Decided on July 30,1869



- (1.) The parties to this suit not having consented that this Bench should decide the whole of the case upon regular appeal, it is necessary for us to decide the question which has been referred to us by the Division Bench. I do not mean to Bay that the Full Bench cannot decide this regular appeal, but all that we can properly do under the circumstances is to decide the case upon the facts as stated to us, and answer the question which was propounded by the Division Bench. The question is: "A member of a Hindu family living under the Mitakshara law, and having joint family property, died entitled to an undivided share in such property, leaving two widows, him surviving. After his death his widows were sued in their representative capacity in respect of debts incurred by him during his life-time on his own account, and decrees were obtained against the widows. In execution, an interest in certain portions of the joint family property, to the extent of the share to which the deceased was entitled in his lifetime, was sold, and the auction-purchasers obtained possession of it. Can the nephew of the deceased who is one of the surviving members of the joint family, recover possession of such interests, or any portion thereof, from the auction-purchasers."
(2.) That I think is the only question which is raised in this case. The second question as I understand it refers to other cases, to which we shall presently come.
(3.) It is stated the widows were sued in their representative capacity, and that the sale took place under a decree against them in their representative capacity. We must assume that the sale took place under decree in that suit. The certificate of sale simply says that the rights and interests of the widows were sold; but assuming that the widows were sued in their representative capacity, the certificate must be considered to apply to such property of the deceased as they took in their representative character. It is contended that, under section 203 of the Code of Civil Procedure, the execution-creditor was entitled to seize Bhagwan's share of the undivided joint estate and to sell it. The section is as follows:-- "If the decree be against a party as the representative of the deceased person, and such decree be for money to be paid out of the property of the deceased person, it may be executed by the attachment and sale of any such property. But I apprehend that the meaning of this is that where the decree is against a representative of a deceased person, and the decree is for money to be paid out of the property of the deceased, it must be paid out of such of the property of the deceased person as passed to the representative. If, for instance, under the English law, an executor should be sued for a debt, and a decree obtained against him, I apprehend that as a general rule, you could not, under that decree, seize property which passed to the heir, and not to the executor.;

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