Important Points
1. Unilateral act of one of the executors, who is also a legatee, mortgaging the property would not amount to assent to legacy by executors so as to divest interest of the executors.
2. Where property was sold by the executors of the Will though the same stood attached pursuant to decree against the legatee, subsequent Court auction purchaser would have no right over the property since the sale by the executors would prevail the Court sale since the property belonged to the executors in view of Section 211 of the Succession Act in the absence of proof of divesting the interest of the executors in terms of Sections 332, 333 of the Succession Act.

Headnote:(i) Code of Civil Procedure, 1908-Section 60 and Order 21 Rule 54 read with Sections 332, 333 and 311 of Succession Act-Auction sale-Validity of-Property in question bequeathed to judgment debtors-Judgment debtors are sons-Elder son and widow appointed as executors-Property attached pursuant to decree against sons-No decree against widow-Executors sold property thereafter -Subsequent Court sale-Plea of auction purchaser sale by executors not valid since one of the executors i.e. elder son had earlier mortgaged property and his act amounted to assent of executors and thus interest of executors got divested-Not sustainable-Unilateral act of one of the executors does not amount to assent-Will not probated at the time he mortgaged property and as such protection u/s 311 of Succession Act is also not available-Sale of executors prevails Court sale.
       Held : 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 controlled or represented by one of the legal representatives of the deceased to the exclusion of other legal representatives. (Para 9)
       On facts, there is no dispute that one of the executors, namely, Mrs. 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 the sole 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 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 by elder Sadanandan to attract the enabling provision of Section 311. Therefore, in our opinion, the act of elder Sadanandan cannot be protected under 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. Therefore, the executors having obtained the probate on 3.1.1963 the sale made 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 19.12.1961 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 a valid sale then the said property was not available for court sale. Consequently, 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. (Para 10)
       (ii) Indian Succession Act-Sections 332 and 333 read with Section 311-Assent to legacy by executors - Specific legacy - Property bequeathed to sons-Elder son and widow appointed as executors-Elder son mortgaged property with possessory right-Widow not party to mortgage deed-Unilateral act of elder son, one of the executors does not amount to assent by executors-Executors interest not divested-Protection u/s 311 also not available as Will not probated at the time of Mortgage. (Paras 9 & 10)

Judgment

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.

2. 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 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 Paramasivan as executors of his Will. One of the executors, namely, Paramasivan later on relinquished his status as an executor. 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 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 mortgaged the property with possession in favour of the original lessee S.V. Sivaramakrishna Iyer, son of S.G. Venkitachala Iyer for a consideration of Rs. 1,000/- for a period of 12 years. It has also come on record that one 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. Ltd., of which the widow of Late Sadanandan-Suseela-and her eldest son E.D. Sadanandan were Directors along with the younger son Sadanandan. 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 Company. 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 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. represented 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 against the court auction being rejected by the executing court, a sale certificate was issued on 2.9.1964 in favour of the auction purchaser and 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.

3. The auction purchaser thereafter filed a suit for redemption of the mortgage being OS No. 158 of 1968 on the file of the Munsif, Kozhikode (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 purchase 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 preferred firs

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