JAGANNATHA RAO AND FOUR ORS Vs. VISWESAM

JUDGEMENT

(1.) Suit by the plaintiff to recover (1) a sum of Rs. 2,500 deposited with first defendant on 6 July 1917 and (2) a sum of Rs. 350 payable to plaintiff for money paid for the first defendant. The defendants 2 to 5 are the sons of first defendant who formed with him members of a joint family up to 1918. In that year a suit was filed by the present second defendant against his father and brothers for partition. No written statement was filed and the suit was compromised and a decree was passed in terms of the compromise on 23 January 1920. Under the compromise, provision was made for paying off most of the debts contracted by the first defendant but not the suit debt. No specific properties were allotted to the first defendant and it was arranged that a maintenance of Rs. 30 should be paid to him every month. The present suit was filed on 6 July 1920 and the defendants 2 to 5 are sought to be made liable with reference to the shares in their hands of what had been prior to 1920 joint family property. The defendants denied the genuineness of the debts. The District Judge found that the debts were true. He had doubts about the bona fides of the partition, but on the ground that under the compromise it was agreed that all the debts of the first defendant were agreed to be paid by all the defendants, decreed the suit. All the defendants appealed. The first defendant died during the pendency of the appeal. With the construction of the terras of the compromise by the District Judge, we are not able to agree.

(2.) The other appellants do not question the correctness of the finding that the debts are true. Nor do they say that the debts are illegal or immoral. They contend that the sons are not liable for the father's debt (not charged on the property) after partition and rely on Kani Venkatareddi V/s. Chelluri Suthyanarayanamoorthi (1321) 40 M.L.J. 473 following Peda Venkanna V/s. Sreenivasa Deekshatulu (1918) I.L.R. 41 Mad. 136, The respondent replies that the partition is not bona fide within the meaning of the exception recognized in these cases and if the partition is held bona fide, he contends that Kani Venkatareddi V/s. Chelluri Sathyanarayanamoorthi (1921) 40 M.L.J. 473 is incorrectly decided and as to Peda Venkanna V/s. Sreenivasa Deekshatulu (1918) I.L.R. 41 Mad. 136 while conceding that the actual decision is correct, in so far as it rests on any ground other than the ground that the pro-note in that case was renewed by the father after partition, such ground is not correctly decided.

(3.) We are of opinion that the partition by the decree of 1920 was bona fide in the sense that the intention was to really divide the status of the parties; it is probably also bona fide though the matter has not been fully gone into, in the sense that there has been no unequal allotment of properties if we regard all the debts as debts of first defendant only, i.e., that his share, minus all the debts would have been much less than what he actually got, viz., an annuity of Rs. 360 and we come to this conclusion in spite of the fact that there has been no division by metes and bounds and the decision in Appa V/s. Ranga (1883) I.L.R. 6 Mad. 71 is doubtful, if it meant to decide that the family continues joint in cases where there is a relinquishment by the father subject to a maintenance. It is not bona fide only in the sense that provision was not made for all the debts of first defendant, not illegal and immoral (Ghose's Hindu Law, Vol. 1, page 438) out of the whole joint family properties from which they would have been recoverable if there had been no partition and debts like the plaintiff's will be defeated if it is held that the defendants 2 to 5 are not liable. As it is doubtful whether the exception mentioned in the cases uses the expression "bona fide" in this sense, we had to consider the question of the correctness of the decisions relied on.