1. The suit in which this appeal arises was brought by the plaintiff now respondent, for a declaration that certain properties which had been attached by one Chattan Kumari in a previous execution case arising out of Suit No. 90 of 1912, and which have bean released from attachment on a claim having been made by defendant 2 (now appellant) through defendant i are properties which belonged to one Kanta Prosad Hazari and are liable to be attached and sold in execution of the decree in Suit No. 90 of 1912 aforesaid.
2. It is not disputed that the properties now in suit belonged to Kanta Prosad Hazari who died on 25th September 1904 leaving behind him his widow Chattan Kumari. Prior to his death Kanta Prosad executed a will by which he provided inter alia that his widow Chattan Kumari should receive Rs. 1,000 yearly for her maintenance from his estate and that this maintenance was to be a charge on his estate. After the death of Kanta his estate was managed by his nephew Ramdin. The latter died in 1906 leaving behind him his widow Mathurya Debya who is defendant 1 in the present suit. After Ramdin's death there was dispute between Shewdayal the brother of Ramdin and Chattan Kumari regarding Kampta's estate. The parties are governed by the Mitakshara School of Hindu law, and consequently Shewdayal's son, Gajaraj or Bijoy, was also made a party to the suit (No. 223 of 1909 of the Sub-Judge's Court at Chittagong which was brought by Shewdayal against Mathurya and Chattan Kumari. In that suit a consent decree was passed. By para 2 of the petition of compromise on which the consent decree was based it was agreed that defendant 1 Mathurya will have a life-interest in the 8 annas share of the property in claim in that suit, and if she adopted, the adopted son will get the said 8 annas share from the date of adoption. It may be mentioned here that defendant 2 (appellant before us) claims to be her adopted son.
3. It was further provided for by the consent decree that Chattan Kumari has got a maintenance charge on the property and that defendant 1 was to pay half of this maintenance and in default the same would be realized by suit.
4. In 1912, defendant 1 having in the meantime defaulted in the payment of her share of the maintenance a suit was brought by Chattan Kumari for recovery of the arrears of maintenance. In the plaint in that suit it was recited that by the will of Kanta Prosad as also by the solehnama decree in the suit of 1909 Chattan Kumari's maintenance was a charge on the estate but the relief asked for was the recovery of the arrears from defendant 1 and not the enforcement of the charge. It is this form of relief asked for in that suit that has put all the apparent difficulties in the way of the plaintiff who is executor under Chattan Kumar's will and represents her estate after her death. In execution of the decree in this suit Chattan Kumari proceeded to attach the properties in suit. Defendant 1 first objected to the attachment. Her objection was overruled. She next put forward the present appellant her alleged adopted son, to object to the attachment and as he was an infant then she made the objection as his next friend. The objection to the attachment was allowed. The present suit has been brought by Chattan Kumari's executor for a declaration that the properties in suit are liable to attachment.
5. Defendants 1 and, 2 filed two separate written-statements. Their defence however is that the decree against the defendant in Suit No. 90 of 1912 was against defendant 1 personally and as such the properties claimed in the present suit cannot be sold or attached in execution of the decree against defendant 1 personally. The contention is that as the estate has vested in defendant 2, as he had been adopted by defendant 1, the estate cannot be sold in execution of a decree against defendant 1 personally. In this connexion it is to be observed that the alleged adoption took place during the pendency of suit No. 90 of 1912 and that the maintenance of Chattan Kumari was made a charge, both by the will and the consent decree long before the adoption so that, even if it is assumed for the purposes of this case that the adoption is established the adopted son takes the estate as it was at the date of the adoption; in other words he took it subject to the charge for maintenance.
6. The learned Subordinate Judge who tried the suit in the first instance gave a decree to the plaintiff and on appeal his. decision has been affirmed by the learned District Judge who drew attention to the fact that in a previous litigation between the parties the question of the validity of the adoption was left open by the High Court and did not decide as to whether the adoption had been established or not. But the learned Judge held that the estate would not be liable to attachment if the appellant was validly adopted. Then the learned Judge reached the conclusion that he could not hold that the estate vested in the appellant until the adoption is shown to be valid. On these findings the lower appellate-Court dismissed the appeal.
7. A second appeal has been taken to this Court by defendant 2, and it has been argued for the appellant that the burden of proving that there was no adoption was on the plaintiff-respondent as this was a suit under Order 21, Rule 63, Civil P.C., and the plaintiff must show that the claim was wrongly allowed. This criticizm does not seem to be just, for the claim case did not decide the validity of the adoption, and it is for the appellant to show that the estate did vest in the appellant by reason of the adoption. But, as I have pointed out, the adopted son was bound by the decree obtained against defendant 1, although, on the face of it, It was a merely personal decree against her in substance, for as I shall show presently the decree was against her as really representing the inheritance, for the effect of a decree of this kind against a limited owner depends upon the nature of the suit. The proceedings in execution in Suit No. 90 make it manifest that defendant 1 objected that the decree against her was not a personal one, but it was a decree against the estate of Kanta Prosad: see para. 7 of her petition of 5th September 1913, p. 15 of typed paper book. In spite of this the execution Court, in Suit No. 90, seems to have ultimately held that the decree was a personal one. The plaintiff is entitled to challenge this finding in the present suit as the very object of the suit is to show that the order allowing the claim is wrong and the ground on which the order is based is certainly open to attack in this suit. No question of finality of that finding on the ground analogous to the principle of res judicata can possibly arise in this case for the very object of the present suit is to attack the order which unless challenged by suit within the period of one year becomes final and conclusive.
8. If the suit No. 90 of 1912 was simply for a personal claim against the widow of Ramdin (defendant l) then merely the widow's qualified interest could be sold in execution of the decree and the reversionary interest if any would not be bound by such sale. If on the other hand the suit is against the widow in respect of the estate or for a cause which is not a mere personal cause of action against the widow then the whole estate would pass: see Jugal Kishore v. Maharaja Jotindra Mohan Tagore  10 Cal. 985.
9. If there had been no claim and in execution of the decree the right, title and interest of defendant 1 was sold the whole estate would have passed for as has been pointed out by their Lordships of the Judicial Committee in the case just cited:
But there are many cases in which when the right, title and interest of the widow is sold the whole interest passes. In other cases the whole interest does not pass. The case-depends upon the nature of the suit in which execution issues. There are many authorities to the effect.
10. This view has been reaffirmed by the Judicial Committee in a recent case: see Vaithialinga v. Srirangath .
11. The plaint in Suit No. 90 clearly shows that the arrears of maintenance was a charge on the estate and as defendant 1 did not pay a decree was sought against her. She was liable to pay on the basis of the consent decree and the son who was adopted (assuming the adoption established) during the suit is surely bound by the liabilities of the widow-prior to the adoption. The view we take-is justified by the decision of their Lordships of the Judicial Committee on a. somewhat analogous state of facts in the case of Gurudas Pyne v. Ram Narain Sahoo  10 Cal. 860. Suit No. 90 is really a suit to enforce a claim against the widow in respect of Chattan Kumari's maintenance on the basis of the charge created by the consent decree and the: adopted son is bound by the same even if he was no party to the decree. If the widow chose to ignore the alleged adopted son and defended Suit No. 90 after adoption she was really doing so in her character as representing the adopted son: see Dhurmdas Pandey v. Mt. Shana Soondari  3 M. I. A. 229 :see also Harisaran v. Bhubaneswari  16 Cal, 40. We think the Courts below have taken the right view and this appeal must be dismissed with] costs.
12. In second appeal a new point was taken, viz. that the charge could not be enforced except by a suit and reference is made to the provisions of Order 34, Rule 15,. Civil P.C. No doubt there are certain cases in this Court to that effect: see Abhoyeswari v. Gouri Sankar  22 Cal. 859. The Patna High Court takes a different view: see 4 Pat. 693. It is not necessary to deal with this as this is a new point raised for the first time in second appeal and should not be allowed to be raised. The question really does not arise in the view which we have taken for in substance the decree in Suit No. 90 was one which bound the alleged adopted son who is said to have been adopted pendente lite.
13. It will be open to the Court of execution in Suit No. 90 of 1912 to determine the actual amount for which execution should issue after taking into account any payment which might have been made since the passing of the decree.
14. 1 agree.