Shamsher Bahadur, J. - (1.) THIS is a decree -holder's appeal from the appellate order of the District Judge, Hoshiarpur, who affirmed the order of the executing Court holding that the property in suit is exempt from attachment and sale in execution of a decree.
(2.) THE Appellant decree -holder obtained a money decree for Rs. 1,270/ - against the estate of Khushal Ghand in the hands of his legal representatives. In execution proceedings, property belonging to Khushal Chand was, attached but the judgment -debtors objected that it was not liable to attachment and sale. These objections were dismissed in the first instance by the executing Court but in appeal the learned District Judge; of Hoshiarpur, on 14th of April, 1960 remanded the case under Order 41, Rule 23 -A of the Code of Civil Procedure. The trial Judge was directed to give a fresh decision after striking further issues on the points indicated in the judgment of the District Judge, concerning ancestral nature, of the property and the liability under custom of the legal representatives of Khushal Chand. As a result of the remand order, two additional issues were framed to determine whether the property in dispute was ancestral and also whether the family of Khushal Chand was governed by agricultural custom in the matter of succession. The property having been found to be ancestral and the family of Khushal Chand to be governed by custom, the objections were allowed to prevail and the property, was held immune from attachment and sale, From this order of the executing Court passed on 8th of December, 1960, the decree -holder preferred an appeal which having been dismissed by the learned District Judge on 16th of May 1961, he has come to this Court In further appeal. The principal ground taken up by Mr. A.C. Hoshiarpuri, is that Section 9 of the Punjab Debtors' Protection Act, 1936, which is the basis of the decision of the Courts below is no longer applicable, being abrogated by the provisions of the Hindu Succession Act, 1956. Under Section 9, "when custom is the rule of decision in regard to succession to immovable property then, notwithstanding any custom to the contrary, ancestral immovable property in the hands of a subsequent holder...shall not be liable in the execution of a decree or order of a court relating to a debt incurred by any of his predecessors in interest." Admittedly Khushal Chand died after the) enactment of the Hindu Succession Act, and as stated in Section 2, the provision of this Act apply to any' person who is a Hindu by religion in any of its forms or developments. A new rule of succession Is provided in Section 8 by which the property of a male Hindu dying intestate is to devolve in accordance with the heirs set out in class 1 of the Schedule. The heirs in this class are the son, daughter, widow, mother and others of the deceased. It is contended by Mr. Hoshiarpuri that the controlling words of Section 9 of that Debtors' Protection Act: "when custom is the rule of decision in regard to succession to immovable property" make it clear that it has now become obsolete and inapplicable, the succession being governed by the provisions of Section 8 of the Hindu Succession Act, 1956. Section 4 of the Hindu Succession Act deals with the overriding effect of the statute and it is said that "any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act". Mr. Mahajan, for the Respondents, contends that no provision having been made with regard to matter covered by Section 9 of the Debtors' Protection Act, its validity is not disturbed or affected. In my opinion, this argument Is devoid of force. Section 9 itself provides in clear terms that it is to be applicable only when the succession is governed by any rule of custom. Custom has now ceased to be the rule of succession which is provided for in Section 8. The inclusion of female descendants of Khushal Chand in the list of objectors is itself indicative of the fact that they derive their rights by virtue of the provisions of the Hindu Succession Act. It has been ruled recently by a Division Bench of this Court of Dulat and Mahajan JJ. in Hans Raj v. Dhanwant Singh : 1961 -63 Pun LR 391 : AIR 1961 P&H 510, that "Section 4 of the Hindu Succession Act does away with the rule of custom so far as succession is concerned and therefore, after the Hindu Succession Act came into force, no Hindu, can be said to be governed by the rules of customary law and' the succession to the property held by a Hindu must be regulated by the provisions of the Hindu Succession Act". In that particular case, Section 9 was found to be applicable because the succession had opened out before the passing of the Hindu Succession Act.
(3.) MR . Mahajan, for the Respondents further submits that the Appellant is precluded from raising the point as no appeal was preferred from the order of the District Judge, Hoshiarpur, passed on 14th of April, 1960, remanding the case to the trial Judge who held that the property will not be liable to attachment and sale if It Is held that it was ancestral in the hands of Khushal Chand and that he was governed by custom in the matters of succession." This observation of the learned District Judge is somewhat inconsistent as in the operative portion of the order a little later it is directed that the trial Court will redecide the entire matter after striking further, issues about the ancestral nature of the property and the governance of custom in the family of the judgment -debtor. He could not himself decide the matter and then send the matter for a fresh decision to the trial Judge. Mr. Hoshiarpuri is, therefore, right that the decree -holder did not prefer an appeal as he awaited the findings of the executing Court after remand. In any event, it was not challenged by him then and it is not challenged even now that the property is ancestral. All that is contended for is that Section 9 of the Debtor's Protection Act, whose protection Is sought for saving the property from attachment and sale, is no longer applicable after the enactment of the Hindu Succession Act.;