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inder Singh and ors. Vs. F. Munshi Ram Ram Sawrup - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberElection Second Appeal No. 320 of 1967
Judge
Reported in7(1971)DLT86
ActsPunjab Debtrors Protercion Act, 1936 - Sections 9
Appellantinder Singh and ors.
RespondentF. Munshi Ram Ram Sawrup
Advocates: S.L. Bhatia,; N.D. Bali and; K.L. Budhiraja, Advs
Cases ReferredNabia v. Mst. Fatto and Rehman. In
Excerpt:
.....act, 1936 - in view of apex court considerations applying to exemption from attachment of immovable property have no application to compensation for same - amount of compensation liable to be proceeded against in execution of decree. - - 6 reads as follows :is the compensation payable to the judgment-debtor exempt from attachment if it is presumed that the land in respect of which that compensation is payable, was exempt from attachment ?' (4) the trial court answered the issue in the negative and repelled the objection of the judgment-debtors and their appeal against the same before the additional district judge also failed. (5) the learned counsel for the judgment-debtors-applicants relied upon section 9 of the punjab debtors protection act which leads as follows :9.when..........in regard to succession to immoveable property then, notwithstanding any custom to the contrary, ancestral immovable property in the hands of a subsequent holder, whether male or female and if female whether she holds as a limited owner or full owner, shall not be liable in the execution of a decree or order of a court relating to a debt incurred by any of his predecessors-interest ; provided that, when the debt has been expressly charged by way of mortgage on ancestral immovable property by a predecessor-in-interest, the court shall determine the liability of such land as if this section had not been passed : provided further, and subject to the foregoing proviso, that, in respect of a debt incurred before the commencement of this act, ancestral property in the hands of a subsequent.....
Judgment:

B.C. Misra, J.

(1) This execution second appeal under section 100 read with section 47 of the Code of Civil Procedure has been filed by the judgment debtors and is directed against the appellate order of the Additional District Judge, Delhi dated 16th September 1967 by which the learned Judge affirmed the finding of the trial court dated 16th April, 1966 in respect of issue No.6, but set aside its order dismissing all the objections and remanded the case to the lower Court for adjudication upon the remaining objections of the judgment debtor.

(2) The facts of the case lie in a narrow compass. On 13th June, 1933, a decree for payment of Rs 4,400.00 with further interest and costs was passed in favor of Munshi Ram Sarup (decree-holder respondent before me) against the judgment-debtor, which amount I am informed now stands at more than Rs. l2,000.00. Badri Singh, original judgment-debtor, died on 13th October, 1940 and was succeeded by his Sons who are appellants before me. In execution of the decree, the decree-holder respondent purported to attach the amount of compensation payable to the Judgment-debtors in respect of about 909 bighas of land which had been acquired by the Government and Rs. 4,49,869/4/ were awarded as compensation out of which about, Rs. 1, 56, 620.00 were lying undisbursed. On 22nd August, 1959, the judgment bebtors filed their objections against attachment of the aforesaid amount of compensation and the main ground was that the house in respect of which the attached compensation had been determined to be payable was ancestral house of the deceased-judgment-debtor and was exempt from attachment and sale under section 9 of the Punjab Debtors Protection Act, since the parties are governed by custom. There were other objections also which are not material for purposes of this appeal and the said objection is the one that arises for my decision.

(3) On the pleadings of the parties, a number of issues were framed and the relevant issue No. 6 reads as follows :- Is the compensation payable to the judgment-debtor exempt from attachment if it is presumed that the land in respect of which that compensation is payable, was exempt from attachment ?'

(4) The trial Court answered the issue in the negative and repelled the objection of the judgment-debtors and their appeal against the same before the Additional District Judge also failed.

(5) The learned counsel for the judgment-debtors-applicants relied upon section 9 of the Punjab Debtors Protection Act which leads as follows :--

'9.When custom is the rule of decision in regard to succession to immoveable property then, notwithstanding any custom to the contrary, ancestral immovable property in the hands of a subsequent holder, whether male or female and if female whether she holds as a limited owner or full owner, shall not be liable in the execution of a decree or order of a court relating to a debt incurred by any of his predecessors-interest ; Provided that, when the debt has been expressly charged by way of mortgage On ancestral immovable property by a predecessor-in-interest, the court shall determine the liability of such land as if this section had not been passed : Provided further, and subject to the foregoing proviso, that, in respect of a debt incurred before the commencement of this Act, ancestral property in the hands of a subsequent holder may be liable, only if all the following conditions are satisfied :- First. That before such liability 13 determined, the judgment- debtor shall be given sufficient opportunity to show cause against such liability. Second. That such liability was permitted by the rule of custom, applicable to the judgment-debtor immediately before the commencement of this Act, and nothing in this section shall prevent the judgment-debtor from proving the contrary. Third. That the decree-holder is able to show to the satisfaction of the court, that. at the time the debt was originally incurred, there was a subsisting judgment or order of a competent court, not in exparte proceedings , holding that such a custom was applicable to the sub-tribe in the tahsil to which the judgment debtors belongs. Fourth. That the judgment debtor is not able to show to the satisfaction of the court, that, at the time the debt was originally incurred, there was a subsisting judgment or order of a competent court, not in ex-parte proceedings holding to the contrary and subsequent to the judgment relied upon by the decree-holder.'

It has been assumed in this case that the parties are governed by custom in respect of succession to the immovable property and that ancestral immovable property in the hands of subsequent holders is not liable to attachment and sale in execution of a decree or order of the Court relating to a debt incurred by the predecessors in-interest. There is no doubt that the other ingredients of the exemption granted by the section, are fully satisfied and had the dispute related to immovable property, the submission of the learned counsel for the appellants would be unassailable, The question, however arises if the immovable property in dispute has been acquired or has otherwise ceased to belong to the family, whether or not it can be said that the exemption relating to the property would attach itself to the conversion of the property in money The learned counsel for the parties have frankly submitted that there is no direct authority on the point. The learned counsel for the appellants has relied upon Budhu Ram v. Muhammad Din. It was held in the said authority that the property acquired as an income of ancestral property must be deemed to be ancestral property of the family according to tenets of Hindu Law. I have absolutely no quarrel with the proposition of law propounded in the said authority which finds its support from the authorities of the Privy Council as well as the Supreme Court. However, the principles of Hindu Law on the subject are different and the rule that property acquired with ancestral funds gets an impress of ancaatral property ispeCHliar to Hindu Law as administered in this country, but that rule cannot be extended to other systems of law by analogy

(6) The learned counsel for the respondent has relied upon Nabia v. Mst. Fatto and Rehman. In that authority, it was laid down that whore parties are govened by custom, the land purchased by money raised by mortagaging ancestral laod would not constitute an ancestral property. This authority throws some light on the question raised before me, but I am unable to bold the same as conclusive I am of the view that neither the principles of Hindu Law air the rules of customary law have any application to the facts of the case In order to give effect to the exemption, we must find the justification and the authority in the terms of the statute itself. The protection is granted by an Act of the Legislature and it is laid down that notwithstanding any custom to the contrary, an ancestral immoveable property is not liable to attachment and sale under the circumstances mentioned therein. The language of the statute cannot be stretched to cover cases of conversions of immovable property. Should the exemption from attachment be extended, it would be necessary to a,ttach it to the immovable property itself and follow it in the hands of the transferees of the property, but such a result would be absurd and is not warranted by the provisions of the Act. The amount of compensation or sale price realised from immovable property stands on a different footing and if the same belonged to the deceased, there is no reason to restrict the right of the decree- holder to realise his decretal amount from the assets left by the deceased and in law as well as in equity, it must be satisfied prior to their disbursement amongst the heirs and legal representatives of the deceased. If the operation of this rule of law is to be negatived. we must find express words to this effect in the statute and I am unable to bring about this result by any principle of construction applicable to the language used in section 9 of the Punjab Debtors Protection Act. It may be of advantage to refer to an authority of the Supreme Court 998(p) where in paragraph 13, Gajendragadkar, J. (as he then was), speaking for the Court dealing with the provisions of section 32(1)(b) of the Land Acquisition Act, observed as follows :-

'THEREFORE,even if the principles underlying section 32 is extended to the present case on equitable considerations it would not justify the appellant's claim that the compensation amount should itself be treated as corresponding to the corpus of lands acquired and should be permanently invested in suitable securities leaving to the parties concerned the right to enjoy only its income. Such a course is plainly inconsistent with the principle recognised by section 32(1)(a). thereforee, we are not prepared to accede to the argument that the compensation amount should not be divided between the parties and should be permanently deposited in the fund set apart in proper investments.'

(7) Applying the dictum laid down by the Supreme Court, I am of the view that the considerations which apply to the exemption from attachment of the immovable property, have no application to the compensation for the same and the amount of compensation is, thereforee, liable to be proceeded against in execution of the decree of the respondent-decree-holder.

(8) As a result, this appeal fails and is dismissed with costs.


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