AMAR CHANDRA KUNDU Vs. SEBAK CHAND CHOWDHURY

JUDGEMENT

(1.) The application from which this reference has sprung was one under Section 234 of the Civil P. C. to execute the decree against the legal representatives of the deceased judgment-debtor. The present objector is undoubtedly the legal representative of the deceased judgment-debtor, and therefore, prima-facie, unless he can show that the judgment-debtor left no self-acquired property, is liable to be brought upon the record under Section 234. If he be once properly brought on the record under that Section, the question then is whether the liability of the ancestral property, which the objector took by survivorship under the Mitakshara system of Hindu Law, and not, as heir, can be determined in the execution proceedings? The question is one merely of procedure: there is no real substance in it one way or the other; for, the present objector would be able in a proceeding under Section 244 to raise all the objections or defences that he could raise in a separate suit. Is the liability of the ancestral property for the debt covered by the decree a question arising between the parties to the suit or their representatives, and relating to the execution of the decree? The question is one between the decree-holder and the representative of the debtor though the merits of the question relate to the liability of property for the debt, which the heir took, not as heir, but by survivorship. Does the fact that he did not take as heir prevent the question of liability being determined under Section 244? It is still a question between the decree-holder and the representative of the deceased debtor. No doubt under Section 234 the representative is only liable to the extent of the property of the deceased which has come to his hands. Section 234 codifies the English law on this subject protecting the representative from personal liability for the debts of the judgment-debtor. Does that prevent the question as to the liability of the ancestral property for the debt covered by the decree being disposed of under Section 244? Section 234 does not clash with Section 244: it is not sought to fix the representative in this case with any personal liability: it is only sought to fix the liability on the property he took by survivorship which, under Hindu Law is liable for the debts of the father, unless, speaking generally, they have been incurred for immoral purposes. I agree with Mr. Justice Mitra, whose judgment I have read that the expression "representative," in India has a much wider significance and meaning than in England. If, as in the present case, the objector may be properly brought on the record as the representative of the deceased judgment-debtor under Section 234, and as the tendency of the decisions both of the Judicial Committee of the Privy Council and of the High Courts of India is to place a liberal and not a restricted construction upon Section 244 I am of opinion that, without doing any violence to the language of that Section, the question may be determined under it. I express this opinion with great diffidence owing to the grave divergence of judicial opinion upon the matter in the High Courts of India. But I think it would be placing a narrow construction upon the language of the Section to say that, when the representative has been properly brought before the Court under Section 234, this question cannot be determined save by the institution of a separate suit. I do not propose to go through the various cases on the subject; they have been very carefully examined and criticised before us. I prefer to base my view on the short ground of the construction of the Secs.of the Code. I would answer the second question by saying that the liability of the ancestral property or of a share of it for the debt covered by the decree may be determined in the execution proceedings, if the legal representative has been properly brought on the record under Section 234 and that a separate suit is not necessary. Harington, J.

(2.) The questions submitted are: (i) Whether a decree for money passed against a member of a joint Hindu family governed by the Mitakshara system of Hindu Law is after his death, capable of execution against his son and heir as his legal representative though he left no self-acquired property and the son took ancestral property by survivorship? (ii) Whether the liability of such ancestral property for share of it for the debt covered by the decree may be determined in the execution proceedings, or the determination must take place in a separate suit against the son and survivor? 1

(3.) In my opinion, under the procedure laid down in the Civil Procedure Code Chapter XIX a decree passed against a member of a joint Hindu family governed by Mitakshara law cannot be executed against his son as his legal representative in respect of the ancestral property taken by the son by survivorship.