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Rudra Pratap Singh Vs. Sharda Mahesh Prasad Singh - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1925All471
AppellantRudra Pratap Singh
RespondentSharda Mahesh Prasad Singh
Excerpt:
- - the deceased had bean put in possession by a qualified owner and as defendant he was resisting a claim brought by a person who might have failed to establish his right......died soon after and a suit was instituted by raja tejbali singh, the father of raja sharda mahesh prasad singh, the defendant-respondent, for recovery of possession of the property claiming it by right of lineal primogeniture. he impleadad certain relations of baijnath prasad singh who were transferees from the widow but did not implead the present appellant, babu rudra pratap singh. in this suit we understand that the present appallanti actually appeared as a witness for his father at some stage of the proceedings and also joined his father in executing a security bond in order to obtain a temporary stay. the case was fought up to the privy council. the ultimate result was that with the exception of certain move-able properties, the bulk of the property was given to raja tejbali singh......
Judgment:

1. This is an appeal by certain objectors arising out of an execution proceeding. Briefly stated the facts of the case are as follows : - A Hindu widow was in possession of a large estate situated in the district of Mirzapur and in 1913 she purported to surrender it in favour of Baijnath Prasad Singh, the father of Babu Rudra Pratap Singh, the present appellant. She died soon after and a suit was instituted by Raja Tejbali Singh, the father of Raja Sharda Mahesh Prasad Singh, the defendant-respondent, for recovery of possession of the property claiming it by right of lineal primogeniture. He impleadad certain relations of Baijnath Prasad Singh who were transferees from the widow but did not implead the present appellant, Babu Rudra Pratap Singh. In this suit we understand that the present appallanti actually appeared as a witness for his father at some stage of the proceedings and also joined his father in executing a security bond in order to obtain a temporary stay. The case was fought up to the Privy Council. The ultimate result was that with the exception of certain move-able properties, the bulk of the property was given to Raja Tejbali Singh. Baijnath Prasad Singh died in January 1921 just before the judgment was pronounced by their Lordships of the Privy Council, though it is suggested on behalf of the respondent that he died after the arguments were over.

2. The decree-holder hag put the decree for costs in execution and has attached the joint ancestral property in the hands of the present appellant who is the son of the deceased judgment-debtor.

3. Two objections were raised on behalf of the objector: (1) that no credit had been given for Rs. 4,000 which had been deposited in cash as security in the High Court, and (2) that the appellant was not the legal representative of the deceased judgment-debtor inasmuch as the previous suit had bean contested by him in his personal capacity.

4. With regard to the sum of Rs. 4,000 there is no force in this appeal. The amount was deposited as security but has not yet been taken out by the decree-holder. He cannot, therefore, be called upon to give credit for it at once. If, however, he takes this amount out in execution of the decree, credit will of course have to be given for it.

5. The main point raised in this appeal is that the appellant is not the legal representative of the deceased judgment-debtor. Before the passing of the new Code of Civil Procedure there was some conflict of opinion as to whether a decree holder who had a decree against a Hindu father could proceed in execution after his death against the joint ancestral property in the hands of the son and could treat the son as the legal representative of his judgment-debtor. That controversy has now been set at rest by the inclusion of Section 53 in the new Code which provides that for the purpose of execution 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 descandant as his legal representative. So the only point to consider is whether the property which is now to be attached is the property of the son or the other descendant, which is liable under the Hindu law for the payment of the debt of the deceased ancestor. The debt was a judgment-debt against the father of the present appellant and there is nothing to suggest that it was in any way tainted with illegality or immorality. Baijnath Prasad Singh had obtained a surrender from a Hindu widow and he was put in possession. He was honestly contesting a claim brought by a third party and present appellant also by his conduct approved of the defence raised by his father. It has been suggested on behalf of the appellant that the litigation was a mere speculation and gambling. This contention cannot be accepted. The deceased had bean put in possession by a qualified owner and as defendant he was resisting a claim brought by a person who might have failed to establish his right. There is no question of fraud or collusion and it is, therefore, impossible to say that the judgment-debt against Baijnath Prasad Singh was tainted with immorality or illegality. It is open to the decree-holder to proceed in execution against the ancestral property in the hands of the son which the Court is bound to treat as property of the deceased which has come to the hands of the son as his legal representative. The objection, therefore, has no force and must be overruled.

6. The result is that this appeal tails and is dismissed with costs.


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