MT IMTIAZ BIBI Vs. MTKABIA BIBI

JUDGEMENT

(1.) This case has been referred to a larger Bench on account of an apparent conflict between the case of Dulla V/s. Shib Lal [1917] 39 All. 47 and the case of Bulaqi Das V/s. Kesri . One Abdul Rahman died in 1917 leaving a widow Mt. Kabia Bibi and a daughter as well as three brothers as his heirs. One of his brother Abdul Karim promptly made a gift of his share which he had inherited in favour of his wife Mt. Imtiaz Bibi. A suit was brought by Mt. Kabia Bibi for recovery of her dower debt against the heirs of the deceased by realization of the amount out of the assets left by him. There can he no doubt that the heirs were liable to pay the dower debt when they took the assets. A compromise decree was passed in favour of Mt. Kabia Bibi against the heirs including Abdul Karim. Abdul Karim died afterwards and his heirs including Mt. Imtiaz Bibi his widow, were brought on the record as the legal representatives of the deceased judgment-debtor. Mt. Kabia Bibi decree-holder proceeded to execute the decree and attached the property of her deceased husband in the hands of his heirs including the share in the possession of Mt. Imtiaz Bibi. No objection appears to have been raised by the latter on the occasion and the property was Sold and purchased by the decree- holder Mt. Kabia Bibi herself. Mt. Imtiaz Bibi has now brought the suit for recovery of possession on the ground that it was no part of the assets of the deceased Abdul Karim and could not hove been validly sold in execution of a money decree against Abdul Karim. Both the Courts below have dismissed the suit on the ground that it was barred by Section 47, Civil P.C.

(2.) It appears to us that this case is concluded by the ruling in the Full Bench case of Seth Chand Mal V/s. Durga Dei [1890] 12 All. 313 which has been followed in subsequent cases. There too a simple money decree was passed against a judgment-debtor who died and his legal representatives were brought on the record in execution proceeding to represent him. They raised the question as to a certain property which they said was no part of the deceased's assets in their hands but was their own property. Four out of the five learned Judges held that the case was covered by old Section 244. Civil P.C. Straight, J., on p. 322 remarked that: When the representative of the deceased judgment-debtor says in regard to the property which he contends is not the property of the deceased judgment-debtor but is his property, that it can rightly be said that he thereby sets up a jus tertii.

(3.) He admitted that the case would be different if he were trustee or representing some character wholly separate from his personal and individual character. Edge, C.J., on pp. 323 and 324 also pointed out the same distinction and held that: Where the representative merely asserts that the property sought to be sold is his own property to which he is beneficially entitled by purchase or from its having come to him otherwise than as a representative of the deceased judgment-debtor, it is not a case in which he has set up a jus tertii.