DHOOL CHAND Vs. GANPAT LAL

JUDGEMENT

(1.) THIS is a second appeal in execution proceedings.

(2.) GANPAT Lal Mahajan had a decree against one Ambalal Brahmin for recovery of money. Ambalal judgment-debtor died, and Ganpat Lal wanted to execute the same against his legal representatives, and made an application that his legal representatives were Kesar Lal and Dhool Chand, against whom the decree should be executed. Dhool Chand filed an objection on 5th August 1948, that although he was the son of Ambalal, he had been adopted by Ganpat Lal, brother of Ambalal. It was, therefore, prayed that the decree be not executed against him. The parties led evidence, and the Civil Judge, Gangapur, held by Judgment of 24th November 1949, that Dhool Chand had failed to prove that he had been adopted to Ganpat lal. The objection was dismissed. Dhool Chand filed an appeal, and Mr. Gajendra Singh, District Judge, Bharatpure, was of opinion that the matter of the adoption was not as relevant as an enquiry as to who was in possession of the house left by ambalal. The idea seems to have been in his mind that whether Dhoolchand may or may not have gone in adoption, if he was in possession of the house left by ambalal, he would be an intermeddler with the property of the deceased, and would thus come within the definition of legal representative. After remand, further evidence was led, and the learned Civil Judge came to the conclusion in respect ,of the dispute regarding the house that it had not been proved that the house belonged to Ambalal. He, therefore, allowed the objection, and held that the decree-holder could only proceed against Kesar Lal. The decree-holder filed an appeal, and the learned District Judge, while upholding the finding that the house had not been proved to have been built by Ambalal, proceeded further on the other question, and concurred with the previous finding of the Civil Judge that the adoption had not been proved. He, therefore, held that the decree-holder was right in proceeding both against Kesar Lal and Dhoolchand, although their liability extended only to the extent of the estate of the deceased in their hands.

(3.) DHOOLCHAND has come in second appeal, and it is urged on his behalf that he could not be held to be a legal representative when it has been found that the house of which he was in possession did not belong to Ambalal. Learned counsel relied upon 'chunilal Harilal v. Bai Mani,' AIR 1918 Bom 165 (A), for the proposition contended by him that in order that a person can be held to be a legal representative of the deceased Judgment-debtor, he should be shown to have been in possession of the property left by the deceased.