Judgement

Appeal (No. 86 of 1947) from a judgment and order cf the High Court (April 20, 1942) which set aside an order passed by the Subordinate Judge, First Class, Patna (November 29, 1941) dismissing a petition of the respondents under s. 47 of the Code of Civil Procedure.

The following facts are taken from the judgment of the Judicial Committee. This appeal arose in an execution proceeding of the money decree passed by the Subordinate Judge, First Court, Patna, in money suit No. 5 of 1939, dated August 22, 1940. The appellant before the Board was the decree holder (plaintiff), the Bihar Bank, Ltd. The respondents were defendants Nos. 1 and 2 in the suit. The order passed by the Subordinate Judge in the suit was as follows " Suit " decreed against defendant No. 3 in the presence of defendants " 4 to 6 . . . . The suit is dismissed as against defendants 1 " and 2 with costs . . . . " In the execution of the decree, which was for Rs. 15,718-7-0 with interest and costs, one-third share in certain joint family property called the Khadga Vilas Press held to belong to the third defendant was brought to sale. The respondents objected to the attachment and sale on the ground that the property was joint family property. The Subordinate Judge disallowed the objection, but the High Court (Agarwalla and Shearer JJ.) allowed it and set aside the Subordinate Judges order.

Law. Rep. 75 Ind. App. 300 ( 1947- 1948)

Bank of Bihar, Limited V. Sarangdhar Singh 190

The question for determination in this appeal was whether one-third share in the Press could be sold in execution of the decree obtained by the appellant against the third defendant. The money suit was instituted by the appellant against the respondents—the brothers, defendant No. 3—the widow, and defendants 4 to 6—the daughters, of one Rai Bahadur Ram Ran Vijoy Singh—who will hereinafter be referred to as the Rai Bahadur—for Rs. 15,718-7-0, which was said to have been borrowed by him on an overdraft account. The Rai Bahadur carried on the business of printing and was the proprietor of a press called the Khadga Vilas Press. He died in 1936. The appellant alleged that the money was lent for carrying on a joint family business of the Rai Bahadur and his brothers. The respondents (his brothers) admitted that they-were Joint with the Rai Bahadur, and that the business was joint family business, but they denied that the money was borrowed for the joint family business or family necessity. The widow, the third defendant, alleged that her husband the Rai Bahadur was separate from his brothers and the business was a partnership business carried on by the Rai Bahadur and his brothers in partnership, but that the money was not taken for the purpose of that business. The sixth issue in the case was " Was the "debt in question created by the Rai Bahadur for the purpose " of his business and other family necessities as alleged by the "plaintiff and was the same binding upon the defendants ?" The Subordinate Judge held that the Rai Bahadur died in a state of jointness, that the business was joint family business and that the appellant failed to prove that the loan had been taken for joint family business or for family necessity. He however decided that " the debt is binding on defendant No. 3 " to the extent of the share of the Rai Bahadur in the joint " properties in her hand" as " defendant No. 3 under s. 3, "sub-s. 2, of Act 18 of 1937 [The Hindu Womens Rights to " Property Act] as amended by Act II. of 1938 got in the joint " family property the same interest as her husband had." At the time when the execution of the decree was taken an appeal against the decree was pending. It was common ground that as the Rai Bahadur died in 1936 the Hindu Womens Property Act of 1937 as amended could not be made applicable in the case of his widow, but in view of the finding of the learned Subordinate Judge in the money suit that the Rai Bahadurs widow had one-third share in the joint properties left by her hu