PURSHOTTAM DAMODAR Vs. ANANT MADHAV

JUDGEMENT

(1.) The holder of a decree against a person since deceased came in execution against the judgement-debtor's widow in respect of the rent which she was receiving under a ninetynine years lease of watan property executed by her husband. The execution has been dismissed by both the Courts below; and the question is whether the rent received by the widow in circumstances such as these is property subject to execution. We hold that it is not.

(2.) The argument addressed to us is that the rent derivable from such property is not itself watan property and is therefore a fit subject for execution, being the property of her late husband in the hands of a widow who is bound to pay her husband's debts. I may say at once that this is a position which it seems to us to be impossible to take up. Rent, in spite of the argument addressed to us by the decree-holder's learned advocate, cannot, in our opinion, be regarded as anything but a benefit to arise out of land and as such it is immoveable property within the meaning of the General Clauses Act. That being so, it becomes equivalent to the land which passed under the lease and is to the same extent watan property within the meaning of the definition given in Section 4 of the Watan Act. It is then argued that even watan property in the hands of a widow is liable for the execution of a decree obtained against the widow's late husband; and for this contention reliance is placed upon the decision of this Court in 46 Bom. 726.1 It is not a particularly easy case to follow; and the learned Judges who decided it, speaking for myself, seem to have adopted a somewhat hesitating attitude. That was a case where the reversioners of a watandar's widow sued to set aside a sale of watan property held in execution of a decree against the watandar, who had died before the execution. The sale was held to be valid and binding upon the reversioners, because the auction purchaser was a watandar of the same watan and the sale could be regarded as having been effected for legal necessity, inasmuch as the widow was bound to pay the decretal debt of her deceased husband. The passage in which it is stated that the widow was bound to pay the decretal debt of her deceased husband is this (p.73l): ... though there would be a special restriction on her powers in virtue of Section 5 of the Bombay Hereditary Offices Act, she might be able to deal with the Watan property as a Hindu widow for legal necessity, provided the alienee was a Watandar of the same Watan. So far as I read that passage the learned Judges did not definitely decide that she could in law alienate the property for legal "necessity. But assuming that she could, and that it was decided that she could, the fact remains that in 46 Bom. 7261 the alienation was to a watandar of the same watan and therefore binding on the reversioners, whereas here there is no question of confining an execution sale to a watandar of the same watan.

(3.) It is however argued that, even though this Court in 46 Bom. 7261 was dealing with a case of an alienation to a watandar of the same watan, the principle really underlying the decision would not require the alienation to be to a watandar of the same watan; in other words, an execution sale might be to any one. The argument depends upon the contention that a widow represents the estate of her husband, and that she is competent to deal with the property to the same extent as her husband and must therefore be prepared to have his decretal debts satisfied out of any property with which she is competent to deal as representing his estate. But the view that she represents the estate of her husband to that extent, though not expressly dissented from by this High Court in 36 Bom. L.R. 169,2 was then held to be of no avail in the absence of any authority to show that watan property in the hands of the successor of a watandar who has encumbered it is liable to attachment and sale contrary to the express statutory provisions of Section 5 of the Watan Act. In that case it was conceded without argument that watan property could at best be put up for sale only to a watandar of the same watan. But no argument is really necessary on this point, and Divatia J. pointed out the serious difficulties in the way of confining a court sale within those limits and implied that in view of those difficulties it would be impossible to sell the property at a court auction at all. In the result it was held that the property of a deceased watandar against whom a decree was passed could not be sold at auction in an execution directed against the deceased watandar's son who was not a party to the decree.