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Dip Chand Shiv Ram Vs. Ram Lal Daya Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 335 of 1955
Judge
Reported inAIR1961P& H322
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 2, Rule 2 - Order 21, Rules 58 and 63
AppellantDip Chand Shiv Ram
RespondentRam Lal Daya Singh and anr.
Appellant Advocate N.L. Salooja, Adv.
Respondent Advocate Prakash Chand Jain, Adv.
DispositionAppeal allowed
Cases Referred and Premsagar v. Commr. of Income Tax
Excerpt:
.....the corups as well in case of legal necessity. the remedy could be by objections under order xxi, rule 58, of the code of civil procedure and in case of failure by a suit under order xxi, rule 63, of the code, within a year or even by a separate suit. these objections failed. i find that in the circumstances of the case, the plaintiff can safeguard only one-half of the amount in suit which is owned by him and can get no relief in the present suit regarding the other half to which he has only a reversioner's right at present' an appeal against this decision also failed. if the plaintiff bad couched his plaint in that form then the question of consideration, necessity, etc. lajyawati is entitled to half of the amount like the plaintiff wbo is her son and plaintiff has been granted a..........judge. this led to a suit by ram lal under order xxi, rule 63 of the code of civil procedure. this suit was decreed by the trial court to the extent of one-half of the savings bank deposit, which was held to be the property of ram lal. the attachment of the other half was held to be in order and the suit qua the other half was dismissed.3. on the 29th of may, 1950, sheo ram's suit on the basis of the pronote was decreed. he sued out execution and died during the pendency of the same. but the same were continued by his son dip chand and his mother chandra wati with the re-suit that on 30-11-1951, rs. 2,522/6/- i. e., one half of the savings bank deposit, which in tile suit under order xxi, rule 63 of the code had been held to be the property of the widow of daya singh, was realised and.....
Judgment:

D.K. Mahajan, J.

1. The facts giving rise to this appeal are not only interesting but raised a lot of confusion in the Courts below. Daya Singh had a deposit with the Post Office Savings Bank at Chee-cha Vatni, District Montgomery, West Pakistan. As at the relevant time, Daya Singh was dead the Savings Bank deposit on transfer to Morinda Post Office in district Ambala stood in the name of his widow. The transfer was necessitated by reason of the partition of India in 1947.

2. On the basis of a pronote executed by the widow on the 28th of May, 1948, in favour of Sheo Ram father of the present appellant a suit was filed. On the 11th of November, 1949, attachment before judgment of the amount lying in the name of the widow in the Post Office Savings Bank account in Morinda was obtained by the creditor. On the 4th February, 1950, Ram Lal minor son of the lady filed] objections under Order XXI, Rule 58 of the Code of Civil Procedure, questioning the attachment on the ground that the money in the Post Office Savings Bank belonged to him. These objections were rejected by the trial Judge. This led to a suit by Ram Lal under Order XXI, Rule 63 of the Code of Civil Procedure. This suit was decreed by the trial Court to the extent of one-half of the Savings Bank deposit, which was held to be the property of Ram Lal. The attachment of the other half was held to be in order and the suit qua the other half was dismissed.

3. On the 29th of May, 1950, Sheo Ram's suit on the basis of the pronote was decreed. He sued out execution and died during the pendency of the same. But the same were continued by his son Dip Chand and his mother Chandra Wati with the re-suit that on 30-11-1951, Rs. 2,522/6/- i. e., one half of the Savings Bank deposit, which in tile suit under Order XXI, Rule 63 of the Code had been held to be the property of the widow of Daya Singh, was realised and paid to the decree-holder.

4. On the 10 of January, 1952, the present suit was filed for a declaration by Ram Lal son of Daya Singh on the ground that the one-half of the amount held by the widow (Smt. Lajya Wati) in the Post Office Savings Bank account could not be attached and realised by the defendant decree-holder in a decree personally obtained against the widow as that amount was inherited by her from the husband and in it she only held a life estate. It was claimed that after the death of the widow he was entitled to succeed to it. A number of issues were framed but the material issues are:-

2. Is the present suit barred by Order II, Rule 2 of the Code of Civil Procedure on account of the previous suit inter partes?

3. Is the suit barred under Section 11 of the Code of Civil Procedure on account of the decision of the previous suit?

5. Was the money in dispute inherited by defendant No. 2 from Daya Singh plaintiff's father?

6. Whether the amount of the decree in suit in which the money in dispute was attached, was borrowed for legal necessity?

The trial Court held that the suit was not barred by Order II Rule 2 or Section 11 of the Code of Civil Procedure, that the amount was inherited by the widow from Daya Singh, that the decree was for necessity to the extent of Rs. 500/- with the result that the plaintiff was granted a decree declaring that as no necessity for Rs. 2,000/- had been proved, he would be entitled to recover the same from the decree-holder after the death of the widow. An appeal against this decision was preferred to the District Judge by the defendant decree-holder and cross-objections were filed by the plaintiff. Both the appeal and the cross-objections were rejected by the learned District Judge.

5. Curiously enough, both the Courts below treated the realisation of the amount in execution of the decree as an alienation. Dissatisfied with tins decision, the decreeholder has come up in second appeal and cross-objections with regard to the sum of Rs. 500/- have been filed by Ram Lal. This order will dispose of both the appeal and the cross-objections.

6. This suit is misconceived. Both the Courts below have erred in decreeing the same on the basis that the realisation of the amount in question in execution of the decree is tantamount to an alienation thus giving rise to a cause of action to the reversioners to challenge the same on the ground that it is not justified by necessity. There is, in fact, no alienation. The amount in dispute was realised in execution of a decree. Therefore, such a realisation Can, by no stretch of imagination, be treated as an alienation. Alienation implies a voluntary act on the part of an alienor.

It is a settled law that in execution of a decree what passes on to the decree-holder is the right, title and interest of the judgment-debtor. It cannot be disputed that the widow had a life interest in the amount, which entitled her to its income orto the use of the corups as well in case of legal necessity. The reversioner would only be entitled to the corpus on the death of the widow. There is no act on the part of the widow which affects his reversionary rights and which act he can question by means of a suit. It is no doubt true that under the Hindu Law any property inherited by a widow from her husband whether movable or immovable cannot be alienated by her (Mulla, Hindu Law, 12th Edition, page 256, paragraph 179).

So also the estate of the husband in her hands is not liable in a decree obtained personally against her, and if such an interest is sold in execution of such a decree the auction-purchaser will only get the right, title and interest of the judgment-debtor, i.e., the life interest and nothing more. (Mulla Hindu Law, 12th Edition, page 301, paragraph 200). In this situation, the remedy, if any, was at the time when the attachment was effected. The remedy could be by objections under Order XXI, Rule 58, of the Code of Civil Procedure and in Case of failure by a suit under Order XXI, Rule 63, of the Code, within a year or even by a separate suit.

7. In this case recourse was had to both the remedies under Order XXI, Rule 58 and Order XXI, Rule 63 of the Code. The entire amount of Rs. 5,000/- odd was attached before judgment. To this attachment objections under Order XXI, R, 58, Code of Civil Procedure were preferred by the plaintiff. These objections failed. Thereafter a suit under Order XXI, H. 63 of the Code was filed. In that suit, a declaration was sought to the effect that the entire amount of Rs. 5.000/- odd in the Savings Bank Account, Post Office Morinda, was not liable to at' tachment because the entire amount belonged to the plaintiff and the widow, Smt. Lajyawari, had no concern with it. It was alleged that the amount in question originally belonged to his father, Daya Singh, and, therefore, the plaintiff was the owner of the entire amount and that the attachment of the same was illegal as the pronote on the basis of which the decree was obtained was fictitious and without consideration. In this suit, the following two issues were framed:-

1. Did the attached money in dispute belong to the plaintiff's father?

2. If issue No. 1 is proved, what are the rights and claims of defendant No. 2 on the property and is it liable to attachment and disbursement in execution of the decree against defendant No. 2 personally?

This suit and the present suit were filed by Ram Lal and the decree-holder and the widow were defendants Nos. 1 and 2 respectively. The trial Court held that the amount belonged to the plaintiffs father and that one-half of the money belonged to the plaintiff and the other half to defendant No. 2 in which she had limited estate. It was contended on behalf of the plaintiff that a limited estate owner could not alienate the corpus of the estate for personal debt and therefore that corpus could not be attached or sold in execution of a personal decree against a limited owner when the decree is not against the estate and does not bind the estate. This contention was negatived in the words of the trial Court as under:-

'I have found that the plaintiff is only an owner of one-half while defendant No. 2 is theowner of the other half. Defendant No. 2 is the owner during her lifetime. It may be that a re-versioner may he entitled to restrain an alienation of the corpus of the estate but it is not a case of alienation but a case of an attachment in execution of a decree of money which stands in the name of defendant No. 2 and of which defendant No. 2, is the owner at the time of attachment. If the plaintiff wanted a declaration restraining attachment of the amount in a personal decree against defendant No. 2 or restraining waste of the corpus of estate he should have couched the relief in that specific form. I find that in the circumstances of the case, the plaintiff can safeguard only one-half of the amount in suit which is owned by him and can get no relief in the present suit regarding the other half to which he has only a reversioner's right at present'

An appeal against this decision also failed. While dealing with the argument against the attachment of the other one-half of the amount, the lower appellate Court observed as under:-

'Learned counsel for the appellant does not contest the finding of the trial Court on issue No. 1 and his only grievance is about the finding on issue No. 2. It is not denied that the money in dispute was the separate property of Daya Singh and was not joint Hindu family property and as such Smt. Lajyawati succeeds to this property as a son would succeed under Section 3 (1) of Act No. 18 of 1937 of Hindu Women's Right to Property Act & it is further clear that under Section 3(3) any interest devolving on a Hindu widow under the provisions of this Act shall be limited interest known as Hindu Women's Estate provided however that she shall have the same right of claiming partition as male owner. On behalf of the respondent it is urged that Mst. Lajyawati had borrowed money from Sheoram for the marriage of her son Patram who was her son from her previous husband but this position cannot be gone into in this suit since plaintiff came forward outright on the plea that he was the owner of the whole amount and he never claimed any interest in the money as a reversioner. If the plaintiff bad couched his plaint in that form then the question of consideration, necessity, etc. would have arisen but that position was never taken up in the plaint and it cannot be taken up now. As the plaint stood plaintiff claims the entire amount but it has been found that according to law Mst. Lajyawati is entitled to half of the amount like the plaintiff wbo is her son and plaintiff has been granted a declaration relating to the half amount. He could not possibly get any other relief in this suit as held by the Subordinate Judge below. Learned counsel for the respondent refers me to Kamalabala Bose v. Jiban Krishna Bose, AIR 1946 Cal 461, Shib Deo Singh v. Uttam Singh, AIR 1925 Lah 84 and Premsagar v. Commr. of Income Tax, AIR 1932 Lah 178, but in my opinion none of these authorities can be of much help in this case because plaintiff's suit is not in the status of a reversioner and these authorities would only have been applicable if the suit had been in that form.'

Thus it is obvious that the relief which the plaintiff seeks in the present suit was available to him in the earlier suit. He was not granted that relief on the short ground that he bad not asked for it inhis pleadings. The cause of action for the declaration now sought had arisen at that time. As 8 matter of fact issue No. 2 in that suit did embrace the matter. But the Courts refused to decide it, as I have already mentioned, for lack of proper pleadings and not on the basis that such a declaration could not be given or the cause of action for it had not arisen.

8. In these circumstances, it appears to me that the present suit is clearly barred under Order II, Rule 2 and Section 11 of the Code of Civil Procedure. Order II, Rule 2 of the Code is in these terms:-

'II. 2(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation:- For the; purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.'

The cause of action for both the reliefs arose at the time of the first attachment, It is one and one alone. No second cause of action has arisen thereafter. If the amount in question could be rightly attached in execution of a decree obtained personally against the widow, it could certainly be realised in that execution. The realisation of the amount after a valid attachment does not furnish a new cause of action. I am, therefore, of the view that the present suit is barred under Order II, Rule 2 of the Code and the Courts below are in error in holding to the contrary.

9. I am also of the, view that the first suit is barred under Section 11 of the Code. The relevant part of Section 11 of the Code is in these terms:-

'11. No Court shall try any suit or issue in which the matters directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.

Explanation I. * * * * * Explanation II. * * * * * Explanation III.* * * * * Explanation IV. Any matter which might andought to have been made ground of defence or attack in such former suit shall be deemed to havebeen a matter directly and substantially in issue insuch suit.

Explanation V. Any relief claimed in the plaint which is not expressly granted by the decree, shallfor the purpose of this section, be deemed to have been refused. Explanation VI. * * * * *

Both the suits are based on the same title. The attachment of the corpus could have been successfully challenged on the ground that the widow had only a life interest in the same and the decree-holder could at best get the income from the corpus and not the corpus. This plea was open in the previous suit and it was not taken, and therefore, it cannot be taken now in the present suit. All the requirements of Section 11 are satisfied. It seems that the Courts below really did not apply their mind to this aspect of the case and therefore came to a wrong conclusion.

10. For the reasons given above, I allow this appeal set aside the judgments and decrees of the Courts below and dismiss the plaintiffs suit leaving the parties to bear their own costs throughout. The cross-objections are also dismissed with no order as to costs.


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