RAJES KANTA ROY Vs. SHANTI DEBI

JUDGEMENT

(1.) This is an appeal by special leave against the judgment and decree of the High Court of Calcutta and arises out of an application filed by the appellant under S. 47 of the Code of Civil Procedure in the course of execution proceedings in the Second Court of the Subordinate Judge at Alipore, District 24 Parganas. The facts leading thereto are as follows.

(2.) One Ramani Kanta Roy was possessed of considerable properties. He had three sons, Rajes Kanta Roy, Rabindra Kanta Roy and Ramendra Kanta Roy. Rabindra.died childless in the year 1938 leaving widow, Santi Debi. In 1934 Ramani created an endowment in respect of some of his properties in favour of his family deity and appointed, his three sons as shebaits. After the death of Rabindra his widow Santi Debi, instituted a suit against the other members of the family in 1941 for a declaration that she, as the heir of her deceased husband, was entitled to function as a shebait in the place of her husband. The suit terminated in a compromise recognising the right of Shanti Debi as a co-shebait. Shortly thereafter, however, i.e. in the year 1944, Ramani and his two sons Rajes and Ramendra, filed a suit against Shanti Debi, for a declaration that the above mentioned compromise decree was null and void. One of the grounds on which the suit was based was that the marriage of Shanti Debi with Rabindra was a nullity inasmuch as the said marriage was one between persons within prohibited degrees. During the pendency of that suit Ramani, the father, executed a registered trust deed in respect of his entire properties on July 26, 1945. The terms of that trust-deed will be referred to presently. The eldest of the sons, Rajes, was appointed thereunder as the sole trustee to hold the properties under trust subject to certain powers and obligations. After the execution of this trust deed the father died. The exact date of his death does not appear on the record. Some time thereafter the, suit was compromised on December 3, 1946. The material terms of this compromise will be set out presently. By the said compromise Santi Debi gave up her rights under the previous compromise dcree of 1941 and agreed to receive for her natural life a monthly allowance of Rs. 475 payable from the month of November, 1946. It was one of the terms of the compromise that on default of payment Santi Debi will be entitled to realise the same by means of execution of the decree. It appears that the monthly allowance as aforesaid was regularly paid up to the end of February, 1948 and that thereafter payment was defaulted. Consequently Santi Debi filed an application for execution, on July 8, 1949, to realise the arrears of her monthly allowance from March, 1948 to July, 1949, amounting to Rs. 8,075 against both the brothers, Rajes and Ramendra. Execution was asked for by way of attachment and sale of immovable properties, viz. premises No. 44/2, Landsdowne Road, Ballygunge P. S., 24 Parganas. Rajes filed an objection to the execution under S. 47 of the Code of Civil Procedure on various grounds. Ramendra has not filed, or joined in, any such application and has apparently not contested the execution. The present contest in both the Courts below and here is only between Rajes and Shanti Debi. An order was passed by the Subordinate Judge overruling the objections raised by Rajes. An appeal was taken therefrom to the High Court at Calcutta which was dismissed by its judgment under appeal. Hence the present appeal in which Rajes is the appellant, while Shanti Debi is the first respondent and Ramendra is the second respondent.

(3.) The two main objections to the execution proceedings which have been urged before us are that-