KAMIRUDDIN KHAN Vs. SACHIDANANDA JENA

JUDGEMENT

(1.) The petitioner is a decree-holder auction purchaser who on 16-3-1944. purchased a certain zemindari interest of his judgment debtor 1 for Rs. 40. At the time in question judgment debtor 1 was a security prisoner under Rule 26, Defence of India Rules. He is now opposite party 1. On 15-4-1944 opposite party 2, wife of opposite party 1, filed a petition and made the necessary deposits which would be sufficient to set aside the sale under Order 21, Rule 89 and on her petition and deposit the sale has been set aside. Hence the petition to this Court which is urged on the ground that opposite party 2 had no authority to file the petition or to make the deposit. Rule 89 of Order 21 as amended by this Court starts with the words where immovable property has been sold in execution of a decree, the judgment-debtor or any person deriving title from the judgment-debtor or any person holding any interest in the property may apply to have the sale set aside on his deposit in Court....

(2.) The lower appellate Court proceeded on the basis that the wife could be treated as the agent of her husband, judgment-debtor 1. I do not think that this view is correct in view of the provisions of Order 3, Rule 1, Civil P. C, read with Rule 2, because the wife is not the recognised agent within the meaning of Rule 2 of Order 3.

(3.) Mr. Sengupta appearing for the opposite party has not attempted to support the decision on the basis of agency, but he has contended that the wife has an interest, in her husband's property sufficient to enable her to make a deposit under Order 21, Rule 89, Civil P.C. Mr. Rao on behalf of the petitioner has pointed out that it has been held in civil cases that unless a person actually has an interest in the property deposit by him under Order 21, Rule 89 is invalid. He cited the decisions in Sarvai Begam V/s. Haider Shah (12) 13 I.C. (All)404 and Ibne Hasan v. Din Dayal . The latter was a case of a deposit made by a person looking after the zemindary property of the judgment-debtor. Mr. Sen Gupta relied on a passage from Hindu Law by Golap Chandra Sarkar Sastri, 7 Edn., 1936, p. 370 under the heading "Wife's right to husband's property." The author therein states: The Patni or lawfully wedded wife acquires from the moment of her marriage a right to everything belonging to the husband so as to become his co-owner. But her right is not co-equal to that of the husband but is subordinate to the same, and resembles the son's right to the father's self acquired property. and he goes on to make certain comments on this right. It is, to my mind, unnecessary to consider how far that passage represents the true position of wife as regards her husband's property, because it is "well settled that under the Mitakshara School of Hindu law which would govern the parties to this case, although a wife cannot herself demand a partition, if a partition does take place between her husband and his sons, she is entitled to, receive a share equal to that of a son. It seems to me therefore that this shows that the wife Las a certain interest in the property even if it may be regarded as a contingent interest. I see no reason to read the word interest under Order 21, Rule 89, Civil P.C. very narrowly.