RAM SWARUP Vs. JAGDISH NARAIN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for declaration. The relationship between the parties will appear from the following pedigree.

(2.) Prasadi Lal died about 1897 leaving his son, Gaya Prasad who was about 11/2 years old at the time. After that Kundan Lal died about 31 years ago leaving Ram Dayal his son, his other son, Shib Sahai having predeceased him. Ram Dayal died leaving his son Ram Swarup, defendant 1 who instituted in 1922, a suit against Gaya Prasad, defendant 2 for rendition of accounts. Gaya Prasad on the other hand filed a suit for partition of the alleged joint family property against Ram Swarup, defendant 1. On 3 April 1922, the suit instituted by Gaya Prasad for partition was dismissed. Gaya Prasad preferred an appeal to this Court which Was dismissed on 14 November 1927. The suit which Ram Swarup, defendant 1, had instituted against Gaya Praaad was decreed ex parte against him on 22nd September 1924. Gaya Prasad made an application for setting aside the ex parte decree which was dismissed by the first Court. Against that order Gaya Prasad preferred an appeal which was dismissed by this Court on 22 September, 1924. Final decree for a sum of Rs. 10,000 was passed in favour of Ram Swarup against Gaya Prasad on 16 August 1926. Ram Swarup applied for execution. Some properties were Bold and purchased by Ram Swarup himself. Some other properties which have been attached have still to be sold and execution proceedings are still, going on.

(3.) Jagdish Prasad, a minor son of Gaya Prasad, defendant 1, instituted the suit which has given rise to this appeal. He alleged that Ram Swarup, defendant 1, and Gaya Prasad his (plaintiff s) father were members of a joint Hindu family and the property attached and sold was ancestral joint family properly, that Gaya Prasad did not prosecute the two above mentioned cases properly and that therefore he (plaintiff) WHS not bound by the decree passed in favour of defendant 1 against his father Gaya Prasad, He therefore asked for a declaration to this effeot and prayed that one-half share in the properties in suit owned by him and his-father be set apart by partition. In the alternative he asked for a declaration that he was entitled to one-fourth share in the-properties and prayed that the same may be partitioned. The suit was contested by Ram Swarup, defendant 1, on several grounds, his principal plea being that he and Gaya Prasad were separate in estate and that the decrees in the aforesaid two suits were binding on Jagdish Prasad, plaintiff. The Court below found that Gaya Prasad and Ram Swarup were separate, but it held that the decree in favour of defendant 1, could not be executed against one-half share of the plaintiff in that property which Gaya Prasad and the plaintiff held jointly until the defendant 1, could prove that such property was also lisble.