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L. Ram Charan Lal Vs. Mt. Hanifa Khatun and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All591
AppellantL. Ram Charan Lal
RespondentMt. Hanifa Khatun and anr.
Excerpt:
- - several authorities have been cited for the applicant but we have not been shown any authority which clearly supports his contention. 361 clearly supports the-view taken by the trial court. the judgment of the court below is precisely in accordance with this ruling......of the deceased and the final decree for foreclosure was passed. it was held that this final decree passed against the widow was binding on the brother also. their lordships took the view that the mortgagor's estate was sufficiently represented, for the purpose of the foreclosure decree by the widow. in our opinion, this ruling is no clear authority for the contention advanced by the applicant in this case. the suit which was the subject matter of this ruling was of a totally different nature, and the decision was that the final decree for foreclosure which had been passed against the widow only was nevertheless binding upon the brother. we do not see how this ruling can have any application to the facts of this case. the suit is 6f a different nature, as already stated. moreover.....
Judgment:

King, J.

1. This is an application in revision against a decree of the Court of Small Causes. The suit was upon the basis of a bond executed by one Zahur Ahmad. Zahur Ahmad died before the institution of the suit and the creditor impleaded his widow, his father and his daughter, who were alleged to be in possession of his property as his heirs and legal representatives. There was some difficulty in the appointment of a guardian ad litem for the daughter, who was a minor, and the plaintiff discharged her from the array of defendants. The plaintiff's claim was proved and the trial Court passed a decree against the father and the widow only in proportion to their shares of inheritance in the property of Zahur Ahmad deceased, subject to the usual condition that the decree shall be executed against the defendants to the extent of Zahur Ahmad's assets in their possession. It is contended by the plaintiff in revision that the trial Court was wrong in passing a decree against the two defendants only for sums proportionate to the extent of their respective shares in the estate of Zahur Ahmad. The applicant argues that the trial Court should have passed a decree for the whole debt against the two defendants, namely, the father and the widow although he concedes that the decree could only be executed to the extent of Zahur Ahmad's assets in their possession.

2. The learned advocate for the applicant refers to the definition of 'legal representative' in Section 2, Clause 11, Civil P.C. and argues that as the two defendants against whom the decree was passed are 'legal representatives' of the deceased debtor therefore a decree should have been passed for the whole debt against these two legal representatives. Several authorities have been cited for the applicant but we have not been shown any authority which clearly supports his contention. He has not established the proposition that each one of the legal representatives of a deceased debtor is necessarily liable, jointly and severally, for the whole debt, and that the creditor is entitled, in all circumstances, to a decree for the whole debt against any one of the legal representatives whom he chooses to implead. Much reliance is placed upon the ruling in Mt. Kaniz Abbas v. Bala Din . This was a case where a Mahomedan mortgagor died after a preliminary decree for foreclosure had been passed against him. He left a. widow and a brother. His widow was in possession of his estate and her name was mutated with respect to the entire share of the deceased.

3. The widow alone was impleaded as legal representative of the deceased and the final decree for foreclosure was passed. It was held that this final decree passed against the widow was binding on the brother also. Their Lordships took the view that the mortgagor's estate was sufficiently represented, for the purpose of the foreclosure decree by the widow. In our opinion, this ruling is no clear authority for the contention advanced by the applicant in this case. The suit which was the subject matter of this ruling was of a totally different nature, and the decision was that the final decree for foreclosure which had been passed against the widow only was nevertheless binding upon the brother. We do not see how this ruling can have any application to the facts of this case. The suit is 6f a different nature, as already stated. Moreover we have this distinguishing feature that the daughter was originally impleaded and was expressly exempted by the plaintiff from the array of defendants. In such circumstances, we cannot see how a decree passed against the remaining defendants could possibly be held binding upon the minor daughter. For the respondents several rulings have been cited which are directly in point. The case of Pirthi Pal Singh v. Husaini Jan [1882] 4 All. 361 clearly supports the-view taken by the trial Court. In that case, the heirs to a deceased Mahomedan divided his estate among themselves according to their shares under the Mahomedan law of inheritance, a small debt being due from the estate at the time of division. Two of the heirs were subsequently sued for the whole of such debt. It was held that as such heirs had not, by sharing in the estate, rendered themselves liable for the whole of such debt, (Mahomedan law allowing the heirs of a deceased person to divide his estate, notwithstanding a small debt is due therefrom) and as a decree against such heirs would not bind the other heirs, a decree should not be passed against such heirs for the whole of such debt, but a decree should be passed against them for a share of such debt proportionate to the share of the estate they had taken. The judgment of the Court below is precisely in accordance with this ruling. This ruling has also been followed in Bussunteram v. Kamaluddin [1885] 11 Cal. 421. According to these two authorities which do not appear to have been overruled or even dissented from it is clear that the plaintiff in the present case is only entitled to a decree against the two defendants, proportionate to the extent of the shares of Zahur Ahmad's estate which devolved upon them. This would be the result even if the plaintiff had inadvertently omitted to implead the daughter. In the present suit, the plaintiff's claim is further weakened by the fact that he has expressly exonerated the daughter from liability. It is inequitable that he should by exonerating one of the heirs, impose a greater liability upon the remaining heirs.

4. We do not see that the definition of legal representative which was introduced into the Code of Civil Procedure of the year 1908 has altered the rule of law which has been enunciated in the decisions cited. No authority has been shown for the view that the law on this point has been altered. In our opinion the trial Court has correctly decided that the plaintiff after exempting the daughter from the array of defendants, is only entitled to a decree against the two remaining defendants for sums proportionate to the shares of Zahur Ahmad's estate which devolved upon them. We accordingly dismiss the application with costs.


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