Girhagauri Dayashanker and Others vs Ambalal Balashanker and Co.

Shah, C.J.—This appeal arises in execution proceedings. The decree under execution was a consent decree for Rs. 15,000/- obtained by the Respondent firm against Thakordas Nemichand and Harilal Naranji in Ordinary Original Civil Jurisdiction Suit No. 2555 of 1948 of the Bombay High Court on 14-11-1949. The second Defendant Harilal died after decree leaving a widow Girjabai and two sons by her, Ramesh-chandra and Gunavantrai, all of whom are the present Appellants. The decree-holder applied for execution of the decree to the High Court of Bombay on 4-10-1950 and by an order dated 8-12-1950 the above said persons were brought on record as the legal representatives of the deceased Defendant and the Plaintiff was given liberty to execute the decree against them. The decree was then transferred for execution to the District Court, Surendranagar, and the decree-holder filed execution against the Appellants seeking to attach and sell two houses situated at Halvad as being property inherited by the Appellants from the deceased Defendant No. 2.

Appellant No. 1 Girjabai contended, ''inter alia'', that she could not be joined as a party to the execution but this contention was rejected by the lower Court as being barred as ''res judicata'' by reason of the Bombay High Court''s order and the contention is not pressed before me in appeal. The Appellants Nos. 2 and 3 raised certain technical objections but these two were rejected by the lower Court and are not now material. Appellant No. 1''s main contention however was that the houses in question were her sole property having been gifted to her by her husband Harilal and were consequently not liable to be sold in execution of the decree. With regard to this contention the learned Judge below held that by the terms of the very gift Girjabai took an estate similar to a widow''s estate and that on a parity of reasoning the estate that she took was liable to be sold in execution on her husband''s death in the same manner as the widow''s estate was liable. He therefore rejected this plea and directed further execution by sale of the houses.

The only point urged in this appeal by Mr. Mehta for the Appellants is as regards the liability of the houses to be sold in execution. Harilal had two wives of whom Bai Moti was the senior and Girjabai was the junior. He executed a deed of gift on 2-7-1930 whereby he gifted his two houses to his two wives, each wife being given a one-half share in each of the houses. The document provides that in case Motibai and Girjabai desire to divide the houses, Girjabai was to take the house the ''lekh'' (document) whereof is in his own name and Motibai was to take the other house. Then appear the material recitals which are that his two wives were not to take the property as joint tenants but were to take as tenants in common, that they were not to take as absolute estate in the property but were to have rights therein similar to those which a Hindu widow inheriting to her husband leaving no male child, will have, and further that they were to deal with the property of their share to the extent and in the manner in which a Hindu widow can deal with the property come to her as a widow''s estate. The document then recites that his two wives were to be treated as being in possession of the houses from that date, that he was to live therein with their consent and on their behalf and that he ceased to have any right or interest in the property as from that date.

Now the Hindu Law contemplates a gift of a limited estate by a husband and the incidence of. such a gift is that on the death of the wife the property passes to her husband''s heirs and not to her stridhan heirs. The gift does pass to her an estate which is a limited one and is not absolute, but so long as she lives she owns that limited estate, and though the incidence of that estate is similar to that of a widow''s estate, in that she cannot alienate the property except for a legal necessity, there is still a distinction between the two types of estates. In the case of a widow''s estate she having inherited it from her husband, the inheritance is subject to the obligation to pay the husband''s debts. That obligation arises from the very nature of the ownership and is attached to the property itself. In the case of a gift of a limited estate to a wife, it creates ownership in the wife to that extent subject only to the limitation that she cannot alienate except for legal necessity and that on her death the property is inherited by her husband''s heirs. But to the extent to which the life estate goes, she takes it free from any obligation to pay the husband''s debts.

There is a difference which is vital between a widow''s estate, which a wife takes by inheritance on the husband''s death and a limited estate which a wife gets by virtue of a gift from the husband. In the case of the latter, the property namely the limited estate no longer forms part of the husband''s estate at the time of, his death and for that reason it does not become liable for the debts left by him. The case of an estate inherited by a widow from the husband is different because the property forms part of the husband''s estate to which is attached the obligation to pay his debts. Therefore the liability to pay the husband''s debts not being attached to the property constituting the limited estate which a wife receives by way of gift from the husband, the decree-holder is not entitled to attach and sell the said property in execution of the decree obtained against the husband, and the said limited estate continues to remain with her till her death; and it is only thereafter that the husband''s heirs inherit it.

Mr. Shah for the Respondent decree-holder has urged that on Harilal''s death the property in the hands of Girjabai assumes the character of a widow''s estate and it is liable to be sold in payment of the husband''s debts, but the contention is not correct because it ignores the basic fact that the property, namely the limited estate of Girjabai in the two houses did not form part of Harilal''s estate at his death and therefore it is not inherited by Girjabai and it is not a widow''s estate in her hands. Therefore so far as Girjabai''s share in the two houses is concerned it is not liable to be attached and sold in the execution of the Respondent''s decree. Accordingly the appeal is allowed to that extent and the lower Court''s order in respect of it is set aside.

In so far as Motibai''s share in the houses is concerned she has died and on her death her limited estate reverts to her husband''s heirs and is in their hands liable to be sold in payment of the husband''s debts. By the very terms of the gift too Motibai and Girjabai were to take as tenants in common and not as joint tenants, so that on Motibai''s death Girjabai cannot claim to inherit her share in the property. Therefore, the share of Motibai come to the Appellants by inheritance becomes liable for the payment of Harilal''s debt and the Respondent decree-holder is entitled to execute the decree against it. To that extent therefore the appeal fails and is dismissed. In the circumstances, the parties will bear their costs of the appeal.