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Kollapudi Govindamma Vs. Mandru Bullemma - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 108 of 1956
Judge
Reported inAIR1962AP243
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(11) and 53
AppellantKollapudi Govindamma
RespondentMandru Bullemma
Appellant AdvocateA.V. Krishna Rao, Adv.
Respondent AdvocateM. Surysmstsysns, Adv.
Excerpt:
.....the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased. (2) where no such orioerty remains in the possession the judgment-debtor and he fails so satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally'.for the purposes 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..........the property of the deceased which has come into the hands of the son or other descendants as his legal representatives with in the meaning of section 53 of the code of civil procedure.(6) the answer to this question depends on fsours sections of the code which it will be convenient to set out.(7) section 2(11) defines 'legal representative' as follows:-''legal representative' means person who in law represents the estate of a deceased person, and includes anay 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'.section 50 provides:- '(1) where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree.....
Judgment:

Satyanarayana Raju, J.

(1) This appeal has been brought against the judgment of Mr. Justice Chandra Reddy (as he then was) affirming an order made by the lower appellate Court, refusing execution against the respondent.

(2) The decree that was sought to be executed was one passed against the respondent in O. S. No. 65 of 1951 on the file of the District Munsif's Court, Tenali. It is unnecessary to enter in to the history of that litigation; it is sufficient to state for the present that the decree was for recovery of a sum of Rs. 1800/-. against the estate of one Subbaiah alias Prakasam in the hands of the respondent. Subbiah died about twenty five years ago leaving him surviving his son, Siviah, and his widow, Bullemma (respondent). Siviah died about fifteen years ago and on his death, the respondent succeeded to her son's estate. The plaintiff-appellant applied for attachment of two items of property -- a house and 60 cents of land. The respondent objected to the attachment on a two-fold ground: (1) that she is an agriculturist, that the house is in her occupation and therefore it is exempt both from attachment and sale and (2) that the land could not be attached and sold as it does not belong to that class of property to which the provisions of section 53 of the Code of Civil Procedure are applicable.

(3) The Court of first instance upheld the respondent's objection with regard to the house, and there the appellant allowed the matter to rest. So far as the land is concerned, the first Court negative the objection raised by the respondent. The objection, however, found favour with the lower appellate Court. In A. A. A. O. No. 68 of 1953* Mr. Justice Chandra Reddy, on a construction of the relevant provisions of the Code of Civil Procedure, affirmed the decision of the Subordinate Judge.

(4) It is contended before us that as Sivaiah was liable to pay the debts of this father which were not either immoral or illegal, his property in the hands of the respondent could be reached in the execution of the decree, and that the word 'descendant' in section 53 C. P. C. should receive a wider construction.

(5) Now the question for decisions whether item 2 sought to be attached by the decree-holder 'can be' deemed to be the property of the deceased which has come into the hands of the son or other descendants as his legal representatives with in the meaning of section 53 of the Code of Civil Procedure.

(6) The answer to this question depends on fsours sections of the Code which it will be convenient to set out.

(7) Section 2(11) defines 'legal representative' as follows:-

''Legal representative' means person who in law represents the estate of a deceased person, and includes anay 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'.

Section 50 provides:-

'(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it 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 as certaining such liability, the Court executing the decree may, of is own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit'.

Section 52 reads as follows:-

'(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such orioerty remains in the possession the judgment-debtor and he fails so satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally'.

'For the purposes 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) 'Legal representative' according to section 2, cl. (11) means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. Section 50 allows a decree-holder to execute his decree against the legal representative of a deceased judgment-debtor and provides that the legal representative shall be liable only to the extent of the property of the deceased which has come into his hands and has not been duly disposed of. The section provides for the case where a decree has been passed against a party and the party dies before the decree is fully satisfied, and the decree is sought to be executed against his legal representative. Section 52 provides for the case where a decree is passed against the legal representative of a deceased person. In the latter case the legal representative is the judgment-debtor and if the decree is for the payment of money out of the property of the deceased, the section allows the decree to be executed against the property of the deceased in the hands of the legal representative Section 53 says that for the purposes 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 the property of the deceased which has come in to the hands of the sonor other descendant as his legal representative. It may benoted that section 50 was section 235 of the Code of 1882, and section 52 was section 252. Section 53 is new. It was inserted in the present Code because there was a conflict of judicial opinion on the question whether it was necessary for the holder of a decree against a Hindu father to bring a suit to realize his decree after the death of the judgment-debtor or whether he could proceed to execute his decree against the property of the deceased in the hands of the soon without filing a suit.

(9) Now section 53 explains the meaning of the words 'property of the deceased'. It also explains the meaning of the term 'legal representative' as defined in section 2(11), by expressly making the son or other descendant of as Hindu his legal representative in respect of joint family property in his hands which is liable under Hindu Law, for the satisfaction of the debt of the deceased ancestor.

(10) The question then is whether the property in the hands of the respondent, who has succeeded to her son 'can be deemed to be property in the hands of the son of other descendant' within the meaning of section 53? The only persons who, under Hindu law, are under a pious obligation to pay their ancestors' debts are the son, the grandson and the great-grandson. The words 'son or other descendant' in section 53 can only mean 'son' or 'lineal descendant' I. e., the grandson and the great-grandsons. The section can have no application to a case where the property has passed into the hands of persons other than the ancestor's sons, grandsons and great-grandsons. So much is conceded. It is, however, argued that the liability of the son by against the property to which the mother has succeeded. As supporting this contention, the learned counsel for the appellants has relied upon a decision of this Court in Lakshminarassyya v. Papayya, : AIR1955AP97 . There the facts were these: A widow succeeding to the joint family estate of her son on his death alienated certain properties for the purpose of discharging the debts of her husband, which her son was bound to pay under the doctrine of 'pious obligation'. The reversioners questioned the right of the window to so alienate the properties on the ground that the son's liability was not a legalliability. The learned Chief Justice held that the mother, who succeeded to her son's estate, necessarily took the property of her son subject to his liabilities. The principle of the decision has no application the present case

(11) Here the decree provides so for recovery of the decretal amount from the estate of Subbaiah in the hands of the respondent. Clearly item 2, which the respondent inherited from her son, cannot be deemed to be the property of the deceased Subbaiah in the hands of his descendant.

(12) On a construction of the language of section 53, we are in agreement with the conclusions reached by the learned Judge. This appeal, therefore, fails and is dismissed with costs.

(13) Appeal dismissed.


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