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Pakira Bhandary and ors. Vs. Devu Bhandary - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 62 of 1961
Judge
Reported inAIR1966Kant115; AIR1966Mys115
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 16
AppellantPakira Bhandary and ors.
RespondentDevu Bhandary
Excerpt:
.....- in my opinion clause (iv)of para 4 of the partition decree clearly assigns the interest of the degree-holder in the decree in writing in favour of manku bhandary. even otherwise, in my opinion, this is clearly a case where there is a transfer of interest by operation of law. the equitable principle of assignment is as good as any rule of law. the law is well settled that if a decree obtained by one of the members of a hindu family is allocated, at a family partition, to another coparcener, the person to whom it is allocated cannot be treated as an assignee of the decree by operation of law and he cannot, by reason of such allocation alone, execute the decree unless he was so empowered by an instrument in writing. that being so, the execution petition filed by the present petitioner..........he is not entitled to execute the decree; (3) the respondent is not a legal representative of the degree-holder; and (4) the order of remand is defective. on these submissions, mr. karanth contends that the order passed by the lower appellate court cannot be sustained and the same is liable to be set aside.(3) i shall now consider the first submission made by the learned counsel for the appellants. the decree in o.s. no. 367 of 1947 was obtained by mundi hengsu as the yejamanthi of aliyasanthana family of which the judgment-debtors and manku bhandary were members, and on behalf of the family while it was joint. thereafter there were partition proceedings among the members of the aliyasanthana family and a final decree for partition came to be passed in the said suit, on the 14th of.....
Judgment:

1. This Second Appeal arises out of execution proceedings. The short question that is raised by the appellants is, whether the respondent is entitled to execute the decree. It arises in this way: The decree sought to be executed was obtained by one Mundi Hengsu, since deceased, in O.S. No. 367 of 1947 as Yejamanthi of Aliyasanthana family of which the appellants and respondent were members; that decree was for possession and mesne profits to be realised from the present judgment-debtors; thereafter, there was a partition suit among the members of the Aliyasanthana family and a final decree for partition came to be passed on 14-9-1954; the present respondent claiming as heir to one Manku Bhandary, since deceased sought to execute the decree obtained in O.S. No. 367 of 1947 and realise the decretal amount from the judgment-debtors. The judgment-debtors objected to the maintainability of this execution petition. It was contended by them that the decree sought to be executed was not an executable decree since the said decree was merged in the partition decree amongst the members of their family and that it was only the partition decree that could be executed and not the decree obtained in O.S. No. 367 of 1947.

This contention of the judgment-debtors found favour with the executing Court. It held that the decree sought to be executed is not executable since it is merged in the partition decree and that it is the partition decree and that it is the partition decree which alone is capable of execution. In that view of the matter, it dismissed the execution petition. In appeal, that learned appellate Judge did not agree with the conclusion reached by the trial Court. He held that the petition seeking to execute the decree is O.S. No. 367 of 1947 is maintainable; he therefore reversed the decree of the trial Court and directed the execution to proceed in accordance with law. It is the correctness of this Order that is being challenged by the judgment--debtors in this appeal.

(2) Mr. Karanth, appearing for the appellants submitted in support of the appeal. They are (1) that the decree obtained in O.S. No. 367 of 1947 having merged in the final decree in the partition suit is not capable of execution: (2) the respondent is neither an assignee in writing nor a transferee by operation of law within the meaning of Order XXI, Rule 16 of the Code of Civil Procedure and therefore he is not entitled to execute the decree; (3) the respondent is not a legal representative of the degree-holder; and (4) the order of remand is defective. On these submissions, Mr. Karanth contends that the Order passed by the lower appellate court cannot be sustained and the same is liable to be set aside.

(3) I shall now consider the first submission made by the learned counsel for the appellants. The decree in O.S. No. 367 of 1947 was obtained by Mundi Hengsu as the Yejamanthi of Aliyasanthana family of which the judgment-debtors and Manku Bhandary were members, and on behalf of the family while it was joint. Thereafter there were partition proceedings among the members of the Aliyasanthana family and a final decree for partition came to be passed in the said suit, on the 14th of September 1954. A certified copy of that decree has been produced and marked in the case as Exhibit P-1. The relevant portion of the decree is as follows:

Para 4 of the decree provides--

'That the debts mentioned in paras (iii)(a) to (d) and (iv) of the preliminary decree in the above suit, shall be paid by the respective sharers in the manner detailed below.'

We are concerned here with para 4(iv) which provides:

'Plaintiff, defendants 31, 32(of 3 registered share) do pay to petitioner, the amount claimed in R.E.P. No. 204 of 1952(O.S. No. 367/47) of this Court.'

I should state that the petitioner mentioned there in was Manku Bhandari, defendant 2 in the suit, who after the death of Mundi Hengsu sought to execute the decree by R.E.P. No. 204 of 1952. But it came to be dismissed because by then Manku Bhandari had died. The amount claimed in that R.E.P. was Rs. 912-2-8 and interest thereon at 51/2 per cent from 27-6-1952 till payment and costs of execution.

(4) Paragraph 9 of the decree is also relevant, which provides:

'That the amounts due by the respective parties as shown in paras 4 to 6 above, will be paid by them (or recovered from them) on the charge of the income of the respective shares of properties allotted to them.'

(5) The question is, whether the decree obtained in O.S. No. 367 of 1947 cant be said to have been merged in the partition decree. The executing court took the view that the decree is merged, whereas the appellate court took a contrary view. Mr. Karanth, for the appellants contends that the view taken by the executing court is the correct one. In my opinion, it is difficult to accept this contention. The decree obtained in O.S. No. 367 of 1947 was an asset of the Aliyasanthana family and when the assets were being divided in the final decree proceedings this decree came to be assigned to Manku Bhandary, the elder brother of the present petitioner. It is further to be noted that the present judgment-debtors were defendants 31 and 32 and plaintiff Fakeera Bhandary (the first appellant in this appeal). Therefore, it is O.S. No. 367 of 1947 was an asset of the Aliyasanthana family and when the assets were being divided in the final decree properties this decree came to be assigned to Manku Bhandary, the elder brother of the present petitioner. It is further to be noted that the present judgment-debtors were defendants 31 and 32 and plaintiff Fakeera Bhandary (the first appellant in this appeal). Therefore, it is not correct to say that the decree obtained in O.S. No. 367 of 1947 has merged in the partition decree. The said decree being an asset of the family was allotted to Manku Bhandary and his branch who were entitled to the benefit of that decree. Therefore, the submission of Mr. Karanth that the decree obtained in O.S. No. 367 of 1947 is merged in the partition decree is not correct be accepted. Thus, in my opinion, the view taken by the trial Court is wrong.

(6) The second submission on which considerable stress has been laid by the learned counsel for the appellants is that the peasant execution is not maintainable since the respondent is not shown to be an assignee of the interest of the degree-holder either in writing or by operation of law, under Order XXI, Rule 16, Civil Procedure Code. This rule deals with application for execution by transfer of decree and it states that:

'Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any degree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such degree-holder.'

The two provisos to the rule are not material for consideration since there is no dispute that the required notice was issued. Thus, in cases where there is a decree jointly in favour of two or more persons and the interest of any degree-holder in the decree is transferred by assignment in writing, the assignee is entitled to execute the decree in the same manner and subject to the same conditions as if the application were made by such degree-holder. Or in cases where the decree is passed jointly in favour of two or more persons and the interest of any degree-holder in the decree is transferred by operation of law, even then such transferee is entitled to execute the decree in the same manner and subject to the same conditions as if the application were made by such degree-holder.

(7) I shall now proceed to examine Mr. Karanth's contention that the present applicant has not shown that he or his predecessor is an assignee of the interest of the degree-holder either in writing or by operation of law. I shall first consider whether the respondent is an assignee in writing. There can be no dispute that the assignment of an interest of any one of the degree-holders in the decree must be in writing. The question is whether there is any such writing in this case. In my opinion Clause (iv)of para 4 of the partition decree clearly assigns the interest of the degree-holder in the decree in writing in favour of Manku Bhandary. There is no particular form of assignment in writing required by Rule 16. Clause 4(iv) of the partition decree substantially satisfies the requirement of rule 16 of O. XXXI C.P.C and therefore I hold that there is an assignment of the decree in writing in favour of Manku Bhandary. The present applicant as the heir to Manku Bhandary is therefore entitled to execute the decree in the same manner and subject to the same conditions as if the application were made by such degree-holder. Even otherwise, in my opinion, this is clearly a case where there is a transfer of interest by operation of law.

The expression 'by operation of law' has come to be interpreted by their Lordships of the Supreme Court in Jugalkishore Saraf v. Raw Cotton Co. Ltd., (S) AIR 1955 Supreme Court 376. The headnote (e) of that decision which is relevant reads as follows:

'Transfers 'by operation of law' are not intended to be confined to cases of death, devolution or succession. There is no warrant for confining transfers 'by operation of law' to transfers by operation of statutory laws. When a Hindu or Mohammadan dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property 'by operation of law' all that is necessary is that there must be a passing of one person's rights in property to another person by the force of some law, statutory or otherwise. The equitable principle of assignment is as good as any rule of law. Where the equitable principle of assignment applies, the transfer should be regarded as one by operation of law.'

Thus, applying the said principle to the facts of this case, it is clear to me that the interest of in the decree has passed from the degree-holder to Manku Bhandary by virtue of the partition decree. Thus, in my opinion, there has been not only an assignment in writing but also a transfer by operation of law of the interest in the decree in O.S. No. 367 of 1947 in favour of Manku Bhandary. But, Mr. Karanth seeks to rely upon two decision in support of his contention. The first decision relied upon by him is that reported in Jagannath v. Takhat Singh, AIR 1952 Madh Bha 9 and relevant portion appearing in para 8 at page 11 of the judgment is to the following effect:

'The law is well settled that if a decree obtained by one of the members of a Hindu family is allocated, at a family partition, to another coparcener, the person to whom it is allocated cannot be treated as an assignee of the decree by operation of law and he cannot, by reason of such allocation alone, execute the decree unless he was so empowered by an instrument in writing.'

But, in the instant case, there has been an allocation of the interest and the transferee was empowered by an instrument in writing as per the terms of the decree passed in the partition suit, to realise the fruits of the decree. Therefore, this decision has no application to the facts of this case.

The other decision on which reliance has been placed is 1954-2 Mad LJ 155, Sankara Pattar v. Ramanatha Ayyar. It is clear from the facts of that case that the ratio of that decision does not support the contention of the learned counsel. The contention in that case was that at an oral partition the decree sought to be executed was allotted to one of the members who applied for execution on the strength of oral allotment in his favour. It was in such circumstances their Lordships held that this is not a sufficient compliance with the requirement of Order 21, Rule 16 C.P.C. The relevant portion on which he relies is as follows:

'Where a decree obtained by one of the members of a Hindu joint family is allotted at a family partition to another coparcener, the person to whom it is allotted cannot b treated as an assignee of the decree by operation of any law and he cannot by reason of such allocation alone execute the decree unless he was so empowered by an instrument in writing.'

But, Where a decree has been obtained for and on behalf of the joint family and such a decree forms part of the assets of the family, and in a partition among the members of the joint family it is allocated to one of the members of the family in writing empowering him to realise the fruits of the decree, then in my opinion, the allottee would be entitled to execute the decree. But, where the decree sought to be executed was a decree in favour of a person who was not a coparcener when the decree was passed then unless there has been an assignment in writing, such a decree cannot be executed. The facts of that case are different from the facts of this case. Since in the case the decree assigned was in favour of the yejamanthi of the family and there has been an assignment in writing in favour of Manku Bhandary in terms, by the final decree in the partition suit, empowering him to recover the amount due under the decree.

(8) Thus, the two decisions, in my opinion, are distinguishable on facts. The real test to be applied to such cases is stated by their Lordships of the Supreme Court in (S) AIR 1955 SC 376 and applying that test to the facts of the present case, I am of the view that the provisions of Order XXI, Rule 16 C.P.C. have been sufficiently complied with in that there has been not only an assignment in writing but also a transfer of interest of the degree-holder by operation of law. That being so, the execution petition filed by the present petitioner is perfectly petitioner is perfectly maintainable. In that view of the matter, it is not necessary for me to consider whether the respondent is or is not the legal representative of the degree-holder.

(9) As to the fourth contention, viz. that the Order of remand is defective, in that the question was urged as a preliminary point and then were other contentions on merit urged by the judgment-debtors and therefore, the learned appellate Judge should have while remanding the case given a direction to the executing Court to proceed with the execution after considering the other contentions raised by the judgment-debtors. In my opinion, such direction is implied in the Order itself. Even otherwise, I would make it clear that the decision being on a preliminary point, the executing court will examine the other contentions urged by the judgment-debtors and dispose of the application in accordance with law.

(10) In the result, the appeal fails and the same is dismissed with costs.

(11) Leave refused.

(12) Appeal dismissed.


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