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1957 DIGILAW 12 (ALL)

Shambhoo Dayal Endowment Trust, Ghaziabad v. Om Prakash

1957-01-04

MUKERJI

body1957
JUDGMENT Mukerji, J. - This is a decree-holder's appeal arising out of an execution matter. 2. On 19-1-1948 a decree for Rs. 1,200 was passed in favour of the Appellant against one Jugal Kishore. Jugal Kishore died after the decree and his legal representative Om Prakash, the son, was impleaded as the Judgment-debtor in place of Jugal Kishore. On 15-3-1951, the decree-holder executed his decree and attached certain standing crops to the extent of one-third. These crops had been raised by Om Prakash. On the land which formed the assests of Jugal Kishore, the judgment debtor. On 6-2-1951, Om Prakash sold the standing crops which had been attached as also the other crops to one Murari Lal under a registered sale deed. Objections were raised on behalf of both Murari Lal and Om Prakash to the attachment of the crops on the ground that the standing crops could not be treated as property forming part of the assets of the deceased Jugal Kishore, since the crops had been raised by Om Prakash and not by Jugal Kishore. The decree holder's contention was that even though the crops had not been raised by Jugal Kishore, the crops having been raised on the belonging to Jugal Kishore they formed part of the assents of Jugal Kishore and they could be attached and sold in execution of the decree which had been obtained against Jugal Kishore. 3. The executing court dismissed the abjections of both Om Prakash and Murari Lal. Munilal did not file any regular suit as provided for u/O. 21, R. 63 of the CPC, but Om Prakash preferred an appeal to the lower appellate court. This appeal of Om Prakash has been allowed by the learned Civil Judge on the ground that the crops raised have been raised by Om Prakash with his own labour, seed and implement and, therefore, they belonged exclusively to him and could not be said to be part of the assets of Jugal Kishore deceased. 4. The question that arises for determination, therefore, is whether the crops raised by the legal representative; at a deceased judgment-debtor could be said to be assets of the deceased Learned Counsel for the Appellant relied on certain cases to support his contention but before I came to examine these cases I should like to examine the basis on which the Appellant's contention was advanced. There can be no doubt that land, of all character, belonging to a judgment-debtor on his death, passes to his legal representatives as his assest and is liable for the payment of his debts. Any profits accruing out of such land must also partake of the nature of the land. It is settled law that rents and profit are the legal incidents of property So that, if rents and profits are legal incidents of property, then when any property becomes the assests of a deceased in the hands of a legal representative all the incidents of such property also become property in the hands of the legal representative. Therefore, rents and profits accruing from such property must also be deemed to be assets of the deceased. 5. An exactly similar question arose in the case of M. Sundararajalu Naidu Vs. Natesa Mudaliar and Others, AIR 1950 Mad 154 . and Mr. Justice Krishnaswami Nayudu. held that crops raised on the land belonging to the deceased formed part of his assets. One of the arguments raised before Krishnaswami Nayudu, J., was that the crops that are raised on the land by the legal representative are raised by his labour and the legal representative incurs costs in raising these crops; therefore the crops could not be said to be the assets of the deceased. That contention was answered by the learned Judge thus: Here it is contended that the standing crops having been raised by Defendant 1, it could not be said to represent the income as such of the estate. It may be that Defendant I may be entitled to the cultivation expenses and to any expenses which he might have incurred in raising the crops. But I am unable to agree with the learned District Munsif that under no circumstances the crops could be said to form part of the estate of the deceased. 6. It may be that Defendant I may be entitled to the cultivation expenses and to any expenses which he might have incurred in raising the crops. But I am unable to agree with the learned District Munsif that under no circumstances the crops could be said to form part of the estate of the deceased. 6. In Collector of Jaunpur v. Champa Lal AIR 1916 All 284 Walsh and Sunder Lal J., pointed out that a decree, when it is, executed against a legal representative, is not executed in respect of any specific property for the scope of a decree in terms of S. 52 of the CPC is not that of a decree against a specific property, nor is it intended to be limited in its scope to the assets in the hands of the legal representative on the date of the decree. The property, which could come subsequently into the hands of the legal representative and which could, have been the property o the deceased, also became the assets in the hands of the legal representative. 7. In Nawab Sharaf Jahan Begam v. Nawab Mirja Mohammad Sadiq Ali Khan 99 IC 897 two learned Judges of the Qudh Chief Court held that: Rents and profits are legal incidents of immovable property and must bear the same character as the property itself. Therefore, rents and profits accruing from villages are assets where the villages themselves are assets. 8. The same view was re-affirmed in the Oudh Chief Court by Kisch J., in Karim Baksh and Anr. v. Harnarain 137 IC 632. 9. In 1938 also the same view was upheld in Nawab Shahanshah Begam v. Ch. Akbar Husain AIR 1938 Oud 45. 10. The same view was taken in the erstwhile High Court of Lahore. See AIR 1936 236 (Lahore) . 11. On a careful consideration of the cases on the point and the basis of the right in which a decree-holder attaches property in the hands of a legal representative of his deceased judgment-debtor as his assets, I am of the opinion that crops raised by the legal representative on land belonging to the Judgment-debtor and forming part of his assets are liable to be attached and taken away in execution of a decree against the assets of a judgment-debtor. In the case of crops which have been raised by the legal representative through his own labour and by the expenditure of some funds of his own he would be entitled to claim a rebate for this amount and no more. 12. I accordingly allow this appeal, set aside the decision of the court below and send the case back for disposal in accordance with the principles indicated by me above. Under the circumstances of this case I direct that the parties will bear the costs of this S. A. 13. Mr. A P. Gupta prays for leave to appeal against this judgment of mine. Had the matter been res Integra I would not have any hesitation in granting the necessary permission to appeal against my judgment, but as I find that the point is really covered by a long course of authority I refuse leave to appeal.