D P RAI AHUJA Vs. RAMESHWAR LAL

JUDGEMENT

(1.) THIS first appeal is directed against the decree dated 3lst July, 1961 passed by the Senior Civil Judge, Ajmer in a suit for partition originally instituted by Shrimati Keshar Bai.

(2.) ONE Badridas Taksali who owned considerable property died in October, 1942. He left behind him his widow Smt. Keshar Bai and Trijokinarain and Surajnarain, sons of his predeceased son Shri Motilal. The family was joint and they continued to live jointly. The business of the family in the lifetime of Badridas Taksali was a cloth business and it was carried on in the name and style of Chhogalal Badridas. On 13th of August, 1944 Trijokinarain and Surajnarain created a simple mortgage of two suit Havelies and borrowed a sum of Rs. 25,000 from Basantiram, defendant No. 1 on the ground that they needed money for cloth business. A mortgage deed Ex A 1 was executed to that effect. The mortgage money was not paid and Basantiram filed a suit against Trijokinarain and Suraj Narain and obtained a decree for the sum of Rs. 26 148-20 with interest and costs of the suit The decree was for more than Rs. 25,000. In execution of the decree Basantiram mortgagee sought the sale of the two suit Havelies sometime in the year 1956. After the sale was advertised, Smt. Keshar Bai brought the present suit on 2nd May, 1956, praying that she was entitled to half of the property and it be declared that the decree passed in favour of Basantiram is null and void, so far as her share was concerned in the suit property and her half share be partitioned by metes and bounds and she be put in possession of her share. Defendant No 1 Basanti Ram pleaded that the loan was advanced to Trijokinarain and Surajnarain for legal necessity and it was binding on the plaintiff as well. It was also contended by him that the suit was collusive and in fact Trijokinarain is at the back of the suit. Trijokinarain and Surajnarain were defendant No. 2 and 3 in the suit. Trijoki Narain alone filed a Written statement and admitted allegations in the plaint and he did not oppose the partition of the property.