COLLECTOR OF ETAH Vs. NEM KUAR

JUDGEMENT

(1.) This appeal has been filed by the Collector of Etah as Manager of the Court of Wards in charge of the estate of Rajendra Kumar. The parties to this litigation are Jain Hindus. One Babu Lal was the last male owner and he died in the year 1930. He had two sons, Lakhpat Rai and Rajendra Kumar. Lakhpat Rai predeceased Babu Lal. Lakhpat Rai had left a widow, Mt. Bitto Bai. Rajendra Kumar on the date of Babu Lal's death was a minor and the Court of Wards took over the superintendence of his estate. The Court of Wards as the guardian of Rajendra Kumar made an application under Section 4, U.P. Encumbered Estates Act, on 17 April 1937. On 80 April 1937, the Collector, Etah, forwarded the application under Section 6 to the Special Judge, 1 Grade, Etah, and while the proceedings were pending before the Special Judge, Mt. Bitto Bai as the guardian of Suresh Chandra filed an objection under Section 11 and claimed that Suresh Chandra was entitled to a half share in the property, as he had been validly adopted by Mt. Bitto Bai as son to her husband, Lakhpat Rai. The Court of Wards denied the adoption and learned Special Judge on 19 January 1942, held that no adoption had been made. On 9 March 1942, Mt. Bitto Bai again adopted the same boy Suresh Chandra and after this adoption he was named Nem Kumar. On 7 April 1942, a fresh, objection under Section 11, Encumbered Estates Act, was filed by Nem Kumar under the guardianship of one Ishwar Das claiming a half share in the property. It was admitted on behalf of the minor Nem Kumar that he was bound by all the debts which were mentioned in the written statement under Section 8, as they were the debts of Babu Lal, the common ancestor, and a prayer was made that the liability of the landlord applicant and of Nem Kumar may "be apportioned under Section 9, Sub-section (5). The learned Special Judge allowed the objection and apportioned the liabilities by holding that the landlord applicant was liable to pay only half the amount found due under the decrees passed under Section H and the other half was payable by the non-applicant Nem Kumar. The learned Special Judge further held that Nem Kumar was entitled to a half share in the entire property. The Court of Wards has filed a first appeal against the decree passed under Section 11 and a civil Revision No. 294 of 1943, against the order entertaining the objection under Section 11, dated 3 March 1943. The appeal and the revision have both been connected and have been put up together before us.

(2.) Learned Standing Counsel has urged that the objection under Section 11 can only be filed by a person who is interested in the property on the day when the application is filed by a landlord applicant under Section 4, Encumbered Estates Act, and as Nem Kumar was not adopted till 9 March 1942, he was not entitled to file this objection. We do not want to express any opinion on the question whether the adopted son Nem Kumar's adoption should date back to the date of death of Lakhpat Rai, as in our view this case Can be disposed of on a much simpler ground and that is that the date on which a person should have interest in the property to entitle him to put a claim under Section 11, is the date when he makes the objection. Section 11, Sub-section (2) provides that an objection. under that section can only be filed by a person having any sum to the property. This was to prevent objections being filed by third parties who had no interest in the property. The Special Judge has to determine whether the property specified in the claim or any part thereof is liable to attachment, sale or mortgage in satisfaction of the debts of the applicant and he can determine this question only when some person, who has any claim to the property, comes forward before him and puts the landlord applicant to the proof of the fact that the property is liable to attachment, sale or mortgage in satisfaction of his debts. We are not prepared to hold that it is necessary for such a claimant not only to prove that he is interested in the property on the date when he makes his claim but also on a prior date which date does not appear to be really relevant.

(3.) The other objection is that Babu Lal was in possession of ancestral property and self acquired property (fold the adopted son Nem Kumar may get a share in the property which was the ancestral property of Babu Lal, but he is not entitled to get any share in the personal property of Babu Lal, which had already vested in Bajendra Kumar before the adoption of Nem Chand. This point is covered by the decision of their Lordships of the Judicial Committee in Bhikkappa V/s. Shankar Ramchandra . The point has been fully discussed in the case reported in Raghubans Kumari Ju Deo V/s. Raghuraj Singh . We do not think there is any force in this contention. Lastly, learned Counsel has urged that the learned Special Judge should not have in these proceedings apportioned the liabilities. We do not think there is any force in that contention either. It is not denied that the debts are of the time of Babu Lal and, therefore, both Rajendra Kumar and Nem Kumar would be liable for those debts half and half just as they will be entitled to the property in the same share. There being no objection to taking up half the liability by Nem Kumar and it not being suggested by Rajendra Kumar that Nem Kumar was liable to pay more than a half share in the debts, the learned Judge was perfectly justified in apportioning the liabilities also.