IMPORTANT POINTS
Conflicting claims of legal representatives can be decided in execution proceedings.
High Court, in revisional jurisdiction, cannot interfere with finding of fact by Executing court like an appellate court.

JUDGMENT

HEMANT GUPTA, J.

1. The order dated 27th November, 2007 passed by the High Court of Judicature at Madras in revision petition under Section 115 of the Code of Civil Procedure, 1908 [for short, ‘Code’] is the subject matter of challenge in the present appeal.

2. The revision petition is directed against an order passed by the Executing Court on 19th September, 2005 wherein the possession of the suit property in pursuance of a decree passed in favour of one Umadevi was ordered to be given to the present appellant as the legal representative of Umadevi.

3. Umadevi filed a suit for partition and separate possession in respect of the suit property as the successor-in-interest of one Manicka Naicker, her husband. Prior to Umadevi, he had earlier married one Valliammal and had a child one Munisamy Naicker. Manicka Naicker died in the year 1971. Umadevi filed a suit for partition claiming half share in the suit property against Manicka Naicker. This suit was decreed on 7th April, 1989 and such decree had attained finality. It was in 1999 that Umadevi sought execution of the decree passed but she died on 22nd July, 1999. The appellant who is the son of Umadevi’s younger sister filed an application to execute the decree as her legal representative on the basis of a Will dated 16th July, 1999 (Ex.P/1). The said application was allowed by the Executing Court on 29th March, 2004.

4. The appellant filed an application under Order XXI Rule 35 of the Code for eviction of the respondent and to deliver vacant possession of the premises. In response to such petition, the respondent asserted that the Will is forged and that the son of a sister is not a legal heir as per Section 15 of the Hindu Succession Act, 1956. The learned Executing Court decided the application on 19th September, 2005. It found that the Will was attested by PW-2 Ayeeyappa who had signed it as one of the attesting witnesses and PW-3 Mohan had scribed the Will. The respondent examined Senthilnathan as RW-1 and Krishnan as RW-2. The learned Executing Court held that the appellant as legal representative of the deceased Umadevi is entitled to execute the decree. The Executing Court held as under:

“11. …Further in OS No. 30 of 1982 a judgment and decree was granted in favour of Umadevi on 7.4.1989. Either the deceased Munusamy or his son the said Senthilnathan had not filed any appeal as against the decree. But the said Umadevi had filed an Execution petition duly signed by her. Further, the said Umadevi, before her death, i.e. 6 days earlier to her death, she had executed the Ex.P-1 Will. This court finds that her actions in filing the execution petition and the Will are accepted to be correct, even by the respondents. Further this court finds that since the said Munusamy, who is the son of the first wife of her husband, did not give her food, cloth and shelter and did not take care on her, the deceased Umadevi had gone to the house of her younger sister and stayed along with her and since her health condition got deteriorated, she had executed a Will in favour of the son of her younger sister namely Varadarajan and these facts are found to be true.”

5. The said order was challenged by the judgment debtor by way of a revision under Section 115 of the Code. It may be noticed that no one else other than the appellant had come forward to continue the execution of the decree as the legal representative of Umadevi.

6. The High Court held that the Executing Court is the competent and proper Court to determine the validity of the Will as well as the legatee under a Will can be construed as a legal representative and come on record to seek execution of the decree. However, the High Court found that the execution of the Will was surrounded by suspicious circumstances. It may be noticed that the High Court in revisional jurisdiction has interfered with the findings of fact recorded by the Executing Court in respect of execution of Will arrived at after considering the evidence led by