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2004 DIGILAW 707 (PNJ)

Harjit Singh v. Manjit Kaur

2004-07-15

HEMANT GUPTA

body2004
Judgment 1. The objector, father of the Judgment Debtor, is aggrieved against the order dated 22-1-2000 whereby his objection against the execution of the award of the Motor Accident Claims Tribunal was dismissed. 2. The Motor Accident Claims Tribunal vide its award dated 23-8-1995 granted compensation in the sum of Rs. 2,90,000/- against Jasdev Singh and others. During the course of execution, the decree-holder sought attachment of the land of the judgment-debtor. The said attachment was objected to by the present petitioner on the ground that Jasdev Singh, judgment debtor, has no right or interest in the property attached as he is the owner of the said property. 3. In reply to the objection petition, it was stated by the decree-holder that the land in the hands of Harjit Singh is a joint Hindu family coparcenary property in which Jasdev Singh has 1/2 share. To prove that it is joint Hindu family coparcenary property, the decree-holder attached the revenue record which included jamabandi for the year 1960-61 from the perusal of which it is apparent that the land came into the hands of the objector from his father and, thus, the property in the hands of Harjit Singh is inherited property and, therefore, joint Hindu family property. The petitioner herein has not filed any counter to such averment made in the reply wherein the revenue record was attached. 4. The learned Executing Court on the basis of respective contentions of the parties and keeping in view the revenue record produced by the decree-holder held that the share of the judgment-debtor in coparcenary property can be attached. Reliance was placed upon a Division Bench of Madras High Court reported as Shanmugam Chettiar (minor) through Guardian Shanmugam Chettiar V/s. N. M. Rayaloo Ayyar Nagaswami Ayyar and Co., AIR 1942 Mad 97. 5. Before this Court, learned counsel for the petitioner has vehemently argued that the Executing Court has not granted adequate opportunity to the petitioner and objections have been dismissed summarily without framing of any issue and, thus, the impugned order suffers from patent illegality and violate the principles of natural justice. Reliance was also placed upon the provisions of Sec. 60 (1)(m) of the Code of Civil Procedure to contend that the judgment-debtor has only contingent or possible future interest which cannot be attached in terms of the aforesaid provisions. Reliance was also placed upon the provisions of Sec. 60 (1)(m) of the Code of Civil Procedure to contend that the judgment-debtor has only contingent or possible future interest which cannot be attached in terms of the aforesaid provisions. In support of his contention, learned counsel for the petitioner has relied upon Rajes Kanta Roy V/s. Smt. Shanti Debi, AIR 1957 SC 255. 6. Learned counsel for the respondent, on the other hand, contended that the revenue record was attached with the reply to prove that the land in the hands of objector is, in fact, a joint Hindu family coparcenary property. The petitioner has not disputed any of the averments of the respondent before the Executing Court nor produced any other revenue record to show nor averred that the revenue record is not correct. Even before this Court, the petitioner has not sought to dispute the correctness of the revenue record so attached with the reply by the respondent before the Executing Court. Therefore, the learned Executing Court was right in law in holding that the judgment-debtor being a coparcener along with the petitioner has 1/2 share in the land which can be attached and sold in execution of the decree passed against the judgment-debtor. Reliance was placed upon the decision of the Supreme Court in the case of Silverline Forum Pvt. Ltd. V/s. Rajiv Trust, (1998) 3 SCC 723 : (AIR 1998 SC 1754) as well as the judgment of this Court reported as Rocky Tyres V/s. Ajit Jain, 1998 (3) Pun LR 53 : (AIR 1998 Punj and Har 202), to contend that it is the duty of the Executing Court to decide the question raised by the resister or obstructor legally arise between the parties in the adjudication process under Order 21, Rule 97 of the Code of Civil Procedure and that the frivolous objections cannot be allowed to be raised unreasonably or unnecessarily to prolong the execution of the decree. On merits of the controversy, learned counsel for the respondent has placed reliance upon Para No. 289 of Mulla Principles of Hindu Law, Sixteenth Edition as well as Division Bench decision of the Madras High Court in Shanmugam Chettiar (minor) through Guardian Shanmugam Chettiars case (AIR 1942 Mad 97) (supra) to contend that undivided share of a coparcener can be attached for payment of the debt due to one of the coparceners. 7. 7. The first objection raised by the petitioner that the objection petition has been decided without providing an opportunity to lead evidence in support of his claim does not arise in the present case. The objections raised by the petitioner raise factual and legal issues. As per facts are concerned, the fact that the judgment debtor is a coparcener along with the petitioner has not been disputed so as to raise a disputed question of fact before the learned Executing Court which may warrant a duty upon the Executing Court to permit the petitioner to lead evidence. The decree-holder has attached revenue record to prove that the property in the hands of the petitioner is joint Hindu family coparcenary property. To prove such nature of property, the revenue record is the primary record which is relevant. The petitioner had the opportunity to dispute such revenue record which he had not done before the learned Executing Court. In fact, no objection has been raised in respect of the revenue record even before this Court. Thus, I do not find any merit in the argument raised by the petitioner that opportunity to lead evidence should have been granted to the petitioner. 8. However, the question whether an undivided share of a coparcener in a joint Hindu family property can be attachment for payment of debt of a coparcener is a legal question. A Division Bench of Madras High Court in Shanmugam Chettiars case (AIR 1942 Mad 97) (supra) has the occasion to consider the precise question wherein it was held that it is possible to attach the judgment-debtors interest in a part only of the joint family property. In the said case also, the reliance was placed by the judgment-debtor on the provisions of Sec. 60 (1)(m) of the Code of Civil Procedure and it was held that the said provision has no application. It was held that the interest of the coparcener is a vested interest. On the other hand, Rajes Kanta Roys case (AIR 1957 SC 255) (supra) referred to by learned counsel for the petitioner holds that the contingent interest cannot be attached but that was a case where under the terms of the Trust Deed the interest of the judgment-debtor was sought to be attached which was found to be contingent interest. It was held that a mere contingent interest though transferable inter vivos is not attachable. It was held that a mere contingent interest though transferable inter vivos is not attachable. In Rajes Kanta Roys case (supra), the Supreme Court has relied upon the principles of law enunciated by the Privy Council in the case reported as Pestonjee Bhicajee Firm V/s. Patrick H. Anderson, AIR 1939 PC 6, that the contingent interest cannot be attached under Para (m) to the Proviso to Sec. 60 of the Code of Civil Procedure. In the said case, the Privy Council was considering a contingent interest created by virtue of a Will. It was the said interest which was sought to be attached and sold. The Privy Council held that though a contingent interest can be made subject of a voluntary transfer under Sec. 6 of the Transfer of Property Act but since Code of Civil Procedure has exempted such contingent interest, it cannot be sold in execution of a decree. The said case is clearly distinguishable than the present case in which the coparcener had share by birth in the ancestral property. 9. The question raised in the present case is whether an undivided share of a coparcener is a contingent interest. The argument of learned counsel for the petitioner is that till the property is partitioned it cannot be said that any of the coparceners has a defined share and, thus, it cannot be held that the judgment-debtor has 1/2 share in the property. There is no dispute with the proposition raised by learned counsel for the petitioner but it cannot be lost sight of the fact that on the date of attachment, the petitioner and his son are the only two coparceners. Thus, the judgment-debtor is owner of 1/2 share of the land by birth which share is not a contingent but a vested right in the judgment-debtor which can be attached in terms of the judgment relied upon by learned counsel for the respondent. 10. A Division Bench of Calcutta High Court in the case of Mt. Muneswari V/s. Smt. Jugal Mohini Dasi, AIR 1952 Cal 368 has held that an attachment of the undivided share of a member of a Mitakshara joint family during his life time operates as a division of interest and causes a severance of status. 10. A Division Bench of Calcutta High Court in the case of Mt. Muneswari V/s. Smt. Jugal Mohini Dasi, AIR 1952 Cal 368 has held that an attachment of the undivided share of a member of a Mitakshara joint family during his life time operates as a division of interest and causes a severance of status. The interest which passes to the purchaser is the share which the Judgment-debtor would get if a partition was made at the time of sale, it follows that the interest would neither be diminished by an increase, nor increased by a diminution in the number of co-sharers. It was held to the following effect :- "In my opinion, it is clear from the decisions of the Judicial Committee referred to above that an attachment of the undivided share of a member of a Mitakshara joint family during his lifetime operates as a division of interest and causes a severance of status. If the interest which passes to the purchaser is the share which the Judgment-debtor would get if a partition was made at the time of the sale, it follows that the interest would neither be diminished by an increase, nor increased by a diminution in the number of co-sharers, as has been held by a Full Bench of the Madras High Court in the case of voluntary alienations of undivided shares which, in the Madras Presidency, are valid; Chinnu V/s. Kalimuthu, 35 Mad 47. 11 It is, thus, concluded that undivided share of a coparcener can be sold and attached in execution of a decree. Still further, after the sale being effected, it would operate as division of estate and causes severance of interest. 12. Consequently, I do not find that the order passed by the learned Executing Court suffers from any illegality or irregularity warranting interference by this Court in exercise of its revisional jurisdiction dismissed. Revision dismissed