Richardson, J.:— The plaintiffs in this suit are Thakomani Debi, the widow and Umamoyee Debi, the daughter of Durgadas Chatterjee, deceased. They seek to recover a six annas share of a certain tank which originally belonged in its entirety to Durgadas. It appears that in the year 1886 Durgadas executed a deed of gift in respect of a three annas share of the tank in favour of the plaintiff Umamoyee and another daughter since deceased. In the year 1890 Durgadas again executed a deed of gift of another three annas share of the tank in favour of Thakomani. In the same year 1890 he died leaving a will by which he appointed his son Annoda his executor. On 15th October 1892 Annoda, as executor, mortgaged certain properties, not including the tank, in favour of the father of the defendants. In 1899 the father of the defendants obtained a decree on the mortgage in a suit to which Annoda in his capacity as executor and Thakomani were made parties. In execution of that decree the mortgaged properties were sold but as the proceeds proved insufficient to satisfy the amount due on the mortgage, further proceedings were taken under Section 90 of the Transfer of Property Act. In those proceedings on 21st February 1902 the whole of the tank to which the suit relates was sold and purchased by the decree-holder, the father of the defendants. On 30th May 1902 the decree-holder obtained possession through the Court.
2. The case made for the plaintiffs is that Thakomani is entitled to a 4½ annas share of the tank under the deed of gift in her favour and as heir of her deceased daughter, who took a 1½ annas share under the other deed of gift, and that under the latter deed, the daughter Umamoyee is entitled to a 1½ annas share. The Courts below have held that the daughter has proved her right to the 1½ annas share and the decrees are in her favour to that extent.
3. There is now no further dispute as regards the daughter's claim, though the appeal before us seems to relate to the whole of the six annas. It must now therefore be formally dismissed so far as the 1½ annas share belonging to Umamoyee is concerned.
4. As to the 4½ annas share which the widow claims, both the Courts below have found that the deeds of gift represent genuine transactions and that the widow has established her title to this share. The first Court however found that the suit was not commenced within the period of limitation prescribed and dismissed this part of the claim. On that point, the learned District Judge has taken a different view. He has held that the widow is entitled to recover the 4½ annas share. From that decision the defendants have appealed. The whole question is whether having regard to the provisions of S. 244 of the Code of 1882, corresponding to S. 47 of the present Code, the widow was entitled to bring a Separate suit to enforce her claim. If she was not so entitled, the present suit may be treated as an application under S. 47, but if so treated it would be barred by limitation under Article 181 of the Schedule of the Limitation Act. It is not disputed for the widow that she was a party to the mortgage suit and that the decree in that suit was made against her as well as against Annoda as executor. The operative part of the decree runs as follows:
“The defendants are to pay the same (i.e, the decretal amount) within six months from this date, failing which the share in Taluk Birchandpore to the extent of 6 annas 13 gandas 1 kora 1 krant will he sold at auction to recover the same and in case the sale proceeds are insufficient, the remaining properties as belonging to the estate of the deceased Durgadas Chatterjee will have to be sold as being made liable to recover the balance.”
5. It may be conceded that the widow was on the record as a representative (in addition to the executor) of the estate of the deceased Durgadas Chatterjee. When the proceeds of the mortgaged properties proved to be insufficient to satisfy the decree, the decree-holder made an application for a further decree under Section 90 of the Transfer of Property Act. That application was rejected din the ground that the decree in the mortgage suit, which I have read, already included a decree under Section 90 of the Transfer of Property Act. The order rejecting the application, dated 5th June 1901 continues as follows:
“The decree-holder further prays for a personal decree against the defendants but they not being mortgagors cannot be personally liable and no personal decree was prayed for in the plaint. In the plaint a decree under Section 90 of the Transfer of Property Act, against the estate of the deceased mortgagor was prayed and such a decree has been granted. So the petitioners' prayer be disallowed.”
6. In the lower appellate Court the District Judge appears to have thought that the effect of that order was to dismiss the suit or the claim under S. 90 as against the widow Thakomani. On the authority, as he says, of a long line of cases ending with the case of Ram Pershad v. Jagannath Ram (1), he held that under the Code of 1882 the claim under S. 90 having been dismissed against Thakomani, she ceased to be a party to the suit within the meaning of Section 244 of the CPC, and was therefore not in a position to come in under that section in the execution department and object to the sale of the whole tank including her share.
7. In my opinion the learned District Judge has misunderstood the effect of the order of 5th June 1901. The original decree which included a decree under S. 90 remained. There was no dismissal of the claim under S. 90 against Thakomani. Thakomani continued to be a party defendant on the record, though it may be that she was not on the record in her own right but as representative of the deceased Durga Das. The sale therefore of the whole tank must be held to have taken place in execution of a decree to which Thakomani was a party though in a representative capacity. If that be so the decision of the Full Bench in the case of Punchanun Bundopadhya v. Rabia Bibi (2) shows that if the property claimed by Thakomani in her personal capacity was sold in execution as the property appertaining to the estate of Durga Das, it was open to Thakomani to apply, under S. 244, to have the sale set aside, so far as it related to the share of the tank to which she was personally entitled. If it was open to her so to apply, a separate suit by her was prohibited by S. 244 of the Code of 1882 and is now prohibited by S. 47 of the present Code. It is not disputed that if this suit can only be maintained if regarded as an application under S. 47 of the present Code, it is out of time. The view which I have expressed is the view adopted by the learned Munsif in the trial Court and seems to me to be the right view on the facts as they appear on the record. In my opinion therefore the appeal, in so far as it relates to the 4½ annas share of the tank claimed by Thakomani, must be allowed and in so far as it relates to the 1½ annas share of the tank claimed by Umamoyee dismissed. In the circumstances of this case each party will bear their own costs throughout.
Walmsley, J.:— I agree.
V.B/R.K
8. Appeal partly allowed.