HIRDAY NARAIN RAI Vs. RAM DAS RAI

JUDGEMENT

(1.) This is a pltf's. appeal arising out of a suit for recovery of possession of certain property.

(2.) The facts briefly stated are as follows : Ram Sarup Rai & his son Hirday Narain Rai formed a joint Hindu family owning valuable ancestral zamindari & house property. Ram Sarup Rai contracted debts to the extent of about Rs. 26,000 within 9 years from 1921 to 1930. On 26-2-1929 Hirday Narain Rai, who was then a minor, filed a suit for partition of the family property under the guardianship of his mother, as against his father, Ram Sarup Rai. A preliminary decree was obtained on 29-5-1929 defining the share of minor, Hirday Narain Rai. A final decree was also passed on 14-12-1929 & the house property was partitioned, but no suit for the actual division of the zamindari property was instituted in the Revenue Ct. On 1-9-1929, that is after the preliminary decree had been passed, Ram Sarup Rai borrowed Rs. 100 under a simple bond from Dip Narain Rai. He again borrowed a sum of Rs. 100 on 26-11-1929 from the same creditor. On the basis of these debts, Dip Narain Rai filed Suit No. 642 of 1930 against Ram Sarup Rai without impleading Hirday Narain Rai & obtained a decree for a sum of Rs. 289-4-0 against Ram Sarup Rai alone. In execution of this decree, he purchased at an auction sale 10 bighas of zemindari property on 20-7-1931 & entered into possession of the same sometime in 1932.

(3.) The suit which has given rise to this appeal was filed by Hirday Narain Rai after he had attained majority on 14-8-1943. He claimed that since there had been a partition between him & his father, the sale of his share of the property was not binding on him. He further alleged that the debts contracted by his father were for immoral purposes. General allegations of waste & immorality were levelled against his father. The relief claimed was for possession over 2/3rds of the property sold. The defence of Dip Narain Rai creditor was that the debts were contracted for legal necessity & that the partition was fictitious transaction & was not binding on him.