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Mt. Ram Sri Vs. Thakur NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All368; 129Ind.Cas.374
AppellantMt. Ram Sri
RespondentThakur NaraIn Singh
Excerpt:
- .....appeal arising out of an execution proceeding. a mortgage had been executed by the deceased husband of the appellant mt. ram sri. a final decree for sale on the basis of this mortgage deed was obtained in february 1920. the mortgaged property was sold and proved insufficient to discharge the whole decretal amount. in 1926 the mortgagee obtained a decree under order 34 rule 6 which was against the widow mt. ram sri and the next reversioner sahab singh, to whom she had surrendered the estate, as legal representatives of the deceased. the decree was for realization of the money out of the assets of the deceased in their hands. in 1928, in pursuance of an agreement between the widow and the next reversioner, she obtained a decree for maintenance allowance against him with a,.....
Judgment:

Sulaiman, J.

1. This is a judgment-debtor's appeal arising out of an execution proceeding. A mortgage had been executed by the deceased husband of the appellant Mt. Ram Sri. A final decree for sale on the basis of this mortgage deed was obtained in February 1920. The mortgaged property was sold and proved insufficient to discharge the whole decretal amount. In 1926 the mortgagee obtained a decree under Order 34 Rule 6 which was against the widow Mt. Ram Sri and the next reversioner Sahab Singh, to whom she had surrendered the estate, as legal representatives of the deceased. The decree was for realization of the money out of the assets of the deceased in their hands. In 1928, in pursuance of an agreement between the widow and the next reversioner, she obtained a decree for maintenance allowance against him with a, charge on the property in his possession.

2. The mortgagee has sought to attach, not only the corpus of the property in the hands of Sahab Singh, but also the decree for maintenance allowances in favour of the widow which is against the reversioner. The objection of the widow that the decree itself was no part of the assets of her deceased husband has been overruled. Hence this appeal.

3. It seems to us that the objection must prevail. No doubt the creditor of the deceased husband can claim priority in respect of his debt which should be discharged out of the assets of the deceased husband before any other debts created by subsequent heirs are paid off. But he cannot treat the decree for maintenance which the widow has obtained against Sahab Singh as a part of the assets of the deceased. In the first place, it is doubtful whether she could not be allowed to appropriate the income of the estate even if it accrued after the death of the husband. In the next place she has obtained the decree on the strength of an agreement between herself and the next reversioner, the liability for which did not exist in the lifetime of the deceased. The decree is therefore not a part of the assets of her deceased husband and is not attachable. There is nothing to prevent the mortgagee from proceeding to attach the corpus of the property itself and selling it, claiming priority even as against the maintenance claim of the widow. The appeal is accordingly allowed and the order of the Court below is set aside to this extent: that Mt. Ram Sri's objection is allowed and her maintenance decree released from attachment. She will have the costs of this appeal from the respondent, including fees in this Court on the higher scale.


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