LAKSHMI DEVI Vs. KALA DEVI

JUDGEMENT

(1.) THIS is the plaintiff's second appeal and arises out of a suit which was filed by the original plaintiff Lalaram under O. XXI, R. 63, C.P.C. There were three defendants in the suit, Baburam was the defendant No. 3 and he happened to be the only son of the plaintiff. The latter died during the pendency of the appeal in the lower appellate court and his widow Smt. Pista Devi was brought on record as the legal representative of the deceased plaintiff. She also subsequently died and one Smt. Chandra Kanta Devi also died and then Smt. Lakshmi Devi was brought on record as her legal representative. Smt. Lakshmi Devi and before her Smt. Chandra Kanta Devi were brought on record on the basis of the respective wills in their favour alleged to have been executed by their predecessor-in-interest.

(2.) THE original plaintiff Lalaram deceased sought a declaratory relief to the effect that the property mentioned in the plaint was not attachable and saleable in the execution of decree No. 172 of 1962, Smt. Kala Devi v. Baburam and of decree No. 194 of 1962, Ramesh Chandra v. Baburam. Smt. Kala Devi was impleaded as the defendant No. 1 and Ramesh Chandra was impleaded as the defendant No. 2. As I have already stated above Baburam, the plaintiff's son, was impleaded as the defendant No. 3. THE aforesaid decrees Nos. 172 of 1962 and l94 of 1962 were passed against the said Baburam in favour of the said decree-holders. THE suit property was attached in execution case No. 239 of 1962 wherein the decree passed in Suit No. 194 of 1962 was put into execution. THE said property had also been attached before judgment on 18th September, 1962 in Suit No. 172 of 1962. Lala Ram filed an objection against the said attachment before judgment under O. XXXVIII, R. 8, C.P.C. but the same was dismissed on 27th April, 1963. THE said Suit No. 172 of 1962 was decreed against Baburam on 15th November, 1962. Against the attachment effected in execution case No. 239 of 1962. Lalaram filed an objection under O. XXI, R. 58, C.P.C. THE said objection was pending when the instant suit under O. XXI, R. 63, C.P.C. was instituted. Apart from the aforesaid facts which were set out in the plaint, Lalaram further alleged that he had been forced to execute a Tamleeknama on 25th February, 1961 but the same was ineffective inasmuch as it had been obtained by his son under duress from him. Alternatively, it was pleaded that Baburam reconveyed the property to his father Lalaram by means of a deed of surrender dated 17th August, 1962. THErefore, the plaintiff Lalaram was the sole owner of the property and the same was not liable to be attached and sold in the execution of the aforementioned two decrees passed against his son Baburam.

(3.) LEARNED counsel for the appellant placed reliance on Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC 1323) and Halsbury's Laws of England page 980, para 1483.