NARAIN SARUP Vs. DAYA SHANKER

JUDGEMENT

(1.) This is a Letters Patent appeal filed by the decree-holder against the judgment of a learned single Judge holding that the appellant Narain Sarup was not competent to apply for the execution of a decree. The facts are shown in P.A. No. 275 of 1927, Badhe Bawan Lal V/s. Gauri Shankar Lal, in the paper book. On p. 3 there is a pedigree, and there was some property of Mt. Saraswati Kunwar to which a claim of inheritance was made by certain persons who are the sons of her daughters and by one Mt. Misri Kunwar who was a daughter, and objection was taken by one Janaki Prasad claiming as the reversioner of Kanhaiya Lal, the husband of Mt. Saraswati Kunwar. On p. 217 there is a sale deed by the daughter's sons and the daughter of an eight annas part of the property claimed to three persons, Bankey Lal, Radha Rawan Lal and Piare Mohan Lal for Rs. 40,000. The share of Bankey Lal is separately specified as Rs. 2.10. This person Bankey Lal was therefore a party to the litigation. During the pendency of the appeal in the High Court as the paper book shows Bankey Lal died and on p. 11 of the paper book there is a reference to the substitution of the name of Har Sarup after the death of Bankey Lal : vide Court's order dated 12 March 1928. There was a compromise in the appeal and the compromise provided that Sham Behari, Daya Shankar and Mt. Chameli Kunwar, respondents 29, 30 and 34, should pay a sum of Rs. 3250 to Har Sarup within a month and a decree was passed in the terms of the compromise on 27 October 1930. Subsequent to this compromise there was an application for execution by Har Sarup on 20 April 1931 and the judgment- debtors in question paid half the amount due and the application for execution was dismissed on 15 August 1931.

(2.) After this Har Sarup, who was the manager of a joint Hindu family consisting of himself and his three sons, one of whom Narain Sarup is of age and the other two are minors disappeared. No one has been able to ascertain the cause of his disappearance or what has happened to him and there is no presumption of law that he is dead as the period of seven years has not elapsed. On 19 April 1934 Narain Sarup who is the manager of the joint Hindu family since the time of the disappearance of his father made an application for execution of the decree and the office reported that there is no decree in the name of Narain Sarup and his application was dismissed on 6 October 1934. On the same date he made an application setting out that Har Sarup obtained a decree as manager and karta of a joint Hindu family that after obtaining the decree Har Sarup disappeared and accordingly petitioner became the manager and karta of the joint Hindu family, and for this reason he has "become entitled to take out execution, and that an order was passed directing him to file an application under Order 21, Rule 16 which he now does, asking that his name may be entered in the decree" as manager and karta of the joint Hindu family. That application was supported by a statement of a witness Dina Nath Karinda who said that he had boon karinda for 16 years and that Har Sarup and his son, the present applicant, wore members of a joint Hindu family, that Bankey Lal had died and the decree was a decree of the joint Hindu family. This deposition is dated 5 October 1934, but as all the record has not come from Bareilly the actual record of the deposition is not before us but its substance is embodied in an order on the order sheet written by the Judge. On this application, the Court ordered that the application be allowed. Later on 10th November 1934 an objection was filed by the judgment-debtor that notice had not been issued to him and that the civil death of Har Sarup could not be presumed nor could the applicant acquire a right to make an application for execution of the decree. No objection was taken in this application that Bankey Lal, Har Sarup and Narain Sarup did not form a joint Hindu family, nor was the application made that the witness Dina Nath should be recalled for examination and cross, examination in the presence of the objector. The objection was on other grounds. The order ofthe execution Court was very brief stating that there was no force in the objection and dismissing it. In appeal the learned single Judge considered: It is obvious from the decree itself that it was not passed in favour of the joint family but in favour of Har Sarup alone. In these circumstances I do not think that Order 21, Rule 15 can possibly apply, and he further held that as there was no evidence that Har Sarup was dead the application would not lie under Order 21, Rule 16. Now the learned single Judge did not notice that Bankey Lal was a party to the suit and that he had died during the currency of the appeal and his son Har Sarup had been substituted. In our opinion this makes a difference in the case.

(3.) The property assigned to Bankey Lal was either joint family property or his self, acquired property. Learned Counsel for objector is no doubt correct in stating that there is no presumption that any particular property in a joint Hindu family is joint property. There is of course the evidence of the witness Dina Nath that the decree was joint family property and if it were necessary to have further evidence on the point we would allow further evidence to be taken although we note that under Order 21, Rule 16 in the case of a decree transferred by operation of law it is not necessary that notice to the judgment-debtor should issue and that such notice would only issue in the case of a decree which is transferred by assignment in writing. We are of opinion however that under the rules of Hindu law the property did descend to Har Sarup and his son, the present applicant, as joint family property. These rules are contained in the Mitakshara in the 27 Sloka of Section 1 of Chapter 1: Therefore it is a settled point that property in the paternal or ancestral estate is by birth. The father...is subject to the control of his sons and the rest, in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor.