GURNAM KAUR Vs. DALIP KAUR

JUDGEMENT

(1.) SMT. Gurnam Kaur, widow of Gurdial Singh, instituted a suit for maintenance sometime in 1955 against her father-in-law Narain Singh on the allegation that she had been married to Gurdial Singh son of Narain Singh and that Gurdial Singh had died about 15 years earlier. Some time before the institution of the suit, narain Singh had gifted away the whole of his property in favour of his two daughters, and it is because of this that Smt. Gurnam Kaur instituted the suit for maintenance claiming Rs. 50/- per mensem. It was instituted in forma pauperis. There was an averment in the plaint that she had one daughter from her husband gurdial Singh. It was also pleaded that Narain Singh had made the aforesaid gift in order to defeat her right to maintenance, the gift covering the whole of his land. The parties were stated to be Jats and governed by custom. In the written statement, it was pleaded that after the death of his son, Smt. Gurnam Kaur had contracted karewa with one Bachan Singh and that she had been residing with him. An objection was also raised to Smt. Dalip Kaur, Piara Singh and Tit Singh, sons of Smt. Gurdial Kaur, having been wrongly impleaded. Issue No. 2 related to the plea that Smt. Dalip Kaur, Jit Singh and Piara Singh, sons of Gurdial Kaur, were not necessary parties. Under issue No. 2, it was held that no relief having been claimed against Smt. Dalip Kaur, Jit Singh and Piara Singh, they were not necessary parties. It was, however, expressly observed that if the property gifted away could be charged for the maintenance of Gurnam Kaur, then they would be bound by the finding of the Court and the property would be made liable. The suit was decreed for a sum of Rs. 20/- per mensem by way of maintenance payable by narain Singh, which he was ordered to pay on the 5th of each month. Issue No. 5, which was in the following terms:-"whether charge can be created on the property at this stage gifted by narain Singh defendant No. 1 to Dalip Kaur and Gurdial Kaur deceased, before this suit?" was decided by the trial Court against the plaintiff, it being observed that no property having ever vested in the plaintiffs husband under Paragraph 17 of rattigan's Digest, no charge could be created against the estate of the father-inlaw and the plaintiff was not entitled to follow that estate in the hands of third persons to whom it was gifted away.

(2.) AN appeal was preferred by Narain Singh in the Pepsu High Court in 1955, but the same was disposed of after merger by a Bench of this Court consisting of Tek chand and Shamsher Bahadur JJ. on 25-5-1960. The following passage from that judgment may here be reproduced with advantage :--"it is next argued that the defendant had incapacitated himself after having executed a deed of gift in favour of his two daughters from maintaining the plaintiff. He cannot, by relieving himself of the estate in the manner he has done, deprive his daughter-in-law of her maintenance. In our view, if the father-in-law has no other means of maintaining his daughter-in-law, then she is entitled to be maintained out of the estate from the income of which she could claim maintenance if he had not gratuitously alienated his property. "

(3.) THE decree-holder Smt. Gurnam Kaur, petitioner in the present proceedings, later sought execution of the decree. In execution proceedings, an application under Order 21, Rule 58 C. P. Code was presented by Smt. Dalip Kaur, Piara Singh and Jit Singh and also by three other daughters of Gurdial Kaur objecting to the execution. It is the order passed on this application by the learned Senior subordinate Judge on 7-11-1963, which is the subject-matter of the present revision. The learned Senior Subordinate Judge, acting as executing Court, framed the following two issues on the pleadings of the parties:--1. Whether the attached property is not liable to attachment and sale in execution of the decree? 2. Whether the objection petition is not maintainable? Under issue No. 1, he held that the property under attachment is not liable to attachment and sale because it had been gifted away to the objectors and Narain singh was left with no subsisting interest or right. In the judgment, Narain Singh has been wrongly described to be a decree-holder. Indeed, it should be judgment-debtor.