SM JAMUNA DEVI Vs. MANGAL DAS

JUDGEMENT

(1.) In this appeal by the plaintiff an interesting question of Hindu law arises for consideration. The facts are these. On 7 October 1922 defendants 4 to 6 gave a reban of the disputed property to the joint family consisting of defendant 2, Naunit Lal, the father, and defendant 3, Lachmi Narain, the son. Defendant 1, Mangal Das, advanced certain sum to defendant 2 on the basis of a handnote dated 17th February 1937 and obtained a decree on the basis thereof on 13 May 1940. In execution of that decree which was started on 11 December 1940 he attached the disputed house on 11 March 1941 and became the auction-purchaser on 19 May 1941. The sale was confirmed on 19 November of that year.

(2.) On 15 April 1940 the son had instituted a suit for partition against the father in which he made the plaintiff, the wife of defendant 2, a party, because the parties being governed by Mitakshara School of Hindu law, the mother was entitled to a share on partition being actually effected. The preliminary decree was passed on 6 December 1940 and the Commissioner submitted his report as to the allocation of the properties of the joint family on 12 May 1941 and the final decree in the partition suit was made either in June or July 1941. Upon these allegations the plaintiff, Jamuna Devi, wife of Naunit Lal, instituted a suit on 29th November 1941 for a declaration that defendant 1 had no right to attach and sell the disputed property which was in the exclusive possession and occupation of the plaintiff from before the attachment in the money decree of defendant 1 as the result of a partition, and that the sale of 19 May 1941, was wholly ineffective against the plaintiff it should be stated here that defendant 1 in execution of his decree purchased the mortgagee's rights which were vested in the joint family. The trial Court did not accept the contention of defendant 1, who was the only contesting defendant, that the partition suit and the proceedings therein were collusive and fraudulent. The effect of the allotment of the house to the plaintiff in the partition decree was thus summed up by the learned Munsif: Until the passing of the final decree, no right o? enjoyment of ownership in the property in dispute accrued to the plaintiff. I have already stated above that the auction sale was prior to the passing of the final decree and therefore at a time when, the right of separate enjoyment of property in dispute accrued to the plaintiff, the property had already passed on to the defendant and it ceased to be a part and parcel of the joint family property which could form the subject of the partition.

(3.) He believed the case of the defendant that he was in possession of the property in dispute and that the plaintiff had not been in possession as was alleged by her. The lawyer of the defendant had urged before the trial Court that as the debt was a pre-partition debt, the plaintiff was liable for it, but the learned Munsif refused to extend the doctrine of pious obligation to the wife, although he gave the finding that the particular debt on the basis of the hand-note could not be said to be tainted with immorality or illegality. Accordingly he dismissed the plaintiff's suit. In appeal the learned Subordinate Judge came to the same conclusion. He points out that in the plaint the validity of the decree obtained by defendant 1 in the money suit against defendant 2 was challenged on the two grounds that it was collusive and that the debt on the hand-note was contracted for immoral purposes.