SHANKAR RAO Vs. KAMTAPRASAD GOVINDPRASAD AGRAWAL

JUDGEMENT

(1.) THIS first appeal arises out of a suit instituted by plaintiffs 1 to 3 as sons and plaintiffs 4 and 5 as the widows of one Malharrao Zamindar (who had been joined as defendant 6 in the suit but later died during its pendency). The plaintiffs' case was that the father of Malharrao owned vast ancestral property and when he died in 1917 leaving two sons Malharrao and Martandrao there were no debts and the income of the property was large. After the death of Madhorao (their father) there was litigation between the two brothers, Malharrao claiming the whole of the property to himself on the ground of the impartibility of the zamindari and the rule of primogeniture. The said litigation ended in 1927 by a decision of the Privy Council, which held that Malharrao had only a half interest in the property and Martandrao had the other half. This decision is reported in Martand Rao v. Malhar Rao 15 A.I.R. 1928 P.C. 10.

(2.) THE brothers divided the estate in 1928 and became separate in all respects. It was found at the time of the partition that there was only the zamindari left for partition, the rest of the movable property and cash having been wasted in the meantime. The sons and the wives of Malharrao in their plaint stated that Malharrao was a man of loose character being addicted to drinking and debauchery from even before his father's death; he incurred debts from defendant 1, (Kamtaprasad), Parashram Deshmukh (who is now represented by Banabai alias Saraswatibai, his widow, and nephew Shamrao, son of Bhagwatrao Deshmukh of Kelod), Gyarsilal (defendant 4) and Nabab Mohiddin Khan (defendant 5). These defendants obtained against defendant 6 decrees as stated below: ( See Table on page 131.)

(3.) THE plaintiffs were not parties to any of the suits in which decrees have been obtained and which are mentioned above. Finding that execution proceedings were started by these creditors or by some of them, they made inquiries and learnt that in respect of some of them even full consideration had not been paid and the portion of the debt that was paid was not binding on the estate, that the creditors knew the immoral habits of defendant 6 and the illegal and immoral purposes for which the debts were required, but that with a view to making a gain for themselves they advanced loans to him and obtained decrees against him without joining the plaintiffs. The plaintiffs therefore instituted the present suit for a declaration that none of the decrees mentioned in the plaint which were obtained by defendants 1 to 5 against defendant 6 were binding on the plaintiffs or their interest in the joint ancestral property, and that defendants 1 to 5 had no right to proceed against their interest in the property in execution of their decrees.