Punjab-Haryana High Court
Central Bank Of India vs Bhan General Store And Ors. on 12 October, 1998
Equivalent citations: (1999)121PLR26
JUDGMENT G.C. Garg, J.
1. This revision petition is directed against the order dated 18.11.1992 of the executing court.
2. Central Bank of India granted a cash credit limit to M/s Bhan General Store on the guarantee of Sh. Giani Ram, father of respondents 2(i) to (iii) and husband of respondent (iv). The amount due to the bank was not paid. The Bank, therefore, filed a suit for the recovery of Rs. 27,743.43P against M/s Bhan General Store and respondents 2(i) to (iv) as heirs of Giani Ram, deceased, the guarantor. The suit was decreed by judgment and decree dated 1.10.1990.
3. The decretal amount was not paid. The bank took out execution by attachment and sale of agricultural land measuring 1 Bigha 1 Biswa and 8 Bishwansi, owned by Giani Ram and inherited by respondents 2(1) to (iv) on his death. The heirs of Giani Ram raised an objection to the attachment and sale of land which was inherited by them from Giani Ram. The executing court partly allowed the objection and held that 1/4th share of the son of late Giani Ram in the land attached in execution of the decree was liable to attachment and sale and the remaining 3/4th share inherited by daughters and the widow is not liable to attachment and sale. It is this order of the executing court, which is under challenge at the instance of the plaintiff-bank.
4. Learned counsel for the petitioner submitted that the executing court fell into an error in coming to the conclusion that 3/4th share that fell to the shares of the daughters and the window on the death of Giani Ram was not liable to attachment and sale for the recovery of the amount under decree. According to the learned counsel the decree could be executed against the daughters and the widow in respect of the property which was inherited by them in view of the provisions of Section 52 of the Code of Civil Procedure to the extent of the property inherited by them from the deceased. The daughters and the widow being heirs of the deceased and having inherited the property of Giani Ram are liable for payment to satisfy the decree atleast from the property inherited by them. According to the learned counsel the executing court erred in law in holding that in view of the provisions of Section 53 of the Code of Civil Procedure, the share of the widow and the minor daughters is not liable to attachment and sale. The provisions of Section 53 of the Code of Civil of Civil Procedure do not over-ride the provisions of Section 52 of the Code and only extends to joint Hindu Family Property which devolves by survivorship. Learned counsel also submitted that in the present case there was not even an iota of evidence that the property which was inherited by daughters and the widow on the death of Giani Ram and had been attached in execution of the decree was Joint Hindu family property. It is rather proved on the record that the same was owned by Giani Ram at the time of his death in his individual capacity and once that was so the order under revision cannot be sustained.
5. Learned counsel appearing for the respondents on the other hand submitted that in view of provisions of Section 53 of the Code of Civil Procedure and the law laid down in Keshav Nandan Sahay and Ors. v. The Bank of Bihar, A.I.R. 1977 Patna 185 and Sudhamani Dei v. Sada Nanda Mohanty and Anr., A.I.R. 1979 Orrisa 131, the executing court rightly tame to the conclusion that the property inherited by the widow and the daughters is not liable to attachment and sale in execution of the decree.
6. I have heard learned counsel for the parties and perused the order of the executing court. In order to appreciate the contention raised it is necessary to notice some of the provisions of the Code of Civil Procedure. Section 53 of the Code reads:-
" Liability of ancestral property For the purposes of Section 50 and Section 52, property in the hands of a son or other descendant which is liable under Hindu Law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
Section 52 of the Code of Civil Procedure reads thus:-
"Enforcement of decree against legal representative.
(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the court that he has duly applied" such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been again him personally."
7. Section 50 of the Code of Civil Procedure provides that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. It further provides that legal representative shall be liable only to the extent of the property of the deceased which has come in their hands and has not been duly disposed of.
8. In Keshav Nandan Sahay's case a decree for the recovery of the money was passed and the property sought to be attached and sold in execution of the decree in the hands of the legal representatives was ancestral property which came in their hands on the death of judgment-debtor. It is clear from the judgment that severance of the joint family was accepted in view of the fact that a suit for partition was filed on 1.10.1956, resulting into disruption of the joint family. In para 14 of the judgment reference was made to the decision of the case by the Supreme Court, wherein it was held that sons are liable under the theory of pious obligation for the pre-partition debts incurred by the father qua which no arrangement was made at any point of time to discharge the pre-partition debts at the time of partition. It was in this context held in para 15 of the judgment that so far as the liability of Sahay's wife is concerned, her position is different, and the doctrine of pious obligation cannot be applied to the wife and she, therefore, cannot be held liable to the creditors on the principles applicable to the sons and on a partition between a coparceners and his sons, a share is allotted to the wife in her own right and she cannot be treated as mere representative of the husband. This judgment thus has no application to the facts of the present case as it is no where shown or held that the property owned by the guarantor was joint Hindu Family property. The catch words appearing before Section 53 of the Code of Civil Procedure clearly show that the provision contained in the said Section relates only to such property which comes in the hands of the heirs and was joint Hindu Family property in the hands of the deceased.
9. In Sudhamani Dei v. Sada Nanda Mohanty and Anr. (Supra) there is nothing to show that the property in the hands of the heirs was joint Hindu Family property and in my opinion the learned single Judge by following the view taken in Keshav Nandan Sahay's case came to the conclusion that the property in the hands of the widow was not liable to attachment and sale. No distinction was made in this case as to whether the property was joint Hindu Family property or the self acquired property of the deceased. Learned counsel for the respondents cannot seek any support from this judgment. In my opinion the view taken therein cannot be accepted as laying down the correct proposition of law in the absence of any material on record to show that the property in the hands of the deceased was ancestral property. The relief granted therein could not have been granted.
10. Learned counsel for the respondents also placed reliance on the decision in Killapudi Gdvindamma v. Mandru Bullemma, A.I.R. 1962 A.P. 243. On a perusal of the judgment I am of the opinion that the facts of the present case are quite different and learned counsel cannot seek any support from this judgmerit.
11. A reading of Sections 50 and 52 of the Code of Civil Procedure Code gives a clear indication of the fact that these sections relate- to the execution of the decree against the L.Rs, but in view of the provisions of Section 53 of the Code, these sections apparently relate to the property other than the ancestral property and the provisions of Section 53 of the code relate to ancestral property in the hands of the heirs. It is the later property in the hands of a widow which is not liable to attachment as she had a right to receive a share in the ancestral property like a coparceners at the time of partition and she is not liable under the Hindu Law like a son as a pious obligation to discharge the antecedent debts of his father even beyond the property inherited by him or received by him from his father. In other words the doctrine of pious obligation do not apply to the wife and therefore, she cannot be held liable to the creditors on the principles applicable of the sons. In the present case as already noticed, the heirs of Giani Ram including the widow of Giani Ram have no where alleged or proved by leading evidence on record to show that the property in the hands of Giani Ram was ancestral property and, therefore, the property that fell to the share of Window of Giani Ram was not liable to attachment and sale for the recovery of the decretal amount. It can rather be assumed that the property was self acquired property of Gianj Ram and was not the ancestral property of Giani Ram. Concededly all the heirs of Giani Ram got equal shares i.e. 1/4th share each. If the property had been ancestral property then the same would have devolved on the heirs in different ratio as the son and widow would have got large share in lieu of their pre existing right and the notional share of Giani Ram would have thereafter devolved amongst the heirs by rule of survivorship under Section 6 of the Hindu Succession Act.
12. For the reasons recorded above, I am of the opinion that the order of the executing court, whereby it came to the conclusion that 1/4th share of sunder Singh s/o Giani Ram is only liable to attachment and sale in execution of the decree cannot be sustained. This revision petition is accordingly allowed and order under revision is set aside. No costs.