ANEM PEDDA SIVA PARVATHMMA Vs. KRUSHNA CHANDRA SAHANI

JUDGEMENT

(1.) THIS appeal has been filed by defendant 3 against the confirming judgment of the lower appellate Court arising out of a suit for recovery of Rs. 1000/ - in the following circumstances :

(2.) ONE Anem Tatayya had two sons, Anem Basanna and Anem Narasimhulu. The present defendant 1 is Anem Narasimhulu and his son is defendant 2. Defendant 3 the appellant, is the widow of Anem Basanna, who died on 10 -1 -1942. Anem Tatayya obtained a mortgage decree against Agadhu Bissoi and others (who are not parties to the present suit) in original suit No. 11/1924 and eventually obtained a final decree for a sum of Rs. 5700 and odd on 2 -11 -1032. The decree -holder Anem Tatayya had realised a sum of as. 2900/ -from the judgment -debtors. Defendant 1 (Anem Narasimhulu) executed a deed of transfer (Ex. 10), on 13 -8 -1934 in favour of the present plaintiff in respect of his half share in the above mortgage decree. It is to be mentioned here, Anem Tatayya died nearly a month prior to this deed of transfer on 3 -7 -1934, Anem Basanna, the elder son, realised a further sum of Rs. 2000/ - towards the decretal amount on

(3.) MR . Sovesh Chandra Roy, appearing on behalf of defendant 3, the appellant, however, has taken up three points before us. The first contention is that the suit is premature as according to the terms of the will and according to the direction given in the judgment of the High Court (Ext. 2) in Misc. Appeal No. 7 of 1937 disposed of on 8 -3 -1939, the plaintiff will be entitled to his dues only after complete realisation of the decretal amount and after the expenses for the realisation of the decretal amount have been deducted from out of the realisation. On a perusal of the relevant paragraphs of the will (Ext. C.), that is, paragraphs G and N, we find that the testator had provided that the elder brother Anem Basanna would be entitled to collect all the debts in general and the mortgage debt in particular and would be further entitled to disburse from the amount realised all the expenses incurred in the process of realisation of the debts. It is further provided that Anem Basanna will be entitled to ten annas share and Anem Narasimhulu will be entitled to six annas share in all the debts due to Anem Tatayya, the testator. It is important to note that there is no specific provision that even though the debts or the decretal amounts are realised piecemeal from time to time Anem Narasimhulu will not be entitled to get anything till after the complete realisation of each item of debt. We are not Inclined to accept that it was the intention of the testator that all the collections piecemeal would be retained by Anem Basanna and that Anem Narasimhulu would be waiting indefinitely till the debts were realised in full. On a perusal of the will as a whole, we find that the immoveable properties bequeathed in favour of A'nem Narasimhulu are not of such a substantial character as to maintain him and his family for the whole year. It would be reasonable to accept that the testator intended that Anem Narasimhulu would be entitled to receive his share after disbursement of the necessary expenses as when the amounts were realised in piecemeal. The same consideration also will prevail in respect of the Judgment of their Lordships of the Patna High Court (Ex. 2). In exercise of their powers under the provisions of Order 21, Rule 15, C. P. C., their Lordships had made some directions for safeguarding the interests of the other decree -holder who had not joined the execution. The execution was started by Anem Basanna and there was dispute regarding the transfer of the share of Anem Narasimhulu in favour of the present plaintiff. Their Lordships therefore observed