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Soorja Koer and anr. and Chowrasi Koer Vs. Nath Buksh Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal102
AppellantSoorja Koer and anr. and Chowrasi Koer
RespondentNath Buksh Singh and anr.
Cases ReferredLakshman Ram Chandra Joshi v. Satyabhama Bai I.L.R.
Excerpt:
maintenance - property sold in execution of decree for maintenance--subsequent suit to recover maintenance, and to follow property in hands of auction-purchaser. - .....for maintenance against the defendant no. 1. in execution of this latter decree, a portion of the family property was brought to sale, and purchased by the defendant no. 2, the respondent before us.2. the present suit was brought, both against the defendant no. 1 and the defendant no. 2, to recover maintenance from the month of augrahan 1286 to 20th cheyt 1289. plaintiff, in her plaint, sued to recover a personal decree against both these defendants. her allegation was that the purchase of a portion of the family property by defendant no. 2 was a benami purchase, and that the defendant no. 1 was the real purchaser.3. the suit has been dismissed as against the defendant no. 2. the lower courts find that defendant no. 2 was the real purchaser of a portion of the family estate.4. it is.....
Judgment:

Mitter and Norris, JJ.

1. In this case (No. 1158) the plaintiff-appellant is the daughter-in-law of one Golab Roy, and the defendant No. 1, Nath Buksh Singh, who is his kartaputer, is in possession of his estate.' It appears that the plaintiff-appellant before us obtained a~decreefor maintenance against the defendant No. 1. Similarly, the widow of Golab Roy, namely, Soorja Koer, and her daughter obtained a decree for maintenance against the defendant No. 1. In execution of this latter decree, a portion of the family property was brought to sale, and purchased by the defendant No. 2, the respondent before us.

2. The present suit was brought, both against the defendant No. 1 and the defendant No. 2, to recover maintenance from the month of Augrahan 1286 to 20th Cheyt 1289. Plaintiff, in her plaint, sued to recover a personal decree against both these defendants. Her allegation was that the purchase of a portion of the family property by defendant No. 2 Was a benami purchase, and that the defendant No. 1 Was the real purchaser.

3. The suit has been dismissed as against the defendant No. 2. The lower Courts find that defendant No. 2 was the real purchaser of a portion of the family estate.

4. It is contended before us in this second appeal that the lower Courts are not right in dismissing the suit wholly against defendant No 2; that under the Hindu law the maintenance of a widow is a charge upon the entire family estate; that before the particular portion of the estate, of which the defendant No. 2 became a purchaser, was sold, the plaintiff-appellant before us gave notice of her right to recover maintenance out of the estate of Golab Roy; and that, therefore, at any rate, the lower Courts should have declared that the amount decreed as maintenance was to be considered as a charge upon the, portion of the family estate purchased by the defendant No. 2.

5. We are of opinion that this contention is not valid. A somewhat similar question to the one raised before us was decided in the case of Lakshman Ram Chandra Joshi v. Satyabhama Bai I.L.R. 2 Bom. 494. In that case the nature of the lien which a Hindu widow has over the family estate in respect of her claim for maintenance is explained and defined. It was held there that if the sale takes place for the satisfaction of a family debt, or any other debt which would make the sale valid according to the Mitakshara law, the purchaser would not be affected by any notice on the part of the widow, and the property purchased would not be charged with any lien on account of widow's maintenance. Applying that rule to this case, we are of opinion that the lower Courts have come to a right decision. Here the property was brought to sale in execution of a decree for maintenance obtained by the widow and daughter-in-law of Golab Roy, under such circumstances as would pass the entire property. It would be a valid sale under the Mitakshara law.

6. That being so, the daughter-in-law has no right to follow the property sold in the hands of the purchaser, although there was a notice of her right given before the sale.

7. We therefore dismiss this appeal with costs.

8. In this case (No. 1334) the appellants are Mussummat Soorja Koer and another, the decree-holders, in execution of whose decree a portion of the family estate was sold. Before the sale took place they also gave notice of their right to recover maintenance from the family estate. It is true that in this case the decree-holders, who were bringing the property to sale, gave the notice mentioned above, therefore in this respect there is a difference between this case and the Bombay decision cited above, but the principle of the decision would apply. Notice in this case would not give to the widow any higher rights than what she possessed under the Hindu law, and the Bombay decision lays down what the Hindu law is upon the point. It lays down that the widow's right to recover maintenance is subject to the right of the purchaser of a portion of the family estate for valid consideration.

9. Therefore, it is clear that under the Hindu law, the plaintiffs, appellants, have no right to follow this property in the hands of the purchaser. That being so, the notice of their right to recover maintenance from the family estate cannot affect the rights of defendant No. 2. Under the Hindu law the widow's rights are limited in the way stated above. The defendant No. 2 purchased this property in execution of a decree for maintenance. Under the Hindu law such a purchaser acquires a superior right to that of the widow to recover maintenance from the estate.

10. In this case also, therefore, upon the principle laid down in the Bombay decision cited above, the judgments of the lower Courts appear to be correct.

11. We therefore dismiss this appeal also with costs.


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