MT PRABHAWATI KUER Vs. RAM SARAN LAL

JUDGEMENT

(1.) These two appeals arise out of two execution proceedings by two decree- holders against the same set of judgment-debtors. It seems that the respondents had certain claims against one Babu Ram Prasad, the husband of the appellant. They instituted two suits for recovery of those dues against his sons and grandsons, making the present appellant, his widow, also a party defendant to the suit. Before the institution of the suits, the family of Ram Prasad had separated and certain properties are said to have been separately allotted to the appellant as the mother of her sons.

(2.) Decrees were passed in the respondents favour against the sons and grandsons, but both the suits were dismissed against the appellant. In one suit (relating to M.A. No. 9 of 1934) the Court in deciding issue No. 5 said as follows: Defendant 13 (the appellant) being the widow of Babu Ram Prasad is an unnecessary party in the presence of the sons and grandsons, and dismissed the suit against her. In the other suit (relating to appeal No. 292 of 1933) the decree was passed on compromise by the sons and grandsons and dismissed against the appellant. The respondent decree- holders have executed their respective decrees and have attached among others, the properties which are said to have been separately assigned to the appellant and of which she is stated to be in separate possession. She objected to the attachment, and the learned Subordinate Judge has disallowed her objections on the ground that the debt being for family purposes and binding on the family the property in her possession was liable for that debt. The lady has preferred these two appeals.

(3.) In my opinion the learned Subordinate Judge has ignored the fact that in order to enable a creditor of the family to follow the property in the hands of a member of the family, the binding nature of the debt must be proved in the presence of that particular member and the decree must be against him. Either he should be a party to the suit or be legally represented therein. Had the family been joint, the karta of the family, or the sons and the grandsons were the only parties necessary to the suit and he or they would have represented the family. The widow having no special right to any particular property was not a necessary party. Her right of maintenance did not make her a necessary party.