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Lal Behari Prasad Pandey And Anr. vs Bindesari Misra

High Court Of Judicature at Allahabad|29 November, 1933


JUDGMENT Niamatullah, J.
1. This is an appeal by objectors in execution proceedings. The respondent, Bindesari Misra, obtained a simple money decree against the appellants, who are the sons of Sheo Saran, who was liable to pay the sum to which the decree related. The suit having been brought after the death of Sheo Saran, a decree was passed against the assets of the deceased which, having regard to Section 53, Civil P.C., includes property in the hands of his sons and which may be liable to pay bis debt. It appears that, not long before the death of Sheo Saran, a partition had taken place amongst the members of his joint family, which consisted of a father, two sons and the wife of the father. Each of them obtained a i share in the family property. Subsequently the mother died, and later on the father also died. The debt, to which the decree related, had been contracted before the partition. It is not disputed that, in spite of the partition to which reference has been made, the entire joint family property is liable for the debt and that it is open to the decree-holder to obtain satisfaction by sale of any part of the joint family property.
2. The respondent decree-bolder attached three items of property, two of which alone are in dispute in appeal. As regards the third, the lower Court held that the decree, holder had a right to attach. That finding is not challenged, in appeal. The appellants objected to the attachment of the other two properties which consisted of shares in certain zamindari mahals on the allegation that they were not part of the joint family property belonging to themselves and their deceased father, but that they obtained them under a certain will executed by a relation, who was not a member of the joint family. Both the lower Courts laid the burden of proof on the objectors; and as the latter did not produce the will on which they relied, their objection was dismissed. In appeal before me the learned Counsel for the appellants has contended that the onus was wrongly thrown on them. The shares in question do not appear to have been brought into the hotchpot when there was a partition of the joint family property. As a matter of fact, the appellants' case is that they acquired these properties after the partition.
3. Section 52, Civil P.C., provides that, where a decree is passed against a party as the legal representative of a deceased jperson and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. Section 53 declares joint family property, which is liable for the payment of the father's debts, as property belonging to the deceased debtor. It is clear that a Iperson holding a decree against the assets of a deceased person can obtain satisfaction by attachment and sale of only nuch property as is shown to have formed part of the assets of the deceased. it ia his duty to prove, at least prima facio, lib at any particular property which is attached at his instance is part of the assets of the deceased. The onus is clearly on the decree-holder in view of the circumstances to which reference has beers made, namely, that there was a partition in the family and that there is nothing to show that the properties in dispute were dealt with at that partition. It was, in my opinion, for the respondent decreo holder to establish that the shares in question in appeal formed part of the point family property belonging to Sheo Saran and his sons. It may be presumed that a Hindu family is joint, but there is no presumption that any particular property is joint family property. There is hardly any evidence on this record to support the decree-holder's allegation. As both the Courts below erroneously cast the onus on the objectors, the decree-holder might have been misled and, for that reason, did not adduce any evidence to prove that the shares in dispute were part of the joint family property. In these circumstanoes I allow the appeal, set aside the orders of both the Courts below and remand the case for disposal after giving an opportunity to the parties to adduce evidence on the question whether the shares in dispute were part of the joint family property belonging to Sheo Saran and his sons the initial onus resting on the decree.holder respondent. Costs here and heretofore shall abide the result.
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Lal Behari Prasad Pandey And Anr. vs Bindesari Misra


High Court Of Judicature at Allahabad

29 November, 1933