KISHAN LAL Vs. MUHAMMAD ISHAQ

JUDGEMENT

(1.) An important question of Hindu law arose in this appeal and as that question was decisive of the appeal, the whole case has been referred by a Division Bench to us. The facts may be summarized. One Sarwan Lal was the owner of certain zamindari property. He died 20 years before the institution of the suit (suit was instituted on 8 May 1931). He left behind him a widow, Mt. Chain Kunwar, who also died 11 years before the institution of the suit and the property possessed by Sarwan Lal was inherited by Mt. Ganga Devi as a Hindu female she being the daughter of Sarwan Lal. Some time in 1927 Mt. Ganga Devi filed a suit for arrears of profits against Mohammad Ishaq in the Court of the Pargana Officer of Tehsil Koil. The defendant to the suit was Mohammad Ishaq who is defendant 1 in the suit out of which this appeal has arisen. Mt. Ganga Devi obtained a decree on 26 April 1927 for Rs. 101-4-11. On appeal the learned District Judge of Aligarh increased the amount to Rs. 402-14-9. This sum with costs was realized by Mt. Ganga Devi in execution of her decree. An appeal had already been preferred by the defendant Mohammad Ishaq, and on 6 May 1929 the High Court set aside the decree of the learned District Judge and restored that of the Court of first instanoe. The High Court further awarded Rs. 58 as costs to Mohammad Ishaq.

(2.) Mohammad Ishaq then applied under Section 144, Civil P.C. for the recovery of that sum of money which Mt. Ganga Devi had realized in pursuance of the decree of the District Judge in excess of the decree of the trial Court and for execution of his decree for costs and sought to recover the amounts by attachment and sale of the property left by Sarwan Lal. The plaintiff objected to this attachment in the Court of the Pargana Officer, but his objection was struck off. He therefore filed the present suit for a declaration that the plaintiff was the owner in possession of the property detailed at the foot of the plaint and that the property aforesaid could not be attached or sold in satisfaction of the amount payable to Mohammad Ishaq. He set out a pedigree in the plaint in which he showed Nathu Ram, Kundan Lal, alias Keval Ram and Misri Lal as the heirs of Sarwan Lal and himself as a distant reversioner. He however alleged that by virtue of certain gift deeds executed by the aforesaid three persons, their rights were transferred to the plaintiff and the plaintiff thus became the owner of the property of Sarwan Lal which was sought to be attached and sold by Mohammad Ishaq. He impleaded as defendants to the suit (1) Mohammad Ishaq, (2) Nathu Ram, (3) Kundan Lal alias Kewal Ram and (4) Misri Lal. The trial Court decreed the plaintiff's suit, but the lower Appellate Court dismissed it and that decision was affirmed by a single Judge of this Court. The plaintiff filed an appeal under the Letters Patent and, as stated before, the Letters Patent Appeal has been referred to us.

(3.) The question that arises for determination is whether the estate of Sarwan Lal is liable to refund the money realized by Mt. Ganga Devi under the decree of the District Judge mentioned before which decree was set aside in appeal by the High Court or whether the personal heirs of Mt. Ganga Devi are liable for such refund. If the estate is liable, then the plaintiff's suit was rightly dismissed, but if the estate is not liable, the plaintiff is entitled to the decree given by the trial Court. It may be mentioned that the learned Munsif and the learned District Judge have found, as a fact, that the plaintiff is entitled to the estate of Sarwan Lal. The lower Appellate Court and the learned single Judge of this Court have, while dismissing the plaintiff's suit, emphasized the fact that a Hindu widow represents the estate for the time being and that when Mt. Ganga Devi brought a suit against Mohammad Ishaq in the Revenue Court she sued as a co-sharer in possession of a daughter's estate, but they have failed to attach due importance to the fact that the suit was not for the protection or augmentation of the estate but in respect of a personal claim of hers.