DILA RAM Vs. ATMA RAM

JUDGEMENT

(1.) These five appeals arise out of certain proceedings under the Encumbered Estates Act. One Lala Mutsaddi Lal was a member of a joint Hindu family who owned two firms known as Firm Ram Lal Mutsaddi Lal at Saharanpur and Firm Mutsaddi Lal Lachhi Ram at Deoband. Mutsaddi Lal died in the year 1923 leaving two sons, Pooran Lal and Roop Chand, two grandsons, Atma Ram and Madho Ram, by a predeceased son, Lachhi Ram and a widow, Mt. Muthri. After the death of Mutsaddi Lal, the third firm known as Pooran Lal Roop Chand was started in Hapur. We are informed that Roop Chand looked after these firms on behalf of the family. Debts were incurred and on 13 May 1929, Pooran Lal filed a suit for partition. The suit was decreed on 5 March 1934, and the properties were partitioned under the decree. The creditors of the firms, notably Phool Chand Mohan Lal and the Banaras Bank Limited, executed their decrees against; the share of the properties which had come into the hands of Pooran Lal's sons, Pooran Lal having died in the meantime, and realised a sum of about Rs. 19,000 which was rateably distributed between them and the other creditors under Section 73, Civil P.C. On 20 July 1935, Pooran Lal's sons, Kamta Prasad and Dila Ram, and Ram Kishun, son of Kamta Prasad applied under the Encumbered Estates Act. In the application under the Encumbered Estates Act, the landlords applicants mentioned that they had paid up more than their share of the debts due from the family and claimed that, as a matter of fact, they had paid in excess. The creditors of the joint family firms before partition, however, claimed the moneys due to them, and the question arose of the apportionment of the liability between the landlords-applicants and the non-applicants under Section 9, Sub-section (5), Encumbered Estates Act. The learned Special Judged apportioned the liability between the landlords-applicants and the non applicants by taking the amount remaining due to the creditors on the date of the order and dividing the amount between the landlords applicants and the non-applicants in accordance with their legal pharos. The landlords-applicants filed five appeals in the Court of the learned Additional District Judge of Saharanpur. The appeals were dismissed and these five appeals from order have been filed against those decisions.

(2.) The cases came up before a Bench of this Court which referred them for decision by a larger Bench on the ground that the principles underlying apportionment under Section 9 (5), Encumbered Estates Act raise questions of general importance which should be decided by a larger Bench.

(3.) Learned Counsel for the respondents has taken a preliminary objection that no second appeal lies to this Court. The Encumbered Estates Act proceedings were started by an application under Section 4, dated 20 July 1935. The Collector sent the application under Section 6 to the Special Judge and the ease was thereafter numbered and registered in the Court of the Special Judge, second grade, Saharanpur, as Case No. 45 of 1937. Learned Counsel for the respondents has urged that on the date that the application under Section 4, Encumbered Estates Act was filed before the Collector or on the date when the case was sent to the Court of the Special Judge, second grade, Saharanpur, under Section 6, Encumbered Estates Act, Section 45 of the Act provided for only one appeal and there was no further appeal to this Court item the order of the District Judge. He as urged: that the appellants are not entitled to rely on the amendment made in the year 1939 by the Amending Act, (XI