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Hardeya Devi Vs. Fiddan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 4006 of 1960
Judge
Reported inAIR1962All125
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(11), 50 and 64 - Order 21, Rules 22 and 66
AppellantHardeya Devi
RespondentFiddan and ors.
Appellant AdvocateD.P. Agarwal, Adv.
Respondent AdvocateN.D. Ojha, Adv.
DispositionAppeal dismissed
Excerpt:
.....in execution of decree - father died before the sale - sale without bringing on record mother as legal representative - notice not issued under order 21, rule 22 -mother contested the validity of the sale for her interest in the property - held, sale valid since sons already on record sufficiently represented the estate of the father. - - the full bench further held in that case that where the sale was held without bringing the legal representatives of the deceased judgment-debtor on record, the sale was regular and valid notwithstanding such omission'.this authority still lays down good law and there has been no other authority of this court doubting the provision of law laid down in this authority. the sons remained on record in their personal capacity as well as the legal..........obtained and in execution of those decrees the house was attached. after attachment but before the sale budhsen died and his widow, who now claims to be the legal representative of the one-fourth share of the house, was not brought on record and the execution continued against the three judgment-debtors representing themselves and as the legal representatives of budhsen and the house was ultimately sold and was purchased by fiddan, respondent no. 1. 3. the appellant, mst. hardeya devi, who is the person who filed the suit, out of which the present appeal has arisen, alleged that after the death of budhsen she and her three sons became the owner of it and as budhsen died before tho sale and the plaintiff was not brought on record as his legal representative her one-fourth share in the.....
Judgment:

Mithan Lal, J.

1. This second appeal filed by the plaintiff arises out of a suit for a declaration that she was the owner of one-fourth share in the house in dispute and she was also entitled to reside in the house in dispute.

2. The admitted facts of the case are that the house in dispute belonged to Chheda Lal and after his death it went to his son Budhsen and his three grandsons Ram Chander, Ram Bharosey and Babu Ram. Budhsen and his three sons borrowed money from the firm of Moti Ram Laxmi Narain, respondent No. 2. Two decrees were obtained and in execution of those decrees the house was attached. After attachment but before the sale Budhsen died and his widow, who now claims to be the legal representative of the one-fourth share of the house, was not brought on record and the execution continued against the three judgment-debtors representing themselves and as the legal representatives of Budhsen and the house was ultimately sold and was purchased by Fiddan, respondent No. 1.

3. The appellant, Mst. Hardeya Devi, who is the person who filed the suit, out of which the present appeal has arisen, alleged that after the death of Budhsen she and her three sons became the owner of it and as Budhsen died before tho sale and the plaintiff was not brought on record as his legal representative her one-fourth share in the house did not pass to the auction-purchaser and the sale of that portion of the house is said to be invalid and void. Consequently she prayed for a declaration as stated earlier.

4. Respondent No. 1, Fiddan, contested the suit, inter alia, on the ground that the plaintiff had no right or interest in the house in dispute now and that the sale of the house after attachment was valid and that the decrees in execution of which the house was sold were legally binding.

5. The learned Munsif held that the plaintiff had one-fourth share in the house and that as there was no legal necessity for contracting the debt and the plaintiff had not been legally represented after the death of Budhsen, the decrees were not binding on her. When the matter went up in appeal the learned Civil and Sessions Judge, Rampur, held that the plaintiff could not challenge the validity of the debts or of the decrees passed thereon, that after the death of Budhsen as a member of the joint Hindu family his interest in the house passed by the right of survivorship to his three sons and the plaintiff did not succeed to any interest. He further found that the plaintiff was not the legal representative of Budhsen and in any case the sale having been effected in presence of other legal representatives the same was binding. He accordingly allowed the appeal, set aside the decree passed by the trial court and dismissed the plaintiff's suit. It is against this decree that the present appeal has been filed.

6. It has been contended by Sri D. P. Agarwal, learned counsel for the appellant that the plaintiff being a legal representative of the de-ceased, having succeeded to the one-fourth share in the house and also having the right of residence in the house should have been impleaded as a legal representative of the deceased Budhsen and the sale which has been effected without impleading her is not at all binding on her. He has challenged the finding of the lower appellate court and has contended that the doctrine of survivorship does not at all apply in the present case in view of the widow's right under the Hindu Women's Right to Property Act. Learned counsel has not argued that the Hindu Succession Act applies to the present case.

7. Learned counsel for the respondent has, on the other hand, contended that for purposes of the suit it is not at all necessary to go into the question as to whether the widow did ox did not succeed to the estate of the deceased Budhsen and whether it was pr was not necessary to bring the widow on record, because, according to the findings of the Court below, the only survivors being the three sons who were also substituted as legal representatives of the deceased during the pendency of the proceedings, the estate of the deceased was sufficiently represented and the sale of the property attached during the lifetime of the deceased, which has been effected after his death, is fully binding on the widow. He has also disputed the right of the widow to have a share in the house or her right of devolution to property.

8. I have heard learned counsel for the parties and on the facts as they stand the following facts are apparent from the findings of the courts below.

9. The house in. dispute belonged to Chhedalal, father of Budhsen. After the death of Chhedalal, Budhsen and his three sons who were members of the joint Hindu family succeeded to the estate. The money decree in execution of which the house has been sold was passed on the basis of loans borrowed by Budhsen and his three sons. The whole of the house was attached during the lifetime of the deceased though it was sold after his death. It further appears from the copy of the execution application on record that after the death of Budhsen the decree-holder made an application stating that Budhsen had died during the pendency of the execution and as judgment-debtors 2, 3 and 4 were his sons and members of joint Hindu family they represented the deceased judgment-debtor No. 1. It was stated that judgment-debtors 2, 3 and 4 were already on record.

10. In view of the above facts it does not seem necessary to go into the question as to whether the interest of the husband, that is Budhsen did or did not devolve upon his widow in view of the provisions of Section 3(2) of the Hindu Women's Right to Property Act, nor do I think it necessary to go into the question whether after the application for amendment made by the decree-holder it was at, all necessary to bring the widow on record. The only question which requires consideration in the case is whether after the death of Budhsen judgment-debtor which occurred after the attachment of the house and after the application of the decree-holder stating that judgment debtors 2, 3 and 4 who were the sonsand legal representatives of the deceased were already on record, it was at all necessary for the decree-holder to implead the widow and whether the sale of tha house which has been held in execution of the decree is void and ineffectual.

11. It may be stated at the very outset that the effect of the attachment of the interest of the deceased in the house was that, a charge was created which could not be extinguished by the death of Budhsen. This proposition was originally laid down in the case of Suraj Bunsi Koer v. Sheo Persad Singh, ILR 5 Cal 148 (PC), and was later followed by this Court in several cases. The latest authority of this Court is Faqir Chand v. Sant Lal : AIR1926All157 , wherein a Division Bench of this Court laid down that

'The attachment of the undivided interest of a coparcener creates a charge on his interest which is not extinguished by the death of that coparcener.'

In view of this provision of law, the first question is whether in the case of sale, where no legal representative was brought on record the sale would or would not be valid. In Sheo Prasad v. Hira Lal, ILR 12 All 440 (FB), it was laid down that an attachment would not abate on the death of the judgment-debtor and his death would not render it necessary for the decree-holder to take any steps to keep in force an attachment of property made in the judgment-debtor's lifetime. The property under attachment must be considered to be in the custody of the law. There is no provision in the Civil Procedure Code requiring notice to be given personally to a judgment-debtor or his legal representative of a sale of property under attachment. If the legal representative is damnified by the sale, his remedy is by application under Section 311 of the Code. The Full Bench further held in that case that where the sale was held without bringing the legal representatives of the deceased judgment-debtor on record, 'the sale was regular and valid notwithstanding such omission'. This authority still lays down good law and there has been no other authority of this Court doubting the provision of law laid down in this authority. In view of this authority the sale, which had been held after the death of Budhsen without his legal representatives being brought on record, would be held to be valid.

12. As stated earlier, the three sons of Budhsen were already on record. The decree-holder made an application that they were the only legal representatives of the deceased and consequently this case would be governed by the authority reported in Malkarjun v. Narhari, ILR 25 Bom 337 (PC). That was a case in which the sale was effected of the judgment-debtor's property after serving a notice on a person who was not the legal representative of the judgment-debtor's estate. That was also a case where the executing court had decided that he was to be treated as such representative. Their Lordships of the Privy Council held that the sale was not a nullitv as the estate of the deceased was sufficiently represented. Learned counsel for the respondent has distinguished this authority on two grounds. The first is that another person was brought on record thougherroneously and that there was also a decision of the Court holding such person as legal representative. The ratio decidendi of the case is the decision of the court about the representation of the estate of the deceased. This may be one of the reasons, yet what their Lordships laid down was that the estate of the deceased person can be sufficiently represented even by a wrong person who is not a legal representative.

In this case too, if it be supposed that the widow had a right to be substituted or the property devolved on her, which again is disputed, the estate must be held, to be sufficiently represented by the three sons who were substituted as the legal representatives of the deceased. There is then the authority reported in the case of Amarchand v. Parmanand : AIR1934All474 . In that case, even the suit was instituted against a wrong person and the decree was field to be binding on the correct legal representative. This authority was followed in subsequent cases reported in Mt. Komal v. Gur Charan Prasad : AIR1938All242 and Mst. Chandrawati v. Jagannath, 1956 All LJ 38 (NC). In all these cases wrong representatives had been brought on the record and it was held that the decree so passed and the action taken by the court was valid and binding on the correct legal representatives. It is true that in these proceedings there was a decision that such and such person was the legal representative. Yet that will not make a difference in the present case, because in this case also the decree-holder substituted judgment-debtors Nos. 2, 3 and 4 as legal representatives of the deceased Budhsen. The order passed by the court below on the amended execution application does go to show that these judgment-debtors were substituted as legal representatives of the deceased.

13. Learned counsel for the appellant has raised the question of notice and he has further contended that if notice was not issued and there was no decision of the court on the question of representation of the estate of the deceased so the estate of the deceased cannot be deemed to be represented. This contention is again not quite correct because here is a case where the other judgment-debtors already on record, were owners of. at least 3/4th share and were also the sons and the legal representatives of the deceased and so it was not at all necessary to issue a notice, and an any case when Budhsen died and the widow thought that she was the legal representative she should have herself made an application as legal representative for substitution. She took no steps and now after everything in execution has been completed she has come forward with the suit. It cannot therefore be argued in view of the order of the court that the estate of the deceased was not represented or that because a notice was not issued it cannot be said that there was no decision on the question of legal representative. The deceased admittedly died as a member of the joint Hindu family with his three sons who were the co-judgment-debtors in the decree. The death was also after the attachment. The sons remained on record in their personal capacity as well as the legal representatives of the deceased and consequently even if the widow may be deemed tohave succeeded to the interest of her husband (on which no decision is being given) the estate of the deceased was sufficiently represented and the sale was perfectly binding on her. In the result the appeal fails.

14. It is hereby dismissed with costs.

15. Leave for Special Appeal was asked forand is refused.


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