SHEONARAYAN HARLAL MAHESHWARI Vs. KANHAIYALAL DEVIDIN

JUDGEMENT

(1.) THE defendant has not appeared to oppose this application for revision. His brother, Babulal, owed the plaintiff money on a pledge of ornaments Babulal died, and after notice to the defendant, the pledged ornaments were sold. The proceeds were not sufficient to cover the amount of the debt and so the plaintiff sues the defendant as Bbulal's heir for the balance. The plaint sets out that the defendant is Babulal's heir and that he is in possession of the assets of the deceased.

(2.) THE defendant did not appear and the case proceeded ex parte. In his evidence the plaintiff admitted that Babulal and the defendant were joint in estate and that the defendant was in possession of all the joint family property. The learned Judge of the lewer appellate Court holds, and holds rightly, that the plaintiff cannot proceed against the joint family property in the defendant's' hands after Babulal's death because it survives to the defendant and such interests as Babulal had in his lifetime are extinguished. But the question remains about Babulal's separate estate. The learned Judge states that there is no evidence to show that Babulal had any separate property and that the defendant is in possession of it. I gather, he accepts as correct law that, had that been established then the plaintiff would have been entitled to proceed against those assets. The-question, however, is whether a plaintiff is bounds to prove that the defendant is possessed of the-deceased's assets at this stage or in execution also whether it is necessary to adduce evidence when the defendant does not appear.

(3.) BUT when the defendant is proved to be an heir the position is not the same and there a difference of opinion emerges. Some Judges hold that in such a case the plaintiff is entitled to a decree the moment he proves that the defendant is an heir and that the correct stage at which to ascertain whether there are assets is in execution. Others hold that the existence of assets must be disclosed in the trial itself. I need not decide this matter in revision. All that it is necessary to state in this case is that there is a difference of opinion on this point which has not been settled in this Province. The practice accordingly varies and litigants are at a loss to know what to do. That being the case I think the plaintiff ought to have been told that he would be required to establish this in the suit and that it would not be enough to leave the matter to the execution stage. I think this was all the more necessary in a case where the defendant did not appear.