JUDGMENT
Srinivasa Aiyangar, J.
1. The suit from which this second appeal arises was instituted by the appellant as plaintiff for the recovery of possession of certain items of property. Those items were attached and brought to sale in execution of a decree obtained by a person who claimed to be the creditor of the deceased husband of the plaintiff. That suit was instituted against the karnavan of the tarwad to which the deceased belonged on the ground that he was the legal representative of the deceased. In the sale in execution of the decree, defendants 7 and 8 in this suit purchased the property and have since been in possession and enjoyment. The claim of the plaintiff-appellant in this case is that the decree and the sale are not binding on her because the deceased did not die intestate but left a will, by which he bequeathed these items of property to plaintiff I-say to the plaintiff because I assume it to be so and it is unnecessary to go further into the details with regard to the disposition. Now, no doubt, it would have been open to the plaintiff to have come into Court with the case that, in obtaining the decree in execution of which the property was sold, the plaintiff in that suit did not act; bona fide or that there was fraud or collusion between himself and the defendants of such a character as to vitiate the decree entirely and so as not to make it binding on the estate. The first question that arises for determination is whether in that suit the estate of the deceased husband of the plaintiff was properly represented. The learned vakil for the appellant, who argued at considerable length, has not satisfied me that the estate was not properly represented in that suit. He no doubt referred to a will but it is not every will that has the effect of creating a new legal representative for the testator.
2. If there had been an appointment of executor either expressly or by necessary implication in the will, then, of course, the person so appointed would by the act of the testator be constituted into a legal representative, but if no such appointment is made, the mere fact that there are certain dispositions of property and legacies in the will has not the effect, of making the legatees the legal representatives. It is admitted that if there be no will, the proper legal representative would have been the karnavan. As it has not been shown that there was a will in and by which a person other than the legal representatives under the law was constituted into a legal representative of the deceased, I must hold that it has not been proved in this case that the karnavan against whom the decree was obtained was not the legal representative of the deceased. It, therefore, follows that the decree was a decree that was properly obtained in a suit in which the estate was properly represented. It that be so, the whole of the argument in this case entirely falls to the ground.
3. I may also refer to another aspect of the case which has been also argued before me. Assuming for a moment that there was an executor appointed and therefore a legal representative constituted other than the person who would have been the legal representative on intestacy in due course of law, still it is not shown in this case that the creditor who instituted the suit and obtained a decree knew of any such will or the constitution of a different legal representative and yet instituted the suit against the wrong person mala fide and it is not alleged or sought to be shown that there was any fraud or collusion between the plaintiff in that suit and the person who was impleaded as the legal representative. It would appear that the plaintiff came into Court without making any reference whatever to the decree or the sale in execution of which the property was purchased by defendants 7 and 8. If so, when the defendants set up the decree and the sale in execution by way of defence it was incumbent on the plaintiff, if she wanted to avoid the decree or to have it declared that it is not binding on her, to allege and prove facts necessary for the purpose. It was, therefore, incumbent on her to obtain an issue whether that decree was not obtained by fraud or collusion between the parties. There is absolutely no suggestion of the kind, and I am unable to regard the few sentences in the judgment of the Court of first instance referring to the possibility of the knowledge of the will on the part of some of the members of the tarwad of the deceased husband of the plaintiff as at all relevant for the purpose of the discussion. If, therefore, it was the case of a creditor of the deceased person instituting a suit making as defendant in the action a person who, but for the will would have been the proper legal representative, then it follows that the burden is upon the plaintiff to show the circumstances under which or the reasons for which that decree is not binding; but’ she has not established the same.
4. The learned vakil for the appellant at one stage desired to argue that, if, as a matter of fact, the person that was made party defendant was not the legal representative, then it should be held that the estate of the deceased was not properly represented in the action, and that there’ fore the decree should be regarded as a. nullity. I cannot possibly agree with any such contention. For that purpose, the learned vakil referred to the case of Angadi Mallappa v. N.G. Rare Gowd A.I.R. 1926 Mad. 487. There are no doubt some observations there by Mr. Justice Ramesam to the effect that, if the person that is impleaded as a defendant was not a legal representative at all in any sense of the word, no-question arises of the decree being binding. I can only regard the dictum of the learned Judge as having been made with regard to the facts of that particular case.
5. I cannot possibly regard the learned) Judge’s observations as having overruled the decisions of this Court by Benches of two Judges, which have also been referred to in the course of the discussion in this case. In the case of Gnanambal Ammal v. Veeraswami Chetti [1915] 29 M.L.J. 698, a case which was very similar to the present one,. Sadasiva Iyer and Napier, JJ., distinctly held that, when, in ignorance of the will that had been left by the deceased person, certain persons are sued as the legal representatives by the creditor and a decree is obtained the decree would be binding on the estate or on the person who turns out to be the heir ultimately.
6. In fact, in the latter case of Bachu Soorayya v. T. Chinna Anjaneyulu [1919] 36 M.L.J. 106, the same learned Judge (Sadasiva Iyer) refers to the case of such decrees being held to be binding on the estate of the deceased as an exception to the general rule that decrees are generally binding only on parties to the suit. In other words, the raison de etre of both the said decisions is that if the plaintiff, without any fraud or collusion, sues a person who would be the ordinary legal representative under the law of the deceased person, in ignorance of other facts or circumstances by reason whereof some other person turns out to be the real or actual legal representative, then such a decree is binding in the same manner and to the same extent on the real heir and legal representative. In this case, therefore, the plaintiff not having alleged, much less proved, any fraud or collusion or other circumstances which can be regarded as vitiating the judgment in execution of the decree passed in which the properties were purchased by defendants 7 and 8, I must hold that the plaintiff has not shown that the properties were not properly purchased by the said defendants. I must, therefore, hold that the ground of this second appeal entirely fails.
7. The second appeal is dismissed with costs.
