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Sita Ram and ors. Vs. Dulam Kunwar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1919)ILR61All350
AppellantSita Ram and ors.
RespondentDulam Kunwar and ors.
Excerpt:
hindu law - daughters in possession of their father's estate--payment made by one daughter out of income of property--decree obtained for recovery of money so paid--death of deeree-holder before execution--who entitled to execute the decree. - - it would seem that she also took out execution of that decree on one or more occasions before her death, but she died while the decree was still unsatisfied......governing the decision of this appeal may be stated as follows:two sisters, tulsha kunwar and dulam kunwar, had succeeded to the possession of their father's estate. they held the same, of course, with the limited estate of hindu women and subject to a right of survivorship as between themselves. while they were thus in possession musammat tulsha kunwar made a certain payment out of the income of the estate in her hands, the object of this payment being to save certain property from being sold up on account of arrears of government revenue due from her nephews, the sons of musammat dulam kunwar, and from certain cousins of the said nephews. the payment so made by her she was entitled to recover from the persons for whose benefit she made it. she brought a suit with that object and.....
Judgment:

Piggott and Walsh, JJ.

1. The essential facts governing the decision of this appeal may be stated as follows:Two sisters, Tulsha Kunwar and Dulam Kunwar, had succeeded to the possession of their father's estate. They held the same, of course, with the limited estate of Hindu women and subject to a right of survivorship as between themselves. While they were thus in possession Musammat Tulsha Kunwar made a certain payment out of the income of the estate in her hands, the object of this payment being to save certain property from being sold up on account of arrears of Government revenue due from her nephews, the sons of Musammat Dulam Kunwar, and from certain cousins of the said nephews. The payment so made by her she was entitled to recover from the persons for whose benefit she made it. She brought a suit with that object and obtained a decree. It would seem that she also took out execution of that decree on one or more occasions before her death, but she died while the decree was still unsatisfied. The question now is, who is entitled to realize this money as the legal representative of the deceased decree-holder? In one sense the proceedings actually taken, which have been upheld as valid by the lower appellate court, are almost farcical; Musammat Dulam Kunwar, the mother of some of the judgment-debtors, claims the money due under this decree as one of the assets of the estate which belonged to herself and to Tulsha Kunwar jointly, and which has devolved upon her by survivorship, and takes proceedings to realize it through the agency of one of her sons, who is himself a judgment-debtor, She is taking out execution of this decree as against the cousins who were joint judgment-debtors. The court of first instance held, in a carefully written judgment, that the decree in question was not part of the assets of the estate to which Dulam Kunwar and Tulsha Kunwar had succeeded as the daughters of their father. The learned Munsif found that, if any one was entitled to execute this decree, it would be the personal heirs of Musammat Tulsha Kunwar, that is to say, some member of this lady's husband's family. The learned Subordinate Judge has reversed this decision upon what seems to us a highly technical view of the position. He lays stress on the fact that it was admitted that Musammat Tulsha Kunwar had no independent source of income outside of her share in the estate of her late father in the enjoyment of which she was living; consequently the money which she paid to Government for the benefit of the defaulting co-sharers must have come out of the income of the estate in her hands. Hence the learned Subordinate Judge holds that the debt due to Musammat Tulsha Kunwar under the decree amounts to a saving out of the estate of her father, and he relies upon the principle laid down by their Lordships of the Privy Council in Isri Dut Koer v. Hansbutti Koerain (1883) I.L.R., 10 Calc., 324, that a widow's savings from her husband's estate are not her stridhan; if she has made no attempt to dispose of them in her life-time, they follow the estate from which they arose. The real difficulty in the way of accepting this view is that the judgment-debt in favour of Musammat Tulsha Kunwar was not a saving. She had applied a portion of the income of the estate in her hands, over which she admittedly had full power of disposal, to meet a certain emergency, and, by reason of the use which she had made of it, there was a debt due to her at the time of her death. The real question is who is entitled to collect this debt? The efforts of Musammat Tulsha Kunwar to realize it, especially when it is considered that the sons of Musammat Dulam Kunwar were among the judgment-debtors against whom she took out execution, suggest the inference that she wanted this money back for herself, in order to spend it as she might think proper. There was no necessity for her to take out execution of the decree at all, if she had been under the impression that she was doing so for the benefit of the estate of which she herself and Musammat Dulam Kunwar were the joint owners. Under the circumstances of this case we think that the right to realize this debt was not one of the assets of the estate of which Dulam Kunwar and Tulsha Kunwar were joint owners, but was personal property (not necessarily stridhan) of Musammat Tulsha Kunwar, and that her legal representatives in respect of this debt are to be sought amongst her natural heirs under the Hindu Law, that is to say, in the family of her husband. Her sister Musammat Dulam Kunwar is not in the strict sense of the word, her heir at all. Her claim to realize this debt is based upon her right of succession by survivorship to a particular estate of which she became the joint owner, along with her sister Tulsha Kunwar, upon the death of their own father. It is not really a question of whether this decree was or was not the stridhan of Musammat Tulsha Kunwar, but whether it did or did not form part of the assets of the estate of which Tulsha Kunwar and Dulam Kunwar were the joint owners? For the reasons stated we think that it did not, and that the decision of the court of first instance was correct and ought to be restored. We allow the appeal, set aside the order and decree of the lower appellate court and restore that of the court of first instance, with costs throughout.


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