(SHEIKH) GHASIT MIAN Vs. THAKUR PANCHANAN SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the decree-holder who obtained a money decree against Rani Jagdamba Kumari of Hazaribagh. The decree-holder had obtained the decree on two hand-notes one executed by herself and the other by her agent and after her death the decree-holder applied for execution of the decree by selling the property which came into the hands of the reversioners of the estate. They happened to be the sons of a daughter of Rani Jagdamba Kumari's co-wife. In the execution proceedings the reversioners objected under Section 47, Civil P.C, that as the decree was passed against Rani Jagdamba Kumari personally her husband's estate which is under attachment could not be sold in execution of the same. Before the first Court the decree-holder relied upon the cases in Regella Jogayya V/s. Nimushakavi Venkataratnamma (1910) 33 Mad 492, Ramcoomar Mitter v. Ichamoyi Dasi (1881) 6 Cal 36, Hurry Mohun Rai V/s. Gonesh Chunder Doss (1884) 10 Cal 823 and Kongski V/s. Kandaji, for the proposition that the reversioners are bound to repay the debts incurred by the widowed Rani for the benefit of her husband's estate. On the other hand the case in Dayamoyee Ray Choudhury v. Lalit Mohan Pal Ray , Lalit Mohan Pal V/s. Dayamoyi Roy Choudhurani and Baramdeo Singh V/s. Lal Bahadur Sah AIR 1934 Pat 216 were relied upon by the Court of first instance for the proposition that a money decree against a widow on the basis of a hand-note makes her liable personally and does not bind the reversioners although if the suit were so framed as to claim relief against the estate the estate could have been bound for the debts incurred for legal necessities by the widow.

(2.) The decree-holder went in appeal before the Judicial Commissioner of Chota Nagpur who relying further upon the case in Dhiraj Singh V/s. Manga Ram (1897) 19 All 300, and distinguishing the case of Sarju Prasad V/s. Mangal Singh , dismissed the appeal. Mr. B.C. De, appearing on behalf of the appellant relied upon the case reported in Ramcoomar Mitter V/s. Ichamoyi Dasi (1881) 6 Cal 36 in which it was held that in the case of a Hindu widow who borrowed money for the purpose of defraying the marriage expenses of her grand-daughter it could not be properly considered a charge on the estate; yet on the death of the widow the sum was legally recoverable from the heirs, who succeeded to the possession of such estate. What appealed to their Lordships in that case was that if the daughters had not been married before they attained the age of puberty, spiritual consequences of a most, serious kind might be expected according to Hindu doctrines to arise both to their deceased father and deceased grand-father, and therefore the widow must be held to have been right in doing what she did to avert such consequences. The next case is the case in Hurry Mohun Rai V/s. Gonesh Chunder Doss (1884) 10 Cal 823. This was a case in which a daughter who succeeded to the estate of her father ordered a quantity of lime for the purpose of making repairs to the house, but before paying off the debt the lady died and at the time she died a large amount of money was due to her as rent which she had not collected. The question that was referred to the Full Bench was whether the amount due from the lady was realizable from the estate which was in the hands of the reversioner and whether it was realizable from the rents that yet remained uncollected by the widow. It was held that the plaintiff was entitled to be paid out of the arrears of rent collected; it was further held that he was also entitled to enforce his claim against the heirs of the last full owner of the estate generally.

(3.) Mr. Satya Sundar Bose appearing on behalf of the respondents has referred to the case in Giribala Dassi V/s. Srinath Chandra Singh 12 CWN 769, in which it was held that simple bond executed by a Hindu widow for legal necessity did not bind any immovable property and the interest of the reversioners was not affected by the sale. In this case their Lordships relied on the case reported in Baijun Doobey V/s. Brij Bhookum Lal (1875) 1 Cal 133. The case reported in Baijun Doobey V/s. Brij Bhookum Lal (1875) 1 Cal 133 was a case in which the widow was sued for a maintenance debt and in execution of that decree the widow's right, title and interest left by her husband were sold. Neither the decree nor the sale proceedings declared the property itself to be liable for the debt. After the death of the widow the reversioners brought a suit to recover the property. It was held that the purchaser at the execution sale took only the widow's interest and not the absolute interest and the plaintiff therefore was entitled to recover. In Rameswar Mondal V/s. Provabati Debi AIR 1915 Cal 141, it was held that where a Hindu widow obtains a loan she is at liberty to bind herself personally or when for the purpose for which she borrows is a necessity, she is at liberty to bind her husband's estate and the intention must be gathered from the statement in the deed or in the surrounding circumstances. It was further held that the mere fact that the widow intended to create a liability on the estate is not enough. The creditor is also to show that he intended to enforce such liability and the true test is to see whether the proceeding was brought against the widow personally or with a view to affect the whole inheritance. Now, in Dayamoyee Ray Choudhury V/s. Lalit Mohan Pal Ray , a similar view was expressed. In that case it was held that if a decree against a Hindu widow is merely a personal decree it binds only her and not the reversionary interest, but a creditor suing such a female can so frame his suit as to make it clear that he intends to bind the entire estate and not merely the limited heir personally so as to put other persons interested on their guard and to enable to protect the estate if they care to do so; for, a Hindu female heir represents the entire interest in respect of her interest as well as the reversionary interest. This case went to the Privy Council, Lalit Mohan Pal V/s. Dayamoyi Roy Choudhurani , and their Lordships of the Judicial Committee expressed their agreement with the decision of the Calcutta High Court and especially quoted a passage from the judgment of the Calcutta High Court. The passage quoted runs as follows: It is possible that although no charge was created, the original debt having been for lawful purposes, the creditor might have recovered his debt from the estate left by Bharat, if he had chosen to do so (Bharat was the last male-holder). But in order to make the estate liable he ought to have framed his suit in a proper manner. What he asked for was simply to have a personal decree against Monomohini and the guardian who was made defendant 2. The Court passed a decree against the minor alone. It does not appear anywhere that the minor was made a party to the suit as representing her father's estate.