VISHVANATH GANGADHAR DESHPANDE Vs. KESHAVBHAT GOVINDBHAT KAMAT

JUDGEMENT

(1.) The facts of this appeal are simple, but they involve a point of law which does not seem to have been decided by this Court, though the question involved is one which must arise not infrequently. The respondent obtained a money decree against one Gangadhar and his three minor sons. Gangadhar died after the decree, and the decree-holder attempted to execute it against the property of the family, which was watan. The minors, who were represented by different guardians, put in an application objecting that the property being watan could not be attached and sold. The first Court directed execution to proceed, holding that there had already been an order directing the defendant to produce a certificate from the Collector under Section 10 of the Watan Act, and the certificate not having been produced, execution had been ordered to proceed. So the application was rejected without going into the merits.

(2.) On appeal, the Extra Assistant Judge of Belgaum held that the property was liable to attachment and sale, and the application was also barred by the order of March 12, 1930, the application being made on September 10, 1930. He, therefore, dismissed the appeal. The minor judgment-debtors make this second appeal.

(3.) It is contended at the outset on behalf of the appellants that the decree itself was bad, as there can be no personal decree against the minors. But this argument cannot be accepted, as there was no appeal against the decree, and the Court cannot go behind it in execution proceedings, and must execute the decree as it stands. Moreover, there is no question of executing the decree against the minors personally; execution was sought against the property. The deceased father of the minor appellants passed a promissory note to the plaintiff, and the decree is against the father and his minor sons, and is a simple money decree, which is sought to be executed by the attachment and sale of the family property, which is watan. The minors having been parties to the suit duly represented by a guardian, the case is differentiated from that which we had to consider a few days ago, Vithaldas v. Shrinivasrao (1933) 36 Bom. L.R. 169, where the decree was against the father alone, and it was sought to execute it against the watan property in the hands of his sons, and it was held that watan property in the hands of the sons was not an asset of the father within the meaning of Section 53 of the Civil Procedure Code, so as to be liable for attachment and sale for the debts of the father. No question of the son's obligation to pay the debts of the father arises in the present case, because the sons are themselves parties to the suit, and the decree is against them as well as against the father, the debt apparently being considered as family debt for which all the defendants are liable, The judgment is very short, and no contention as to the liability of the minor defendants appears to have been raised. Reference was made to Narayan V/s. Ramrao, (1901) 3 Bom. L.R. 482, but the facts of that case are not the same. That case inter alia lays down that watan property in the hands of the son is not assets of the father. The learned advocates on either side have not been able to point out any decision of this Court on the point directly before us, nor have we been able to find any. It seems, however, that on general principles the lower Court is right, subject to certain qualifications. The interest of a watandar in watan property is a life-interest, and any alienation made by him is not valid after his death. Certain later decisions hold that the heir of a watandar succeeds through his predecessor, contrary to the view expressed in Narayan V/s. Ramrao, that the watan property in the hands of the son is not assets of the father within the meaning of Section 53, Civil Procedure Code. The life-interest of the watandar terminates at his death. During his lifetime his sons in the case of a joint Hindu family acquire an interest in the watan property by birth. At his death his interest ceases and vests in his sons, who become full owners of the watan property, that is to say, they have a life-interest in it. When there is a decree against them which is to be satisfied out of the family property, it seems to me that their life-interest can be attached and sold, and that the attachment and sale will be good during their lives, subject to any objection which might be raised by their heirs after their death and subject to any action which the Collector might take under the Watan Act on their representation. In the present case neither of these two factors is in operation, for the appellants, except appellant No. 1 who has recently attained majority, are minors, and no question of their heirs arises at present. It also appears from the record, vide the order of March 1930, that time was granted to enable one of the appellants to obtain a certificate from the Collector under Section 10 of the Watan Act, and no certificate being obtained within the time specified, execution was ordered to proceed. So far, therefore, as matters stand at present, the appellants are the sole owners of the watan property and the Collector has not taken any action, and I see no reason why their interest in the watan property should not be attached and sold in execution of the decree which has been obtained against them. What may happen after the deaths of any of them or if the Collector takes action is another matter with which we are not at present concerned, and the question can be decided when it arises. The view of the lower Court, therefore, appears to be correct, and should be confirmed with the proviso above stated.