9th January, 1998

Petitioner Counsel: Shri. V.P. THALI
Respondent Counsel: Shri. G.V. TAMBA

Cases Cited:
AIR 1964 Mad 78 [Para 6]

JUDGMENT

JUDGMENT :- Heard the advocates for the parties. Admit. By consent, the revision application is taken up for hearing and final disposal.

2. By the present petition, the petitioners are challenging the order dated 16th August 1997 whereby the executing Court had allowed the application of the respondent for attachment of the two plots belonging to the petitioners or the recovery of money due to the respondent under Decree dated 20th July 1988 passed in Special Civil Suit No. 134/84/A. The records disclose that the respondent herein filed Special Civil Suit No. 134/84/A against one Madhukar Sagun Karpe for the recovery of money which was decreed by the said Decree dated 20th July 1988 and since the amount thereunder was not paid, the respondent herein filed the execution application. Meanwhile said Madhukar Karpe expired on 3rd August 1991 and, therefore, the execution application was filed against the petitioners who are the legal representatives of said Madhukar Karpe. Records also disclose that by Deed of Gift dated 20th April 1987 one Anandibai Raghunath Karpe had gifted two plots of her property situated at Sanquelim to the petitioners 1(b) and 1(c). By the application dated 27th September 1997 the respondent herein sought to attach the said two plots for the recovery of money due from the said Madhukar Karpe. The said application was objected to by the petitioners on the ground that the said two plots do not form part of the estate of the deceased Madhukar Karpe but they were acquired by the petitioners from Anandibai Raghunath Karpe by a Deed of Gift.

3. The executing Court by the impugned order allowed the said application filed by the respondent and ordered that the said two plots be attached and sold by public auction in order to enable the respondent to recover the decretal amount.

4. While assailing the impugned order, Shri V.P. Thali, the learned advocate appearing for the petitioners, submitted that the property sought to be attached and auctioned exclusively belongs to the petitioners 2 and 3 and the rights thereto did not devolve upon them from the deceased Madhukar Karpe. Those plots were acquired by them by virtue of a Gift Deed by a stranger Anandibai Raghunath Pangam and, therefore, the respondent is not entitled for recovery of the decretal amount due under the decree passed against late Madhukar Karpe by attaching and selling the said plots. The fact that the petitioners as legal representatives of the said deceased Madhukar Karpe, have not inherited any right to the said plots is not in dispute, therefore, according to the learned advocate, the decree-holders are not entitled to recover the amount due under the decree by attaching and selling the properties which were not inherited by them from the estate left behind by the deceased Madhukar Karpe.

5. Shri. G.V. Tamba, learned advocate appearing for the respondent, on the other hand, submitted that since the petitioners are the legal representatives of late Madhukar Karpe, no fault can be found with the respondent in proceeding against the petitioners and in that view of the matter no infirmity is disclosed in the impugned order.

6. Upon hearing the learned advocates for the parties and on perusal of the records and particularly the impugned order, it is seen that the executing court while allowing the application has referred to Section 128 of the Transfer of Property act alongwith Section 50 of Civil procedure Code. Indeed the executing Court has held that in terms of Section 128 a donee takes the property of a donor subject to the liability or the liabilities in respect of all the debts due by the donor at the time of gift and, therefore, the petitioners being the legal representatives of Madhukar Karpe, the decree-holder is entitled to attach the properties in question and recover the decretal amount out of the proceeds acquired from the auction of the said properties. Ex facie it is clear that the executing Court clearly misconstrued Section 128 of the Transfer of Property Act. Section 128 of the Transfer of Property Act nowhere provides that the donee is liable for all the debts due by the donor at the time of the Gift as sought to be held by the executing Court. In fact Section 128 of the Transfer of property Act reads as under :-

"Universal donee - Subject to the provisions of Section 127 where a gift consists of the donor's whole property, the donee is personally liable for all the debts at the time of the gift to the extent of the property comprised therein."

It appears that the executing Court has totally over-looked the last portion of Section 128 while wrongly interpreting the scope of the said Section. On a plain reading of the said Section, it is clear that the liability of the donee is to the extent the property is acquired by the donee by virtue of the Gift Deed from the donor and cannot travel beyond the same. Reference to the judgment of the Madras High Court in the matter of Dayanandan and another v. Venugopal Naidu, reported in A.I.R. 1964 Madras 78 by the executing Court is thoroughly misplaced. In fact the said decision rather than justifying the impugned order clearly discloses that the executing Court has acted with material irregularity in allowing the application of the decree-holder and has wrongly interpreted Section 128 of the Transfer of Property Act. Indeed the Madras High Court has clearly held that :-

"Apart from a Universal donee being a legal representative, such a donee only takes the estate of the deceased subject to his liabilities, as Section 128 of the Transfer of Property Act fastens a personal liability upon the universal donee for all debts due by the donor at the time of the gift, though such liability is confined only to the extent of the properties comprised in the gift." (Underlining supplied).

It is thus well settled that legal representatives of judgment-debtor are liable for the debts of the predecessor to the extent of the estate acquired by the legal representatives from their predecessors. This principle is clearly borne out from the Section 128 of the Transfer of Property Act. It is, therefore, clear that the impugned order has been passed without proper application of mind and in improper exercise of its jurisdiction by the executing Court.

7. In this view of the matter the impugned order cannot be sustained and is liable to be quashed and set aside.

8. In the result the revision application succeeds. The impugned order is quashed and set aside. However, there shall be no order as to costs.

Revision allowed