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Vishvanath Gangadhar Deshpande Vs. Keshavbhat Govindbhat Kamat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 397 of 1932
Judge
Reported inAIR1934Bom119; (1934)36BOMLR181
AppellantVishvanath Gangadhar Deshpande
RespondentKeshavbhat Govindbhat Kamat
DispositionAppeal dismissed
Excerpt:
.....offices act (bom. iii of 1874), sections 5 and 10 - money-decree against watandar and his minor sons-execution of decree after watandar's death against watan property in minors' hands.; a money-decree was obtained against a watandar and his minor sons. after the death of the watandar the decree-holder applied to execute the decree against the watan property in the hands of the minor sons. the guardians of the minors applied for, but failed to obtain, a certificate from the collector under section 10 of the bombay hereditary offices act, 1874:-; that the interest of the minors in the watan property was liable to be attached and sold in execution of the decree obtained against them.; per baker j. the interest of a watandar in watan property is a life-interest, and any alienation made by..........169 where the decree was against the father alone, and it was sought to execute it against the watan property in the hands of his sons, and it was held that watan property in the hands of the sons was not an asset of the father within the meaning of section 53 of the civil procedure code, so as to be liable for attachment and sale for the debts of the father. no question of the son's obligation to pay the debts of the father arises in the present case, because the sons are themselves parties to the suit, and the decree is against them as well as against the father, the debt apparently being considered as family debt for which all the defendants are liable, the judgment is very short, and no contention as to the liability of the minor defendants appears to have been raised. reference.....
Judgment:

Baker, J.

1. The facts of this appeal are simple, but they involve a point of law which does not seem to have been decided by this Court, though the question involved is one which must arise not infrequently. The respondent obtained a money decree against one Gangadhar and his three minor sons. Gangadhar died after the decree, and the decree-holder attempted to execute it against the property of the family, which was watan. The minors, who were represented by different guardians, put in an application objecting that the property being watan could not be attached and sold. The first Court directed execution to proceed, holding that there had already been an order directing the defendant to produce a certificate from the Collector under Section 10 of the Watan Act, and the certificate not having been produced, execution had been ordered to proceed. So the application was rejected without going into the merits.

2. On appeal, the Extra Assistant Judge of Belgaum held that the property was liable to attachment and sale, and the application was also barred by the order of March 12, 1930, the application being made on September 10, 1930. He, therefore, dismissed the appeal. The minor judgment-debtors make this second appeal.

3. It is contended at the outset on behalf of the appellants that the decree itself was bad, as there can be no personal decree against the minors. But this argument cannot be accepted, as there was no appeal against the decree, and the Court cannot go behind it in execution proceedings, and must execute the decree as it stands. Moreover, there is no question of executing the decree against the minors personally; execution was sought against the property. The deceased father of the minor appellants passed a promissory note to the plaintiff, and the decree is against the father and his minor sons, and is a simple money decree, which is sought to be executed by the attachment and sale of the family property, which is watan. The minors having been parties to the suit duly represented by a guardian, the case is differentiated from that which we had to consider a few days ago, Vithaldas v. Shrinivasrao (1933) 36 Bom. L.R. 169 where the decree was against the father alone, and it was sought to execute it against the watan property in the hands of his sons, and it was held that watan property in the hands of the sons was not an asset of the father within the meaning of Section 53 of the Civil Procedure Code, so as to be liable for attachment and sale for the debts of the father. No question of the son's obligation to pay the debts of the father arises in the present case, because the sons are themselves parties to the suit, and the decree is against them as well as against the father, the debt apparently being considered as family debt for which all the defendants are liable, The judgment is very short, and no contention as to the liability of the minor defendants appears to have been raised. Reference was made to Narayan v. Ramrao, (1901) 3 Bom. L.R. 482 but the facts of that case are not the same. That case inter alia lays down that watan property in the hands of the son is not assets of the father. The learned advocates on either side have not been able to point out any decision of this Court on the point directly before us, nor have we been able to find any. It seems, however, that on general principles the lower Court is right, subject to certain qualifications. The interest of a watandar in watan property is a life-interest, and any alienation made by him is not valid after his death. Certain later decisions hold that the heir of a watandar succeeds through his predecessor, contrary to the view expressed in Narayan v. Ramrao, that the watan property in the hands of the son is not assets of the father within the meaning of Section 53, Civil Procedure Code. The life-interest of the watandar terminates at his death. During his lifetime his sons in the case of a joint Hindu family acquire an interest in the watan property by birth. At his death his interest ceases and vests in his sons, who become full owners of the watan property, that is to say, they have a life-interest in it. When there is a decree against them which is to be satisfied out of the family property, it seems to me that their life-interest can be attached and sold, and that the attachment and sale will be good during their lives, subject to any objection which might be raised by their heirs after their death and subject to any action which the Collector might take under the Watan Act on their representation. In the present case neither of these two factors is in operation, for the appellants, except appellant No. 1 who has recently attained majority, are minors, and no question of their heirs arises at present. It also appears from the record, vide the order of March 1930, that time was granted to enable one of the appellants to obtain a certificate from the Collector under Section 10 of the Watan Act, and no certificate being obtained within the time specified, execution was ordered to proceed. So far, therefore, as matters stand at present, the appellants are the sole owners of the watan property and the Collector has not taken any action, and I see no reason why their interest in the watan property should not be attached and sold in execution of the decree which has been obtained against them. What may happen after the deaths of any of them or if the Collector takes action is another matter with which we are not at present concerned, and the question can be decided when it arises. The view of the lower Court, therefore, appears to be correct, and should be confirmed with the proviso above stated.

4. On this view the second point is of little importance, especially as it appears that the appellants were represented by different guardians and that the minor appellants Nos. 2 and 3 were not parties to the application for staying the proceedings to enable a certificate to be procured from the Collector that the property was not liable to attachment and sale. No doubt, on the rulings of the Privy Council, a judgment-debtor, on principles analogous to those of res judicata, cannot be allowed to re-agitate the same question, and a party who has been given an adjournment to enable him to move the Collector to grant a certificate which under the law would bring the execution proceedings to a termination and fails to produce the certificate cannot be allowed to raise the objection again. But that would apply only to appellant No. 1, who does not represent his minor brothers, and therefore the other appellants would not be barred from raising the same objection. But in view of my finding on the first point the second point loses its importance. We, therefore, confirm the order of the lower appellate Court, and dismiss the appeal with costs, with the proviso that what is sold is the life-interest of the appellants in the watan property. It is not necessary to consider what may happen after their deaths.

Divatia, J.

5. I concur. The decree under execution in this case is a money decree against a joint Hindu family consisting of Gangadhar and his three sons who were all minors at that date represented by a guardian appointed by the Court. After the decree Gangadhar died and it was sought to be executed against the sons by attachment and sale of family property which consisted of watan lands. The sons object to the sale on the ground that the watan property in their hands cannot be sold in execution inasmuch as the life-interest of their father in the property ceased on his death and they themselves could not be personally liable as they were minors at that date and also because their interest in the watan property is not derived from their father.

6. The decree is not a personal decree in the sense that it directed that the minors could be arrested in execution. Their interest in the family property would certainly be liable, and the only question of importance is whether even after their father's death the watan property in the hands of the sons would be liable to be sold in execution. It has been recently decided by us that it is not so liable where the decree was obtained against the father alone on the ground that it is not an asset in the hands of the sons under Section 53 of the Civil Procedure Code. But that decision would not apply here because the sons themselves being the judgment-debtors under the decree, their interest in the watan property which they inherit by birth would be liable and the death of one of the judgment-debtors, viz., the father, would not make any difference so long as the sons' liability dates from the time when the decree itself was passed.

7. It is true that an alienation made by a watandar is good during his own lifetime and not beyond that, but it does not cease to be good on the death of one of the several watandars making it. The property would remain liable during the lifetime of the surviving watandars, and the fact that after the death of these surviving watandars, the alienation would be bad and the property would revert to the watan family, would not affect the present liability of all those watandars who are parties to the decree. If any alienation made by a watandar could not be touched during his lifetime, there is no reason why a joint alienation made by a father and his sons should be touched during the lives of all the alienors as to their interest in the property. The case of Narayan v. Ramrao (1901) 3 Bom. L.R. 482 can be distinguished on this ground, and although there does not appear to be any decided authority on this point, our decision follows from the wording of Section 5 of the Bombay Hereditary Offices Act, and is in no way inconsistent with the principle embodied therein.

8. I, therefore, agree that the appeal be dismissed with the proviso that what could be sold is only the life-interest of the appellants in the watan property.


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