PURSHOTTAM DAMODAR Vs. ANANT MADHAV

JUDGEMENT

(1.) THE holder of a decree against a person since deceased came in execution against the judgment-debtor's widow in respect of the rent which she was receiving1 under a ninety-nine years' lease of watan property executed by her husband. THE execution has been dismissed by both the Courts below; arid the question is whether the rent received by the widow in circumstances such as these is property subject to execution. We hold that it is not. THE argument addressed to us is that the rent derivable from such property is not itself watan property and is therefore a fit subject for execution, being the property of her late husband in the hands of a widow who is bound to pay her husband's debts. I may say at once that this is a position which it seems to us to be impossible to take up Rent, in spite of the argument addressed to us by the decree-holder's learned advocate, cannot in our opinion be regarded as anything but a benefit to arise out of land and as such it is immovable property within the meaning of the General Clauses Act. That being so, it becomes equivalent to the land which passed under the lease and is to the same extent watan property within the meaning of the definition given in Section 4 of the Watan Act.

(2.) IT is then argued that even watan property in the hands of a widow is liable for the execution of a decree obtained against the widow's late husband; and for this contention reliance is placed upon the decision of this Court in Ganesh Ramchandra v. Lakshmibai (1921) I. L. R. 46 Bom. 726 : s. c. 84 Bom. L. R. 249. IT is not a particularly easy case to follow; and the learned Judges who decided it, speaking for myself, seem to have adopted a somewhat hesitating attitude. That was a case where the reversioners of a watandar's widow sued to set aside a sale of watan property held in execution of a decree against the watandar, who had died before the execution. The sale was held to be valid and binding upon the reversioners, because the auction purchaser was a watandar of the same watan, and the sale could be regarded as having been effected for legal necessity, inasmuch as the widow was bound to pay the decretal debt of her deceased husband. The passage in which it is stated that the widow was bound to pay the decretal debt of her deceased husband is this (p. 731) :. . . though there would be a special restriction on her powers in virtue of Section 5 of the Bombay Hereditary Offices Act, she might be able to deal with the Vatan property as a Hindu widow for legal necessity, provided the alienee was a Vatandar of the same Vatan. So far as I read that passage the learned Judges did not definitely decide that she could in law alienate the property for legal necessity. But assuming that she could, and that it was decided that she could, the fact remains that in Ganesh Ramchandra's case the alienation was to a watandar of the same watan and therefore Binding on the reversioners, whereas here there is no question of confining an execution sale to a watandar of the same watan.

(3.) WE think that the authority of Ganesh Ramchandra v. Lakshmibai is to a great extent shaken by the authority of Vithaldas v. Shrinivasrao (with which we are in entire agreement), and that the Courts below were right in rejecting this darkhast on the ground that the Court had no power to issue execution against watan property in the hands of the watandar's widow.