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Lachmi Chand and anr. Vs. Surja and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1927All683; 103Ind.Cas.338
AppellantLachmi Chand and anr.
RespondentSurja and anr.
Excerpt:
- .....judge of the small cause court has given the plaintiff a decree against the assets of the father amir singh, executant, in the hands of the son. the plaintiff also impleaded as defendant 2, one khushi ram, a separated brother of the executant, and alleged that khushi ram had taken possession of and sold certain crops which had been sown by amir singh and he asked for a decree also against khushi ram. this has been refused to him, and the plaintiff now asks us in revision to give him that decree. he relies upon section 2, sub-section (2), section 52 and section 53; but none of these provisions really help him. the question of what decree, if any, could be passed against khushi ram, had to be decided at the time that the learned judge of the small cause court was writing his judgment. at.....
Judgment:

Boys, J.

1. The plaintiff sued the son of the executant of a promissory-note. The executant and the son constituted a joint Hindu family, and the son was a minor at the date of the suit. Eventually the nazir of the Court was appointed as guardian and the Judge of the Small Cause Court has given the plaintiff a decree against the assets of the father Amir Singh, executant, in the hands of the son. The plaintiff also impleaded as defendant 2, one Khushi Ram, a separated brother of the executant, and alleged that Khushi Ram had taken possession of and sold certain crops which had been sown by Amir Singh and he asked for a decree also against Khushi Ram. This has been refused to him, and the plaintiff now asks us in revision to give him that decree. He relies upon Section 2, Sub-section (2), Section 52 and Section 53; but none of these provisions really help him. The question of what decree, if any, could be passed against Khushi Ram, had to be decided at the time that the learned Judge of the Small Cause Court was writing his judgment. At that time there was no decree in existence in respect of the debt incurred by the executant Amir Singh. Nor at that time were any crops sown by Amir Singh to be regarded as the assets of Amir Singh. All that Section 53 says is that when a decree has been passed in respect of the debt then so and so shall follow as consequences. At the time the learned Judge was deciding the case, no decree had been passed in respect; of the debt. Similarly, it is not until such decree has been passed in respect of the debt that the assets of the joint family become in the hands of the Hindu son the assets of his father; in other words until such a decree has been passed there is no estate of the father, the executant Amir Singh in existence, and, therefore, there is no estate of such father with which any body could intermeddle in the terms of Sub-section 2, Section 52, Civil P.C. The learned Judge of the Small Cause Court was, therefore, in my opinion, quite right in refusing any decree against the second defendant. In holding this I do not, of course, suggest in any way whatever anything as regards the real ownership of that crop in question, That may have to be determined in execution or by another suit as the plaintiff may be advised. The application is dismissed with costs.


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