BAPUSAHEB NARAYAN SASTRI Vs. BHAGIRATHISAO GAJRAJ

JUDGEMENT

(1.) ONE Rambhau, who was a member of a joint family, had incurred a debt in his individual capacity on a bond. He was sued on this bond and a decree was passed against him. In execution of this decree the creditor attached a house under the belief that it was the sole property of Rambhau. His brothers, three in number, raked an objection to the attachment and succeeded in getting their three-quarters interest in the house released, but the attachment in respect of Rambhau's remaining quarter share subsisted. Rambhau then died. His brothers then proceeded to mate an application to the Debt Conciliation Board in respect of their own family debts some of which were conciliated and an agreement under Section 12(2), Debt Conciliation Act, followed and others were not conciliated and a certificate under Section 15(1), Debt Conciliation Act, was issued in respect of them. Among the debts put forward by these brothers was the debt due by their brother Rambhau, and this debt fell within the ambit of the certificate under Section 15(1). When the creditor attempted to carry on with his execution proceedings in respect of the quarter share of the house which he had attached, the executing Court held that the execution could not proceed in view of the certificate granted by the Debt Conciliation Board; but, in view of the argument that, if the attachment was raised the creditor's remedy would disappear entirely as Rambhau's share would pass to his brothers by survivorship, the Court directed that the attachment should continue. In appeal the Additional District Judge, Bilaspur, set aside the order in the executing Court, holding that the debt was not a debt of the respondents, that is to say, the three brothers, at all, and he ordered the executing case to proceed according to law. The three brothers have now preferred this miscellaneous appeal.

(2.) IT is contended on behalf of the appellants that, rightly or wrongly, a certificate has been issued by the Debt Conciliation Board which has held the debt to be a debt of the three brothers, and that execution cannot proceed although the learned Counsel states that he does not ask that the attachment on the property should be released. I am of opinion that despite the wide definition of "debt" in Section 2, Debt Conciliation Act, this debt is not a debt of the appellants at all, and their learned Counsel is wrong when he states that they are liable to pay to the extent of the property of their deceased brother in their hands. They have not inherited any property from their deceased brother Rambhau, they have obtained it by survivorship, and as admittedly Rambhau had no separate property of his own, there is nothing of his which could be called assets which could pass into the appellants' hands. When a creditor is dealing with an unsecured debt due from a member of a joint family in his individual capacity and the debtor dies, the creditor has no remedy unless he hap-pens to have attached the debtor's interest in the family property during his lifetime. Here what had been attached is not Rambhau's interest in the whole of the family property, but only his interest in one particular item, namely a house. That is all to which the creditor can look for the purpose of satisfying his claim. There is no liability on the part of the appellants to pay the debt at all, since they have not inherited any property from Rambhau. The interest which their deceased brother had in the family property disappears on his death except in so far as that interest has been attached. The brothers, then, have placed before the Debt Conciliation Board a fictitious debt in order to avoid the embarrassment which will arise by the sale of the deceased brother's interest in the attached house, and the issue of a certificate in respect of a debt which is not the debt of the persons making the application to the Debt Conciliation Board is one beyond the Board's jurisdiction and is ineffective in so far as that particular debt is concerned. The result is that the appeal fails and is dismissed with costs. Counsel's fee Rs. 15.