- (1.)IN a suit for ejectment based on personal requirement which was brought by one Sant Ram, against the appellant, the parties entered into a compromise and the compromise decree was accordingly passed on 8th May, 1967, under which the appellant to continue his occupation for eight years more, and had to vacate the suit shop on 1st. of May, 1975. Sant Ram died in December 1972, leaving behind one son, namely, the respondent, five daughters, and a widow. But, before execution was taken out by the respondent, the appellant made an application under Sec. 47 of the Code of Civil Procedure inter alia contending that the compromise decree was a nullity and that the decree stood automatically satisfied after Pushpa Devi, one of the daughters of Sant Ram had granted a fresh lease in his favour with effect from 1st of January, 1973. Objections to this application were filed by the respondent, who besides controverting all the pleas taken by the appellant, set up a will alleged to have been executed by Sant Ram in his favour on 28th of April, 1970, bequeathing his entire interest in the joint family property in favour of the respondent. In the meantime, however, the respondent also filed an execution application on 3 -5 -1975. Executing Court recorded some evidence led by the parties, but before arguments could be heard in these applications the appellant moved another application seeking leave to file objections to the execution application made by the respondent. This Prayer was declined by the Executing Court on the ground of delay. Feeling aggrieved of this order, the appellant moved the High Court in Civil Revision No. 38 of 1976, which was ultimately accepted and the appellant permitted to take all those objections to the execution of the decree, which had not been earlier taken by him in his application u/s 47 of the Code of Civil Procedure. The appellant, therefore, raised some more objections which were to the effect, that the execution application was not in accordance with Order 21 Rule 16 of the Code of Civil Procedure, that the will set up by the respondent was product of fraud which otherwise also the testator had no right to execute to the exclusion of his other heirs, that all the heirs of Sant Ram were necessary parties to the execution application and the execution application was not properly verified. Thereafter, the respondent did not choose to lead any further evidence, though the appellant examined a few more witnesses.
(2.)THE Executing Court dismissed the appellants application u/s 47 of the Code of Civil Procedure as well as the objections filed by him to the execution application inter alia holding that Sant Ram had a right and capacity to execute the will which stood amply proved, that the decree was not a nullity, that the appellant alone was competent to execute the decree and that the execution application was not governed by the provisions of Order 21 Rule 16 of the Code of Civil Procedure, but was governed by the provisions of Sec. 146 of the same Code. An appeal taken against the aforesaid order too did not succeed, and the lower appellate court confirmed all the findings of the Executing Court. This second appeal has been filed in this back -ground.
(3.)MR . Bhagotra, appearing for the appellant, has taken the following points in this appeal : (i) the respondent u/s 5 of the Hindu Succession Act, 1956 (hereinafter the Act) did not become the owner of the entire joint family property, as such the execution application at his instance alone was not competent ; (ii) the compromise decree was a nullity in the absence of any record satisfaction of the trial court that the decree holder reasonably required the suit shop and that the advantage which would accrue to him in the event of the suit being decreed would be comparatively greater than the disadvantage to which the judgment debtor would be put in the event of his eviction ; and (iii) the execution application was hit by the mischief of Order 21 Rule 16 of the Code of Civil Procedure. The learned counsel did not, however, question the execution of the will, and rightly so, because the same is concluded by concurrent findings of fact arrived at by the two courts below.
It is common ground, that Sant Ram died as a member of joint Hindu Family alongwith his son Mella Ram, the respondent. He was survived by five daughters, a son and a widow. But for the enforcement of the Act, the entire joint family property would have devolved upon the respondent on the basis of survivorship, and Sant Ram could not have even bequeathed his interest in the property in favour of any one. The Act, however, brought two important changes in this respect. One, that Sant Ram u/s 27 of the Act got a right to make a testamentary disposition of his interest in the joint family property, and two that instead of his interest devolving upon his son by way of survivorship it would devolve through succession on heirs mentioned in Class I of the Schedule to the Act in terms of Sec. 8, in the event of his intestate death. Sant Ram is proved to have executed a will bequeathing his entire interests in the joint family property in favour of the respondent. Mr. Bhagotras contention is that as a consequence of this will the entire joint family property did not vest in the respondent, because u/s 27 Sant Ram could have willed away only his interest in the joint family property and not the interest of his other heirs mentioned in Class I of the Schedule, who too would be entitled to a share u/s 5 of the Act. If that be so, argued the learned counsel, then the respondent alone did not become entitled to the rights granted under the decree, and consequently had no right to execute 1he same without joining his mother and sisters. The only question which, therefore, falls for determination is : What was the interest of Sant Ram in the joint family property at the time of his death ?