HEM RAJ Vs. KHEM CHAND

JUDGEMENT

(1.) These two appeals arise out of execution proceedings. One Bohra Dao Pal was a member of a joint Hindu family with Hemraj, the appellant, and father of the respondents, in E.F.A. No. 344 of 1936. Dan Pal had advanced a sum of Rs. 4000 to Ram Chand and Sri Chand, who are brothers, on 22 February, 1919 and had a promissory note executed by them in his favour. That promissory note was renewed by Ram Chand and Sri Chand and their brother, Moonga Ram, on 21st December 1921 for Rs. 4680 in favour of Dan Pal. The debtors again executed a fresh promissory note for Rs. 5264 on 21 November 1924 in favour of Dan Pal in lieu of the previous promissory note dated 21 December 1921. In the year 1925 a suit for partition of the joint family property was filed by Hemraj on behalf of himself and his minor younger brother against Dan Pal and the members of his branch of the family. This was Suit No. 365 of 1925 of the Court of the Subordinate Judge of Agra. This 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, this debt due under the promissory note mentioned above from Ram Chand and his brothers was allotted to Hemraj. In para. 2 of the award the arbitrators laid down that any document or decree which was allotted to one member of the family would be his and the member in whose name that document stood would be responsible to prove the debt and its legal necessity. In para. 6 of the award it was laid down that the party in whose possession any such document was, i.e. a document which stood in his name but was allotted to the opposite party, must file the said document in Court within seven days.

(2.) It was further provided that the said document must be within limitation; otherwise the party filing that document would be responsible for the money due on that document and that the plea of limitation by that party would be groundless because he would be deemed to have realized the consideration of that document by some means or other. Thus under the award, on the basis of which the Court passed a decree in the suit, it was the duty of Dan Pal to file the promissory note executed in his favour by Ram Chand and his brothers within seven days of the decree as the document stood in his name and had been allotted by the award and the decree to Hemraj and his brother. Dan Pal did not do so, but after the expiry of the week, filed on 28 June 1926 another document purporting to have been executed by the debtors on 21 June 1926. He did not explain in any manner what had happened to the promissory note dated 21 November 1924 or the previous promissory notes of 21 December 1921 and 22 February, 1919. He gave no notice or intimation of the filing of this document to the plaintiffs in the partition suit, Hemraj filed an application for execution of the decree in the partition suit in respect of several promissory notes and other articles which he alleged Dan Pal had not made over to him in accordance with the decree and prayed for the recovery by execution of over Rs. 10,000. This application for execution was filed on 9 January 1928 and one of the promissory notes about which Hemraj complained was this promissory note of Ram Chand and his brothers. It was only then that Dan Pal filed on 6 February 1928 the promissory note dated 21 November 1924. By this time a suit on this promissory note was time-barred.

(3.) On 3 December 1928 Hemraj filed a suit, No. 191 of 1928 in the Court of the Subordinate Judge of Agra for the recovery of Rs. 6615 on the basis of the promissory note dated 21 November 1924 and impleaded the executants of the promissory note as defendants 1 to 3 and Dan Pal as defendant 4. The suit was dismissed by the trial Court as against the executants, defendants 1 to 3, on the ground that it was clearly barred by time, but it was decreed against Dan Pal on the grounds that it was his duty to have filed the promissory note dated 21 November 1924 in Court within seven days of the passing of the decree in the partition suit, that his conduct throughout had been dishonest and that Hemraj was entitled to recover the amount from Dan Pal as he was prevented from recovering it from the debtors by Dan Pal's conduct. In this suit it was admitted that the document dated 21 June 1926, which purported to be a fresh pro-note, or an acknowledgment of liability, executed by the debtors and which was on the record, was not a genuine document. There were allegations and counter, allegations by each party against the other in respect of this document. Whatever may be the truth with regard to this matter, the fact remains that Dan Pal had in his possession the promissory note of 1919, 1921 and 1924 executed by Ram Chand and his brothers, but did not file them within seven days of the passing of the decree in the partition suit as it was his duty to do. He filed instead a document of 21 June 1926 and gave no notice to Hemraj that he had filed it, and this document subsequently became the subject of controversy. In the course of his judgment the Subordinate Judge has remarked: Dan Pal, defendant, has all along been acting dishonestly towards the plaintiffs and he cannot be allowed to take advantage of his cleverness and fraud.