L BASANT LAL Vs. RAMESHWAR PRASAD

JUDGEMENT

(1.) The suit which has given rise to this appeal was promoted by one Sm. Ram Janki on her own behalf and as next friend of her two minor sons, Basant Lal and Behari Lal, for the partition of family property, moveable and immovable, detailed at the foot of the plaint.

(2.) It appears that the family, which owned the property, was comprised of Rameshwar Prasad and his two minor sons and his wife Sm. Ram Janki. The plaintiffs claimed a three-fourths share in the property. It was, however, alleged in the plaint that the defendant Rameshwar Prasad, who was the father of plaintiffs 1 and 2, and husband of plaintiff 3, was a person of weak intellect and immoral habits. He had executed certain documents and sale deeds in respect of debts which were non-existent and which were also vitiated by fraud and conclusion. The plaintiffs, therefore, claimed that the share allotted to them should be free from all such encumbrances. The persons in whose favour the deeds stood are defendants 2 to 7. Defendant a Sm. Ram Piari, had a maintenance charge against the family property and was also implea-ded as a defendant in the suit. Gofaardhan Das, defendant 2, died during the pendency of the suit and his two sons, Bankey Lal and Bijai Kumar, were substituted as his heirs and were numbered as defendants 271 and 2/2. One of the plaintiffs, Behari Lal, also died during the pendency of this appeal and Sm. Ram Janki is his legal representative.

(3.) The suit was contested by defendants 2, 4, 5 and 6. Defendant 3 was omitted from the array of defendants subsequently as it was found, that he held no claim against the family property on the basis of any document. Defendant 2, Gobardhan Das, since dead, alleged that Rameshwar Prasad executed four pronotes in his favour, one dated 28-4-1944, for Rs. 1500/-, another dated 10-6-1944, for Rs. 1000/-; a third dated 15-7-1944, for Rs. 1500/- and the last dated 15-9-1944, for Rs. 1500/- and that on the date, when the last pronote was executed, Rameshwar Prasad executed a security deed for Rs. 5500/- to secure the amount due under all the pronotes. A suit was instituted on the basis of this security deed on 15-1-1945, and a consent decree was obtained on 30-1-1945. It was further alleged on his behalf that this amount had been bor-' rowed by Rameshwar Prasad and was binding upon the plaintiffs inasmuch as the money was borrowed for payment of antecedent debts as also for family necessity. Defendant 4 Ganesh pra-sad, held a pronote for Rs. 500/- dated 23-13-1944, accompanied by a security deed executed by Rameshwar Prasad. He alleged that this sum was borrowed for family necessity and was binding upon the plaintiffs as it was a simple money debt.