Decided on February 05,1968

BHURAMAL Respondents

Cited Judgements :-



- (1.)THE plaintiff-appellant feels aggrieved by the appellate judgment of the District judge of Bikaner, dated November 13, 1961, by which his suit has been dismissed
(2.)THE facts are quite simple and are not in dispute. Kistoorchand had two sons, bhuramal and Manmal, who an- the defendants-respondents. The plaintiff obtained a decree against Manmal and, in execution thereof, he secured the attachment of Manmal's share in the suit house. Bhuramal objected to the execution of the decree and his objection was upheld. The decree-holder raised a suit under Order 21, Rule 63 of the Code of Civil Procedure, and it is this suit which has given rise to the present appeal. It was claimed in the suit that the house belonged to Kistoorchand and that Manamal had a half share in it which was liable to attachment and sale in execution of the decree against him. That claim was resisted by Bhuramal on the ground that Manamal had separated himself from the joint family in the life-time of his father Kistoorchand under document Ex. A/2 dated July 10, 1936. The document was registered and under it Manmal relinquished his share in the suit house in favour of his father Kistoorchand, because he wanted to make sure that he was not held liable in the pending and future litigation against Kistoorchand who, it is admitted, was under a huge liability. These facts were not disputed, so that the important fact that Manmal had separated from his father during his life-time in 1936 was also not disputed. So also, it was not disputed that Kistoorchand died before the coming into force of the hindu Succession Act, 1956.
(3.)THE short question which therefore arose for decision was whether, on the above agreed facts, Manmal got any share in the suit house after the death of his father Kistoorchand. The trial court held that Manmal's one-third share in the suit house, which he relinquished under document Ex. A/2, became the separate property of his father Kistoorchand by virtue of the separation of Manmal and his voluntary relinquishment of his share in the suit house and that it devolved by inheritance and not by survivorship on the death of Kistoorchand, so that Manmal got one-sixth share in it. That court therefore held that share of Manmal to be liable to attachment and sale, and decreed the suit. An appeal was preferred by bhuramal to the Court of District Judge, Bikaner. The learned District Judge held that the trial court had committed an error in basing its judgment on the view taken in Badri Nath v. Hardeo, AIR 1930 Oudh 77 and that Manmal's share in the suit house, which was received by Kistoorchand by virtue of document Ex. A/2, fell to the share of Bhuramal even though it had to be treated as Kistoorchand's self-acquired property, because of the fact that Bhuramal continued to live as a member of Kistoorchand's joint Hindu family while Manmal separated from it. The short question before me is whether this view of the court of first appeal is correct.

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