KRISHNA HANDE Vs. PADMANABHA HANDE

JUDGEMENT

(1.) These appeals are against orders passed on applications made to execute a decree for partition. The plaintiff who obtained the decree died after it was passed: He left 5 sons. The eldest of them was the 27th defendant in the suit. His minor brother was the 32nd defendant. The other sons were the defendants Nos. 28 to 31. Two application were put in for execution owing to dissensions between the sons,-one by the 27th defendant on behalf of himself and his brother, and the other by the defendants Nos, 28 to 31. The Subordinate Judge allowed execution to issue in favour of the defendants Nos. 28 to 31 on behalf of themselves and the defendants Nos. 27 and 32, whose application was rejected; but directed that the money realized in execution 1. should be paid to all the sons of the plaintiff in shares if they could not agree to act together. The 1st defendant who was directed by the decree to pay until partition and delivery of possession, a certain quantity of paddy every year on account of the proportionate share of the income due to the plaintiff on the family lands, set up that he had made certain payments to the 27th defendant. The defendants Nos. 28 to 31, in their application for execution, admitted some of these payments as having been made to them, but denied the other payments pleaded by the 1st defendant. The 27th defendant denied any payment to himself and contended that payments made to the defendants Nos. 28 to 31, even if true were not valid as against him and that he was entitled to execute the whole decree. The Subordinate Judge did not record evidence with respect to the payments pleaded on appeal. The Subordinate Judge s order was in the main upheld by the District Court, but it was of opinion that the payments even if true, were invalid. There was also a question raised as to the proper price of the rice which the 1st defendant was bound to deliver. No evidence was taken on the point, but the prices notified in the Government Gazette were awarded by the Lower Courts.

(2.) The first question argued is whether the Lower Courts were right in granting execution to the defendants Nos. 28 to 31 instead of to the 27th defendant. We are of the opinion that the 27th defendant as the manager of the decree-holder s branch of the family is prima facie the proper person entitled to take out execution. The reason given for preferring the defendants Nos. 28 to 31 viz., that they formed the majority of the sons of the deceased plaintiff, cannot be accepted as valid. We shall therefore direct that execution should issue in pursuance of the 27th defendant s petition on behalf of himself and the other members of the family, viz., the defendants Nos. 28 to 32.

(3.) It was contended in the Lower Court by the defendants Nos. 28 to 31 that the 27th defendant was in collusion with the 1st defendant. No inquiry was made about this- plea. If there are reasonable grounds to support it, it would be proper to take security from the 27th defendant for the protection of the interests of the defendants Nos. 28 to 31, although ordinarily, no security need be taken where execution is allowed in favour of the managing member of a family on behalf of himself and the other members thereof.