SHEIK IBRAHIM THARAGAN Vs. KRRAMA IYER

JUDGEMENT

(1.) The suit from which this appeal was preferred was instituted by the plaintiff as the manager of an undivided Hindu family to enforce payment of the amount due on a mortgage bond executed by defendants Nos. 1 to 15. The 16th defendant in whose name the bond stood is the eldest of the three sons of the plaintiff, and was brought in as a party on account of the plea of defendants Nos. 1 to 15 that the debt was due to him alone and not to his family. They also pleaded that they had paid to the 16th defendant, prior to the suit, a sum of Rs. 650 towards the interest due on the bond, and that, subsequent to the suit, they deposited the total amount due on the bond with the South Indian Bank, which amount the 16th defendant was at liberty to draw on executing a bond to indemnify them against any claims that might be made by the other members of his family. The 16th defendant also claimed the debt as his own and set up that the family became divided on the 17th December 1904. The Subordinate Judge held that no division took place as alleged by the 16th defendant; that, although the bond was executed in the 16th defendant s name, it was really taken by the plaintiff for the benefit of the family; that the payment of Rs. 650 was not made prior to the suit, and that both the payment and the deposit were not bona fide acts but the result of collusion between the defendants Nos. 1 to 15 and the 16th defendant with a view to defraud the other members of thei6th defendant s family, and he accordingly decreed the whole of the claim made in the plaint.

(2.) This appeal has been preferred by the debtors. It is confined to the Subordinate Judge s disallowance of credit for the Rs. 650 alleged to have been paid to the 16th defendant prior to the suit and to the award of interest on the principal amount subsequent to the deposit made by the debtors in the South Indian Bank and of the plaintiff s costs against the debtors; but the points involved in appeal relate to all the questions decided by the Subordinate Judge.

(3.) We have no hesitation in concurring with the Subordinate Judge that the partition set up by the 16th defendant is not proved. There is no formal instrument of partition and the only oral evidence adduced to prove it is the testimony of the 16th defendant himself. He relies on Exhibit III, a yadast executed in his favor by his father, the plaintiff, authorising him to conduct the trade of the family at Cochin and Kottayam, and containing certain other provisions with respect to that trade as well as with respect to his right in the rest of the property belonging to the family. But the language of the instrument and the 16th defendant s deposition both show that though some negotiations went on for effecting a division they were never completed and that the family continued undivided. It is not contended by the 16th defendant that the debt belonged to himself if the family did not become divided.