GOVINDAMMA Vs. BULLEMMA

JUDGEMENT

(1.) THIS appeal is against the judgment of the Subordinate Judge, Tenali. It arises out of execution proceedings. The appellant obtained a decree against the respondent for Rs. 1.800/- and costs, recoverable against the estate of the judgment-debtor's husband in her hands in a suit for damages for breach of a covenant of title. In execution of the decree two items of property- a house and 60 cents of wet land- were attached as being the assets of the judgmentdebtor's husband,.Subbayya. The respondent objected to the attachment on the, ground that the house was that of an agriculturist and therefore not liable to be attached and sold and that the lands could not be proceeded against inter alia for the reason that it did not form the asset of her deceased husband liable under the terms of the decree passed against her. According to her, she succeeded to this property as the heir of her son Sivayya. The first court allowed the objection so far as the house was concerned but dismissed it in regard to the land on the ground that the property belonged to late Subbayya, the husband of the respondent. The respondent filed an appeal against the order of the District Munsif to the extent it was against her, while the present appellant did not take the matter in appeal relating to the house. The Subordinate Judge reversed the decision of the trial court as in his opinion the respondent took that item of property as heir to her deceased son and not as that of her husband, and that the moment the son took the property by survivorship it became his absolute R.61 property and on his death it is his property that his mother took. Aggrieved by this judgement, the decree-holder has filed this appeal. The main point for determination in this appeal is whether the land in question could be proceeded against in execution. It is contended by the learned Counsel for the appellant that the view of the lower appellate court is untenable for the reason that as the son was liable to pay the debts of his father which are not tainted either by immorality or illegality, his property in the hands of his mother could be reached in execution of the decree. In support of this proposition, reliance is placed on a judgment of the learned Chief Justice in Lakshminarasayya v. Papayya following a ruling of a Full Bench of of the Madras High Court in Abdul Hameed Sait v. The Provident Investment Co. Ltd.. There it was laid down inter alia that the liability of a son to pay the debts of a father which were neither illegal nor immoral under the theory of pious obligation was crystallised into a legal liability and his assets in the hands of his heirs could be proceeded against for recovering a debt due from his father. I express my respectful accord with this opinion of the learned Judge which in its turm is based upon the judgment of the Full Bench mentioned supra. But that is not decisive of the matter. In the instant case, the decree is not directly against the estate of Subbayya's son. The decree-holder is only, entitled to levy execution against the estate of Subbayya in the hands of the judgment-debtor. The question for consideration, therefore, is whether the property which the judgment-debtor inherited from her son could be regarded as the property of Subbaya that had come to the hands of his widow. In this context, Sections 52 and 53 of the Code of Civil Procedure are relevant. Sec. 52 (1) recites : "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 such property." Sec. 53 provides: "For the purposes of sections 50 and 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." It is by reason of Sec. 52 that the decree which has given rise to this appeal was passed. Sec. 52 enables a court to direct execution against the assets of the deceased debtor. THIS section is limited to cases where the property of the deceased debtor devolves upon his heir or legal representative. Sec. 53 covers properties which are deemed to come into the hands of the legal representative as the property of the deceased though in fact it was not so. The object of the legislature in enacting this section was to make the property in the hands of a son available for execution of a decree obtained against the father, notwithstanding that he had not got it by inheritance but by survivorship. It was submitted by Mr. Hanumantha Rao that the instant case comes within the ambit of this section and the fact that the property against which execution was levied was got by the respondent as the heir of the son did not make any difference for the applicability of this provision. He cited two rulingsKasturi Ranga Iyer v. Venkatarama Iyer ' and Mt. Mallan v. Parmatma Das 2. to substantiate his contention. I do not think this contention can prevail. Kasturi Ranga Iyer v. Venkatrama Iyer ', was a case in which the decree itself made the son liable to the extent of the assets of the deceased within the meaning of Sec. 53 C. P. Code. Subsequently, the son died and the reversioner succeeded to his properties. In these circumstances, it was decided that the property was liable for the debt of the father and the fact that the son died subsequently did not affect the operation of Sec. 53, and it continued to be the father's property. THIS ruling therefore is not in any way helpful to the present appellant. Mt. Mallan v. Parmatma Das 2. is also inapplicable to this case. There, during the pendency of a suit the debtor died leaving behind him a son and the widow. The son was brought on record as the legal representative but he also died before a decree could be passed. Thereafter, the widow of the original debtor and the widow of his son were brought on record as the legal representatives. As the mortgaged property was insufficient to discharge the mortgage debt, an application was filetl to recover the balance from the estate in the hands of the two widows. Objec- tion was taken on behalf of these widows that their claims for maintenance had a priority over the debt. But this was negatived on the ground that their rights for maintenance were subject to an obligation to pay the debt. The point that falls for decision in the instant case did not arise in the case cited. No decision was brought to my notice which governs the present case, and it has to be decided on the language of the section. In my opinion, the rule embodied in Sec. 53 does not operate in a case where the property is not in the hands of a son or other descendant of the deceased debtor. The respon- dent cannot answer the description of the 'other descendant' within the meaning of sec. 53; nor could the word 'son' be construed to mean son's heirs also. THIS would be reading into that word, something that is not there. There could be no warrant in enlarging the scope of that expression. If the legislature intended to include the heirs of the son also, it would have said so. The section, therefore, docs not apply to cases other than those of sons or other descendants. On a construction of the sectiont I have to hold that Sec. 53 does not come into play in this case. The result is that the property in question could not be reached in execution of the decree and the objection of the respondent has to be upheld. The judgment and decree under appeal are confirmed and the seond appeal is dismis ed. In the circumstances of the case, I direct the parties to bear their own costs throughout. Leave granted. T. R. R. Appeal dismissed.