ABBAS NASKAR Vs. CHAIRMAN, DISTRICT BOARD

JUDGEMENT

(1.) This is an appeal by defendants 3 and 5 from a decree by which the plaintiffs claim for recovery of arrears of rent for a certain ferry alleged to have been leased out to their father by the plaintiffs has been decreed against them and some others. One of the contentions which was attempted to be urged on behalf of the appellants was that no lease was taken and so no money was due; but in view of the evidence, oral and documentary that there is on the record and which amply establishes the fact that such a lease was taken and that the amount claimed was due under it, this contention was not eventually pressed. The other contention, which is of considerable substance, is that the decree, such as it is, is not supportable. The appellants father Tamizuddin died leaving his mother, a widow, three sons and three daughters. All these heirs were impleaded in the suit as defendants. Two of these heirs, namely, defendants 6 and 8, were minors and as they were not properly represented, the suit as against them was dismissed. It was decreed against the others, on contest against defendants 3 and 5 and ex parte as against the rest. The entire amount due from Tamizuddin as claimed was decreed against these defendants, they being held "liable for the aforesaid decretal amount to the extent of the assets of Tamizuddin inherited by them."

(2.) Now, all authorities are agreed that if the estate of Tamizuddin had been distributed after his death each of his heirs would have been liable for his debts to the extent only of a share proportionate to his own share of the estate (Pirthipal Singh V/s. Husaini Jan (1882) 4 All 361, Amba Shankar V/s. Sayad Ali (1395) 19 Bom 273, Bussunteram Marwary V/s. Kamaluddin Ahmed (1885) 11 Cal 421 (at p. 428). What we are concerned with here is a ease in which there has, in fact, been no distribution. Two questions arise: 1st. Whether the creditor may sue any heir in possession of the whole or any part of the estate without joining the other heirs as defendants, for realization of the entire debt, and if so, whether a decree for the entire debt passed in such a suit may be enforceable against all the assets that are in his possession or only against that particular heir's share in the estate; and 2nd. What sort of decree should be passed in the present case. So far as the first question is concerned the opinion of this Court has been consistently in the affirmative. Two decisions in support of this view may be cited. In the case of Muttyjan V/s. Ahmed Ally (1882) 8 Cal 370, three earlier decisions, amongst others, were referred to, viz., Mt. Nuzeerun V/s. Ameerooddeen (1875) 24 WR3, in which the analogy of a Hindu widow sued in her representative character was applied, 33 Bibi V/s. Boy Lutchmeeput Singh (1379) 4 Cal 142, in which such analogy was ignored but the procedure prescribed in the Hedaya for the guidance of Mahomedan Law officers was relied upon, and a much earlier decision of the Sudder Dewany Adawlut in Kishwur Khan V/s. Jewan Khan (1799) 1 Mac Sel Rep 33, in which neither of the aforesaid two views was adopted but it was held that creditors suits were to be regarded as administration suits. The learned Judges held that the proper principle to apply was to treat the creditors suit as an administration suit, and as such an heir in possession is bound to account for any assets that may have come into his hands and to that extent he is liable to pay the creditors and that the residue, if any, is to be divided amongst the heirs. The case was very unfavourably commented on by Mahmud, J., in a very exhaustive judgment in the Full Bench case of Jafri Begum V/s. Amir Muhammad Khan (1885) 7 All 822, notwithstanding that it was followed in a later decision of this Court in the case of Amir Dulhin V/s. Baij Nath Singh (1894) 21 Cal 311. The learned Judges appear to have felt the force of the contention that was urged against the view. They observed: If we rightly apprehended his argument, it was directed to this, that the amount decreed ought to be proportionate to the interest in the estate of the particular heir, and that when it is sought to recover the whole of the debt all the heirs ought to be before the Court. Stated in that form, the proposition is one of which there is much in favour. An individual heir cannot be said with strict propriety to represent his coheirs in a suit brought by a creditor to enforce his claim against the property of the deceased proprietor. The right of each heir is several and distinct, and arises, as has been said, immediately on the death of the person whose heir he is. There is no intermediate vesting and no rule of Mohamedan law by which an individual heir, as such, may be taken to represent either the estate or the heirs generally.

(3.) Having made these observations and quoted Jafri Begum's case (1885) 7 All 822, and other cases in support of them, the learned Judges referred to the case of Amir Dulhin's case (1894) 21 Cal 311, and followed it giving some additional reason in support of the decision in that case. The reason why they did so was gut in the following words: And we think that apart from the consideration that it is an authority of this Court which has remained unquestioned now for several years, it embodies a salutary rule and one to which effect ought to be given.