Authored By : J. Pratt, Ernest William Ormond

J. Pratt and Ernest William Ormond, JJ.

1. The plaintiff having in execution of a money decreeagainst Sureswar Singh attached the rights and interests of his judgment-debtorin 4 mouzahs of Pergannah Padri, a claim to the same was successfully made bySureswar Singhs father, Maharaj Kumar Guneshwar Singh. Hence the present suitto establish the right of Sureswar Singh, since deceased, to the said property,and for a declaration that his share is liable to sale in execution of theplaintiffs decree. The claim was contested by the sons and grandsons ofMaharaj Kumar Guneshwar Singh, as well as by Gruneshwar Singh, who however hassubsequently died. The Subordinate Judge found that Sureshwar Singh lived in ajoint family with his father and as a member of a joint Hindu family governedby the Mitakshara Law, he enjoyed the usufruct of the property in suit, that hewas in debt to the plaintiff under a decree, and in execution thereof there wasan attachment of the mouzahs in question before his death. These findings offact are not now disputed.

2. The suit was dismissed because the Subordinate Judge wasof opinion that the property being a Babuana grant by the then Rajah ofDarbhanga to his son Ganeshwar Singh was not saleable.

3. The nature and incidents of a Babuana grant are stated inthe case of Rameswar Singh v. Jibender Singh (1905) I.L.R. 32 Calc. 683:"Babuana property granted in accordance with the Kullacbar or familycustom of the Darbhanga Raj is property granted to the junior male members ofthe family to be enjoyed by them in lieu of money maintenance subject to theproprietary rights of the grantor, and his ultimate claim as reversioner on theextinction of the grantees descendants in the male line. The grantor remainsresponsible for the payment of the Government revenue, and retains his positionas the recorded proprietor of the property assigned. The grantee has the rightto alienate the property subject only to the contingent interest of thegrantor."

4. In the present case some evidence of an unsatisfactorynature has been given, but it is of no value to establish a custom ofinalienability, and against it there is a recital in Exhibit 12, which is amortgage deed executed by Guneshwar Singh.

5. The Subordinate Judges reference to Section 6, Clause(d) of the Transfer of Property Act is clearly inappropriate. The alienabilityof the Babuana grant being established, the next question is whether the sonsof the grantee a required any interest in the grant on the ground that theproperty is ancestral.

6. Here the grant was made by the owner of the impartibleRaj estate to enure for the benefit not only of Guneshwar Singh, but of hisdirect male line. It was ancestral property in the hands of the Rajah, and didnot lose its character by the transfer. In Muddun Gopal Tuakoor v. Ram BukshPundey (1863) 6. W.R. 71 it was laid down that landed property acquired by agrandfather and distributed by him amongst his sons does not by such giftbecome the self-acquired property of the sons, and we do not think it makes anydifference because in the present case Guneshwar would not have inherited apartfrom the grant.

7. The property being ancestral Sureshwar acquired aninterest in it at his birth.

8. Finally there can be no doubt upon the authorities thatthe attachment during Sureshwars life time would have the effect of validatinga sale of his share, and the plaintiff can work out his rights acquired byvirtue of the attachment. See Suraj Bansi Knar v. Sheo Persad Singh. It was contended that the attachment was put an end to bythe order of the Court in the claim case, and so at the time of thejudgment-debtors death there was no attachment subsisting. We think this isnot a correct view. The order under Section 280 of the Code is not conclusive.It may be reversed in a suit like the present one, and, as was held in the caseof Banomali Rai v. Prosunno Nnrain Chowdhry I.L.R. (1896) Cal. 829, the effectof the decree would be to maintain the attachment originally made and toestablish the plaintiffs right to the declaration he seeks and to theconsequential remedy. The order for release under Section 280 was onlyprovisional and liable to be set aside by regular suit.

9. The result is that the decree of the Lower Court will beset aside. The order in the claim case is declared null and void. It isdeclared that Sureshwar Singh had a share in the property in suit as a memberof the joint family, though the extent of that share is at presentundetermined. It is further declared that Sureshwar Singhs share is liable tobe sold in execution of the plaintiffs decree, and that the plaintiff isentitled to work out his remedy under the law. The plaintiff-appellant isentitled to his costs in both Courts.

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Ram Chandra Marwarivs. Mudeshwar Singh (28.06.1906 -CALHC)