Skip to content


Bai Premabai Vs. Jivandas Vallabhram - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 1641 of 1931
Judge
Reported inAIR1936Bom456; (1936)38BOMLR977
AppellantBai Premabai
RespondentJivandas Vallabhram
Excerpt:
.....made an application under order xxi, rule 22, civil procedure code, 1908, and served it on the official assignee and the respondents calling upon them to show cause why the decree should not be executed against them. the respondents contended that on the insolvency of the defendant the official assignee became his legal representative and therefore it was not necessary to bring them on record:-;(1) that the respondents were the legal representatives of the deceased within the terms of sections 50 and 53 of the civil procedure code, 1908, for the purpose of the application under order xxi, rule 22;;(2) that on the insolvency of the defendant the only property vested in the official assignee was the right, title and interest of the defendant, and as the respondents' interests were not..........property vested in the official assignee was the right title and interest of the deceased, and the sons' right, title and interest in the joint family estate did not become vested in him, although by adopting proper proceedings the official assignee could, for the benefit of the creditors of the insolvent father, avail of the interest of the sons in the joint family estate. till that was done, the sons had a free hand and could deal with their own shares, and creditors of the sons who may have obtained decrees against them or persons who were entitled in law to attach their interest in execution of their decrees had a perfect right to do so.13. it is, therefore, clear that the sons' interests not being vested in the official assignee, the official assignee does not represent that portion.....
Judgment:

Kania, J.

1. The original plaintiff filed this suit against three defendants, claiming a sum of Rs. 12,000 and odd from them. On February 26, 1934, the present plaintiff obtained a decree for Rs. 16,027-8-0 against the three defendants for debt and interest, and costs of the suit. On July 10, 1934, the plaintiff obtained an order in execution of the decree and attached the whole property now in dispute in the execution proceedings. The plaintiff alleges that the property belonged to defendant No. 1 and his sons who. were members of a joint and undivided Hindu family. Objections were raised to other attachments on other properties, and on a summons taken out the plaintiff was directed to file suits to establish her right to attach those properties. One such suit was accordingly filed in Thana Court against Mathuradas, one of the sons of Jivandas. Pending these proceedings the firm of Jivandas Vallubhram and Co., in which defendant No. 1 herein was a partner, were adjudicated insolvents on December 12, 1934. The plaintiff alleges that defendant No 1's name in that firm represented the share of the joint family consisting of defendant No. 1 and his sons. On April 29, 1935, Jivandas, defendant No. 1, died. After a decree in the Thana suit was passed on July 1, 1935, declaring that the property therein involved was joint family property, the plaintiff made the present application under Order XXI, Rule 22, Civil Procedure Code, and served it on the Official Assignee and the present respondents calling upon them to show cause why the decree should not be executed against them. The Official Assignee docs not appear and contest.

2. The attachment levied against the property in question on July 10, 1934, still subsists and the application for execution originally filed still remains to be disposed of. The present application for execution of the decree against the representatives of the deceased could be made in the pending application and it is not necessary to make a fresh application for the purpose (See Purushottam v. Rajbai (1909) 11 Bom. L.R. 1358 and Shankar v. Hiralal (1931) 38 Bom. L.R. 858). The terms of Order XXII, Rule 12, of the Civil Procedure Code, also show that on the death of a judgment-debtor a pending application for execution does not abate. To this extent, therefore, there can be no objection on the part of the respondents.

3. On behalf of the plaintiff it is contended that the terms of Section 50 of the Civil Procedure Code, read along with Section 53, show that the opposing respondents are, for the purpose of this application, legal representatives, provided it is shown on evidence that there is property in their hands which is liable for payment of the decretal amount, as it is not disputed that the opposing respondents are the sons of Jivandas. It is urged on behalf of the plaintiff that the definition of ' legal representative' as contained in Section 2, Sub-section (11), is not exhaustive and should be qualified by Section 53. On behalf of the respondents it is contended, on the other hand, that on the insolvency of Jivandas the Official Assignee became his legal representative and on the death of Jivandas, therefore, it is not necessary to bring the respondents on record. It is contended that just as during Jivandas's lifetime the plaintiff could have executed the decree against the joint family property, if any, in the hands of the present respondents, even after Jivandas's death ft the plaintiff would be entitled to do so without making the respondents parties as legal representatives. On behalf of the respondents strong reliance is placed in this connection on the decisions in Fakirchand Motichand v. Motichand Hurrukchand I.L.R. (1883) 7 Bom. 438 and Chunilal Harilal v. Bai Mani I.L.R. (1918) 42 Bom. 504 : S.C. 20 Bom. L.R. 660.

4. It is, therefore, necessary to consider the following sections of the Civil Procedure Code.

5. Section 2 (11) :-

' legal representative' is a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a' party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued :

6. Section 50 :-

(i) Where a judgment-debter dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed the decree to execute the same against the legal representative of the 'deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the, application of the decree holder, compel such legal representative to produce such accounts as it thinks fit.

7. Section 53 :-

For the purpose of section 50 and section 52 property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt, of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

8. In my opinion the contention of the plaintiff is correct. The terms of Section 53 themselves indicate that the property in the hands of the son or descendant should be deemed to be the property of the deceased come to the hands of the descendant as his legal representative. In view of the express words ' as his legal representative ' used in Section 53, it will be contradictory to state that although the property in his hands is to be considered as property held by him as legal representative, he was not a legal representative within the meaning of Section 50 or Order XXI, Rule 22, Civil Procedure Code. Reading the above provisions of the Code together it seems that the legislature had defined the ordinary meaning of the term ' legal representative ' in Section 2, Sub-section (II), but, having regard to the peculiar provisions of Hindu law under which a son or a descendant is liable to satisfy the debt of his father or ancestor out of the joint family property, and having regard to the pious obligation of the son or descendant to discharge the father's or ancestor's debt out of the joint family property and further having regard to the right of the creditor to proceed against such property although the sons were not joined as party defendants to the original suit, Section 53 was specially introduced to obviate the necessity of filing a fresh suit to enforce the creditor's rights. Having regard to these provisions it would not be open to the creditor to file a suit against the sons because the liability of the property in the hands of the sons to be attached will be a question arising in execution and the terms of Section 47 of the Code would bar an independent suit.

9. Apart from the construction of the words of the above sections it is also clear that under Hindu law on the insolvency of the father the sons' interest does not vest in the Official Assignee. A son is entitled to deal with his interest in spite of the father's insolvency and any alienation made by him would be valid and binding even as against the Official Assignee until the Official Assignee by a proper procedure exercised his right to make the son's interest in the joint family estate liable to satisfy the father's debts. Sat Narain v. Behari Lal (1924) L.R. 52 IndAp 22 : S.C. 27 Bom. L.R. 135, Official Receiver v. Arunachalam AIR [1934] Mad. 217, and Allahabad Bank, Ltd. Bareilly v. Bhagwan Das Johari I.L.R. (1925) All. 343.

10. On behalf of the respondents it is not contended that on the insolvency of Jivandas the sons' interest became vested in the Official Assignee. It is suggested that the right of the father to dispose of the sons' interest in the joint family estate became vested on insolvency in the Official Assignee. That proposition is distinctly negatived by the Privy Council decision (Sat Narain v. Behari Lal). Their Lordships clearly decided in that case that :his right, not being property within the meaning of the Presidency-towns Insolvency Act, did not vest in the Official Assignee, but he could make that right available to him by adopting proper procedure. The fact that the property was attached before the insolvency and death of Jivandas does not make any difference in the position of the respondents as regards the present application. Just as during the lifetime of Jivandas the respondents could not have dealt with their interest in the joint family estate, so as to defeat the present attachment, they could not even now do so, in spite of the insolvency and death of their father. That, however, does hot alter their liability to be made respondents in the present application under Section 53 of he Code. Moreover, if even after the sale proceeds of the property in question are credited against the decree, there was a deficit, the plaintiff would be entitled to proceed against any other property which may be in the hands)f the respondents to satisfy her decree. That property would be in their lands, according to the terms of Section 53, as the legal representatives of Jivandas. According to the decisions the Official Assignee only represents the individual interest of the deceased Jivandas and the attachment only of his right title and interest in the property would be ineffective against the Official assignee. The interest of the sons in the particular property not being vest-id in the Official Assignee, the only parties who could dispute the validity)f the attachment or the right of the attaching creditor to dispose of the same would be the opposing respondents and no others. Therefore, in my >pinion, along with the Official Assignee, they are the legal representatives of the deceased Jivandas, for the application under Order XXI, Rule 22.

11. The decision in Chunilal v. Bai Manx was on different facts, as the decree was not for a debt. The learned Judges have expressly noticed the difference which may arise in the event of there being a decree for debt and the application in that event of Section 53 of the Code of Civil Procedure. The authority of the general observations in that case as to the meaning of ' legal representatives' is considerably shaken by the doubt cast thereon in Ganesh Sakkmam v. Narayan Shivram I.L.R. (1931) 55 Bom. 709 : S.C. 33 Bom. L.R. 1144. The judgment in the former case was distinguished although that also was not a case of a decree on a debt, but like the decision in Chunilal v. Bai Mani was to enforce a decree granting an injunction.

12. The learned counsel for the respondents very strongly relied on the observations in Fakirchand Motichand v. Motichand Hurruckhand I.L.R. (1883) 7 Bom. 438. There a father and a son were joint and the father was adjudicated insolvent. The father died and the Official Assignee sold the whole property. It was held that he was entitled to do so. In that case it was further held that under the Insolvency Act, by reason of the vesting order, the right of the father to dispose of his sons' interest in the ancestral immoveable estate was also vested in the Official Assignee, and therefore he could give a good title to the purchaser. It was further held that the death of the insolvent had no effect on the proceedings in his insolvency or on the powers of the Official Assignee, as the ancestral estate previously vested in this Official Assignee was not thereby divested and got vested in the son by right of survivorship. It was observed that in the legal aspect of the matter the natural existence of the insolvent was, for the purpose of dealing with his estate, artificially continued in the Official Assignee, who could after the insolvent's death deal with the estate as he could have dealt with it had the insolvent been then alive. It is on the last observations that the learned counsel for the respondent strongly relies. In view of the Privy Council decision is Sat Narain v. Behari Lal the two propositions laid down in that case, that the father's right to dispose of the property was vested in the Official Assignee and therefore he could dispose of the property even after the death of the insolvent father, cannot now be sustained. The further corollary to that proposition is contained in the observations relied upon by the learned counsel for the respondent. In my opinion those observations are to be read along with the two propositions on which the learned Judge based his decision, and under the circumstances they do not now help the respondents. Having regard to the Privy Council decision it is clear that on the insolvency of Jivandas the only property vested in the Official Assignee was the right title and interest of the deceased, and the sons' right, title and interest in the joint family estate did not become vested in him, although by adopting proper proceedings the Official Assignee could, for the benefit of the creditors of the insolvent father, avail of the interest of the sons in the joint family estate. Till that was done, the sons had a free hand and could deal with their own shares, and creditors of the sons who may have obtained decrees against them or persons who were entitled in law to attach their interest in execution of their decrees had a perfect right to do so.

13. It is, therefore, clear that the sons' interests not being vested in the Official Assignee, the Official Assignee does not represent that portion of the estate and by bringing him on record the sons' interests are not represented in these execution proceedings. For that purpose it is necessary to bring the sons on record and the Court would inquire whether the property in their hands was liable to satisfy the decree having regard to Section 50, Sub-section (2), read along with Section 53. For the purpose of that inquiry it is clear that the sons are the legal representatives. They would, therefore;, be proper respondents to the present application, subject to proof of their having such property in their hands. The contention of the respondents; therefore, on an argument of law fails. Their liability to be joined as respondents or legal representatives would depend upon a question of fact whether they hold any property as mentioned in Section 53. That question of fact is disputed and evidence will have to be adduced to prove that.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //