LAXMINARAIN SHEONATH MARWADI Vs. TRIMBAK

JUDGEMENT

(1.) 1. The appellant brought a suit on a mortgage executed by Shripat the father of respondent 1 Trimbak, for himself and on behalf of his minor son Trimbak, and obtained a preliminary decree for foreclosure. On appeal however the Additional District Judge modified the decree by making defendant 2 Trimbak and his share of the property liable only to the extent of Rs. 316 with proportionate costs. The plaintiff has now preferred this second appeal against that decree.

(2.) THE mortgage in suit is, not disputed, but Trimbak's defence in the trial Court was that his father Shripat had no right to mortgage the field in suit, that the only ancestral property consisted of that field and a house and that, as his father Shripat had sold his share in the field to one Mahomed Sakhar by a registered sale deed dated 21st January 1924 and had expressly separated the son's share by that deed, a partition was thereby effected. It was contended that the mortgage in suit (Ex.P.7) was executed on 13th July 1926 and that, though it purported to be executed by Shripat as guardian of his minor son, the consideration was not taken for legal necessity or for the benefit of the minor and the mortgage was not binding upon him or his share in the property. The trial Court found that the deed was duly executed, that it was executed for antecedent debt and for legal necessity and that it was binding upon Trimbak's share. The Judge has further found that both the defendants Trimbak and Shripat were joint at the time of the execution of the mortgage in suit and that no partition had taken place in 1924, as alleged.

(3.) THE view of the lower appellate Court however is I think wrong about partial partition, not because there cannot be a partial partition or because partial partition was not pleaded, but because I would hold, agreeing with the Judge of the trial Court, that no partition at all has been proved in the present case. No doubt the father in a Hindu family has power to effect a partition between himself and his sons, and in this connexion I would only refer to Mulla's Principles of Hindu Law at p. 391, Edn. 7. It is also true that an unequivocal expression of an intention to separate amounts to a partition: for this I would only refer to Balkishen Das v. Ram Narain Sahu (1903) 30 Cal 788 Syed Kasam v. Jorawar Singh 1922 P C 353 and Mt. Girja Bai v. Sadashiv 1916 PC 104. At the same time however, I would hold that a partition cannot be effected by a deed of transfer, and that an expression of intention to separate, or even an actual attempt to effect a partition in such a deed, will not amount to partition. A partition must be effected before the transfer and cannot be effected by the transfer itself.