SIVESHWAR PRASAD NARAIN SINGH Vs. LATA HARNARAIN MAL BAHAL

JUDGEMENT

(1.) It appears that the respondent had brought a money suit in a Court at Benares against Mt. Kalawati, widow of Babu Madhusudan Prasad Narain Singh and Babu Shibeshwar Prasad Narain Singh, in which a decree was prayed for against the person and property of Shibeshwar Prasad Narain Singh and the assets of Madhusudan Prasad Narain Singh in the hands of Kala-wati defendant 1. The suit was decreed ex parte against both the defendants, and the decree-holder having got the decree transferred to Saran District has applied for its execution in the Court of the Munsif at Siwan by the attachment of 10 annas 6 pies interest of the judgment-debtors in a certain property. In the course of the execution a petition of objection was put forward by Shibeshwar Prasad Narain Singh, Bhabeshwar Prasad Narain Singh and Mangaleshwar Prasad Narain Singh, stating that the execution cannot proceed against the undivided interest of Mt. Kalawati in the joint family property. The objection petition has been dismissed by both the Courts below, and hence this miscellaneous second appeal.

(2.) The appellants in this case are (1) Sibesh-war Prasad Narain Singh, (2) Bhabeshwar Prasad Narain Singh and (3) Mangleshwar Prasad Narain Singh. It appears that Bhabeshwar and Mangaleshwar had at a previous stage of the execution proceeding preferred an ob jection to attachment under Order 21, Rule 58 on the same ground, but that objection was dismissed and they did not institute a suit under Order 21, Rule 63. As they were not parties to the suit or the decree, they cannot prefer an objection under Section 47; nor can they be allowed to reagitate the same question which they tried to agitate in their petition under Order 21, Rule 58. The appeals of these two persons must, therefore, fail on this preliminary ground. Sibeshwar Prasad, Narain Singh was a party to the suit and had not preferred any previous objection in the execution proceeding. He is, therefore, entitled to object in this proceeding, and we have to decide whether there is any merit in his objection.

(3.) Now, it is not disputed that under the decree which is being executed the decree-holder is entitled to proceed against the assets of Madusudan Prasad Narain Singh in the hands of defendant 1 who is a party to the decree. The only question is whether the interest which she now possesses in the joint family property is such an asset. Section 3 of Act 18 of 1937 (The Hindu Women's Eights to Property Act, 1937) provides among other things that when a Hindu governed by any school of Hindu law other than the Dayabhaga school, or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had. Sub-section (3) provides that any interest devolving on a Hindu widow under the provisions of Section 3 shall be the limited interest known as a Hindu women's estate, provided however that she shall have the same right of claiming partition as a male owner.