KISHAN DASS TALWAR Vs. ADESHWAR LAL JAIN

JUDGEMENT

(1.) The plaintiffs in this suit claim that the decree for partition dated April 3, 1968 in Suit No. 680 of 1967 (Shri Nagesh Chand Jain and Others v. Shri Adeshwar Lal Jain) obtained from the High Court of Delhi is a nullity so far as the plaintiffs and other creditors are concerned and the same is not binding on them as it was obtained by fraud, by mis-representation of facts, by wilful concealment of facts and due to direct collusion of defendants Nos, 1 to 5. The said partition decree is alleged to have been obtained with an intent to defeat and delay the claims of the creditors and is sought to be avoided by claiming a decree for a declaration to the same effect.

(2.) It would be necessary to give a short narrative of the material facts leading to the filing of the present suit. A firm M/s. Dhoomimal Dharamdass was started in or about the year 1886 by some ancestors of defendants 1 to 4. The ancestors of defendants 1 to 4 also acquired certain immovable properties. In the year 1948 the firm M/s. Dhoomimal Dharamdass was a joint Hindu family concern of the father of defendant No. 1 and his three brothers. The family also owned several properties. M/s. Dhoomimal Dharamdass continued to be the joint Hindu family business till 1948 when the joint Hindu family was disrupted and the movable and immovable properties were partitioned. There was an award given on February 20, 1948 (though different dates have been given in the pleadings of the parties). This award was duly registered on May 4, 1948 and related to the partition of the movable and immovable properties and the family firm M/s. Dhoomimal Dharamdass. It is the admitted case of the parties that according to the said award, house No. 3709-3711 DhoomiMal Street, Chooriwalan, Chawri Bazar, Delhi and the stock 'in trade etc. valued at Rs. 46,401/5/3 fell to the share of the branch of the family of Shri Darogha Mal who being insane was acting through his wife as his guardian and Shri Adeshwar Lal son of the said Shri Darogha Mal. Shri Adheshwar Lal, after the death of his father became karta of the family and on the relevant date of the partition decree the aforesaid immovable property was the joint Hindu family property of Shri Adeshwar Lal, defendant No. 1. his three sons, defendants 2 to 4 and Smt. Kapuri Devi widow of late Darogha Mal, defendant No. 5. According to the additional pleas in the written statement of defendants 2 to 5 on the disruption of the family in 1948 the business of M/s. Dhoomimal Dharamdass was carried on in partnership with four sets of partners, namely (i) Lala Jugal Kishore, (ii) Lala Ram Chand, (iii) Adeshwar Lal and Smt. Kapuri Devi and (iv) Smt. Chambeli Devi and her minor son Vishal Chand. According to the statement of Shri Kishan Dass Talwar plaintiff No. 1, as Public Witness -2. the four brothers, namely Jugal Kishore, Ram Chand, Vishal Chand through Smt. Chambeli and Daroga Mal carried on this firm M/s. Dhoomimal Dharamdass as a partnership firm and it went on as a partnership firm uptill 1958. According to the defendants there was a change in the constitution of the partnership firm in 1954 and the changed partnership carried on business up to 1958 when the firm M/s. Dhoomimal Dharamdass was dissolved. The case set up by the changed partnership carried on business up to 1958 when the firm Lal became the sole proprietor of the business under the name and style of M/s. Dhoomimal Dharamdass and he carried on this business. The case of the plaintiffs on the other hand is that in 1958 by mutual consent this firm M/s. Dhoomimal Dharamdass was transferred to Shri Adeshwar Lal as karta of the joint Hindu family and he carried on this business as such.

(3.) On April 14, 1967 a petition under section 9 of the Provincial Insolvency Act, 1920 was filed by one creditor Shri Chander Bal Kakkar for adjudging Shri Adeshwar Lal and the firm M/s. Dhoomimal Dharamdass as insolvents. This petition was admitted by the Insolvency Judge, Delhi on April 15, 1967. On June 6, 1967 another petition was filed by Shri Kishan Dass Talwar, plaintiff No. 1 herein, against M/s Dhoomimal Dharamdass and Shri Adeshwar Lal, sole proprietor of M/s Dhoomimal Dharamdass. It was prayed that the respondents in that petition be adjudged insolvents and a receiver be appointed and he directed to take possession of the entire assets and property of the respondents therein, including their stock in trade lying in their shop and in their godown and other assets immovable and movable at Delhi lying in 4080, Nai Sarak. Delhi and 3709-10-11 Dhoomi Mal Street, Delhi and all other fixtures and furnitures in the house, shop and godown and the machines. When this petition came up for hearing before the Insolvency Judge, Delhi on June 7, 1967, certain interim arrangements for payment to the two creditors were agreed upon between those parties and it was ordered that in case of default in payment a.s specified the interim receiver as prayed for shall be deemed as appointed. It was further ordered that respondents therein are restrained from transferring in any manner their properties in the meanwhile. This petition of Shri Kishan Dass Talwar and the other petition of Shri Chander Bal Kakkar was determined by the Insolvency Judge on January 16, 1969, when it was found that the respondents therein were liable to be adjudged insolvents and so they were adjudged insolvents accordingly. The property of the insolvents was directed to vest in the Official Receiver as the same stood on the date of admission of the prior petition (i.e. 15-4-1967).