JOY CHANDRA ROY Vs. SATIS CHANDRA ROY

JUDGEMENT

(1.) This is an appeal by the defendants in a suit brought under Order 21, Rule 63, Civil P.C., to have it declared that the plaintiff is entitled to a certain property and that the attachment which has been made thereon is invalid. The position is this there was one Jagat Chunder Roy, The defendants brought a suit against him for possession of some property and obtained a decree. The decree was in 1907, and under the old Code, an order was made that the question and the amount of masne profits ware to be decided in execution. An appeal by Jagat : Chunder Roy was dismissed by Jagat Chunder Roy died in 1912 having by his will left the property which is now in question to the shebaits of a certain idol. A question hag been raised whether a mere charge was given upon the property in favour of the idol and I am clear and the lower Courts have found that the whole of the beneficial interest in that property was given to the idol. After Boy's death the defendants proceeded in execution and, after certain proceedings, there was a compromise by which the mesne profits were assessed at Rs. 2,500. That was in 1918. In the meantime the administrators with the will annexed to the estate of Roy had put the shebaits in possession of the property now in question. There can be no doubt that they have been in occupation of it and have been utilizing it for the purpose of the Thakur since 1915. Thereupon what happened was that the defendants as judgment-creditors proceeded in execution against the administrators of the estate of Roy to attach this property and the plaintiff made a claim in execution which was disallowed. Thereupon he has brought this suit under Order 21, Rule 63, Civil P.C. claiming that it be declared that this property is not liable to attachment in execution of the decree against Jagat Chunder Roy's legal representatives.

(2.) Both the Courts have found in favour of the plaintiff and have held that the property is not liable to attachment. The defendants have appealed and what they say is that as this is a debt of Roy, this debt must be paid before any legacy and must be paid before any specific legacy can take effect, The defendants, rely upon Section 326, Succession Act, and in that way they say that the plaintiff's case ought to have been dismissed.

(3.) Now it is quite true that if a creditor is not paid, he has a right to follow the assets of the deceased whether they be specific legacies or whether they be of a different character. It is old law that he can follow the specific legacy just as much as any other legacy. I find it laid down in Williams on Executors on the authority of the case of Davies V/s. Nicholson 2 De. G. & J. 603 that property specifically bequeathed is not discharged from its liability to the testator's debts by the circumstances that there has come to the lianas of the executor persona proparty of the testator not specifically bequeathed more than sufficient to pay his debts and that the specifically bequeathed property has been made over by the executor to the specific legatee.