HARDWARI LALD Vs. DWARKA PRASA

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and decree of the District Judge, Jaipur District, dated 21st May, 1971, in a suit for recovery of money.

(2.) ON 13-12-67 the plaintiff-respondents Dwarka Prasad and Gyarsilal brought a suit against six sons of deceased Pannalal and the heirs of the pre-deceased seventh son Asaram for the recovery of Rs. 16,503/ -. The suit was based on two promissory notes for Rs. 7,711/- and Rs. 6,283/- executed by deceased Pannalal on 16-12-64. ONe of the six sons, namely, Khub Chand, died during the pendency of the suit and since no legal representative was brought on the record within the prescribed time the suit against him abated. The learned District Judge decreed the suit against all the remaining defendants.

(3.) AS regards the liability of the remaining four sons, namely, Gangadhar, Gendalal, Banwarilal and Bhagwati Sahai, the evidence is that they separated on 8. 3-52. It is not in dispute that Pannalal had contracted the suit debt prior to 8-3-52. In Pannalal vs. Naraini (l), their lordships of the Supreme Court held that sons are liable to pay pre-partition debts unless there was an arrangement for payment of such debts at the time when the partition took place. Their lordships have further considered what is meant by an arrangement for payment of debts. It would be useful to quote the following observation of their lordships of the Supreme Court in this connection : - "the question now comes as to what is meant by an arrangement for payment of debts. The expressions 'bona fide' and 'mala fide' partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not un often lead to error and confusion. If by mala fide partition the object of which is to delay and defeat the creditors who have claims upon the joint family property,obviously this would be a fraudulent transaction not binding in law and would be open to the creditors to avoid it by appropriate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors ; if it makes no arrangement or provision for the just debts payable out of the joint family property, the liability of the sons for payment of the pre-partition debts of the father will still remain. "