Bhubaneshwar Prasad Narain Singh and Others vs Khemchandra and Others

We do not think that there is any substance in this appeal. It arises out of a proceeding in execution of a decree, which was passed against Lachmi Prasad Narain Singh on compromise after his son and two grandsons, who had originally been impleaded as defendants 2 to 4 and had put in written statements challenging the debt of Lachmi Prasad Narain Singh as immoral and not binding upon them, had been discharged from the suit. In March 1938 notices under Order 21, Rule 22, were served and attachment under Order 21, Rule 54, effected. On the 30th of that month, the 6th June 1938 was fixed for the sale of the attached properties. On 17th April 1938, Lachmi Prasad Narain Singh died. The original defendants 2 to 4 were then brought on the record as Lachmi Prasad''s representatives and objected to execution against the property attached, while the decree-holder went on urging that at least eight annas, the share of the deceased father in that property of the joint family, ought to be put to sale.

Ultimately this contention of the decree-holder was accepted by the Court below. Defendants 2 to 4, who, as we have already stated, were brought on the record again after the death of Lachmi Prasad Narain Singh, appeal, and the first point urged on their behalf is that the attachment of the property in the lifetime of Lachmi Prasad Narain Singh ceased to be of any effect on his death, and that they, the appellants before us, took the whole of the property attached by survivorship. This contention must plainly be overruled. In somewhat similar circumstances it was decided by their Lordships of the Judicial Committee in Suraj Bunsi Koer v. Sheo Proshad Singh (1880) 5 Cal. 148, that the execution proceedings under which a mauza belonging to the joint family had been attached and ordered to be sold had gone so far as to constitute in favour of the judgment-creditor a valid charge upon the land to the extent of the judgment-debtor''s undivided share and interest therein which could not be defeated by his death before the actual sale.

Mr. Lachmi Kant Jha has urged that that decision is distinguishable because the decree in that case was a mortgage decree. But the property was attached in execution of the decree, and the decision plainly turns not on the interest created by the mortgage but on the attachment and possibly also the order for sale--elements which are both present in the case before us. See also Ghurahu Das Vs. Shakalraj Das, , where the attachment was in execution of a money decree and it does not appear whether the order for sale was made in the lifetime of the judgment-debtor in question.

It has also been contended on behalf of the appellants that if the father''s interest continues to be available to the decree-holder by reason of the attachment, notwithstanding the" judgment-debtor''s death what should be put up to sale in execution is not the father''s specified share, but his right, title and interest, such as it may be, in the property attached. This is rested on the well-known dictum that in a joint Hindu family the share of no individual member can be predicated at any moment except at the time of partition. But that dictum has no application to the facts of the present case.

The decree-holder is entitled to proceed against what would have been Lachmi Prasad Narain Singh''s share; at the time of his death, and it cannot be pretended that any subsequent happenings could, in view of the attachment and the death, either increase or reduce that share. It has also been urged on behalf of the appellants that as the decree-holder attached the entire property as the property of the joint family, it is not competent to him now to put up to sale the eight annas share of the judgment-debtor. But the greater includes the less, and it is impossible to accept the contention.

The appeal is dismissed with costs.