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Radha Ballab Das Vs. Krishna Priyashi Dasya and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1929Cal423
AppellantRadha Ballab Das
RespondentKrishna Priyashi Dasya and anr.
Cases ReferredGobind Hari v. Radha Ballabh
Excerpt:
- .....the learned subordinate judge has stated many things in his judgment disallowing the claim of the decree-holder, it is not necessary to go into all these matters. the real question is whether the decree-holder who was the plaintiff in the suit is entitled to execute the decree against the property in the hands of the' respondents in these appeals. the plaintiff lived in the family of radhika mohan das, the original owner of the property, as a domesticated son-in-law. after the death of his father-in-law he had disputes with his mother-in-law and it seems that he was obliged to leave the house of his deceased father-in-law. thereupon, he brought a suit for maintenance against his mother-in-law which was decreed by this court the relevant terms of the decree with which we are now.....
Judgment:

1. These three appeals arise out of three execution petitions made of a decree passed by this Court in Appeal from original decree No. 374 of 1908 dated 5th July 1910. The question in controversy depends upon the true interpretation of the decree. Although the learned Subordinate Judge has stated many things in his judgment disallowing the claim of the decree-holder, it is not necessary to go into all these matters. The real question is whether the decree-holder who was the plaintiff in the suit is entitled to execute the decree against the property in the hands of the' respondents in these appeals. The plaintiff lived in the family of Radhika Mohan Das, the original owner of the property, as a domesticated son-in-law. After the death of his father-in-law he had disputes with his mother-in-law and it seems that he was obliged to leave the house of his deceased father-in-law. Thereupon, he brought a suit for maintenance against his mother-in-law which was decreed by this Court The relevant terms of the decree with which we are now concerned are these:

That it is hereby declared that the plaintiff is entitled out of the estate left by Radhika Mohan Das to maintenance at the rate of Rs. 25 a month.

2. It was further decreed that

the plaintiff would to entitled to realize the sums due as maintenance in execution of the decree without a fresh suit.

3. The defendant in the above suit, the widow of Radhika Mohan, is now dead and the decree-holder seeks to realize the maintenance allowed to him by the decree from the estate of Radhika Mohan now inherited by his wife and his sister-in-law. The question is, whether the decree-holder appellant is entitled to realize the money out of the property in their hands. The Subordinate Judge has held that he is not. The real question in this case is whether the maintenance allowance given under the decree was made a charge on the estate. If it was made a charge on the estate, no doubt the wife and the sister-in-law of the appellant would be bound to pay the maintenance out of the property and the decree-holder need not bring a fresh suit. But if it Was not made a charge on the estate, then the decree was passed against the widow of Radhika Mohan only and so long as she was alive, she was bound to pay the sum of Es. 25 a month out of the estate left by her husband.

4. It is contended by the learned advocate for the appellant that upon a true and proper construction of the decree it should be held that a charge was effected on the estate by the decree. There is no word expressive of 'charge' on the estate. We have endeavoured to .find in the original plaint if any charge was claimed by the decree-holder. The plaint could not be got, but the report of the case in which the decree was made is to be found in Gobind Hari v. Radha Ballabh [1911] 15 C.W.N. 205. From the statement of facts in the judgment at p. 207 of the report it appears that the decree-holder only asked for a declaration that he was entitled to a certain sum of money from the defendant who was his mother-in-law out of the estate left by Radhika Mohan and the claim was for the maintenance of himself, his wife and children. Now, no charge could have been declared by this Court for the maintenance of his wife and children on the estate left by Radhika Mohan, having regard to the fact that, after the death of the widow, the wife of the then plaintiff would be entitled to one-half of the estate by right of inheritance. In the decree provision is made for the maintenance of the wife and children of the decree-holder, in case the mother-in-law drove them out of the house and refused to maintain them. So it is evident that no charge could have been declared for the maintenance of the wife and children on the estate of Radhika Mohan for the very good reason, as I have stated, that the wife would be entitled to one-half share of the estate after the death of the widow and the male children would be the next reversioners. Therefore upon a true construction of the decree it seems to us that no charge was created on the estate and the decree was in the same terms as regards maintenance of all and so only a personal decree against the widow. It, consequently, follows that after the death of the widow the decree-holder would not be entitled to (any maintenance by execution of the decree referred to above. An argument was addressed to us that a part of the claim made in one of the applications was for arrears of maintenance due during the lifetime of Gobinda Rani, the widow of Radhika Mohan. Nothing was said with regard to that in the Court below and from the application it is difficult 'to understand that any such claim was made. These appeals must, accordingly, stand dismissed with costs. Hearing fee, one gold mohur in each case.


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