TIRTHABASI GHOSE Vs. BHUYANI TRINAYANI DASI

JUDGEMENT

(1.) THIS is an appeal by some of the judgment -debtors against the order of the Subordinate Judge of Cuttack dismissing in part their objection under Schedule 7, C. P. C. to the execution of a maintenance decree obtained by the respondent Bhuyani Trinayani Dasi against her late husband Srichandan Bhuyan Btuudafoan Chandra Roy in O. S. No. 484 of 1908. The maintenance decree (Ex. P) was passed on 16.8.1909 and several items of zamidari properties of Sriohandan Bhuyan Brundaban Chandra Roy were charged with liability for the maintenance of the respondent. Two of those items are touzi Nos. 1453 and 1463 appertaining to Balasore Collectorate. The maintenance decree was slightly modified when the litigation was taken up to the High Court in 1917. But for the purpose of the present appeal it is unnecessary to discuss in detail the history of that litigation. It is sufficient to note that the aforesaid two touzis and several other properties of Sriehandan Bhuyan Brundaban Chandra Roy were made subject to the maintenance charge of the respondent. Touzi No. 1463 wag purchased by one Pitacambar Ghoae through his authorised agent in a court -sale on 28 9 -1916 and in the sale certificate (ex, E) it was expressly stated that the sale in favour of the auotion -purehaser was subject to the charge created by the aforesaid maintenance decree. Touzi No. 1458 was also purchased on 4 7 -1923 by the said Pitambar Ghose from one Jadunath Panda who had acquired the said touzi from Sriehandan Bhuyan Brundaban Chandra Roy by purchasing the same in a court sale in execution of his morttgage decree. The said Brichandan Bhuyan Brundaban Chandra Roy died on 4.2.1943. During his life -time his wife (the respondent) had executed the maintenance decree on several occasions. The present application for execution (Execution case No. 125 of 1944) out of which this appeal arose was filed on 28 -7 -1944 and it related to the maintenance due to her for three years from August 1941 to the end of July 1944. It will be noticed that a portion of the claim refers to the period after the death of her husband Sricbandan Bhuyan Brundaban Chandra' Roy. The decree -holder's case was that the aforesaid two touzes were subject to the maintenance charge decreed in her favour and that the appellants having acquired the said touzis with full knowledge of the existence of the charge decree in her favour were bound by the same. The appellants are all the descendants of Pitambar Ghose.

(2.) THE learned Subordinate Judge disallowed the respondent's claim in respect of touzi NO. 1453 on the ground that in a previous litigation (O. S. NO. 522 of 1913, Ex. 5 and Misoc Case No. 95 of 1931) to which the respondent was a party it was decided that the said touzi was not liable to sale in execution of her deoree for maintenance. As regards touzi No. 1463, however, he held that the said Pitambar Ghose acquired it subject to the maintenance charge of the respondent and that consequently the execution should be allowed to continue in respect of that property.

(3.) THE main point urged by Mr. Pal on behalf of the appellants is that the aforesaid maintenance decree became unexecutable on the death of Sriohandan Bhuyan Brundaban Chandra Roy because after that date the respondent being his widow became an heir to this property by virtue of the Hindu Women's Rights to Property Act, 1937 and that an heir under the Hindu law was not entitled to any maintenance. He further urged that the other properties left by the said Srichandan Bhuyan Brundaban Chandra Roy to his widow were considerable and that she has adequate means to maintain herself out of those properties.