SAT NARAIN Vs. SRI KISHEN DAS

JUDGEMENT

(1.) These are consolidated appeals from two decrees of the High Court of Judicature at Lahore, dated 20 January 1926, which, subject to some modification, affirmed two decrees of the District Judge of Delhi, dated 13 April 1916, dismissing two suits instituted by the present appellants, who are the two sons of Lala Sri Kishen Das, originally respondent 1 to these appeals. Sri Kishen Das, along with the appellants, formed a joint Hindu family, of which he was the managing member. The joint family owned considerable immoveable property, and a business, the headquarters of which were at Delhi. On 5 April 1913, Sri Kishen Das mortgaged to respondents 3, the Bank of Upper India Limited, a large part of the immoveable property owned by the joint family, in security of his indebtedness to the Bank. On 26th September 1913, Sri Kishen Das was adjudicated insolvent by the High Court of Bombay under the Presidency Towns Insolvency Act, 1909.

(2.) On 14 April 1914, the Bank instituted a suit in the Court of the District Judge at Delhi for recovery of their mortgage debt, amounting to Rs. 4,64,021-15-8 by sale of the mortgaged properties, against Sri Kishen Das, the present appellants, who were then minors, and the Official Assignee, Bombay. The present appellants contested the suit. The Official Assignee also contested the suit, but later he admitted the Bank's claim. On 2 October, 1914, the present appellants, then minors, through a next friend instituted the first suit now under appeal at Delhi against their father, Sri Kishen Das, the Bank, and the Official Assignee, asking for a declaration that one-half of the mortgaged properties was owned by them and that to the extent of their share, the mortgage was not binding on them, and also for an injunction to restrain the defendants from selling or alienating their one-half share in the said properties. On 11 January 1915, the present appellants instituted at Delhi the second suit now under appeal against Sri Kishen Das, the Official Assignee, the Bank, and sundry purchasers of immoveable properties sold by the Official Assignee, claiming partition and a half share of the immoveable properties belonging to the joint family, two lists of which were filed by the plaintiffs, the first list setting out the mortgaged properties in dispute, and the second detailing the properties free from the mortgage.

(3.) The three suits were tried together by the District Judge, and on 13 April 1916, he delivered judgment in the partition suit and dismissed the suit; for the reasons set forth in that judgment he also dismissed the declaratory suit. On 27 April 1916, he gave decree in the Bank's suit for Rs. 4,64,021-15-8 with interest, but made no order for sale, in respect that the larger portion of the mortgaged properties had already been sold by the Official Assignee; this decree has now become final, as an appeal therefrom was dismissed in default. The present appellants appealed from the decrees of the District Judge in the declaratory suit and the partition suit to the Chief Court of the Punjab (now the High Court of Judicature at Lahore) and on 20 January 1926, the High Court delivered a judgment disposing of both appeals. In the declaratory suit a decree was made affirming the dismissal of the suit by the District Judge. In the partition suit it was ordered by decree of the same date that the decree of the District Judge, Delhi, dated 13 April 1916, dismissing the plaintiffs' suit be varied to the extent of giving the plaintiff-appellants a preliminary decree declaring their share in the unsold properties, as detailed below, (here follow particulars of nine properties) to be one-half, and directing that division shall only be made after provision for the satisfaction of the remainder of the debt due to the Bank and of such other antecedent debts of Rai Bahadur Sri Kishen Das as the plaintiffs fail to show are immoral or illegal.