BOMMAYYA NAICKEN Vs. CSUBRAMANIA IYER

JUDGEMENT

(1.) In this case the question arises in the execution of the decree in O.S. No. 714 of 1911 on the file of the Principal District Munsif of Dindigul. The plaintiff obtained a decree against the then Zamindar of Ayakudi for a certain sum of money. That Zamindar died in 1917 and this is an application made by the plaintiff for attachment of certain sums of money payable to the present Zamindar under a lease which was granted by the previous Zamindar who was the judgment-debtor, but for a period subsequent to the death of that zamindar. The decree is sought to be executed against the present zamindar as the legal representative of the late Zamindar against the assets in his hands. The present Zamindar objected to the attachment and contended that this money could not be treated as assets in his hands as it was his own money and further more that the matter could not be gone into in execution. The Munsif gave effect to the plea that the matter could not be gone into in execution and referred the plaintiff to a suit, but, on appeal to the appellate Court, the learned Subordinate Judge held that the matter should be decided in execution proceedings and has remanded the application to the lower Court for disposal on the merits. The appeal to us is by the present Zamindar who contends that the order of the lower appellate Court is not right.

(2.) It is clear to us that the money-that has been attempted to be attached in this case cannot be considered to be the assets of the late Zamindar at all, for it is money that has accrued due under the lease of the Zamindari, after the late Zamindar's death and after the estate had passed into the hands of the present Zamindar by right of survivorship. It is true that, if the plaintiff (judgment creditor) is able to show that his debt was for a sum of money borrowed for the benefit of the estate, under Section 4 of the Impartible Estate, Act, his debt would be a debt binding on the impartible estate and he would be entitled to enforce his debt as against the estate in the hands of the present Zamindar; but, by proving that the debt was borrowed for the benefit of the Zamindari, the Zamindari doss not become the assets of the late Zamindar in the hands of the present Zamindar. The only thing that results is whether the plaintiff will be able to enforce his debt against the impartible estate in the hands of the present zamindar.

(3.) We think that such a question could not be decided in execution proceedings. The view of the Subordinate Judge that the question is one of determining what are the assets of the late zamindar is not correct. The question is one of enforcing a new liability that would be created against the estate in the present zamindar's hands by proof that the debt was borrowed for the benefit of the estate. The plaintiff's proper remedy is to bring ,a suit, and, after obtaining a declaration that his debt is binding on the impartible estate and upon the income that has accrued due from the impartible estate in the hands of the present, zamindar, to apply then in execution of his decree to have it executed against such property.