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Kaushal Pal Singh Vs. Jwala Bank - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All482
AppellantKaushal Pal Singh
RespondentJwala Bank
Excerpt:
- .....that the property of the son vested in the father as soon as the son died. he overlooks the fact that there is a period during which the estate of a deceased person is under administration. it is only when that period is past land the debts and charges against the estate have been paid that the balance of assets is distributed and vests in the legatees in their personal capacity. during the period of administration the property of the deceased vests in his personal representatives as such, i.e. in a representative capacity. another argument is that the form of the claim was that the plaintiff desired a decree against the defendant. i think that the intention was that it should, be a decree against the assets and that in fact is the nature of the decree which has been passed the.....
Judgment:
ORDER

Allsop, J.

1. This is an application under Section 25, Small Cause Courts Act. The applicant was impleaded in a suit for the recovery, of money which had been advanced to his deceased son. The allegation was that he was in possession of some of his son's assets. The Court passed a decree against the assets in the possession of the applicant. It is urged that the applicant had, before the suit was instituted, made an application under the Encumbered Estates Act and therefore was not liable to be sued because a suit was barred under the provisions of Section 7 of that Act. It seems to me that the argument is misconceived. Section 7 bars a suit against the applicant under the Encumbered Estates Act in his personal capacity. Learned Counsel has referred to the definition of the word 'debt' which appears in Section 7. The definition includes any pecuniary liability. Learned Counsel urges that the allegation was that his client had a pecuniary liability to pay his son's debts. I do not think that that was so. Personally he had no such liability. The decree could only be executed against the assets of the son in the possession of the applicant. Learned Counsel seems to base his argument upon the contention that the property of the son vested in the father as soon as the son died. He overlooks the fact that there is a period during which the estate of a deceased person is under administration. It is only when that period is past land the debts and charges against the estate have been paid that the balance of assets is distributed and vests in the legatees in their personal capacity. During the period of administration the property of the deceased vests in his personal representatives as such, i.e. in a representative capacity. Another argument is that the form of the claim was that the plaintiff desired a decree against the defendant. I think that the intention was that it should, be a decree against the assets and that in fact is the nature of the decree which has been passed the applicant cannot take the property of his deceased son without paying the debts I duo from the son to the extent of that property. There is no force in this application and I dismiss it with costs.


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