Shanmugam and 2 others vs M/s. Syndicate Bank and 9 others

The first respondent filed a suit in O.S.No.336 of 1981 on the file of the Sub-Court, Coimbatore for recovery of money from the respondent

No.2 and one Kanni Boyan and Nammal. The defendants 2 and 3 in the suit borrowed money from the first respondent-bank and their mother

Nallammal, the fourth defendant in the suit executed a mortgage deed with respect to the property in question in 1978 as security in favour of the

said bank. The said Nallammal seems to have executed the settlement deed on 7.3.1980 in favour of the petitioners who are the sons or the

second defendant. To enforce the said mortgage and recover the amount, the first respondent-bank filed the suit on 23.3.1981. Since there were

some superstructures in the property settled in favour of the petitioners, the said Nallammal seems to have executed a release deed on 20.1.1982

with respect to those superstructures, and she died on 1982. Preliminary decreed was passed on 5.2.1985 and final decree was also passed on

22.7.1986. Since the defendants 2 and 3 also died, the Execution Petition in E.P.No.137 of 1988 was filed by the said bank against all other legal,

representatives of the deceased defendants. In the Execution Petition, the petitioners herein filed counter stating that they are the settlees with

respect to the property hypothecated to the said bank and they are entitled to the equity of redemption, and the decree obtained without

impleading them cannot be enforced. The court below rejected the objection raised by the petitioners and directed to proceed with the execution

petition. Aggrieved against the same, the petitioners have filed the above revision.

The learned counsel appearing for the petitioners has submitted that the court below is not correct in deciding that the petitioners herein are the

universal doness. As the fourth defendant has settled only item No.1 of the suit properties mortgaged, they cannot be construed as universal

donees u/s 128 of the Transfer of Property Act. He has further submitted that since the said superstructures have also been settled in favour of the

petitioners, the decree obtained in 1985, without impleading them cannot be enforced in law in view of Order 34, Rule 1 of the Code of Civil

Procedure. The learned counsel has further submitted that in the absence of any pleading, the court below is not correct in holding that the said

release deed in favour of the petitioners with respect to the said superstructures is fraudulent one.

While answering to the abovesaid submission, the learned counsel appearing for the first respondent-bank has submitted that the settlement

deed is with respect to both the properties in question and so the petitioners should be construed only as universal donees as contemplated u/s 128

of the Transfer of Property Act. According to the learned counsel, even with respect to the second item of the suit properties, the right has been

given only to the petitioners. The learned counsel has further submitted that the petitioners are the legal representatives of the deceased defendant

No.4 and so the mortgage debt would bind on them, and the order of the court below cannot be assailed.

According to the learned counsel appearing for the petitioners what was settled by the fourth defendant in favour of the petitioners is only the

first item of the suit properties, mortgaged in favour of the first respondent-bank, measuring 43,560 Sq.ft. or 1 acre within the specific boundaries.

The second item is a road. It is not the case of the petitioners that any other persons are entitled to use the second item of the suit properties. It is

also not the case of the petitioners that the fourth defendant was having any other properties either movable or immovable. Nothing has been

mentioned about the same in the memorandum of grounds filed in the revision. According to the learned counsel, the first respondent-bank has not

raised any plea to the effect that the fourth defendant was not having any other property. Since even in the counter filed in the execution petition, it

is the case of the petitioners that the entire hypothecated properties were settled and non-availability of the other properties has not even been

disputed in the grounds of revision, I need not discharge of burden by the first respondent

As stated above, it is admitted that the first item of the ""B"" schedule property has been settled in favour of the petitioners. The second item is a

road formed to reach the first item of the suit properties. So, that road is already there and the same is utilised to reach the first item of the suit

properties. So, that road has been given to the petitioners. In the absence of any evidence or any plea by the petitioners that some other persons

also are having right to use the same, it has to be taken that the second item of the suit properties also has been given to the petitioners. So, from

the said settlement deed it has to be construed that the entire suit properties have been given to the petitioners. Even under the release deed dated

20.1.1982, the right in the superstructures was also given. The abovesaid facts will clearly establish that the petitioners are the universal donees as

cotemplated u/s 128 of the said Act. While dealing with similar issue, Veeraswami, J., as he then was, in the decision in Dayanandan and Another

Vs. Venugopal Naidu, has held as follows:-

With great respect to the Judges who decided AIR 1952 T.C.23, I can unable to concur with the view they have expressed. They seem to think

that devolution of interest is necessarily a test of one being a legal representatives. I am find no warrant for such a view. In S.2.(l 1) of C.P. Code

the statutory definition of ''legal representative'' goes so far as to say that even an inter-meddler with the estate of a deceased will be his legal

representative. If that is so, I do not see why a universal donee who by reason of a gift enters upon possession of the estate of a deceased cannot

be regarded as his legal representative. It is not necessary that, in order for that person to be his legal representative, there must be a devolution of

interest in his favour from the deceased. If devolution is the criterion, many persons who are unbounbtedly legal representative will not be so, as for

example, executors, trustees and the like. Apart from a universal donee being a legal representative, it is particularly important to note that universal

donees only take the estate of the deceased subject to the liabilities of the deceased. In fact Section 128 of the Transfer of Property Act fastens a

personal liability upon the universal donee for all debts due by the donor at the time of the gift though that liability is confined to the extent of the

properties comprised in the gift. This aspect, if 1 may say so, with respect, again, does not appear to have been kept in view in AIR 1952 T.C.23.

The liability of the universal donee to pay the decree debt of the donor arises not only by reason of the donee accepting the gift and of being the

legal representative of the deceased but also by the very terms under which he becomes a universal donee. Though it was conceded by counsel in

The Andhra Bank Ltd. Vs. R. Srinivasan and Others, , that a universal donee would be a legal representative, the Supreme Court was inclined to

take the view that even a person who intermeddled with only a part of the estate of a deceased would be his legal representative. The case of a

universal donee is a fortiori on a better footing.

Section 50(2) of the CPC enables a decree holder to execute his decree against the legal representatives of the judgment-debtor, the liability, of

course, in execution being confined to the extent of the deceased''s property in the hands of the legal representative. That precisely is also the

position u/s 128 of the Transfer of Property Act. On a careful consideration of the question, I am unable to see why there should be insistence on

another suit against the legal representatives to establish the debt of the donor. There appears to be no conceivable reason or principle which

compels such a course. Both on the ground that the universal donees are the legal representatives of the donor and on the ground of their personal

liability to qualified extent under the terms of Section 128 of the Transfer of Property Act, I hold that no separate suit is necessary to reach the

properties of the donor in execution of the decree against him but that the decree-holder can levy execution straightway against his legal

representatives to the extent of the donor''s properties in their hands.

From the abovesaid decision it is clear that the petitioners are the legal representatives of the fourth defendant and they are liable to discharge the

liability to the extent of the deceased''s property in question and no separate suit need be filed. In view of the above finding I am not going into the

other question, viz, whether the suit is sustainable under Order 34, Rule 1 of the Code, without impleading the petitioners.

In view of the above, the order of the Court below is sustainable in law. Consequently, this revision is dismissed. No costs. C.M.P.No. 13227 of

1993 is closed.