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Bansi Ram Vs. Narsingha Santra - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal765,24Ind.Cas.805
AppellantBansi Ram
RespondentNarsingha Santra
Cases ReferredAinna Bibi v. Najmunnissa Bibi
Excerpt:
civil procedure code (act v of 1908), section 60 - pensions act (xxiii of 1871). section 11--'pension', meaning of--execution attachment--jagir--land granted without power of alienation--crops on such land whether attachable in execution of decree. - 1. the appellant obtained a decree for money against the respondent and in execution of the decree attached certain crops standing on the land belonging to the latter. an objection was taken to the attachment on the ground that the land was granted as jagir without the power of alienation and that, therefore, the crops could not be attached. the court of first instance held that the land had been granted to the ancestors of the respondent by way of maintenance and that court was of opinion that one-half should be left to the respondent by way of maintenance and the other half might be attached by the decree-bolder.2. on appeal, the learned district judge held that usufruct of property was not property and could not be attached, and accordingly he disallowed the application for execution.....
Judgment:

1. The appellant obtained a decree for money against the respondent and in execution of the decree attached certain crops standing on the land belonging to the latter. An objection was taken to the attachment on the ground that the land was granted as jagir without the power of alienation and that, therefore, the crops could not be attached. The Court of first instance held that the land had been granted to the ancestors of the respondent by way of maintenance and that Court was of opinion that one-half should be left to the respondent by way of maintenance and the other half might be attached by the decree-bolder.

2. On appeal, the learned District Judge held that usufruct of property was not property and could not be attached, and accordingly he disallowed the application for execution altogether.

3. The decree-holder has appealed to this Court. We are of opinion that the view taken by the District Judge is wholly incorrect. The land is inalienable, but the crops belong to the respondent which he can transfer at his pleasure. We think there is nothing to prevent his creditor from attaching the crops : and we fail to appreciate the reasoning by which the learned Judge holds that the crops or the usufruct of property is not property. He seems to have confused the right to enjoyment of the land with the produce of the land.

4. The learned Vakil for the respondent has attempted to support the decree of the lower Appellate Court upon a different ground, namely, that the land which had been granted to the ancestors of the respondent was a pension' under Section 11 of the Pensions Act and, therefore, could not be attached in execution of the decree. We are of opinion that there is no force in this contention. The word pension', as pointed in the case of the Secretary of State for India in Council v. Khemchand Jeychand 4 B. 432., 'in Section 11 is used in its ordinary and well known sense viz., that of a periodical allowance or stipend granted, not in respect of any right, privilege, perquisite or office, but on account of past services or particular merits or as compensation to dethroned princes, their families and dependants' and that view of the word ''pension' has been accepted in the case of Ainna Bibi v. Najmunnissa Bibi 2 Ind. Cas. 100 : 6 A.L.J. 519 : 5 M.L.T. 388 : 31 A. 882. The word 'pension' has the same meaning in Section 60 of the Code of Civil Procedure. Here no periodical allowance was made by Government, but the land itself was granted without the power of alienation, and the grantee had the full right of enjoyment of the property without the power of alienation. The property sought to be attached by the decree-holder is not the land but the crops standing on it, and as we have said there is nothing in law to prevent the decree-holder from, attaching the crops. As, however, there was no appeal against the order of the first Court by the decree-holder to the lower Appellate Court, the order of the lower Appellate Court is set aside and the order of the first Court restored with costs of this Court and of the Court of Appeal below. The hearing fee is assessed at two gold mohurs.


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