MT. SAVITRIBAI Vs. NANHELAL

JUDGEMENT

(1.) THE first two respondents Seth Nanhelal and Seth Ghasiram brought a suit against Rai Saheb Shrinarayan Shukul and the appellant Mt. Sawitribai for recovery of the sum of Rs. 26,285-13-0 with future interest till satisfaction, claiming further that the amount should be recovered by sale of properties stated in a schedule attached to the plaint. Rai Saheb Shrinarayan died during the pendency of the suit and his widow Mt. Godawaribai, the present respondent 3, was brought on the record as his legal representative. A decree was passed in favour of the plaintiffs against the defendants for the amount claimed, making them jointly and severally liable to the extent of the ancestral property of their respective husbands in their possession and further declaring that the amount payable under the decree was a charge on Mauza Bhunas in the Harda Tahsil and could be recovered by sale of that village. Future interest at 6 per cent per annum from the date of suit until realization was granted as well as interest on costs at the same rate till realization. Defendant 2, Sawitribai, has appealed, whilst respondents 1 and 2 filed cross-objections, all of which however have been withdrawn except the last which relates to the rate of interest allowed from the date of suit till realization. The following genealogical tree will help to elucidate the facts, which led to the present litigation: TULSIRAM | ______________________________________________ | | Rameshwar=Kundanbai Saligram __________________________________________| | | R.S. Shrinarayan=Godavaribal Sheonarayan=Sawitribai (died during (deft. 1). (deft. 2). pendency of suit).

(2.) IN 1894 Kundanbai brought a suit, Civil Suit No. 26 of 1894, against Saligram for maintenance and arrears of maintenance and obtained a decree for maintenance at the rate of Rs. 250 per month and Rs. 24,000 as arrears. It was further declared that the decretal amount should be a charge on the ancestral property in the defendant's possession. that decree was passed on 30th April 1895, and a copy of the decree is on the record as Ex. P-10, whilst a copy of the judgment in the suit has been filed as Ex. P 9. It does not appear that Kundanbai took any steps to execute her decree for some time, but when she attempted to execute it, it was held on an objection by the judgment-debtor that the charge declared by the decree could not be enforced in execution and that the decree-holder would have to bring a separate suit under Section 67, T.P. Act. We are not now concerned with the correctness of that order, though a contrary view has since been expressed by this Court when the same point arose for decision in another case. After the order was passed, Kundanbai then instituted Civil Suit No. 135 of 1925 against Rai Saheb Shrinarayan, Sawitribai and the present plaintiff-respondents, who were impleaded as they had taken a mortgage of Mazua Bhunas and other property from Rai Saheb Shrinarayan on 22nd June 1925. A decree was passed in favour of Kundanbai against the defendants for the sum of Rs. 9,286 12-0 as arrears of maintenance and future maintenance at the rate of Rs. 200 per month with interest from the date of suit at the rate of 1 per cent, per mensem. It was further directed that the first two defendants, who were Rai Saheb Shrinarayan and the present appellant Sawitribai, should be personally liable to the extent of the ancestral property in their hands and that, in case of failure to pay, the amount should be recovered by sale of Mauza Bhunas. A copy of the judgment in that suit is filed as Ex. P-1 and a copy of the decree as Ex. P-2.

(3.) AS regards the first question we consider that the plaintiff-respondents have a right to bring a suit, if not under Section 69 certainly under Section 70, Contract Act. The learned counsel for the appellant cited Manindra Chandra v. Jamahir Kumari (1905) 32 Cal 643, Jagapati Raju v. Lakshminarasimha AIR 1916 Mad 980 and Mangalathammal v. Narayanaswami Aiyar (1907) 30 Mad 161, as well as other cases in support of his contention that the plaintiffs-respondents being themselves bound to pay under the decree were not entitled to bring a suit under Section 69, Contract Act, against the co-judgment-debtors. The cases however in Manindra Chandra Nandy v. Jamahir Kumari (1905) 32 Cal 643 and Jagapati Raju v. Lakshminarasimha AIR 1916 Mad 980 are of purchasers at an auction sale in execution of a decree; and also the case in Mangalathammal v. Narayanaswami Aiyar (1907) 30 Mad 161 relates to a purchaser of property at a court-sale, who purchased subject to a charge of maintenance. The present case is not quite analogous. In the first place, we would point out that the plaintiffs-respondents were not personally bound by the decree (Ex. P-2). They were only impleaded because they held a mortgage upon the property in Mauza, Bhunas, which Kundanbai sought to charge by her decree. Not were they the purchasers of the property at a sale: what they did was to pay the amount: of the decree to release the property. On the other hand, Kundanbai not only had a charge against the property, namely, Mauza Bhunas, but she had a personal decree against Rai Saheb Shrinarayan and the present appellant Sawitribai to the extent of the ancestral property in their hands. We are of opinion, then, that the plaintiffs-respondents were not legally bound to pay the decretal amount within the meaning of Section 69, Contract Act, whereas there can be doubt that the appellant and Rai Saheb Shrinarayan were legally bound under the decree. By the payment therefore of the decretal amount the plaintiffs-respondents obtained a right under Section 69, Contract Act, to be reimbursed by the other judgment-debtors, namely, Rai Saheb Shrinarayan and Sawitribai.