YASHODHA v. A. H. NAGABHUSHANA

(BY SRI. REVANNA BELLARY, ADV.) …PETITIONER …RESPONDENT THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER VIDE ANNX-E DATED 19.08.2020 PASSED BY THE ADDL CIVIL JUDGE, DAVANAGERE IN EXECUTION NO.93/2016 BY Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9678 WP No.15247 of 2020 ALLOWING IA NO.III VIDE ANNX-C REJECTING THE EXECUTION NO.93/2016 AS NOT MAINTAINABLE AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL ORDER

1. Petitioner who is the daughter of one deceased Sri. A.M. Basavarajaiah, the Judgment Debtor is before this Court being aggrieved by the Order dated 19.08.2020 passed on I.A.III, on the file of Addl. Civil Judge, Davanagere in Ex.No.93/2016.

2. The above execution petition is filed by the Respondent seeking execution of decree for recovery of money passed in O.S.No.503/2010 against the father of petitioner herein. Since the father of petitioner who is the Judgment Debtor in the said execution proceedings passed away petitioner herein is made as party to the proceedings.

3. By the impugned Order, the Executing Court has rejected the said application in I.A.III filed by the petitioner herein under sub-section (4) of Section 6 of the Hindu Succession Act, 1956, whereby the petitioner herein had sought to dismiss the - 3 - NC: 2025:KHC:9678 WP No.15247 of 2020 Execution Petition as not maintainable on the premise of she not being liable to discharge the dues of her father. While dismissing the application, the Executing Court has noted that it has no power to go beyond the Decree except to execute the same and the grounds urged by the petitioner cannot be considered in the execution proceedings. It is this order which has led to the present Writ Petition.

4. Heard Sri. M.R. Hiremathad, learned counsel for the petitioner and Sri. Revanna Bellary, learned counsel for the respondent. Perused the records.

5. Learned counsel for the petitioner herein, relying upon the Judgment of the Apex Court in the case of VINAYAK PURSHOTTAM DUBE (DECEASED) THROUGH LRS. Vs. JAYASHREE PADAMKAR BHAT AND OTHERS reported in AIR 2024 SC (CIVIL) 994, submits that unless and until the respondent - Decree Holder establishes the fact that deceased Judgment Debtor i.e. father of the petitioner herein had left behind property inheritable by the petitioner as his legal heir, he could not have maintained the Execution Petition. Learned counsel further submits that deceased Judgment Debtor had - 4 - NC: 2025:KHC:9678 WP No.15247 of 2020 left behind not just the petitioner herein but also four other children and the respondent - Decree Holder has not chosen to make them as parties to the said Execution Petition. On these two counts, learned counsel seeks for setting aside the impugned order by allowing the Petition.

6. Learned counsel for the respondent - Decree Holder, on the other hand submits that, without making the legal representatives of the deceased Judgment Debtor, there is no possibility of seeking recovery of the money due. Learned counsel submits that the Executing Court is justified in rejecting the application filed under Sub-Section (4) of Section 6 of the Hindu Succession Act as the same was alien to the subject matter involved in the matter. However, to a specific query of this Court, he submits that respondent - Decree Holder is yet to ascertain the property if any left behind by the deceased against which the Decree could be executed. Learned counsel submits that respondent - Decree Holder would take necessary steps to ascertain and include the property in the said Execution Petition and would proceed further even by including the other legal representatives of deceased as contended by the petitioner. Submission is taken on record. - 5 - NC: 2025:KHC:9678 WP No.15247 of 2020

7. Hon'ble Apex Court in the aforesaid Judgment reported in AIR 2024 SC (CIVIL) 994, at para Nos.18, 19, 20, 22 and 27 has held as under: " 18. On a reading of the above, it is clear, when it comes to personal rights (as opposed to a proprietary rights) are rights arising out of any contractual obligations or the rights that relate to status. Such personal rights are not transferable and also not inheritable. Correspondingly, Section 306 of the Indian Succession Act, 1925 (for short, “1925 Act”) applies the maxim “actio personalis moritur cum persona” (a personal right of action dies with the person) which is limited to a certain class of cases and would apply when the right litigated is not heritable. By the same logic, a decree holder cannot enforce the same against the legal representatives of a deceased judgment debtor unless the same survives as against his legal representatives. Section 306 of the 1925 Act reads as under: “Section 306 – Demands and rights of action of or against deceased survive to and against executor or administrator.— All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favor of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.”

19. We may also advert to Sections 37 and 40 of the Indian Contract Act, 1872, which read as under:- “37. Obligation of parties to contracts.—The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance dispensed with or excused under the provisions of this Act, or of any other law. - 6 - NC: 2025:KHC:9678 WP No.15247 of 2020 Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract. x x x

40.Person by whom promise is to be performed.—If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it.”

20. Section 37 of the aforesaid Act states that a promise made by a promisor is binding on his representatives in case of his/her death, unless a contrary intention appears from the contract. Legal representatives are liable for the debts of their predecessor, but their liability is limited to the extent of the estate of the deceased inherited by them. Therefore, the representatives of a promisor are bound to perform the promisor’s contract to the extent of the assets of the deceased falling in their hands. But they are not personally liable under the contracts of the deceased and are also not liable for personal contracts of the deceased. Therefore, when personal considerations are the basis of a contract they come to an end on the death of either party, unless there is a stipulation express or implied to the contrary. This is especially so when the contracts involve exercise of special skills such as expressed in Section 40 of the Indian Contract Act, 1872.

22. Correspondingly, duties or obligations which are personal in nature cannot be transmitted from a person who had to personally discharge those duties, on his demise, to his legal representatives. Just as a right is uninheritable and the right personal to him dies with the owner of the right, similarly, a duty cannot be transferred to the legal representatives of a deceased if the same is personal in nature. - 7 - NC: 2025:KHC:9678 WP No.15247 of 2020 In Raghu Lakshminarayanan vs. Fine Tubes, (2007) 5 SCC 103, while distinguishing a juristic person such as a company, a partnership or an association of persons from a proprietary concern, it was observed that a person who carries on business in the name of a business concern, but he being a proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a company. Further, a proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business which is by representing the estate of the deceased proprietor. The real party who is being sued is the proprietor of the said business. Therefore, if a proprietor had to carry on certain obligations personally under a contract, the same cannot be fastened on his legal representatives.

27. But in the case of a personal obligation imposed on a person under the contract and on the demise of such person, his estate does not become liable and therefore, the legal representatives who represent the estate of a deceased would obviously not be liable and cannot be directed to discharge the contractual obligations of the deceased. "

8. Keeping in view the above, even in the instant case, the legal representatives of deceased Judgment Debtor would be liable to make the payment provided they have inherited the estate of the deceased. - 8 - NC: 2025:KHC:9678 WP No.15247 of 2020

9. Accordingly, petition is allowed. Impugned order dated

19.08.2020 at Annexure-E is set aside.

10. In view of the submission made by the learned counsel for the respondent - Decree Holder that necessary steps in this regard will be taken, the Executing Court shall proceed only on the respondent - Decree Holder bringing on record the property, if any, inherited by the legal representatives of deceased Judgment Debtor and also bringing all the other legal representatives of deceased Judgment Debtor, on record. All contentions are kept open to be urged by the parties in the said Execution petition thereafter. SD/- (M.G.S. KAMAL) JUDGE List No.: 2 Sl No.: 6