M SUNDARARAJULU NAIDU Vs. NATESA MUDALIAR

JUDGEMENT

(1.) THIS revision petition, arises in execution proceedings. The petitioner who is the decree- holder in S. C. S. No. 173 of 1947 filed the said suit for recovery of a sum of Rs. 148-7-0 due on a promissory note dated 29 March, 1944, executed by one Ramiah Mudaliar, the undivided son of the first defendant and brother of defendants 2 to 5 and father of defendants 6 to 8, for the benefit of the joint Hindu family consisting of himself and the defendants, in his capacity as the managing member of the family. The first defendant, the father, raised a plea that there was an oral partition by division in status in 1929 and that the estate in his hands was not liable. The learned District Munsiff passed a decree directing the defendants to pay Rs. 145-10-0 with interest and costs out of the properties and assets of Ramiah Mudaliar in their hands. The petitioner filed E.P. No. 8 of 1949 for attachment of the standing crops and by an interim order the standing craps on the lands were attached. E. A. No. 17 of 1949 was an application filed for the appointment of a receiver to take possession of the standing crops and sell the same and deposit the realisations into Court. On this application an order was made appointing a receiver who took possession of the crops, sold the proceeds and deposited the amount realised in Court. The first defendant filed a claim petition in E.A. No. 36 of 1949 for raising the attachment and by the time the application came up for hearing most of the crops on the land had been harvested and the sale proceeds were deposited in Court. An order was made on 31 January, 1949, that as more than the decree amount had been deposited into Court, the attachment was raised, apparently the attachment relating to the crops other than those harvested already by the receiver. In the main execution petition E.P. No. 8 of 1948, the first defendant raised an objection that the crops were raised by him after the decree was passed in 1947 and as such they do not belong to the estate of the deceased Ramiah Mudaliar and hence not liable to be attached. He also raised a further contention that even the lands on which the crops were raised do not form part of the estate of the deceased. In support of these objections, the first defendant filed an affidavit wherein he again referred to the oral partition by division in status in 1929 which was denied by the petitioner decree- holder in his counter-affidavit. The learned District Munsiff did not however give a definite finding as to whether the lands on which the crops were raised formed part of the estate of the deceased but held that he was of the opinion that the attachment of the crops was illegal because the crops, under no circumstances could be said to belong to the estate of the deceased, as the decree was passed in 1947 and the crops were admittedly raised after that date. Though a clear finding has not been given whether the lands formed part of the estate of the deceased or not, it is clear that the District Munsiff proceeded on the assumption that the lands were part of the estate of the deceased, but that, in any event, the crops having been raised by the first defendant subsequent to the decree in 1947 out of his own efforts and exertions himself meeting the expenses of cultivation, they could not be said to form part of the assets of the deceased and therefore the crops were not liable to be attached in execution of the decree.

(2.) THE learned Counsel for petitioner relies on the Full Bench case in Kadirvelusami Nayagar V/s. Eastern Development Corporation (1923) 46 M.L.J. 261 : I.L.R. 47 Mad, where it is held that on the death of a debtor, the income accruing to his heir from landed property of which the debtor died possessed, is assets of the debtor in the hands of the heir, liable to satisfy his debts within the meaning of Section 52, Civil Procedure Code. This ruling of the Full Bench was followed in Manzur Husain V/s. (Firm) Ram Ratan A.I.R. 1936 Lah. 236, where the learned Judge held that where the estate in the hands of the heirs of the original debtor against whose estate the decree was passed is liable for the satisfaction of the decree then even the produce and income of that estate which has accrued after the death of the original debtor is liable to attachment and sale in satisfaction of such decree. Here it is contended that the standing crops having been raised by the first defendant, it could not be said to represent the income as such of the estate. It may be that the first defendant may be entitled to the cultivation expenses and to any expenses which he might have incurred in raising the crops. But I am unable to agree with the learned District Munsiff that under no circumstance the crops could be said to form part of the estate of the deceased. I am of opinion that the learned District Munsiff is in error in holding that the crops are not liable to be attached. I therefore allow the civil revision petition with costs.