BHAGAT RAM KIRPA RAM Vs. AJUDHIA PARKASH

JUDGEMENT

(1.) On 28-9-1942, two pronotes and two receipts were executed by Kundan Lal father of the plaintiffs-respondents, in favour of Bhagat Ram for Rs. 1,900/ and 2,000/- respectively. Ram Lal and Shib Dass were the attesting witnesses to these documents. On 1-10-1945, Bhagat Ram filed a suit against Kundan Lal were that these two pronotes and the receipts were never executed by him and that these wee forgeries. The suit was dismissed by the trial Court on 8-4-1947, holding that the execution was not proved. The appeal filed by Bhagat Ram was accepted by the District Judge on 29-6-1948, and a decree for the entire amount claimed was passed. Kundan Lal's appeal in the High Court, Regular Second Appeal No. 771 of 1948, was dismissed on 7-5-1953. In execution of the decree passed by the District Judge, the property of the joint Hindu family, including the share of Kundan Lal's sons, was attached by the decree-holder and later sold.

(2.) On 23-8-1949, the suit, out of which the present appeal has arisen, was filed by Ajudhia Parkash, Brij Mohan and Yashpal minor sons of Kundan Lal, for a declaration that the properties in dispute are not liable to sale in execution of the decree aforesaid obtained by Bhagat Ram against Kundan Lal on the ground that the father constituted a joint Hindu family with the plaintiff's and the properties belonged to the joint family and that the debts on the basis of which the decree had been obtained never existed and were never incurred by Kundan Lal and that, in any case, they were raised by Kundan Lal for illegal and immoral purposes. The suit was resisted by defendant Bhagat Ram who denied the existence of the joint Hindu family or that the properties in dispute belonged to the coparcenary. He further pleaded that the factum of the debt could not be gone into and that consequently the plaintiff's were barred from challenging the existence of the debts. It was further stated that the debts were not incurred for immoral or illegal purposes and, inasmuch as during the pendency of the suit the property had already been put to sale, it was urged that a declaratory suit did not lie. As a result of these pleadings the following issues were settled:

(3.) We have carefully gone throughout the evidence with regard to the existence or otherwise of the debt. Out of the two attesting witnesses, Shiv Dass appeared as D.W. 6 and categorically stated that Kundan Lal did not raise any debt from Bhagat Ram in his presence, or execute any pronote or receipt and hand over the same to Bhagat Ram and that he attested these documents at the request of Bhagat Ram when he brought the same to him. Ram Lal, the other attesting witness, is said to be dead. A statement made by him in the previous case was sought to be brought on the record. This was rightly not allowed to be done. We were referred to no provision of the Indian Evidence Act under which such a previous statement would be admissible. This statement was made not in a suit inter prates and does not fall either under S. 32 or Section 33 of the Indian Evidence Act. We are, therefore, left with the statement of Bhagat Ram himself as D.W. 4. On his own admissions in cross-examination it is proved that he is not a reliable person and did actually make additions and alterations in other documents executed by Kundan Lal relating to the pronotes. This is what he sated: