Mahilapranam, S. and Another vs Jamina Mosque Executive Committee

S.S. Subramani, J.—Petitioners 3 and 4 in E.A. No. 614 of 1990 in E.P. No. 94 of 1987 in O.S. No. 452 of 1974, on the file of the

Principal District Munsif''s Court. Tuticorin, are the revision petitioners herein.

Respondent herein filed the suit against one Ramalakshmiammal, for eviction. She claimed rights under the Tamil Nadu City Tenants Protection

Act. Her right to purchase the land under the said Act was upheld by this Court, and in a SLP before the Supreme Court, the decision of this

Court was confirmed.

Pending proceedings, Ramalakshmiammal died and Sivasubramania Pillai and Mahilapranam were brought on record as her legal

representatives. They are the sons of Ramalakshmiammal. Mahilapranam is the first petitioner in this revision. When the court declared that the

defendant is entitled to purchase the land, execution petition was filed by the first petitioner herein and Sivasubramania Pillai as E.P. No. 94 of

1987 for execution of a sale deed in their favour by the respondent. Pending execution proceedings, Sivasubramania Pillai died, leaving behind him

a will dated 12.2.1989, by which he bequeathed all his right, title and interest in the property in favour of the first petitioner herein and his brother

Ramalingam. As legal representatives, they filed E.A. No. 614 of 1990 for recording the first petitioner as the legal representatives of the deceased

Sivasubramania Pillai and also to bring on record the secftnd petitioner in the revision as fourth petitioner in the execution petition, namely, E.P.

No. 94 of 1987.

When the said application was filed, the respondent herein filed objection stating that since the claim is based on a will executed at Madras

without obtaining a Probate or Letters of Administration, they cannot be brought on record.

The will was proved by adducing evidence by examining the attestors. But the lower court dismissed the said application on the ground that

under Sections 213 and 214 of the Indian Succession Act, the claim of the petitioners cannot be recognised without obtaining a probate or letters

of administration. It is against that order, the present revision is filed.

The court below is correct if it decides the matter only under Sees.213 and 214 of the Indian Succession Act. But I feel that there is a difference

in this case and I deal with the same herein.

I have already said that the decree was granted in favour of Ramalakshmiammal and from the cause-title of the Order of the court below, we

find that Ramalakshmiammal died during its execution. It is not disputed that Sivasubramania Pillai and Mahilapranam were impleaded as her legal

representatives. The impleading will have an impact on the applicability of Secs.213 and 214 of the Indian Succession Act.

What is the relationship of Sivasubramania Pillai and Mahilapranam when they were impleaded as legal representatives of the original decree-

holder Ramalakshmiammal. Even though the decree was in favour of only one individual, when that decree-holder died, the right under the decree

devolved on two persons. According to me, the legal representatives became joint decree-holders under law.

In Khadim Husain Khan and Others Vs. Abdur Rahman Khan, , a similar question came for consideration. In paragraph 3 of the judgment, the

said question was considered. In that case, it was argued that on the basis of the provisions of Order 21, Rule 15, C.P.C., the principles of joint

decree-holder executing a decree can be made applicable only if the decree itself is passed in favour of more than one person and the same is not

applicable where the legal representatives of a decree-holder are impleaded. It was contended thus:

...It has been argued on behalf of the respondent that Order 21, Rule 15 applies only to decree-holders in whose favour a decree had been passed

and would not cover legal representatives of a deceased decree-holder.

On the above contention, it was decided as follows:

Order 21, Rule 16, C.P.C., however, says that if the interest of any of the decree-holders in the decree is transferred by assignment in writing or

by operation of law, the transferee may apply for execution of the decree to the court which passed it. This provision, therefore, gives some

intention or mind of the Legislature.

If a decree-holder dies leaving number of heirs, they evidently become joint decree-holders after the death of that decree-holder, and there

appears to be no reason why one of these persons be entitled to execute the decree outstanding in favour of all the heirs of the deceased decree-

holder.

On the basis of this principle, Sivasubramania Pillai and Mahilapranam became joint decree-holders.

In respect of joint decree-holders, Order 21, Rule 15, C.P.C. enables any one of them to execute the decree. It reads thus:

Application for execution by joint decree-holder:

(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes

any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or where any of them has died, for the benefit

of the survivors and the legal representatives of the deceased.

(2) Where the court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as

it deems necessary for protecting the interests of the persons who have not joined in the application.

Sections 213 and 214 of the Indian Succession Act are also held to be procedural in nature.

In Geevarghese Geevarghese and Another Vs. Issahak George and Others, , His Lordship V.R. Krishna Iyer, J., as he then was, has held that

Section 213, Indian Succession Act is procedural and not a substantive provision and applies to wills of anterior dates even if registered under

Travancore Wills Regulation Act. Sections 213 and 214 of the Indian Succession Act are general provisions regarding right of an executor or a

legatee and how the same will have to be established. But in respect of execution of a decree by joint decree-holders, a special provision is

provided under Order 21, Rule 15, C.P.C. If so, in spite of prohibition under Sections 213 and 214, Indian Succession Act, a joint decree-holder

is entitled to execute a decree even without the production of a probate or letters of administration or succession certificate. Similar question came

for consideration in the decision reported in Ramnibas Agarwalla v. Mt. Padumi Kalita and Ors. AIR 1967 Gau 27. That is a case of money

decree and one of the decree-holders died. Surviving decree-holder filed an application for impleading the legal heirs of the decree joint decree-

holder and the same was allowed, and he was allowed to execute the decree without succession certificate. The same was challenged before the

High Court. A learned Judge of that High Court negatived the contention that without production of Succession Certificate, the decree cannot be

executed. The relevant portion of the said decision reads thus:

It is clear from the above provision that where a decree is passed jointly in favour of a number of persons and one of them dies, two courses are

open to the surviving decree-holders - firstly to proceed with the execution in their own names on behalf of themselves as well as the surviving heirs

of the deceased decree-holder, in which event the court may make appropriate order under Sub-rule (2) of Rule 15 of Order 21, quoted above,

or apply for substituting the heirs of the deceased decree-holder to be brought on record so that execution may proceed in the names of all of them

and for the benefit of all. This is exactly what has been sought for in this case and I am clearly of opinion that no exception could be taken to this

procedure.

The second objection to the orders of the Courts below is that having regard to Section 214 of the Indian Succession Act, the Court below should

not have ordered execution on behalf of the surviving heirs of the deceased decree-holder without a succession certificate having been produced....

The learned Judge further held thus:

(Section 214 of Indian Succession Act omitted) This provision in the Indian Succession Act must be limited to the scope indicated by it. It is clear

that it is only where a decree stands solely in the name of a person who dies that the provision would seem to apply. The instant case is a special

one for which specific provision is made in the CPC namely the case of a number of joint decree-holders. In the case of joint decree-holders the

CPC confers a right on them apart from the general law to execute the decree in their own right and for the benefit of themselves as well as the

heirs of the deceased decree-holder, such a specific provision which applies to the facts of the case must be applied and Section 214 of the Indian

Succession Act has no application to a case of joint decree-holders where there are other decree-holders surviving the deceased decree-holder.

Hence, there is no question of applying Section 214 of the Indian Succession Act to the instant case and no Succession certificate is at all

necessary.

Similarly, a Division Bench of the Rajasthan High Court has held in the decision reported in Nandlal Vs. Mahavir Kumar and Others, as

follows:

The law makers have put two conditions for a joint decree-holder to exercise his right to execute the decree, firstly, that the decree itself must not

contain any condition which may debar one decree-holder to take out the execution proceedings and secondly that a person who wants to carry

on the execution proceedings must do so only when the execution is for the benefit of all the decree-holders, or, where any of them has died, for

the benefit of the survivors and the legal representatives of the deceased. The right to take out execution does not arise out of this provision but it

arises out of the decree passed by a competent court. It simply provides that a single decree-holder has a right to take out execution proceedings if

other decree-holders in whose favour the decree is passed are not in a position to join him, but it should be done only for the benefit of all, or, if

any one of the decree-holders has died, then for the benefit of the survivors and the legal representatives of the deceased. This provision, therefore,

does not come in conflict in any manner with the provisions of Section 214 of the Indian Succession Act.

In the decision reported in Gopala Panicker and Ors. v. Assanissa and Ors. 1972 K.L.T. 394, His Lordship V.R. Krishna Iyer, J., as he then

was, held that when a joint decree-holder files an application for execution, Section 214 of the Indian Succession Act cannot be applied. Order

21, Rule 15, C.P.C. is a special procedure. In the said decision, the learned Judge has held thus:

The other point that has been pressed before me by the decree-holder to extricate himself from the obligation to produce a succession certificate is

that the 3rd plaintiff who is one of the decreeholders has the right to execute the decree as a joint decree-holder under Order 21, Rule 15, C.P.C.

Counsel for the respondent very fairly brought to my notice a decision reported in AIR 1967 Gau 27, where the court has ruled that Section 214

of the Succession Act cannot apply to a case of a joint decree in view of the provisions of Order 21, Rule 15, C.P.C. One of the joint decree-

holders has the right, subject to such safeguards as the Court may make, to execute the whole decree on behalf of himself and the others. The 3rd

plaintiff being a joint decree-holder cannot be trammelled by Section 214 of the Succession Act and his execution petition be proceeded with

subject to any order that the court may pass under Order 21, Rule 15(2), C.P.C....

On the basis of the above legal position, if the first petitioner herein can be treated as a joint decree-holder, he can, without even impleading

the legal heirs of the deceased decree-holder, namely, Sivasubramania Pillai proceed, with the execution. If the first petitioner can proceed with the

execution even without impleading the legal heirs, I do not think that there can be any difficulty in proceeding with the execution with the legal

representatives of Sivasubramania Pillai along with the first petitioner-herein. The question may be different, if the legal heirs of Sivasubramania

Pillai by themselves and they alone seek execution of the decree. Here is a case where one of the joint decree-holders has filed the execution

petition and wanted the legal heirs of the deceased decree-holder also to be impleaded. Without impleading also, the step taken by the joint

decree-holder to execute the decree is valid for which Order 21, Rule 15, C.P.C. applies. If that be so, the order of the court below that without

production of probate or letters of administration, they cannot proceed with the execution nor can they be impleaded cannot be correct.

I have already extracted the judgment of the Assam High Court where also the joint decree-holder filed an application for impleading the legal

heirs of the deceased decree-holder, and the argument was that execution ought not to have been ordered without the production of Succession

Certificate on behalf of the surviving heirs of the deceased decree-holder. It was the said contention that was repelled in view of Order 21, Rule

15, C.P.C. The same principle applies to the facts of this case, and I hold that the order of the court below is against law and the same is liable to

be set aside. E.A. No. 614 of 1990 in E.P. No. 94 of 1987 in O.S. No. 452 of 1974 will stand allowed. Petitioners herein are allowed to execute

the decree.

At the Bar, it was stated that the entire amount payable to the respondent has been deposited in court and what remains is only the execution

of sale deed. The suit is of the year 1974, and the third generation of legal heirs has come to Court for getting the fruits of the decree. The

executing court will expedite the execution and see that the document is executed in their favour without any further delay. The civil revision petition

is allowed, however, without any order as to costs.