Harbans Lal, J. - (1.) THIS regular second appeal is directed against the judgment and decree of the learned District Judge, Ferozepur, dated May 13, 1975, by which the appeal of Brij Lal, defendant, was dismissed and the judgment of trial Court decreeing the suit of the plaintiffs respondents was affirmed.
(2.) THE facts, in brief, are that Brij Lal, appellant defendant No. 1 (hereinafter called the appellant), obtained a money decree against Jagan Nath defendant No. 2 (now respondent No. 4) on May 20, 1954 in execution of which the immovable property in dispute was attached. In the first instance, this order of attachment was challenged by two separate suits under Order 21, Rule 63, Code of Civil Procedure (hereinafter called the Code), by Des Raj, defendant No 3 and Mst. Malan Devi, defendant No. 4 (now respondent Nos. 5 and 6, respectively). Their suit was decreed; they were declared owners of 1/3rd and 1/6th share, respectively, in the attached property and the order of attachment qua their share was set aside. Subsequently, the present plaintiffs (now respondents Nos. 1, 2 and 3) instituted a suit for declaration contending that they were owners of half the share in the attached property which had devolved upon them from their father Kheta Ram and that after his death on July 18, 1957, Jagan Nath, respondent No. 4, had no interest or title in the said property and, thus the same was not liable to attachment or sale in execution of the decree passed against him. These pleas of the plaintiffs were traversed by Brij Lal, appellant. On the pleadings of the parties, the following issues were framed: - (1) Whether the plaintiff is the owner and in possession of the suit property ? (2) Relief. The suit of the plaintiffs was decreed by the trial Sub -Judge. However on appeal by Brij Lal appellant, the learned Additional District Judge, Ferozepur remanded the case under Order 41, Rule 23 -A, of the Code and instead of the above mentioned issue, the following issue was framed: - Whether the plaintiffs are owners of the suit properly to the extent of one half share and that the same is not liable to attachment and sale in execution of the decree held by defendant No. 1 against defendant No. 2 After the remand, the trial Sub -Judge held that Kheta Ram died intestate on July 18, 1957; that his estate devolved upon his widow, two sons and two daughters, in which the plaintiffs who are sons and daughters of Kheta Ram, inherited one half share, it was also held that Jagan Nath, defendant -respondent, son of Daulat Ram, one of the sons of Kheta Ram, did not get any share. However, a finding was also given that even is the property in dispute formed part of Joint Hindu family property and Jagan Nath as a member of the coparcenary with his father, got undefined share in the said property, his share was not attachable under section 60(1)(m) of the Code. Thus the suit of the plaintiffs -respondent was decreed The learned District Judge while dismissing the appeal and affirming the order of the trial Court did not agree with the finding of the trial Court to a limited extent inasmuch as it was held that if the property was held to be Joint Hindu family property and Jagan Nath was held to have a share in it as a member of the coparcenaries with his father, Daulat Ram, his share will be attachable and saleable under section 60(1)(m) of the Code. However, the learned District Judge came to the conclusion that Jagan Math had got no interest in present in the estate of Daulat Ram, inherited by the latter from his father Kheta Ram and that the relevant rule of Mitakshara Law had been abrogated by section 4 of the Hindu Succession Act 1956 (hereinafter called the Act) as it was contrary to section 6 and 8 of the Act. Thus, as a result, the appeal was dismissed in into.
(3.) IT has been contended by the Learned Counsel for the appellant that it was found by the learned District Judge that the property inherited by Daulat Ram from his father Kheta Ram, was ancestral in his hands qua his son Jagan Nath, defendant No. 2 and relying on para 223 in Mulla's Hindu Law, it was held as under: There is, accordingly, no doubt, that according to Mitakshara Law, Jagan Nath got an interest and title in the estate inherited by Daulat Ram from Kheta Ram as good as that of a coparcener. According to the Learned Counsel, in view of this finding by the learned District Judge, Jagan Nath respondent, must have a share in 'he estate inherited by his father Daulat Ram from Kheta Ram as a member of the coparcenaries and that the finding of the learned District Judge to the effect that Jagan Nath had no interest in presented in the estate of Daulat Ram and that the relevant rule of Hindu Law of Mitakshara had been abrogated by section 4 of the Act, is based on wrong interpretation. In order to appreciate the contention, sections 4, 6 and 8 of the Act have to be lead together which are reproduced below: - Save as otherwise expressly provided in this Act: - (a) any text, rule of 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; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.;