SM LILABATI Vs. GURUPROSAD BARUAH

JUDGEMENT

(1.) The plaintiff is the appellant in this case, and she brought the suit, out of which this appeal arises, for a declaration that her title to one-third share in certain properties in the town of Gauhati, which she had inherited from a deceased son, had not been affected by a sale in execution of a money decree. The trial Court decreed the suit, but on appeal the Special Subordinate Judge, Assam Valley Districts, reversed the decision.

(2.) The facts were as follows. One Lakshmiram Bisaya died, leaving two widows, Lilabati and Goneswari, and three sons, Barada, Nagendra and Kanak, by Lilabati, and one Harendra, by Goneswari. Lilabati is the plaintiff and Harendra is defendant 2, while Barada and Nagendra are defendants 3 and 4, Kanak having died before the date of the suit. Upon Lakshmiram's death, his properties devolved upon his four sons. Then there was a partition amongst the parties, by virtue of which the sons by Lilabati, namely, Barada, Nagendra and Kanak, got certain properties in their exclusive share, each of these three brothers being interested to the extent of a one-third share therein. On 10-7-1928, Barada executed a promissory note in favour of one Guruprasad Baruah, who is defendant 1 in the suit, for a sum of Rs. 892, out of which Rs. 292 was on account of two previous debts and the balance was new borrowing. In due course, defendant 1 brought a suit on the promissory note, and on 15-9-1936, obtained a consent decree for a sum of Rs. 500. The decree was thereafter put into execution, and the family dwelling house of the parties was put up to sale in that proceeding and purchased by the decree-holder himself for Rs. 100. The sale was held on 30-11-1938 and duly confirmed on 13-3-1940. The plaintiff's case is that her third son, Kanak had died in1936, leaving her as the sole heiress under the Hindu law, and that as defendant 1 had not made her a party in the suit, the one-third share in the dwelling house, which she had inherited from her deceased son, did not pass at the sale.

(3.) The suit was contested by defendant 1 alone, and his case was that though the promissory note had been executed by Barada, the loan was for and on behalf of the joint family, of which Barada was the karta, and that the entire family was represented in the suit, so that the decree was enforceable against the whole of the joint family assets, including Kanak's one-third share which was held by the plaintiff.