Urban Co-Operative Bank, Limited, Honavar v. Honavar Havik Co-Operative Bank Limited, Honavar

Divatia, J.:—

This revisional application arises in proceedings relating to rateable distribution of certain assets under s. 73 of the Civil Procedure Code. Several persons as well as banks had obtained decrees against one Madappa Hegde who was a member of a joint Hindu family. The petitioner in this application was one of the Banks which had filed Darkhast No. 684 of 1929 to execute its decree and had attached the undivided share of the judgment-debtor Madappa in the joint family property during his lifetime. The said share was sold on November 30, 1936, and a sum of Rs. 2,235 was realized as assets. Before this date, however, Madappa died on February 24 of the same year without leaving any issue and his two brothers as surviving coparceners were brought on the record. The other decree-holders, who are the opponents in this application, had in the meanwhile filed applications to execute their money decrees against Madappa, and they claimed rateable distribution in the said amount of Rs. 2,235 lying in Court. The petitioner objected to it on the ground that they had not attached the undivided share of Madappa in the joint family property during his lifetime, that under the Hindu law Madappa's interest had passed to the survivors, and that the opponents, therefore, had no claim to the assets lying in Court.

The lower Court held that although it was true that there was no attachment of Madappa's interest in the joint family property by the opponents before his death, the attachment, which had already been made at the instance of the petitioner in his Darkhast, enured for the benefit of his other creditors, i.e the opponents, and that, therefore, a separate attachment was not necessary with the result that the opponents also were entitled to claim rateable distribution in the assets. In taking that view the lower Court relied upon the decision in Deorajo Kuer v. Jadunandan Rai. That decision is to the effect that where the property of the judgment-debtor had already been attached and been ordered to be sold at the instance of one decree-holder, and another decree-holder made an application for execution and prayed for rateable distribution of the assets mentioning that the property was already under attachment and orders for sale, but did not expressly pray for attachment, the application was a sufficient application for execution of the decree as required by s. 73 of the Code, and that the applicant was entitled to rateable distribution; that in those circumstances there was no necessity for a fresh attachment or for a prayer for the same and that there was an implied prayer for the sale of the property and rateable distribution. It is to be noted, however, that in that case there was no question about the judgment-debtor being a member of a joint Hindu family, and the Court in holding that a separate attachment by the other creditors was not necessary once the property was attached by one creditor, did not decide the question as to what should be done if the judgment-debtor was a member of an undivided Hindu family. No case has been cited before me to show that the same principle would apply to the judgment-debtor who is a member of a joint Hindu family. On the other hand, it is an express principle of Hindu law that the undivided interest of a coparcener in a Mitakshara family may be attached in his lifetime in execution of a decree against him for his personal debt, and that if it was attached during his lifetime, it might be sold after his death whether the order for sale was made during his lifetime or after his death, but it cannot be attached after his death (except where the coparcener is the father), for it then ceases to be his interest and passes to the other coparceners by survivorship. It is only the attachment effected during the lifetime of the debtor that would prevent the accrual of his interest to his coparceners by survivorship.

This principle has not been assailed before me, but it has been contended by the learned advocate on behalf of opponent No. 3 that the decision in Deorajo Kuer's case should be extended to the case where the judgment-debtor is a member of a joint Hindu family, and that therefore, if one creditor of such a judgment-debtor had already attached his property, that attachment should enure for the benefit of all his creditors and a separate attachment was not necessary. To test the correctness of this argument it is necessary to examine the basis of this principle of Hindu law. In the earliest case decided by the Privy Council, Suraj Bunsi Koer v. Sheo Proshad Singh this principle was laid down for the first time. In holding that there must be an attachment of the undivided interest of a coparcener during his lifetime, Their Lordships of the Privy Council put it on the ground that it was only if something like a charge or interest in the property was created that it would prevent the property from going to the survivors. In referring to the previous case law on the point Their Lordships say at p. 104 of the report that in one of the earlier cases a distinction was made between a specific charge on the land and a mere personal decree, and that the existence of such a distinction would be the logical consequence of the power of a coparcener, as recognised at Madras and Bombay, to sell or mortgage joint property to the extent of his undivided share. In other words, it was laid down that as it was open to an undivided coparcener in Madras and Bombay to sell or mortgage joint property to the extent of his undivided share (which was not the case in Bengal), such an interest by analogy could pass to his creditors only if there was something analogous to a sale or mortgage but not otherwise, and Their Lordships proceed to observe (at p. 109 of the report) as follows:—

“They think that, at the time of Adit Sahai's death, the execution proceedings under which the mouzah had been attached and ordered to be sold had gone so far as to constitute, in favour of the judgment-creditor, a valid charge upon the land, to the extent of Adit Sahai's undivided share and interest therein, which could not be defeated by his death before the actual sale.”

Thus Their Lordships emphasized the necessity of a specific attachment and order for sale during the lifetime of the coparcener if the property was not to go by survivorship to the other coparceners. The subsequent case law has been based upon this earliest ruling. The observations of Their Lordships in the recent decision in Anantapadmanabhaswami v. Official Receiver of Secunderabad show that Suraj Bunsi Koer v. Sheo Proshad Singh is still good law.

That being so, can it be said that it is not necessary for a creditor to specifically attach the interest of an undivided coparcener if some other creditor of his had already attached that interest, and that such attachment was to enure for the benefit of that creditor for the purpose of rateable distribution? I do not think that such vicarious benefit can be obtained by a creditor in the case of an undivided Hindu. What is required is a specific order of attachment in favour of that particular creditor. Where the judgment-debtor is the sole owner of the property, it may be said that the property, if it had been attached by one creditor only, might be deemed to be in custodia legis, and that once the property comes before the Court in the form of assets, any other creditor, who proves his claim, can get the benefit of rateable distribution without having obtained an order of separate attachment. But it is difficult to say that the same result must follow in the case of undivided joint family property. The very fact that but for such specific attachment by a creditor, the undivided share would go to the survivors shows that the attachment by the particular creditor is necessary. I do not think, therefore, that the decision in Deorajo Kuer v. Jadunandan Rai can be availed of by the opponents in the present case who have not attached the judgment-debtor's interest during his lifetime. It appears that in the case of opponent No. 3, who alone has appeared in this Court, an application for attachment had been made during the lifetime of the judgment-debtor, but it is conceded that no order of attachment has been passed by the Court before his death. Why such an order was not passed does not appear from the record of the case, and it was unfortunate that the judgment-debtor died before any order could be passed. I think, therefore, that none of the opponents is entitled to the benefit of rateable distribution.

The order of the lower Court is therefore set aside, and the rule is made absolute with costs.

Order set aside.

Y.V.D