Madhukar Sagun Karpe (deceased) by heirs vs Institute of Public Assistance

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 491

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.M.S. Khandeparkar, J.
Madhukar Sagun Karpe (deceased) by heirs.....Petitioners.
Versus
Institute of Public Assistance .....Respondent.
Civil Revision Application No. 3 of 1998, decided on 9-1-1998.
Advocates appeared :
V.P. Thali, for the petitioners.
G.V. Tamba, for the respondent.

Headnote:Section 115, Order XXI, Rules 54 and 58-Gift- deed-Attachment of property-Order passed by Executing Court-Held-Executing Court Illegally imposed restriction on properties belonging to legal heirs of deceased which were acquired by them from a stranger and not from the estate of deceased/Judgment debtor.-Undisputedly the records disclose that the properties in respect of which the respondent sought the relief of injunction against the petitioners were acquired by the petitioners by virtue of a Gift Deed dated 20th April, 1987 executed by one A, copy of which was placed on record and the facts to that effect were clearly stated in the reply to the application by the petitioners filed before Executing Court. The impugned order does not disclose even a reference to the said Gift Deed or the fact regarding the same narrated by the petitioners in their reply, which clearly discloses total non-application of mind by the trial Court while deciding the matter. In any case once the documentary evidence is placed on record and it is not challenged by the decree-holder that the properties in respect of which restraint order was sought for were not acquired by the petitioners out of the estate of the original judgment debtor M, the Executing Court clearly fell in error in imposing restraint on the petitioners in respect of the properties which were acquired by the petitioners from a stranger. No doubt no fault can be found with the observation of the Execution Court to the effect that the decree-holder is entitled to proceed against any other property of the judgment debtor in the hands of the legal representatives of judgment debtor. However, in the instant case, there is nothing placed on record to show that the two plots in respect of which the restraint order was passed forms part of the estate of the deceased judgment debtor. On the contrary the documentary evidence discloses that they did not form part of the estate of the deceased M. Being so, the petitioners are right in contending that the Executing Court acted with material irregularity in imposing restraint on the properties belonging to the petitioners which were acquired which were acquired by them from A and not from the estate of the deceased Madhukar.
       Sections 115, Order XXI, Rules 54 and 58-Transfer of Property Act, 1882, Section 128-Gift deed-Decree for execution sought by legal heirs-Attachment of property-Application for by respondent for recovery of-Money due-Order-Held-Executing Court wrongly interpreting the scope of Section 128 of T.P. Act-Legal heirs of judgment-debtor are liable for debts of predecessor to the extent of estate acquired by them from their predecessors-Order passed by Executing Court is liable to set aside.-It appears that the Executing Court has totally overlooked the last portion of Section 128 while wrongly interpreting the scope of the said section. On a plain reading of the said section, it is clear that the liability of the donee is to the extent the property is acquired by the donee by virtue of a Gift Deed from the donor and cannot travel beyond the same. Reference to the judgment of the Madras High Court in the matter of Dayanandan and another v. Vengopal Naidu, reported in AIR 1964 Madras 78 by the Executing Court is thoroughly misplaced. In fact the said decision rather than justifying the impugned order clearly discloses that the Executing Court has acted with material irregularity in allowing the application of the decree- holder and has wrongly interpreted Section 128 of the Transfer of Property Act. Indeed the Madras High Court clearly held that :_
       "Apart from a Universal donee being a legal representative, such a donee only takes the estate of the deceased subject to his liabilities, as Section 128 of the Transfer of Property Act fastens a personal liability upon the Universal donee for all debts due by the donor at the time of the gift, though such liability is confined only to the extent of the properties comprised in the gift." (Underlining supplied).
       It is thus well-settled that legal representatives of judgment-debtor are liable for the debts of the predecessor to the extent of the estate acquired by the legal representatives from their predecessors. This principle is clearly borne out from the Section 128 of the Transfer or Property Act. It is, therefore/ clear that the impugned order has been passed without proper application of mind and in improper exercise of its jurisdiction by the Executing Court.
       Section 128-See Civil Procedure Code, 1908, Section 115, Order XXI, Rules 54 and 58.

JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Heard the advocates for the parties. Admit. By consent, the revision application is taken up for hearing and final disposal.

2.By the present petition, the petitioners are challenging the order dated 16th August 1997 whereby the executing Court had allowed the application of the respondent for attachment of the two plots belonging to the petitioners for the recovery of money due to the respondent under Decree dated 20th July 1988 passed in Special Civil Suit No. 134/84/A. The records disclose that the respondent herein filed Special Civil Suit No. 134/84/A against one Madhukar Sagun Karpe for the recovery of money which was decreed by the said Decree dated 20th July 1988 and since the amount thereunder was not paid, the respondent herein filed the execution application. Meanwhile said Madhukar Karpe expired on 3rd August 1991 and, therefore, the execution application was filed against the petitioners who are the legal representatives of said Madhukar Karpe. Records also disclose that by Deed of Gift dated 20th April 1987 one Anandibai Raghunath Karpe had gifted two plots of her property situated at Sanquelim to the petitioners 1(b) and 1(c). By the application dated 27th September 1997 the respondent herein sought to attach the said two plots for the recovery of money due from the said Madhukar Karpe. The said application was objected to by the petitioners on the ground that the said two plots do not form part of the estate of the deceased Madhukar Karpe but they were acquired by the petitioners from Anandibai Raghunath Karpe by a Deed of Gift.

3.The executing Court by the impugned order allowed the said application filed by the respondent and ordered that the said two plots be attached and sold by public auction in order to enable the respondent to recover the decretal amount.

4.While assailing the impugned order, Shri V.P. Thali, the learned advocate appearing for the petitioners, submitted that the property sought to be attached and auctioned exclusively belongs to the petitioners 2 and 3 and the rights thereto did not devolve upon them from the deceased Madhukar Karpe. Those plots were acquired by them by virtue of a Gift Deed by a stranger Anandibai Raghunath Pangam and, therefore, the respondent is not entitled for recovery of the decretal amount due under the decree passed against late Madhukar Karpe by attaching and selling the said plots. The fact that the petitioners as legal representatives of the said deceased Madhukar Karpe, have not inherited any right to the said plots is not in dispute, therefore, according to the learned advocate, the decree-holders are not entitled to recover the amount due under the decree by attaching and selling the properties which were not inherited by them from the estate left behind by the deceased Madhukar Karpe.

5.Shri G.V. Tamba, learned advocate appearing for the respondent, on the other hand, submitted that since the petitioners are the legal representatives of late Madhukar Karpe, no fault can be found with the respondent in proceeding against the petitioners and in that view of the matter no infirmity is disclosed in the impugned order.

6.Upon hearing the learned advocates for the parties and no perusal of the records and particularly the impugned order, it is seen that the executing Court while allowing the application has referred to section 128 of the Transfer of Property Act alongwith section 50 of Civil Procedure Code. Indeed the executing Court has held that in terms of section 128 a donee takes the property of a donor subject to the liability or the liabilities in respect of all the debts due by the donor at the time of gift and, therefore, the petitioners being the legal representatives of Madhukar Karpe, the decree-holder is entitled to attach the properties in question and recover the decretal amount out of the proceeds acquired from the auction of the said properties. Ex facie it is clear that the executing Court clearly misconstr

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