Chaudhury Jamuna Prasad Singh vs Ram Padarath Singh and Another

Manohar Lall, J.—This appeal is directed against an order of the learned District Judge of Darbhanga dismissing an appeal of the reversioners from an order passed against them by the learned Munsif refusing their objection u/s 47, Civil P.C., to the execution of a decree under the following circumstances.

It appears that the opposite party obtained a money decree against one Mt. Manrup Kuer after the death of her husband and proceeded to execute the decree against certain properties of the husband. This execution was resisted by the reversioners on the plea that the debt which was the foundation of the decree did not bind the estate. The executing Court upheld the objection and dismissed the execution then levied on the ground that the decree was a personal decree against the widow and did not bind the estate of the husband. Thereupon the decree-holder started another execution (which has given rise to this appeal) against a certain house on the allegation that this house was the personal property of the widow. The reversioners appellants again objected by means of an application u/s 47, Civil P.C., alleging that this house, although purchased by the widow from the earnings of the husband''s estate in her possession, was an accretion to the husband''s estate and therefore could not be seized in execution. The learned Munsif who first heard the objection has held upon a consideration of all the evidence adduced in the case that the Musammah was

over-anxious to show to the world that the property was her own and was quite unconnected with the corpus of her husband''s estate,

and be concluded that:

I cannot but infer that the property in question was kept quite separate and distinct by Mt. Manrup Kuer from the corpus of her husband''s estate, that it was her indention that it should be so kept and that she never intended that it should form an accretion to her husband''s estate.

The learned District Judge of Darbhanga in disposing of an appeal from this order has arrived at exactly the same findings. He has given convincing reasons to hold that:

There was hence a dear intention on her part to have this house as her personal property and it cannot, after her death, merge in the reversionary estate, simply because she left it as her house and did not assign it in her lifetime to anybody else.

In second appeal it has been contended by Mr. G.P. Shahi in a clear argument that the learned Judge was in error in coming to this conclusion, because in his submission the onus was upon the decree holder to prove that the lady showed some clear intention of treating this property as her own. He points out the fact that the lady took the land upon which the house was built in the benami name of her pujari and thereafter transferred it in her own name and this, he contends, shows that she intended to treat this property in exactly the same way as she was bound to treat the property of her husband. We think that the matter is now concluded by high authority. The Privy Council has pointed out in two oases, Ishri Dut Koer v. Hansbutti Koerin (1884) 10 Cal 324 and Saodamini Dassee v. Administrator-General of Bengal (1893) 20 Cal 433, that the onus is upon the party who alleges accretion to show that this property which was purchased by the widow from her own savings is not her own but was intended to be an accretion to the estate. This matter was fully discussed by this Court in Parbati Kuer v. Baijnath Prasad AIR 1936 Pat 200 and a recent decision of the Calcutta High Court in Nirmala Sundari Dassi Vs. Deva Narayan Das Choudhuri and Another, is to the same effect. I am of opinion that the learned Judge has correctly applied the law and this appeal is concluded by clear findings of fact. The appeal therefore fails and must be dismissed with costs.

For the reasons given above, Miscellaneous Appeal No. 79 of 1937 also fails and must be dismissed with costs.

Courtney.Terrell, C.J.

I agree.