HEMRAJ ALIAS BABU LAL Vs. KHEM CHAND

JUDGEMENT

(1.) This is an appeal by special leave from a decree of the High Court of Judicature at Allahabad dated 12th May 1938, which affirmed a decree of the Subordinate Judge of Agra dated 12 September 1936. The appeal arises out of an execution application made by the appellant's father, Hemraj, since deceased, for the execution of a money decree which he had obtained against one Danpal in the Court of the Subordinate Judge of Agra, afterwards confirmed on appeal against the present respondents, the sons of Danpal, by the attachment and sale of the ancestral property in their hands.

(2.) The parties are governed by the Mitakshara law. The question for determination is whether the respondents can lawfully object to the execution of the decree on the ground that having regard to the nature of the judgment debt, the rule of the pious obligation of a son under the Hindu law to pay his father's debt does not apply to this case; or, in other words, is the debt in respect of which the decree was obtained an avyavaharika debt? Both Courts in India allowed the objection. Hence this appeal by the decree-holders, Hemraj and Danpal, with others, formed a joint Hindu family. In 1925, a suit was instituted, in the Court of the Subordinate Judge of Agra, by Hemraj on behalf of himself and another, for partition of the joint family property, against Danpal and the members of his branch of the family. Included in the suit was a promissory note for Rs. 5264 dated 21 November 1924, executed in favour of Danpal by three brothers, Ram Chand, Sri Chand, and Moonga Ram. This note had been executed in renewal of an earlier note dated 21 December 1921, for Rs. 4680, which itself was in renewal of a promissory note dated 22 February, 1919 for Rupees 4000, which had been advanced by Danpal out of family funds. The partition suit was referred to arbitration and a decree in terms of the award was passed on 19 June 1926. Besides other items of property, the aforesaid promissory note was allotted to Hemraj under the award; it provided that a document or decree which was allotted to one member would be his, that the member in whose name it stood would be responsible to prove its legal necessity and that he should file it in Court within seven days of the decree. It also provided that such a document should be within time, otherwise the party in whose name the document stands shall be responsible for the amount due together with interest up to the date of arbitration award. (see Ss. 2, 6 and 17 of the award). Danpal did not file the document within the specified time, but he filed instead, without giving any notice to Hemraj, another document executed by the three debtors on 21 June 1926. Hemraj filed his application for execution of the decree on 9 January, 1928.

(3.) Danpal then filed on 6 February 1928, the promissory note dated 21 November 1924, by which time it had become time-barred. On 3 December 1938 Hemraj filed a suit in the Court of the Subordinate Judge of Agra for the amount due under the promissory note making the executants of the note, defendants 1 to 3, and Danpal, defendant 4. The suit was dismissed as against defendants 1 to 8 as barred by time, but it was decreed against Danpal. It was admitted in the suit that the document dated 21 June was a forgery. The proceedings showed that Dan-pal allowed the promissory note to become barred by acting fraudulently towards Hemraj. In the course of the judgment, the Subordinate Judge remarked: Danpal defendant has all along been acting dishonestly towards the plaintiff and be cannot be allowed to take advantage of his cleverness and fraud.