learned senior counsel, has reiterated the contentions that were urged
before the High Court. He also contended that the property bequeathed
G being specific <!-nd one of the executors, who was al&o 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 argueci that by the conduct of the
executor elder Sadanandan it should be deemed that the property had been
H divested from the executors and the same had vested in the legatees. If so,
K.LEELAVATHYBA!v. P.V.GANGADHARAN [SANTOSHHEGDEJ.] 1203

the property had become available for attachment and court sale. This A
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. B
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.

Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the
contesting respondents, countered the arguments on behalf of the appel- c
lants by stating that the judgment under appeal did not call for any
interference. He further argued that after the relinquishment of his rights
by the third executor, Mr. Paramasivan, there were still two executors
namely the widow of the testator - Suseela - and the elder son Sadanandan.
Learned counsel further contended that in law an executor of a Will D
becomes a legal representative of the deceased testator and the property
vests in them. He further elaborated his argument by contending that if
there are more than one executor then all the executors should act jointly
and one executor cannot act to the exclusion of another. Therefore, in his
submission, assuming for argument's sake, the execution of Ex. A-1 by E
elder Sadanandan was an act amounting to an assent. The same is not valid
in law inasmuch as it was only a unilateral act of one of the executors and
unless and until the other executor - Smt. Suseela - joins the elder Sadanan-
dan to establish a collective assent, there could be no divesting of the
property since such collective acts have not been alleged or established,
there could be no divesting of the property as contended by the appellants .
F
. Learned counsel in support of his argument has relied upon a judgment of
this Court in First Additional Income Tax Officer, Kozhikode v. Mrs. Suseela
Sadanandan & Anr. (57 ITR 168).

We have carefully considered the arguments advanced on behalf of G
the parties. We will first address ourselves to the argument of the appellant
that there has been an assent on the part of the executors, consequently
the suit property had vested in the legatees and therefore, the sale of the
suit property by the executors on 10.1.1964 was an invalid sale. Thus, the
suit property was legally available for court sale. H
1204 SUPREME COURT REPORTS (1999) 1 S.C.R.
A On facts, there is no dispute that the testator had originally ap-
pointed 3 persons as executors of his Will, arid after the relinquishment of
his duties as executor by Mr. Paramasivan, still two other executors were
left, namely, Smt. Suseela and Mr. ED Sadanandan (elder one) who
continued to be the joint executors of the Will in question. Under Section
B 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 to 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,
C 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
D 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
E the legatees. We are nnable 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 deceased testator. In such a situation,
it is futile to contend that the estate of the deceased testator could be either
F 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
G 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
H 24B(2), all of them only can represent the estate of the deceased."
K.LEELAVATIIYBA!v. P.V.GANGADHARAN ISANTOSHHEGDE,J.] 1205

On facts, there is no dispute that one of the executors, namely, Mrs. A
>·
Suseela did not join the other executor in execution of Ex. A-1. Hence, the
act of elder Sadanandan in executing Ex. A-1 would not in any manner
amount to assenting to vesting of the bequeathed property on the legatees
because the elder Sadanandan could not have represented the estate
independently to the exclusion of other legatee. Any such unilateral act of B
any single executor, when there are more than one executor, would not
bind the estate of the deceased. The contention of the appellant based on
Section 311 of the Act also, according to us, does not in any way help the
case of the appellant. Though Section 311 says that in the absence of any
direction to the contrary in the case of several executors, powers of all may
be exercised by any one of them but this Section itself says that such c
exercise of power by one of the executors should be by any one of them
who has proved the Will on the date of execution of Ex. A-1. In this case,
the Will in question was not even probated much less proved by elder
Sadanandan to attract the enabling provision of Section 311. Therefore, in
our opinion, the act of elder Sadanandan cannot be protected under D
Section 311 of the Act and the said act cannot be construed as grant of an
implied assent as contemplated in Sections 332 and 333 of the Act. If this
be so, the right of a legatee will remain to be an incohate right in legacy
and the executors will continue to have their right under the Will. There-
fore, the executors having obtained the probate on 3.1.1963, the sale made 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 p
a valid sale then the said property was not available for court sale. Conse-
quently, 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.

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 G
the extent of his share, the court sale should be upheld, cannot also be
I
accepted.

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 H
1206 SUPREME COURT REPORTS (1999) 1 S.C.R.
A 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
call for any interference and the same is affirmed by dismissing this appeal.
No costs.
B R.K.S. Apeal dismissed.