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Ram Lal Singh and ors. Vs. Maharaja Paswati Bejoypati Gajpati - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.146
AppellantRam Lal Singh and ors.
RespondentMaharaja Paswati Bejoypati Gajpati
Cases ReferredAmar Chandra Kundu v. Sebak Chand Chowdhury
Excerpt:
transfer of property act (iv of 1882) section 90 - execution of decree--decree against essets in hands of mortgagor's sons--mitakshara law--property coming by survivorship, if assets. - .....legal personal representative of his father is liable to have a decree passed against him for his father's debt: he is liable to satisfy it, not only out of property which has descended to him but out of property which he has acquired by survivorship. i think, therefore, that the judgment appealed from is right and the appall should be dismissed.chattee, j.7. the decree under execution excludes the persons and other property of the appellant? from liability but makes the assets of the mortgagor amenable to the realization of the amount decreed. the property in question is not their self-acquired property but has come to them by survivorship. the full bench case, reported in amar chandra kundu v. sebak chand chowdhury 34 c. 642 : 11 c.w.n. 593 : c.l.j. 491 : 2 m.l.t. 207 (f.b.), makes.....
Judgment:

Harington, J.

1. This is an appeal against the order of the District Judge of Shahabad, dismissing an appeal from the order of the Munsif.

2. The question arises on the execution of a, decree obtained by the respondents in a mortgage suit instituted against the appellants on a mortgage executed by their father. On an application by the respondents (mortgagees) that a decree should be passed against the appellants as heirs and representatives of their father under Section 90 of the Transfer of Property Act, the Munsif held that the applicant could not get a decree against the person and other properties of the judgment-debtors but that he was entitled to a decree against 'the assets' of the mortgagor which might be in the hands of Ins sons.

3. When this decree was executed, an objection was made that the property against which it was sought to execute the decree was ancestral property which had come into the hands of the appellants by survivorship and was not, therefore, assets which could be seized in execution.

4. The Munsif disallowed the objection, and the District Judge affirmed the judgment of the Munsif.

5. I think the Munsif and the District Judge were right. The appellants do not contend that the property is their own self-acquired property but they say it has come to them by survivorship. If that is so it is property which is liable in their hands to satisfy a debt contracted by their father. I am bound by the view expressed by the majority of the Court in Amur Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642 : 11 C.W.N. 593 : C.L.J. 491 : 2 M.L.T. 207 (F.B.), in which it is laid down that the son is the legal representative of the deceased parent and that the liability of the ancestral property in respect of the debt covered by the decree against the parent can be determined in execution proceedings and that a separate suit is not necessary. The present case is a stronger one than the Full Bench case as the decree is made against the sons, so no question of separate suit could arise.

6. The son as legal personal representative of his father is liable to have a decree passed against him for his father's debt: he is liable to satisfy it, not only out of property which has descended to him but out of property which he has acquired by survivorship. I think, therefore, that the judgment appealed from is right and the appall should be dismissed.

Chattee, J.

7. The decree under execution excludes the persons and other property of the appellant? from liability but makes the assets of the mortgagor amenable to the realization of the amount decreed. The property in question is not their self-acquired property but has come to them by survivorship. The Full Bench case, reported in Amar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642 : 11 C.W.N. 593 : C.L.J. 491 : 2 M.L.T. 207 (F.B.), makes such property liable for the decretal-debt of the father unless tainted with immorality. No question of immorality apises in this case and the property, therefore, must be sold if the debt is not satisfied. The appeal, therefore fails and I agree in dismissing the appeal, with costs, 3 gold mohurs.


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