SHYAM SUNDER SINGH Vs. SHYAM DAS KAVIRAJ

JUDGEMENT

(1.) M.A. No. 67 of 1932. This appeal has been launched by the judgment-debtor against a decision of the Subordinate Judge of Dhanbad in an execution case. The judgment-debtor's objection is that the estate is protected from execution by reason of Section 12-A, Chota Nagpur Encumbered Estates Act, 1876. The material facts are as follows: The late Babu Biswanath Singh was the original proprietor of the estate which was placed under a manager appointed by the commissioner under the provisions of the Act in the year 1898. The estate continued under such management after the death of Babu Biswanath Singh and was ultimately released to the judgment-debtor on 17 April 1926. The judgment-debtor after such release executed the hand note which is the subject of the decree under execution.

(2.) His contention is that he is protected by Section 12-A inasmuch as he is the heir to the estate under the provisions of Mitakshara law and stands in the shoes of the original person Babu Biswanath Singh, his ancestor, by whose agency the estate was brought under the control of the manager. The section is perfectly clear and the object of the Act is to protect the property against the extravagance of any particular holder or holders for the time being and creates disqualifications not so much in connexion with the property as of individuals. Section 12 A provides that when an estate is restored to a person formerly disqualified, such person shall not be competent to alienate such property or to create a charge extending beyond his life time, that is to say it is a disqualification applying to a particular person holding a particular property. The person to whom the estate was restored, the judgment-debtor, was not the person who was the holder of the property when the application under Section 2 was made.

(3.) One would think that this simple consideration of the wording of the Act would be sufficient to dispose of the case but the appellant has relied on the case of Hanuman Buksh V/s. Tikait, Ganesh Narayan Saha Deo AIR 1918 Pat 135. The difference between the facts of that case and of this are that the estate in question there was restored to the person who had formerly been the disqualified proprietor. After such restoration he charged the property which was restored.