KANCHAN Vs. BABU BHAI

JUDGEMENT

(1.) THIS Civil Second Appeal arises out of a suit for a declaration filed by Shrimati kanchan, wife of Dharamchand Gandhi plaintiff-appellant against Veer Chand gandhi Respondent No. 10 and Jai Shanker Brahmin whose legal representatives are Defendant respondents Nos. 1 to 9 in this appeal. The case of the plaintiff-appellant is that Jai Shanker defendant had obtained a money decree for the recovery of Rs. 7,224-3-6 against Veerchand Gandhi defendant on 29-7-57 in execution of which he got attached two houses situate in village Kohra, more particularly described in Para. No. 2 of the plaint, These houses belonged to vaneychand Gandhi son of Veerchand Gandhi who had separated from his father in Sambat 1987. The said Vaneychand made a gift of these two houses on 13-91955 and executed a registered deed of gift in favour of the plaintiff appellant who was the daughter-in-law of the donor. The plaintiff-appellant filed an objection application under Order 21, Rule 58 C. P. C. in the executing Court which was dismissed summarily. She, therefore, filed the suit for a declaration that the said two houses were not liable to attachment and sale in execution of the decree obtained by Jai Shanker against Veerchand. The suit was contested by the decree holder. He denied that there was any partition between Veerchand and his sons or that the house in dispute belonged to vaneychand. His case is that Vaneychand had executed the deed of gift only to defeat and defraud the creditors of his father Veerchand admitted the claim of the plaintiff, the trial Court decreed the suit. In appeal by the legal representatives of jaishanker, the Civil Judge, Sirohi dismissed the suit holding that the partition between the father and his sons was not proved by the evidence on record and it was further not proved that the houses in dispute had fallen to the share of vaneychand. Hence this Second Appeal by the plaintiff-appellant.

(2.) LEARNED counsel for the appellant has challenged the finding of the lower appellate Court that there had been no partition between Veerchand and his sons, but this is a finding of fact and cannot be challenged in the Second Appeal. Learned counsel for the plaintiff-appellant has argued that even Jai Shanker examined as witness on his behalf admitted that Vaneychand had been residing separately from his father Veerchand for more than 15 years. It may be mentioned that Jai Shanker has also stated that there was no partition and because of the quarrel between the members of the family Vaneyehand resided separately from his father. He has also stated that the houses in dispute were joint family property and they were got constructed by Veerchand and his sons. I find no reason to disturb the finding of fact of the lower appellate Court about partition in this Second Appeal. Thus on merits, the appeal has got no force.

(3.) LEARNED counsel for the plaintiff-appellant then raised a point of law that in the suit in which the decree was obtained not only Veerchand, but his sons, vanaychand, Maganlal and Hindu Mal were also made defendants and that suit was dismissed against the sons, and, as such, the decreeholder cannot get his decree executed against the two houses in dispute which were in possession of vanaychand and which had been gifted by the plaintiff-appellant even if they are held to be part of the joint family property. That the sons were parties in the main suit is also mentioned in the plaint and has been admitted in the written statement. But it has been stated therein that though Jal Shanker had filed the suit against Gandhi Veer Chand and his three sons, but the suit was withdrawn against the sons for the reason that the decree passed against the father would be binding on the sons, so far as the joint Hindu family properly was concerned. A certified copy of the judgment of the Civil Judge, Sirohi was also filed by the plaintiff-appellant in the trial Court but there is no order for taking it on record. The judgment shows that Jai Shanker had withdrawn the suit against the sons. The contention of the learned counsel for the appellant is that since Jai Shanker defendant had made Vanaychand a party to the suit along with his father veerchand and the suit was dismissed us against Vanaychand, the joint family property in his hands would not be attached and sold in execution of the decree obtained against the father. He has relied on the following cases: Raja Ram v. Raja Baksh Singh, AIR 1938 PC 7, Prahlad Das v. Dasarathi Satpathi, AIR 1940 Pat 117, Umakant Rai v. Jitendra Narain, AIR 1949 Pat 97, Ramkishun Lal v. Ugramohan Dass, AIR 1960 Pat 8 and Bijai Raj Singh v. Ram Padarath, AIR 1936 oudh 139.