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Bibi Hafsa vs Musammat Kaniz Fatma And Ors. on 30 November, 1925

Patna High Court
Bibi Hafsa vs Musammat Kaniz Fatma And Ors. on 30 November, 1925
Equivalent citations: 96 Ind Cas 3
Author: K Sahay
Bench: B Mullick, K Sahay


JUDGMENT

Kulwant Sahay, J.

1. On the 1st April 1922 the appellant obtained an ex parte decree for dower against the respondents. The decree directed that the decretal amount be recovered from the properties left by the husband of the appellant and that the decretal amount, viz., a sum of Rs. 6,000 and a further sum of Rs. 464-1-3 on account of costs of the suit with interest thereon at the rate of 6 per cent, per annum be paid by the defendants to the plaintiff. This decree was passed by the Subordinate Judge of Patna and execution was taken in the Patna Court and a portion of the decretal amount was realised by the sale of a house belonging to the estate of the husband o£ the appellant. Subsequently the appellant applied for transfer of the decree to the Gaya Court as the properties of the deceased were within the jurisdiction of that Court. The decree was accordingly transferred by an order of the Subordinate Judge of Patna, dated the 6th of August 1924, and on the 19th of August 1924 the appellant applied for execution of the decree in the Court of the Subordinate Judge at Gaya and prayed for attachment and sale of certain properties lying within the jurisdiction of that. Court.

2. One of the judgment-debtors, Musammat Kaniz Fatma, filed an objection to the execution raising various points; but the only question which seems to have been pressed before the learned Subordinate Judge was as to whether the objector was entitled to have her three-fourths share in the property released from attachment and sale on payment of three-fourths of the decretal amount. The objection was raised on the ground that the appellant as widow of the deceased was entitled to a four annas share of the estate of her husband by inheritance and that the remaining twelve annas share belonged to Bibi Kaniz Fatma, and, that, therefore, the latter was entitled to pay only three-fourths share of the debt, the remaining one-fourth being payable by the appellant hers self. The learned Subordinate Judge has given effect to this objection and has directed that three-fourths share of the attached property be released from attachment and sale, on the objector’s depositing three-fourths of the decretal amount. Against this order the decree-holder has come up in appeal to this Court. The learned Subordinate Judge has relied upon the principle that under the Muhammadan Law, devolution take place immediately after death and is not contingent on the payment of the debts due from the deceased owner. A number of authorities have been cited before us in support of this proposition. There can be no doubt as regards the correctness of the proposition that the estate of a deceased Muhammadan devolves upon his heir or heirs from the moment of his death and that the proportionate interests of the heirs, if more than one, come into separate existence from that moment. The question, however, in this case is as to whether the Court executing the decree was entitled to go behind the decree and to direct the reshape of a portion of the estate on payment of a proportionate share of the debt. In my opinion it was not open to the Court executing the decree to make this apportionment of the debt, the decree clearly directs that the decree was to be realised from the entire estate left by the deceased husband of the appellant and the defendants were directed to pay the decretal amount to the plaintiff. The question as regards the proportionate liability of the respondents and of the appellant, for the payment of the debt due from the estate of the deceased ought to have been raised in the suit itself and before decree was passed, and it is not open to the respondents to raise this question before the Court executing the decree. Reliance was placed on behalf of the respondents upon a decision of the Allahabad High Court in Muhammad Ashiq Ali v. Hajra Bibi 82 Ind. Cas. 627 : A.I.R. 1924 All. 690 : L.R. 5 : 5 A 467 Civ., where the learned Judges held that the Execution Court was bound to construe the decree in the light of the admitted fact that both parties were fighting over a dower decree and if the decree itself created any obstacle justice could be done by amending it so that the shares of the various defendants may be specifically apportioned as between them; and the learned Judges proceeded to direct that the decree be amended by apportioning the shares amongst the several heirs am unable to agree with the view taken by the learned Judges in that case, if all to understand how the Court executing the decree could direct an amendment of the decree. Reference was made to certain decisions which laid down that the share taken by a Muhammadan widow by inheritance is liable proportionately for the satisfaction of her dower debt in the same way as the shares taken by the other heirs, and that the liability of each heir is limited to the extent of the assets in his or her hands. There cannot be any doubt as regards the correctness of the proposition; but the question as regards the liability has to be raised in the suit itself, and the decree ought to direct in what proportion the dower debt is to be paid by each of the heirs.

3. I am, therefore, of opinion that the learned Subordinate Judge was not right in directing the release of the three-fourths share of the estate on payment by the respondents of the three-fourths of the decretal amount. It appears, however, that the respondents have deposited in Court three-fourths of the decretal amount. If the parties agree, the amount in deposit may be paid to the appellant in part satisfaction of the decree, and the execution may proceed for realisation of the balance of the decree. In such an event the Court may direct the properties to be sold in two lots of four annas and twelve annas the first lot being of the four annas share. If by sale of the first lot of four annas the balance of the decretal amount be realised the remaining twelve annas need not be sold; but if the sale proceeds be insufficient to satisfy the decree then the remaining twelve annas might be sold. This can, however, be done only if the parties agree to it. The result is that the order of the learned Subordinate Judge is set aside and the appeal decreed. The entire estate of the deceased attached and advertised for sale should be sold for realisation of the entire decretal amount unless” the parties agree to sell them in the way suggested above or in any other way. The appellant is entitled to her costs of this appeal.

Mullick, J.

4. I agree.

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