K LEELAVATHY BAI AND ORS. versus P.V. GANGADHARAN AND ORS.

Citation: [1999] 1 S.C.R. 1197 · Decided: 17-03-1999 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Dismissed

Judgment (excerpt)

•· 
K LEELAVATHY BAI AND ORS. 
A 
v. 
P.V. GANGADHARAN AND ORS. 
MARCH 17, 1999 
(S. SAGHIR AHMAD AND N. SANTOSH HEGDE, JJ.] 
B 
Succession Act, 1925-Sections 211, 333, 307 and 311-loint executors 
of a Wil/-F ather bequeathing property to two sons under a will appointing 
his wife and elder son as executors-/'ossessory mortgage of bequeathed c 
property was executed by one of the two joint executors-Held, not sufficient 
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 
G 
had not beei:i impleaded while there was personal decree against J. In 
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 
B 
having died, his legal representatives filed a second appeal before the High 
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 · 
E executors were left who continued to be the joint executors of the will in 
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 
F 
not pass on to the legatee. Of course, under Section 333, such an assent 
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 

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