Ramesh Chander and Another vs Sh. Bibi Ved Kaur

Harnam Singh, J.—In order to appreciate the points of law arising in these proceedings the facts must be, set out in detail.

In Civil Suit No. 332 of 1914 decided on the 13th May, 1915, the trial Court ordered:

I hereby pass a declaratory decree to the effect that the Plaintiff is entitled to Rs. 45/ - per mensem by way of maintenance from the Defendant and that this sum will be a charge on the movable and immovable property of the Defendant:

It may be noted that ''beyond this sum of Rs. 45/ - per mensem and the charge created thereby on the property of the Defendant the Plaintiff will have to do nothing with the latter or his property as heir.

''Lala'' Balkishan Dass Judgment-debtor died in September 1947, and the application for execution of which these proceedings have arisen was made on the 17th of March, 1948, for realising maintenance at Rs. 45/ - per mensem for the period between the 12th of November, 1946, and the 12th of March, 1948.

In deciding execution case No. 63 of 1948 the executing Court found that the decree-holder was entitled to execute the decree against the legal representative of ''Lala'' Balkrishan Das to the extent of the property of the deceased which had come to their hands and had not been duly disposed of for the period prior to the death of ''Lala'' Balkishan Das.

On the findings set out in the preceding paragraph the executing Court substituted the present Appellants as legal representatives of ''Lala'' Balkishan Das and consigned the file to the Record Room as unsatisfied, adding that the decree-holder would be entitled to execute the decree against the legal representatives of ''Lala'' Balkishan Das when she was able to trace the property of the deceased in the hands of the legal representatives of the deceased.

From the order passed by the executing Court on the 19th of July, 1948, ''Shrimati'' Ved Kaur appealed in the Court of the Senior Subordinate Judge u/s 96 of the Code of Civil Procedure. In deciding the appeal the Senior Subordinate Judge found:

The decree was obtained on 13th May, 1915 and maintenance was allowed at the rate of Rs. 45/ - p.m. as the result of an award of two arbitrators. The final order of the Court was on the file and in addition to the declaratory decree granting maintenance at the rate, it was directed that this sum will be charged on the movable and immovable property of the husband. As such the decree was not to be considered as a personal one but could be executed against the property left by the deceased in the hands of the legal representatives.

From the order passed by the Senior Subordinate Judge on the 24th of January, 1949, Ramesh Chandra adopted son of ''Lala'' Balkishan Das, and ''Mussammt'' Khushal Devi widow of ''Lala'' Balkishan Das, have come up in further appeal to this Court u/s 100 of the Code of Civil Procedure.

Mr. Som Datta Bahri, learned Counsel for the Appellants, has a double barrelled objection to the order under appeal. In the first place counsel urges that the decree for maintenance passed on the 13th of May, 1915, being a personal decree against ''Lala'' Balkishan Das, was not executable against the legal representatives of ''Lala'' Balkishan Das Counsel then urges that the maintenance decree has become inexecutable on the death of ''Lala'' Balkishan Das because after that date the Respondent, being his widow has become an heir to his property, by virtue of the Hindu Women''s Rights to Property Act, 1937, and that an heir under the Hindu Law was not entitled to maintenance.

Dealing with the first point first I find no substance in the argument raised. Clearly, the decree passed in Civil Suit No. 332 of 1914 enures for the life time of ''Shrimati'' Ved Kaur. The concluding portion of the judgment in Civil Suit. No. 332 of 1914 reads:

It may be noted that beyond this sum of Rs. 45/ - per mensem and the charge created thereby on the property of the Defendant the ''Plaintiff will, have nothing to do with the latter as his heir''.

Then, in Sham Lal v. Banna 4 All 296, Old Field, J., (Stuart, C.J., Straight, J. and Tyrell, J. concurring), said:

When the maintenance has been expressly charged on the purchased property, it will be liable, although it be shown that there is, property in the hands of the heirs sufficient to meet the claim.

A similar point arose in Tirathabasi Ghose v. Bhuiyani Trinayani Dasi ILR (1949) 1 Cut 336. In deciding that case Narasimham, J., said:

Though the maintenance decree was against the husband such maintenance decree was charged on the property. So long as the charge remains the decree is enforceable against the successor-in-interest of the husband even after his death. To hold otherwise would be to defeat the very purpose for which the charge was created.

In Tirathabasi Ghose v. Bhuiyani Trinayani Dasi ILR (1949) 1 Cut. 336, while agreeing with. Narasimham J., on the question of law stated above Das, J., said:

It appears to me therefore that in the case of a charge decree for maintenance like the one under consideration in the present case, the fact of the death of the husband by itself does not in any way alter the foundation of the decree and does not make the decree inexecutable and that ''prima facie'' the decree enures for the lifetime of the decree-holder as against the charged property. Any other view, would result, in compelling the wife who has become a widow to sue afresh for her maintenance, the heirs or the coparceners of her husband, and in a case where the husband, has left no property at his death or has not left sufficient property to provide for her reasonable maintenance, she would be without any remedy and the purchaser of the charge property would be getting. a release from the liability which he had not bargained for. We have been shown no authority compelling us to accede to any such view.

For the foregoing reasons, I find that the decree passed in civil suit No. 332 of 1914 decided on the 13th of May, 1915 enures for the lifetime of Shrimati Ved Kaur.

And this brings me to the consideration of the second point that the maintenance decree has become inexecutable on the death of ''Lala'' Balkishan Das because after that date the Respondent being his widow has become heir to his property by virtue of the provisions of the Hindu Women''s Rights to Property Act, 1937.

In execution proceedings out of which this appeal has arisen the objection mentioned in the preceding paragraph was not taken and there is no reference to this objection in the order under appeal. Mr. Som Datta Bahri, however, urges that the objection relates to a question of law upon the facts proved in the Courts below beyond any controversy. Mr. Daulat Ram Manchanda learned Counsel for the Respondent, has no objection to the decision of this objection in these proceedings. Indeed, as early as 1892 Lord Watson said in Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473:

When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.

That being so, I gave leave to the Appellants to urge in these proceedings the plea under the Hindu Women''s Rights to Property Act, 1937.

In Tirathabasi Ghose v. Bhuyani Trinayani Dasi I.L.R (1949) 1 Cut. 336, an identical plea was urged against ''Shrimati'' Bhuiyani Trinayani Dasi. In repelling the contention the Court found:

But the main difficulty against the Appellant''s case arises from the fact that the lower Court was acting merely as an executing Court and had therefore no jurisdiction to go behind the decree. It may be that, in a properly constituted suit the Appellants may be able to succeed in establishing that the Respondent had no right to claim maintenance from the date of the death of her husband and thus extinguish the effect of the maintenance decree in O.S. No. 484 of 1908. It is also not unlikely that even if they are unable to completely extinguish the decree they may be able to get the maintenance allowance reduced to a substantial extent after taking into consideration the exact value of the assets of Srichandan Bhuyan Brundaban Chandra Roy that were inherited by his widow.

For the reasons given in ILR 1 Cut 336, 1 find that the maintenance decree passed in Civil Suit No. 332 of 1914 on the 13th of May, 1915 has not become inexecutable on the death of ''Lala'' Balkishan Das by reason of the provisions of the Hindu Women''s Rights to Property Act, 1937. In appropriate proceedings it will, however, be open to the Appellant to establish that the Respondent has no right to claim maintenance from the date of the death of ''Lala'' Balkishan Das and thus extinguish the effect of the maintenance decree passed on the 13th of May, 1915.

Finding as I do that the maintenance decree passed in Civil Suit No. 332 of 1914 does not cease to operate after the death of ''Lala,'' Balkishan Das and that the effect of the provisions of the Hindu Women''s Rights to Property Act, 1937, on the decree passed in a Civil Suit No. 332 of 1914 cannot be considered in execution proceedings, I dismiss the appeal with costs.