THAKUR RAGHURAJSING Vs. THAKUR DEBISINGH

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings based on a decree obtained by the respondent Debisingh against the appellant Raghurajsingh for arrears of maintenance as also future maintenance. The judgment-debtor is the Obaridar of a number of villages which have been held in the family for generations, whereas the decree-holder is a junior member of the family entitled only to maintenance. The decree-holder attached mouza Hindoria in execution of his decree. The judgment-debtor preferred an objection on the ground that it is not liable to attachment and sale in other words, that it is inalienable as' it forms part of an impartible estate. The executing Court held an enquiry into this matter and came to the conclusion that the judgment-debtor failed to prove that the estate under attachment was not liable to attachment and sale. The judgment-debtor has therefore come up in appeal.

(2.) IT is contended before me that as the estate is impartible it must necessarily follow that it is inalienable also. So far as I have been able to understand the nature of this estate it appears to me that there is nothing which precludes the holder of the estate for the time being, the judgment-debtor in this case, from alienating the property or any portion thereof. As a matter of fact it is admitted before me that the present judgment-debtor has himself mortgaged the property very heavily. We are not here concerned with the question as to whether the junior members of the family have any such interest in the estate as would entitle them to alienate it at their pleasure. The question raised is one of the transferability of the judgment-debtor's interest therein. The matter involved in this appeal is so, far as I can judge, set at rest by the decisions of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari [1888] 10 All. 272 as also in Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards [1899] 22 Mad. 383, where their Lordships have subscribed to the view that the holder of the impartible estate 'can alienate it at his pleasure. This clearly affirms the right of his creditors to proceed against the estate for satisfaction of their claim against him. It follows that the holder of an impartible estate is not entitled in answer to such a claim to raise the contention that he has no disposing power over the estate held by him. Their Lordships of the Privy Council have also expressed a view in Durgadut Singh v. Rameshwar Singh [1909] 36 Cal. 943 that property granted as babuana to a junior member of Darbhanga Raj family in lien of money maintenance though impartible was not by reason of that fact inalienable and that it may be alienable. This shows that everything depends upon the custom obtaining in such impartible estates. In the I. L.R. 36 Calcutta case the family custom of the so-called inalienability was held not established. In the present case also the Additional District Judge has held that it is not established and that finding may be said to have been accepted as it is not the subject of any ground of appeal before me. The burden was, as pointed out by this Court in Quasi Abdul Huq v. Meghraj A.I.R. 1924 Nag. 133, on the appellant to prove that his Obari village formed an exception to the ordinary rule.