MOHINI MOHAN BASU Vs. RASHBEHARI GHOSE

JUDGEMENT

(1.) This is an appeal on behalf of defendants 1 to 4 who are the principal defendants in a suit commenced by the plaintiffs for declaration that a rent decree obtained by them against pro forma defendant 5 is not liable to be attached in execution of a money decree obtained by the principal defendants against one Hiralal Roy in Money Suit No. 560 of 1919. The material facts which are not in dispute stand as follows:

(2.) The property in respect of which the rent decree was obtained belonged to one Rajballav who made a gift of the same along with other properties to his widowed daughter Nistarini. The deed of gift purported to create a life estate in her favour and after her death the property was to go to Rajballav's heirs. Hiralal was the grand son and heir of Rajballav and he adopted a son named Radhika whose wife is Prafulla Bala, plaintiff 2 in the suit. Nistarini died in the month of Pous 1335 B.S. leaving behind her a will by which she disposed of amongst others the rents due to her by defendant 5 for the years 1333 and 1334 B.S. The plaintiffs are the executors under the said will of Nistarini and they obtained a rent decree against defendant 5 in respect of the said arrears of rent in the year 1930. Both Hiralal and Radhika died during the lifetime of Nistarini and the principal defendants who had obtained a money decree against Hiralal, in the year 1919, took out execution of the same in the year 1931 and in execution proceedings attached the rent decree which the plaintiffs obtained against defendant 5. The defendant presumably proceeded on the ground that the decree constituted a part of the assets of the estate left by Hiralal who had a reversionary interest in the properties given to Nistarini for her life. The plaintiffs preferred a claim which was rejected and the present suit was commenced subsequently consequent upon the adverse decision in the claim case. The whole controversy centres round the point as to who was entitled to realise the rents for the years 1333 and 1334 B.S. which accrued during the lifetime of Nistarini and the decree in respect of which was obtained by her executors after her death. If the right to realise the rents vested absolutely in Nistarini it would be her stridhan property and the plaintiffs contention would succeed. If on the other hand it became a part of Hiralal's estate as soon as Nistarini died, the defendants would be entitled to attach the same in execution of the decree which they obtained against Hiralal.

(3.) The trial Court dismissed the plaintiffs suit. It held first of all that Nistarini had no right to the rents due by defendant 5 which accrued due during her lifetime but were not actually realised by her, and the will executed by her did not create any right in favour of the executors in respect of the said rent. The decree, therefore, was held to be one which was really obtained by plaintiff 2 as legal representative of Hiralal and forming part of Hiralal's estate. The trial Court further held that the plaintiffs suit was barred under Section 47, Civil P.C. An appeal was taken against the decision to the lower appellate Court which reversed the judgment of the trial Court on both these points. It is against this decree that the present second appeal has been preferred. Mr. Atul Chandra Gupta who has appeared for the appellants has not challenged the propriety of the decision of the lower appellate Court in so far as it has held that the suit was not barred under 8. 47 of the Code. He confined his argument to one point only, namely, as to whether Nistarini had any right to dispose of by a will the rents due by the tenant for the years 1333 and 1334 B.S. which accrued due but were not realised by Nistarini during her lifetime. Mr. Gupta's argument is that the deed of gift executed by Rajballav in favour of Nistarini gave her certain properties for her enjoyment merely so long as she was alive. She was given less than what a Hindu daughter would get by succeeding to her father's estate and on her death the outstanding arrears of rent would go along with the corpus which remained vested throughout in Rajballav's heirs. Mr. Gunada Charan Sen who has appeared for the respondents has argued on the other hand that the entire rents and profits were assigned to her and she had absolutely a right of disposal for the rents and profits that fell due during her lifetime. It would not make any difference as to whether the rents claimed came to her hands or not.