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LachmIn Narain-minor Through His Mother Musammat Ram Piari as His Next Friend Vs. Sham Sunder Lal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.116
AppellantLachmIn Narain-minor Through His Mother Musammat Ram Piari as His Next Friend
RespondentSham Sunder Lal
Excerpt:
hindu law - decree for mesne profits against widow--execution after her death--husband's property in his heir's hands not attachable--n.w.p. tenancy act (ii of 1901, local), sections 20 and 22--holding not transferable--widow's interest limited. - - the decree for mesne profits, however, remained unsatisfied and after the death of sarsuti kunwar the present appellant was brought on to the record as the representative of sarsuti kunwar and mesne profits were assessed against him as such representative and a decree was made against him rendering him liable to the extent of all property in his hands which had been the property of sarsuti kunwar......the statement of the respondent's counsel. a suit was brought by bhairon parshad against musammat sarsuti kunwar for possession of certain property and mesne profits. in that suit the plaintiff alleged that he was the heir of a certain person since deceased, that the plaintiff was the reversionary heir of the owner of the property, that bhagwat parshad, who was the husband of sarsuti kunwar, had taken possession and had remained in possession after the death of that owner. the suit resulted in a decree for possession and mesne profits, the latter to be determined in the execution department. the present decree-holder represents bhairon parshad. possession was apparently taken of the property decreed in the suit, and we have now nothing to do with the property which was the subject.....
Judgment:

Richards, J.

1. I take the facts out of which this execution appeal arises from the statement of the respondent's Counsel. A suit was brought by Bhairon Parshad against Musammat Sarsuti Kunwar for possession of certain property and mesne profits. In that suit the plaintiff alleged that he was the heir of a certain person since deceased, that the plaintiff was the reversionary heir of the owner of the property, that Bhagwat Parshad, who was the husband of Sarsuti Kunwar, had taken possession and had remained in possession after the death of that owner. The suit resulted in a decree for possession and mesne profits, the latter to be determined in the execution department. The present decree-holder represents Bhairon Parshad. Possession was apparently taken of the property decreed in the suit, and we have now nothing to do with the property which was the subject matter of that suit. The decree for mesne profits, however, remained unsatisfied and after the death of Sarsuti Kunwar the present appellant was brought on to the record as the representative of Sarsuti Kunwar and mesne profits were assessed against him as such representative and a decree was made against him rendering him liable to the extent of all property in his hands which had been the property of Sarsuti Kunwar. It is stated by the appellant that an objection was taken at that very time that Sarsuti Kunwar had left no property. In execution of the decree fur mesne profits the decree-holder applied for attachment of a certain grove. Lachmi Narain, the present appellant, again objected that Sarsuti Kunwar had left no property, and that he was in possession of the grove as the heir of Bhagwat Parshad and not as an heir of Sarsuti Kunwar. The Court below has disallowed the objection and has ordered attachment and sale of the property. Hence the present appeal. The judgment of the learned Judge is by no means satisfactory. The decree-holder was only entitled to attach property out of the property of Sarsuti Kunwar deceased. If the grove in question had been the property of Bhagwat Parshad his widow Sarsuti Kunwar would merely have taken an estate for her life. After her death the property could not be attached in execution of a decree against her. It is said that the decree against her was as representative of her husband Bhagwat Parshad. But it is quite clear that there is no force whatever in this contention. The suit for possession was not brought until long after Bhagwat Parshad's death. If the grove which has been attached was the occupancy or non-occupancy tenancy of Bhagwat Parshad under Section 22 of the Tenancy Act, Sarsuti Kunwar only took an estate until her death or re-marriage. Furthermore, Section 20 of the same Act provides that the interest of an ex-proprietary tenant, an occupancy tenant or a non-occupancy tenant shall not be transferable in execution of a decree of a Civil or Revenue Court. It is, therefore, quite clear that if the grove constituted either the whole or part of the class of tenancy referred to in the section it could not be sold in execution of the decree even if it belonged to Musammat Sarsuti Kunwar herself. It is contended that the words 'not transferable' in Section 20 do not refer to a sale in execution of a decree. In my judgment such a contention is unarguable. I think that the learned Judge ought to have allowed the objection. However, it may be said that technically he has not tried the only and real question in the case, namely whether the grove in question was the property of the deceased and liable as such to be sold in execution of the decree against Sarsuti Kunwar. There has been no proper trial by the learned Judge. I accordingly allow the appeal, set aside the order of the Court below and remand the case to that Court to be dealt with according to law under Order 41, Rule 23. Costs of this appeal will abide the result. Costs in this Court will include fees on the higher scale.


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