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Mt. Champa Devi Vs. Pt. Sansar Chand - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All12
AppellantMt. Champa Devi
RespondentPt. Sansar Chand
Excerpt:
.....for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - bhagwati on the foot of the mortgage in favour of karta kishen must clearly be deemed to be a part of his estate. the answer, to mind, is clearly in {he negative. to my mind, the order passed by the learned judges of this court has got to be interpreted in circumstances of the case, and i am clearly of the opinion that the amendment which they made in the decree provided only for the fact that it was to be executed..........the facts of the case are as follows: the appellant, mt. champa devi, is the sister of one karta kishen, who held a mortgage from two ladies named durga dasi and muthri, who wore the widows of one suraj singh. some time after the death of karta kishen, his widow mt. bhagwati, who had succeeded to his estate, brought a suit on the foot of that mortgage and obtained a decree against one of the mortgagors who was then alive, namely durga dasi. now it appears that suraj singh, the husband of durga dasi and muthri the mortgagors, had another wife named mt. sarda devi, and he had executed a gift in her favour in respect of his property. sarda devi executed a will in favour of durga dasi and muthri. the construction of that will was a point in issue in this court in sansar chand v. mt......
Judgment:

Mulla, J.

1. This is a first appeal by a judgment-debtor in an execution proceeding, whose objection to the execution of a decree by attachment and sale of certain property has been rejected by the learned First Civil Judge of Saharanpur. The facts of the case are as follows: The appellant, Mt. Champa Devi, is the sister of one Karta Kishen, who held a mortgage from two ladies named Durga Dasi and Muthri, who wore the widows of one Suraj Singh. Some time after the death of Karta Kishen, his widow Mt. Bhagwati, who had succeeded to his estate, brought a suit on the foot of that mortgage and obtained a decree against one of the mortgagors who was then alive, namely Durga Dasi. Now it appears that Suraj Singh, the husband of Durga Dasi and Muthri the mortgagors, had another wife named Mt. Sarda Devi, and he had executed a gift in her favour in respect of his property. Sarda Devi executed a will in favour of Durga Dasi and Muthri. The construction of that will was a point in issue in this Court in Sansar Chand v. Mt. Durga Dasi Reported in 0043/1933 : AIR1934All93 and it was finally decided in that case that the will executed by Sarda Devi conferred only a life estate upon Durga Dasi and Muthri, with the remainder to Sansar Chand, who is the respondent in the present appeal. When Mt. Bhagwati obtained a decree on the foot of the mortgage stated above, the respondents Sansar Chand brought a suit for a declaration that the decree did not bind or affect his interest in the property covered by it. His suit was dismissed by the trial Court on the ground that he had no interest in the property which could entitle him to bring the suit; but it was held by this Court, as stated above, that under the will executed by Sarda Devi he had a vested interest in the property covered by the will, which included the property coveted by the mortgage made by Durga Dasi and Muthri in favour of Karta Kishen. It was further decided by this Court in the same case that the mortgage made by Durga Dasi and Muthri was invalid because their power of alienation was limited by the will to certain definite purposes. During the pendency of that suit Mt. Bhagwati, the defendant, died and the present appellant Mt. Champa Devi was brought on the record as her legal representative. The respondent finally obtained a decree from this Court in First Appeal No. 58 of 19291 with costs against Durga Dasi and the present appellant Champa Devi. It appears that an application was made on behalf of the appellant to this Court that the decree was not properly framed inasmuch as it placed personal responsibility upon her. This application was considered by the learned Judges who had decided the first appeal and they passed the following order upon it:

The judgment delivered by this Court in First Appeal No. 58 of 19291 allowed the appeal with costs. One of the original respondents in the appeal, Mt. Bhagwati, had died during the pendency of the appeal. At the instance of the appellant her daughter (this appears to be a mistake) Champa Devi was brought on the record as her legal representative. The judgment must be construed as awarding costs to the appellant against the respondents, including Mt. Champa Devi in her capacity as a legal representative of Mt. Bhagwati. The decree should be so framed as to make it clear that costs so far as they have been decreed against Mt. Champa Devi are recoverable from the assets of Mt. Bhagwati whose estate she represents. The decree shall be corrected as prayed.

2. I have considered it necessary to set out the order in extenso because an argument raised on behalf of the appellant turns upon the correct interpretation of its terms. The decree as amended by this Court was put into execution by the respondent by means of an application dated 9th February 1935. In that proceeding a certain house was attached, whereupon the appellant made an objection that the property formed part of the assets of Karta Kishen and not of the assets of Mt. Bhagwati, and was therefore not liable to attachment and sale in execution of the decree. This objection has been dismissed by the learned First Civil Judge of Saharanpur, and hence this appeal.

3. The argument on behalf of the appellant resolved itself into two points, firstly, that the decree sought to be executed was a personal decree against Mt. Bhagwati and hence it cannot be executed against any property which forms part of the assets of Karta Kishen and, secondly, that the execution Court was bound to interpret. the order passed by this Court in its plain significance, and if it had done so, it could not but have held that the decree was eon-fined to the assets of Mt. Bhagwati and could not take effect against the property which had been attached because it forms part of the assets of Karta Kishen. The respondent's contention, on the other hand, is that the suit brought by the respondent for a declaration that the decree obtained on the foot of the mortgage in favour of Karta Kishen was void as against the respondent, was really a suit directed against the estate of Karta Kishen, and Mt. Bhagwati filled only a representative character in that suit, being the person who represented the estate of Karta Kishen. It is further argued that if Mt. Bhagwati had remained alive and the decree for costs had been passed against her, it could have been realized from any part of her husband's estate in her hands, and if any part of her husband's estate had been seized and sold in execution of the decree, the whole proprietary interest and not merely the widow's interest of Mt. Bhagwati would have passed to the purchaser. It is argued that it follows logically and necessarily from that proposition, if accepted, that the property in dispute which forms part of the estate of Karta Kishen in the hands of the present appellant is also liable to be seized and attached in execution of the decree for costs obtained by the respondent. Lastly, it is contended that the order passed by this Court by which the decree originally framed in First Appeal No. 5b of 1929' was amended really intended to provide that there should be no responsibility upon the present appellant in her personal capacity or upon any property in her possession in that capacity.

4. In support of the contention that if the property in dispute had been seized and sold in execution of the decree against Mt. Bhagwati, supposing she had been alive, the whole. interest in the property would have passed to the purchaser and not merely the interest as a widow possessed by Mt. Bhagwati, reliance has been placed upon a decision of their Lordships of the Privy Council in Jugal Kishore v. Jotendro Mohun Tagore (1884) 10 Cal. 985. It was held by their Lordships in that case that:

Although a Hindu widow has, for some purposes, only a partial or qualified right, title and interest in the estate which was her husband's, yet for other purposes she represents an absolute interest therein. The question, whether on the sale of the right, title and interest of the widow in execution of a decree, the whole interest, or inheritance in the family estate does, or does not, pass, depends on the nature of the suit in which the execution of the decree takes place. If the suit is a personal claim against the widow, then merely the widow's limited estate is sold. If, on the other hand, the suit is against the widow in respect of the family estate, or upon a cause not merely personal against her, then the whole of the inheritance passes by the execution sale.

5. This authority was followed in a recent case decided by the Patna High Court which is reported in Parbati Kuer v. Baijnath Prasad (1936) 23 A.I.R. Pat. 200. In this case a certain property of the husband in the hands of his widows was sold up for arrears of revenue and the widows brought a suit for setting aside the sale and succeeded in the trial Court taking possession of the property in execution thereof, but on appeal the decree was set aside and the purchaser got a decree for costs and mesne profits against the widow. In execution of this decree a portion of the estate in their possession was sold and purchased by the decree-holder. Upon these facts it was held that:

Inasmuch as the widows did not seek to recover any interest personal to them and had contracted the Judgment-debtor in the effort to recover their husband's estate to which the husband's heirs would have succeeded, the decree for costs and mesne profits was binding upon the estate of their husband and that therefore when the decree was executed and property sold, the sale was not only of their life interest but of the entire estate.

6. Upon a careful consideration of the arguments on both sides, I am definitely of the opinion that the respondent's contention is sound and ought to prevail. The argument on behalf of the appellant that no part of Karta Kishen's estate could have been seized and absolutely sold in execution of the decree for costs obtained by the respondent, if Mt. Bhagwati had remained alive, is definitely repelled by the cases cited above. It logically and necessarily follows that if the property could be seized and sold in the hands of Mt. Bhagwati, then it can be seized and sold now in the hands of the appellant Champa Devi, who was brought on the record as the legal representative of Mt. Bhagwati. I think it is clear that the suit brought by the respondent was directed against the estate of Karta Kishen, for the decree which had been obtained by Mt. Bhagwati on the foot of the mortgage in favour of Karta Kishen must clearly be deemed to be a part of his estate.

The fact that some interest upon the mortgage must have accrued after the death of Karta Kishen does not, in my opinion, affect the legal position at all. Mt. Bhagwati as a defendant in the suit brought by the respondent filled only a representative character. The suit was directed against Karta Kishen's estate, and the estate had to be represented by Mt. Bhagwati as the widow of Karta Kishen. When Mt. Bhagwati died, the appellant Champa Devi was brought on the record as her legal representative. Mt. Champa Devi must therefore be deemed to occupy the same character as Mt. Bhagwati that is of a person who represented the estate of Karta Kishen. Having regard to the nature of the suit brought by the respondent, if a decree for costs had boen passed against Mt. Bhagwati, it could have been legally executed against any property forming part of the assets of Karta Kishen in her hands and the whole interest in that property would have passed to the auction-purchaser. This is quite clear from the decisions to which reference has been made above. The simple question thorefore is whether the same property which is now in the hands of the appellant Champa Devi can escape that liability? The answer, to mind, is clearly in {he negative.

7. As regards the second point raised by the learned Counsel for the appellant, I need only say that it rests upon a very narrow interpretation put upon the expression 'the assets of Mt. Bhagwati' as used by the learned Judges of this Court in their order dated 3rd September 1936 upon the appellant's application for amendment of the decree. The contention is that the decree was passed not against the assets of Karta Kishen, but against any property which might have been owned by Mt. Bhagwati in her own right as her stridhan or absolute property. It is further contended that the estate held by Mt. Bhagwati as the widow of Karta Kishen came to an end upon her death and hence the decree cannot be executed against any property which forms part of the assets of Karta Kishen. To my mind, the order passed by the learned Judges of this Court has got to be interpreted in circumstances of the case, and I am clearly of the opinion that the amendment which they made in the decree provided only for the fact that it was to be executed not personally against the appellant or against any property possessed and owned by her in that capacity,, but against the assets of Karta Kishea which were described as the assets of Mt. Bhagwati in her capacity as the defendant in that litigation and the representative of the estate of Karta Kishen. The result therefore is that I see no reason to interfere with the order passed by the Court below, and dismiss the appeal with costs.


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