JANATUN NISAN Vs. MUSTAFA HUSAIN KHAN

JUDGEMENT

(1.) This is a judgment-debtors appeal arising out of execution proceedings. The property which was sought to be attached in execution of the decree was the Bhumidhari rights now recorded in the name of the judgment-debtors. The decree was against the assets of the deceased Jamaluddin in the hands of the judgment-debtors. Jamaluddin owned certain zamindari property including sir and khudkasht plots. He died and the Appellants against whom the decree was passed as legal representatives of the deceased Jamaluddin Khan inherited the zamindari property and the sir and khudkasht plots. On coming into force of the U.P.Z.A. and L.R. Act, the Appellants lost the zamindari property, but became Bhumidhars of the sir and khudkasht plots. The decree-holder wanted to sell in execution of his decree the Bhumidhari rights recorded in the names of the Appellants. Two questions were raised--firstly, that the Bhumidhari holding was not the assets of Jamaluddin in the hands of the Appellants and, secondly, that under the UPZA and LR Act the Bhumidhari rights were not capable of being sold in execution of a decree. Both these contentions were repelled by the court below and this appeal has been brought against that order. In our opinion there is no force in this appeal.

(2.) The sir and khudkasht was undoubtedly the property of Jamaluddin Khan which was inherited by the Appellants as the heirs of the deceased. By reason of a change in the law the sir and khudkasht rights were converted into Bhumidhari rights. The mere fact that the law has made a change in the nature of the rights which the Appellants had acquired as heirs of the deceased, does not mean that the property which has come into the hands of the Appellants as heirs of the deceased has ceased to be the assets of the deceased. It still remains the assets of the deceased although the characteristics of the property have, to some extent been altered by law.

(3.) Section 152 of the UPZA and LR Act lays down that Bhumidhari rights are transferable subject to certain restrictions. Reliance has been placed upon Section 154 of the Act as containing those restrictions. Section 154 is in these terms: