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Gajadhar Pershad Sahu Vs. Bindubashini Pershad - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.181
AppellantGajadhar Pershad Sahu
RespondentBindubashini Pershad
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 15 - execution of decree--personal decree against hindu woman with limited estate--debt incurred for legal necessities--suit based upon allegations of necessity--decree-holder entitled to prove necessity in execution--payment of government demands, whether legal necessity--one of several decree-holders can apply for execution of the whole decree. - .....died in 1909, and sought to sell the properties which originally belonged to sant protap and then held by bindubashini as the reversioner of sant protap. bindubashini objected to the execution on the ground that the decree having been a personal decree against manjhuri, the estate of her father was not liable for the satisfaction of the debt incurred by manjhuri.7. the subordinate judge held thai manjhuri not having been sued in her representative character and the decree being a personal decree against her, the decree-holders had no right to execute that decree against the reversionor or against the estate left by sant protap. he further held that the meaning of section 50, civil procedure code, was that all the decree-holders should join in the application for execution and that as.....
Judgment:

Sharfuddin, J.

1. This is an appeal against the order of the Subordinate Judge of Mozuffarpore, dated the 14th December 1912. The decree-holders are the appellants.

2. In order to appreciate the arguments addressed to the Court, I think, it is necessary to refer to the salient facts which resulted in the order appealed against.

3. One Sant Protap had two daughters, one of them was named Manjhuri. She died after the decree. The other daughter had two sons, named Baranashiand Bindubashini. This daughter died leaving the two sons named above. Baranashi, one of her sons, is also dead. After Sant Protap's death, his surviving daughter was the holder of his estate with the limited interest of a daughter. His reversioner was Bindubashini. Manjhuri, as observed before, died after the present appellants had obtained a decree against her and the only surviving reversioner, namely, Bindubashini succeeded to the estate of Sant Protap.

4. It appears that Manjhuri, during the period she held the estate of her father, entered into business dealings with the appellants, who advanced to her, from time to time, various sums of money for necessary purposes, at leant it is so alleged in the plaint. On the 13th October 1893, a document, purporting to be a mortgage-deed, was executed by Manjhuri in favour of the appellants in lieu of the previous debts and also for the purpose of meeting with the legal demands against the estate of her father, as for example, Government revenue and other Government demands. The appellants sued her on that bond and obtained a mortgage-decree on the 1st May 1901. Manjhuri, the judgment-debtor, appealed to this Court. This Court held that the bond could not be treated as a mortgage-bond as no witness was examined to say that Manjhuri had executed that bond in his presence. This Court, on the above ground, gave a personal money decree against Manjhuri on the 14th June 1904.

5. It appears that some of the plaintiffs of the original suit transferred their share of the decree to Mr. Christian, who did not join in the application for execution of the decree.

6. In Execution Case No. 212 of 1912 Gajadhar Prosad nnd Maharleo Prosad, two of the the three decree-holders, applied for execution of the decree against Bindubashini, the legal representative of the judgment-debtor, Munjhuri, who died in 1909, and sought to sell the properties which originally belonged to Sant Protap and then held by Bindubashini as the reversioner of Sant Protap. Bindubashini objected to the execution on the ground that the decree having been a personal decree against Manjhuri, the estate of her father was not liable for the satisfaction of the debt incurred by Manjhuri.

7. The Subordinate Judge held thai Manjhuri not having been sued in her representative character and the decree being a personal decree against her, the decree-holders had no right to execute that decree against the reversionor or against the estate left by Sant Protap. He further held that the meaning of Section 50, Civil Procedure Code, was that all the decree-holders should join in the application for execution and that as Mr. Christian had not so joined, the application was not maintainable. This order was passed on the 14th December 1912, and it is this order which has been appealed against by the appellants. It appears from the order of the Subordinate Judge that the appellants applied to him to adduce evidence to prove that the debts incurred by Manjhuri were for legal necessities. The Subordinate Judge did not allow this, on the ground that this would be making a new case in the execution department which was not the case in the plaint and that there was no issue framed with regard to legal necessities.

8. We are asked in this appeal to consider whether any new case was attempted to be set up by the appellant and to hold that the estate of Sant Protap was bound to satisfy the debts, as they were incurred for legal necessities, in order to discuss whether the appellant desired to set up a new case not made out in the plaint we have to advert to the plaint itself. In paragraph 2 of the plaint there is an allegation in most distinct terms that the debts were incurred by Manjhuri to pay off the debts due to other creditors, which Manjhuri contracted for paying the Government revenue and other Government demands and for meeting other necessary and legal expenses. It is, therefore, clear that the question was raised in the plaint, but a plaintiff cannot have questions decided unless the allegations are disputed. Manjhuri had no motive to dispute the allegation. If she had to pay, it do no difference to her whether the estate would have to pay after her death or not. For this very reason it seems that no issue was framed, but the question of legal necessity was no doubt raised in the plaint.

9. The decree against Manjhuri was a money decree and a personal decree and whence the question resolves itself into this: either Manjhuri borrowed for legal necessities or she did not. If she did, the loan bound the estate and the respondent Bindubashini is her legal representative. If not, the loan was a private loan and the respondent is not her legal representative.

10. The question whether the respondent is her legal representative or not, comes within the provisions of Section 47, Civil Procedure Code.

11. This question again turns on the further question whether the loan was for legal necessities. This question has never been decided.

12. It is settled law that where the suit is founded upon a purely personal debt or contract of a Hindu woman with a limited interest in the estate, the estate is not bound to satisfy that debt. In order to bind the estate the suit should be so framed as to show thnt it is not merely a personal demand on the female in possession, but that it is intended to bind the entire estate and the interests of all those who came after her. We have already observed that the suit in the present case was so framed, and the basis of that suit against her was that the estate which she held was bound and that she was compellable to pay not out of her own assests, but out of the estate. This is clear from, paragraph 2 of the plaint. A Hindu woman who succeeds as heir, whether to a male or to a female, has not complete dominion over the property inherited by her, so as to enable her to alienate it otherwise than in case of necessity. This is no doubt the law, but there can be no doubt that the Government revenue and other Government demands are claims of Government on the land and the payment must be made by the estate, and if these payments cannot be made out of the income and money has to be borrowed to make them, the estate is liable to satisfy those debts. In the above circumstances, I am of opinion that' the appellants are entitled to adduce evidence to prove the legal necessities for which the debt was contracted.

13. In disposing the application of the decree-holder the Subordinate Judge Las referred to Section 50 of the Civil Procedure Code and has held that it all the decree-holders should have joined in the application for execution, but this is not so as Order XXI, Rule 15, provides that if there are more than one decree-holder, any one of them may, unless the decree imposes a condition to the contrary, apply for execution of the whole decree. It isadmitted that the execution in the present instance was applied for by two out of three decree-holders for the whole decree.

14. In the above circumstances, I am of opinion, that this case should be remanded to the lower Court, with a direction that both parties should be allowed to adduce evidence on the point whether the debt incurred by Manjhuri was or was not for legal necessities. If this is found in the affirmative Bindubashini must be held to be the legal representative and execution must proceed against him. If it is not found in the affirmative, the application must be refused. Costs will abide the result. Hearing fee five gold mohurs.

15. Coxe, J.--I agree.


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