SHIVA PRASAD GUPTA Vs. GOKUL CHAND

JUDGEMENT

(1.) This is an execution first appeal by the decree-holder against an order of the learned Civil Judge of Allahabad to the following effect: As the judgment-debtor has applied under the Encumbered Estates Act in Benares (vide order of Collector) execution cannot proceed and is shelved. Certificate sent shall be withdrawn.

(2.) This first appeal which was originally filed as a civil revision came before a Bench which recommended a reference to a Pull Bench which has now been made. The ground of the reference was that there was a decree passed in a partition suit in regard to properties belonging to a joint Hindu family and the decree directed the payment of a certain amount by one of the coparceners to another coparcener, and the question which arose was whether the amount which was to be paid constituted a debt within the meaning of the United Provinces Encumbered Estates Act, Act 25 of 1934. On 25 May 1922, there was an agreement between the members of a very wealthy joint Hindu family to refer to arbitration the partition of the joint family property. An award was given on 30 November 1925. That award is in a printed book. On 25 February 1926, the award was made a decree of Court in the Court of the Civil Judge of Allahabad. The applicant before us, B. Shiva Prasad Gupta, is the fourth party in the award and on 3 February 1934 he made an application for execution of his decree to recover the amount of Rs. 9,75,567-0-9 due on the date of the application. The Allahabad Court was asked to attach a small house in Mohalla Daraganj and also to send transfer certificates for execution of the decree to Courts in Benares, Jaunpur, Gonda and Calcutta. Such transfer orders were passed on 10 August 1935 and 22 August, 1935. Certificates were issued bearing the date of 11 November 1935. The respondents in this first appeal who constitute the first party in the arbitration award, B. Gokul Chand and others, made an application to the Collector of Benares on 5 October 1936 under the Encumbered Estates Act. On that date, the Collector transferred the application to the Special Judge. On 9 October 1936, the respondents made an application for stay of execution to the Civil Judge of Allahabad and on 10 October 1936, the Civil Judge passed the order which is now under appeal. The Civil Judge also issued letters to the Calcutta and Gonda Courts on 21 October 1936 withdrawing the certificate of transfer of the decree. Some further proceedings took place in the Court below and in this Court but as no decision was given on this matter there is no question of any res judicata. Now learned Counsel for the appellant has formulated three points for the decision of this Full Bench : (1) Does the U.P. Encumbered Estates Act apply to partition decrees relating to joint family property? (2) Having regard to the words used in Section 7, U.P. Encumbered Estates Act, could the proceedings in Calcutta relating to execution against property in Calcutta be stayed and (3) The U.P. Legislature had no power to legislate with regard to property situated outside the United Provinces.

(3.) We shall first consider point 1. We refer to the printed books of the arbitration award which had been made a part of the decree of the Court. The decree merely states that the decree is in terms of the award. The printed book states on page 3 that the first party, who are the respondents before us, should have an estate of one-third in the family property. The second and third parties, with whom we are not concerned, have a share of one-sixth each, and the fourth party, who is the appellant before us, has a share of one-third. The award divides the zamindari into four lots and the house property into four lots, also the jewellery and shares in companies and out-standings duo to the Benares money-lending firm. Certain Government Promissory Notes and Postal Certificates and War Loans are divided upon p. 28 and also the business concerns of the family on pp. 28, 29 and 30 which comprise among other things a cotton mill. On p. 33 it is stated that taking into consideration the totality of all the circumstances we have decided to reduce the amount payable by the first party to the second, third and fourth parties to the extent indicated below: ...To the fourth party - Babu Shiva Prasad Gupta...Rs. 13,68,358-7-6. We declare that the first party - Raja Moti Chand and others - is liable to pay the above sum. and we do hereby order that party to pay to the second, third and the fourth parties respectively the amount mentioned opposite their names.