1. This reference to a Full Bench has been made, by a Division Bench of this Court consisting of Mohd. Ahmed Ansari and Jaganmohan Reddy, J., in an appeal which arose in execution proceedings.
2. One Himurunnissa Begum died leaving behind her Mohd. All Pasha, her husband, Qudrunnissa Begum her mother, Moinuddin All Khan, her brother and her daughter Syedunnissa Begum. The husband and the mother died soon after leaving the defendant Syedunnissa Begum and the plaintiffs as heirs. The deceased Himutunnissa Begum left some movable and immovable inheritable property. The plaintiff brought a suit for his share in the Matruka of the deceased Ilimutunnissa Begum as well as for his share in the dower debt of Himuttunnissa Begum which he was entitled to from the estate of her husband. The defendant Syedunnissa Begum, while admitting that the plaintiff was entitled to a share in the matruka stated that her father left only movable property which was in the possession of the Sarfe-khas. She also stated that she was not liable for the dower debt.
3. This suit was instituted in the Ecclesiastical court which had exclusive Jurisdiction to try suits relating to the administration or partition of the estate of a Mohammadan. The Ecclesiastical courtheld, after enquiry, that the dower debt was recoverable from the estate of Mahamud Ali Pasha and that estate consisted only of movable property locked in the house of the defendant Syedunnissa Begum but under the control and supervision of the Sarfe-khas.
It declared that the plaintiff was entitled to a 1/4th share. This was a preliminary decree that was passed in the suit. Before ever a final decree could be passed, the Ecclesiastical court was abolished and its jurisdiction was vested in the High Court on its original side. Later on, all the cases pending on the original side of the High Court were transferred to the City Civil Court and so the matter came up for enquiry and for the passing of the final decree before the City Civil Court. The learned Judge of the City Civil Court held an investigation as regards the extent of the assets of the matruka of the deceased in the hands of the defendant Syedunnissa Begum.
On an examination of the evidence, the learned Judge held that all the matruka of Himayatunnissa Begum which was available for distribution was Pandan, Ogaldan, Nagardan and the mortgage amount of Rs. 2,500/- and that the plaintiff was entitled to his share in that property. As regards immovable property, he held that a house and Makhta was the matruka left by Muhammad Ali Pasha and he directed that the house and garden be partitioned by a Commissioner and the parties allotted their shares according to the shares determined under the preliminary decree. This final decree was passed by the Court on 5-3-1954.
4. After the passing of the final decree, the decree-holder filed, an execution application praying that the Chairman of the private estate of H. E. H. The Nizam (Sarfe-Khas) be directed to stop pay-ments of amounts due to the judgment debtors and send the amount to the court in satisfaction of hisdecree in the suit. It was stated that the Chairman of the Committee of Sarfe-khas was holding in trustthe amounts payable to the judgment debtors out of the matruka of Mahamud Ali Khan.
A further direction was also asked that the judgmentdebtors be restrained from recovering the amount due to them from the Sarfe-Khas Committee. When this application was filed, the judgment debtors objected to the execution of the decree stating that thedecree had been passed only against the specific movable property sealed in a room by the Sarfe-Khas and as such the decree holder had no right to attach any other property. It was urged that amount that was sought to be attached was her own personal property.
The learned Judge of the City Civil Court, atter hearing the arguments of the counsel for the decree-holder and the judgment debtor, held that the decree could be executed only against the articles locked in a room of the defendant under the supervision of the Sarfe-khas. He further held that unless the decree-holder proved that the amount held by theSarfe-khas was the sale proceeds of the property, no Order of attachment could be passed. He thereforeStated that no order of attachment could be issuedas prayed for by the decree-holder.
It may be mentioned that some of the propertiesof Mahamud Ali's ancestors were in the custody of Sarfe-khas and out of them a large amount had fallen to the share of Mahamud Ali. A part of such assets bad been sent to the executing court on the appellant's application. But on objection having been raised by the defendant Syedunnissa Begum that the executing court could not hold property other than those held prior to the preliminary decree as being the assets of the deceased the other amount sent to the court was sent back and made not available for the satisfaction of the decree.
This judgment of the City Civil Court in Execution was taken in appeal before the High Court and it was contended before the appellate court that the decree-holder was competent to execute the decree against the matruka of Mahamud Ali Khan wherever it might be and further inasmuch as admittedly the judgment-debtors were receiving their share in the matruka of Mahamud Ali Khan from the Sarfe-khas department, such amounts could be attached under Order 21, Rule 46 C. P. C.
It was contended on behalf of the Respondent judgment debtor before the Learned Judges that there was a definite finding of the City Civil Court to say that only a particular properly could be proceeded against and no other and that decision with regard to the assets come to by the Darul Khaza Court operated as res judicata.
5. The learned Judges were of toe opinion that the point was not free from doubt and therefore referred the following two questions for decision to the Full Bench:
(1) Whether the executing Court is bound to construe decree whose execution is prayed in the light of Section 52 of the C. P. C. notwithstanding the earlier decisions in the case before the decree concerning the assets of the deceased.
(2) Whether the Court entrusted with the jurisdiction of administering the estate of the deceased must return the assets, which admittedly belong to the deceased, on the ground that in earlier stages of the suit the assets were found not to exist?
6. It was argued on behalf of the counsel for the decree-holder appellant that the Civil Procedure Code never envisaged the determination of the assets to be proceeded against at the stage of the preliminary decree. At the stage of the preliminary decree, the Court merely determines the respective shares of the parties and it is only at the stage of the final decree that the assets available for partition are determined.
It was urged that there could be no issue withregard to the question as to what the assets of thedeceased were at the stage of the preliminary decreeand if such an issue was raised, evidence led and afinding given, such a finding could not operate asres judicata for the obvious reason that the determination of such an issue is not necessary for thepassing of the preliminary decree. It was argued onbehalf of the respondent that the Judicial Committeeof the Hyderabad State had decided that if the question was canvassed at the stage of the preliminarydecree the Court ought to investigate into the matter and decide the same.
7. The relevant provision in the Civil Procedure Code with regard to a decree in a suit of this kindis Order XX Rule 13 C. P. C. which says that where a suit is for an account of any property and for its due administration under the decree of the Court, the court shall, before passing the final decree pass a preliminary decree, ordering accounts and enquiries to be made and where a suit is for partition of property or separate possession under Order XX Rule 18, the Code is expected in the first instance, to pass a preliminary decree declaring the rights of the several parties interested in the property and after finding out the exact property divisible direct that the parties be awarded their respective shares as determined under the preliminary decree.
The question as regards the nature of a suit against the estate of a deceased person for a share was considered by the Privy Council in the case of Md. Kasim Ali Khan v. Md. Sadiq Ali Khan, AIR 1938 PC 169. Their Lordships observed that in the case of a Muslim who had left property the right of an heir as a beneficiary would be to have the right that the deceased's estate should be duly administered, that it should be cleared of debts and valid legacies and thereafter he should be given possession of his share therein.
Their Lordships further observed that such a suit might be denominated an administration suit or a suit for partition -- but the basis of his claim would be the same viz., the right to have due administration of the deceased's estate. These observations of the Privy Council would make it clear abundantly that a suit for a share in a deceased person's assets is in the nature of a suit for a share in partition or an administration suit and if that is the suit, the provisions of Order XX Rule 13, C. P. C. or Order XX Rule 18, would apply and if these rules apply then there has necessarily to be a preliminary decree wherein the shares of the various heirs are determined and later on a final decree.
It is not at the stage of the preliminary decree that the assets of the deceased are determined for the enquiry leading up to the preliminary decree is confined only to the determination of the shares and nothing else. We may also refer to Section 52 of the Civil Procedure Code which says that 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.
Once it is admitted or proved that the legal representative of a deceased person has come into possession of assets belonging to the estate, the decree holder can proceed against such assets. It would be for the person coming into possession of such assets to satisfy the court that he had duly applied the property and no more assets were available.
8. A reference to Section 52 of the Indian Civil Procedure Code is necessary. Section 52 reads as under:
'52. (1) 'Where a decree is passed against a party as the legal representative of a deceased per son, 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.
1961 Andh. Pra. D.F./22.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to 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.'
That section envisages the enforcement of the decree as against the property of the deceased and Section 52 says that the decree might be executed by the attachment and sale of any such property. The words 'any such property' used therein would indicate that so long as the decree-holder can point out that a certain property is that of the deceased, the decree can be enforced against it. What Section 52 conveys is that a decree which is against a legal representative of a deceased person could be executed against any and every property of the deceased so long as the decree-holder is in a position to satisfy the court that the property he is proceeding against is the property of the deceased person.
9. Our attention was drawn to certain decisions of the Hyderabad High Court and that of the Judicial Committee. The first case to which reference was made was the case reported in Meersubhan Ali Khan v. Gousunnissa Begum, 13 Dec LR 431 (FB). What was decided in that case was that decrees relating to dower debt could be enforced against the matruka or the assets of the deceased, as to what the matruka is, would have to be determined in execution proceedings. The matter was carried in appeal to the Judicial Committee and the Judicial Committee expressed the view that if the question had been canvassed at the stage of the preliminary decree, it is the duty of the Court to give its findings thereon.
10. Learned Counsel for the respondent called in aid this decision of the Judicial Committee in Gousunnissa Begum v. Meer Subhan Ali Khan, 16 Dec LR 66. We do not think that the proposition which is being pressed before us by the learned Counsel was laid down by the Judicial Committee in that case. In that case one Gousunnisa filed a suit for the recovery of her debt from the estate of her deceased husband. She stated that she was in possession of a house belonging to the deceased in lieu of her dower debt.
She prayed for a declaration that she was entitled to be in possession of the house she was residing in until her dower debt was discharged. This alone was the prayer of the plaintiff. The defendant denied that the house in the possession of the plaintiff formed part of the estate of the deceased. In asmuch as the suit of the plaintiff was only for a declaration that she was entitled to be in possession of her husband's estate in lieu of her dower debt, the Court had to decide as to whether the house she was in possession of formed part of the estate of her husband, for if it did not form part of her husband's estate she could not be allowed to be in possession. Under the Muhammadan law, a Muslim widow is entitled to be in possession of a portion of her husband's estate until her dower debt is discharged. She is entitled to exercise a lien over the property and what the plaintiff wanted was only a declaration that she is entitled to continue to be in possession until her dower debt was satisfied. The property over which she was in possession was denied as belonging to the plaintiff's husband.
So the Court had first to determine as to whether the house formed part of the estate of plaintiffs husband for if it was only then could the plaintiff have a decree declaring her to be in possession. It was for this purpose the question of Matruka had to be gone into. This decision cannot be said to lay down the principle that the question as to what assets have necessarily to be gone into in the suit itself.
11. Learned counsel for the respondent was not able to refer us to any other decision of the Hyderabad High Court which went to the extent of saying that if a certain property was declared to be the matruka of a particular individual and if later on the party is in a position to show or point out other properties belonging to the deceased, the decree could not be proceeded against such property which might have been pointed out at a subsequent stage.
There could be no such decision for the obvious reason that it is that the finding as regards the assets is only at the stage of the execution when it is sought to execute the decree. Further, the fact that at one stage the decree-holder pointed out some assets and subsequently he comes to know about other assets belonging to the deceased, would not debar him from praying for execution as against the properties which he conies to know of at a later stage.
That this was the view taken by the High Court of Hyderabad is clear from the decision reported in Kishanlal v. Ganeshlal, 16 Dec LR 194 wherein it was held that when execution is taken as against the legal representatives of the judgment debtor and it is established that apart from the property mentioned in the list attached to the execution petition there is other property in the possession of the legal representative of the deceased there is nothing to prevent the decree-holder from attaching and selling such other property.
12. We are therefore clearly of the opinion that the law in this regard in so far as the Hyderabad High Court pertaining to cases of Mohammadans is concerned, is in no way different from the law in other parts of India. The Hyderabad Civil Procedure Code is in all respects analogous to the Indian Civil Procedure Code and the view held in the decisions of the Hyderabad High Court that we have referred to above is in consonance with the view held in the trend of decisions of the Indian High Courts. Inasmuch as the question of the determination of the assets does not arise at the stage of the preliminary decree, there could be no question of res judicata.
13. We, therefore, answer the first question referred to us in the affirmative and the second question in the negative. With these answers, the case will now go back to the Division Bench for arguments.