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1949 Supreme(Nagpur) 59
HIGH COURT OF NAGPUR
Hidayatullah, R Kaushalendra Rao
KUNDANBAI W/O JAINARAYAN – Appellant
Versus
SATNARAYAN AND ORS – Respondent
First Appeal No. 59 of 1942
Decided on : 07-07-1949
A V Khare, T B Pendharkar, T J Kedar, Advocates
The main legal point established in the judgment is the applicability of Code of Civil Procedure, Order 21, Rule 63 to joint family property and the effect of attachment on survivorship.
Headnote:
Attachment - Joint Family Property - Code of Civil Procedure, Order 21, Rule 63 - Summary of Acts and Sections: Code of Civil Procedure, Order 21, Rule 63 - The court discussed the attachment of joint family property and the applicability of Code of Civil Procedure, Order 21, Rule 63. It interpreted the legal provisions related to attachment and survivorship, and how the absence of attachment at the time of death affected the transfer of interest.
Fact of the Case:
The suit was brought by Murlidhar's legal representatives for a declaration that a half share in certain properties was not liable to attachment and sale. The court found that the properties were joint family property and the attachment made during the lifetime of one of the joint owners was not subsisting at the time of his death, thus his interest passed by survivorship to the other joint owner.
Finding of the Court:
The court found that the properties were joint family property and the attachment made during the lifetime of one of the joint owners was not subsisting at the time of his death, thus his interest passed by survivorship to the other joint owner.
Issues: The main issues were whether the properties were joint family property, the applicability of Code of Civil Procedure, Order 21, Rule 63, and the effect of attachment on survivorship.
Ratio Decidendi: The court held that the properties were joint family property and the absence of attachment at the time of one joint owner's death resulted in the transfer of his interest to the other joint owner by survivorship.
Final Decision: The appeal was dismissed, affirming the lower court's decision that the properties were not liable to attachment and sale.
Hidayatullah, J—The Defendant Kundanbai is the appellant. This suit was brought by one Murlidhar (since deceased and represented by his legal representatives) under Order 21, Rule 63, Code of Civil Procedure, for a declaration that a half share in a saw mill, a ginning factory and a house situate at Chanda, which had been attached in Exn. case No. 3/26 of the Court of the Additional District Judge, Wardha, was not liable to attachment and sale. The Plaintiff succeeded in obtaining the said declaration and hence this appeal by the Defendant.
2. Before dealing with the appeal proper, it is necessary to state some facts. Kundanbai was the Plaintiff in Civil Suit No. 3 of 1926 of the Court of Additional District Judge, Wardha. This suit was against one Goverdhan and involved a claim for money and possession of some factories, etc On 5-7-1927 there was a compromise between Goverdhan and Kundanbai but later Goverdhan resiled from the compromise. The Court instituted an enquiry into the fact of compromise and during the pendency of the proceedings Kundanbai applied on 7-11-1928 for the appointment of a receiver. On 16-11-1928 Goverdhan was appointed receiver and on 5-12-1928 one Sagarmal' (brother of Murlidhar and father-in-law of Goverdhan) became Goverdhan's surety in the sum of Rs. 1,50,000. Goverdhan failed in his contentions about the compromise and a decree in terms of the compromise was passed on 7-11-1930. This is Ex. D-1.
3. On 16-3-1932 Goverdhan was declared an insolvent in Mis. Case No. 74 of 1931. The possession of the factories was, therefore, handed over to Kundanbai on 30-11-1930. Kundanbai filed an application calling upon Goverdhan to render accounts for the years 1927-28 and 1928-29 and also prayed that the amount found due be recovered from Sagarmal. Both Goverdhan and Sagarmal raised various pleas but on 2-2-1932 the Court held that Goverdhan had been appointed a receiver and was liable to render accounts and that Sagarmal was his surety and was liable to pay the money due from Goverdhan with interest as also to make good the income received by Goverdhan during his management.
4. Against this order Goverdhan and-Sagarmal filed separate appeals. That of Goverdhan was dismissed in toto, but Sagarmal succeeded partly. It was held that under the terms of the surety bond Sagarmal was liable only for the money part of the decree and the return of the factories, but was not liable for the income from the factories for which Goverdhan might be unable to account. The order of the Judicial Commissioner's Court was passed in F.A. No. 18 of 1932 decided on 23-9-1932 and is Ex. D-4. The liability of Sagarmal was thus for Rs. 65,000 and interest thereon.
5. Meanwhile the decree-holder Kundanbai had applied for the transfer of the decree to Chanda on 31-3-1932 and on 28-6-1932 a certificate was issued by the Additional District Judge, Wardha, for the execution of the decree and the enforcement of Sagarmal's bond. An attachment of the suit properties was also effected.
6. Sagarmal applied on 10-10-1932 for the recall of the certificate, but on 14-10-1932 his prayer was rejected. On 22-10-1932 Sagarmal again applied for the recall of the certificate on various grounds. On 18-2-1933 (sent on 23-2-1933), he secured an order staying the execution from the transferor Court but on 1-4-1933 Shri Telang, Additional District Judge, Wardha, rejected his second application (vide Ex. D-3). Sagarmal, thereupon, appealed to the Court of the Judicial Commissioner. The Judicial Commissioner's Court set aside Shri Telang's order and remanded the case to determine Sagarmal's liability: F.A. NO. 78 of 1933, dated 16-2-1934. Meanwhile the transferee Court at Chanda passed two orders which are quoted below as they have a considerable bearing upon this case. The first order is dated 3-2-1934 and reads as follows:
3-2-34: Decree-holder by Mr. A.B. Jodhi, judgment-debtor (sic). Under the stay order dated 23-2-33 from Additional District Judge, Wardha
