PANNALAL BALDEV DAS Vs. MTNARAINI

JUDGEMENT

(1.) The facts which have given rise to this Letters Patent appeal may be briefly stated as follows:

(2.) Baldev Das, the father of the present appellants, hypothecated some machinery in favour of Mt. Naraini and Tilok Chand. The machinery was at that time the property of the joint Hindu family consisting of Baldev Das and his sons. The hypothecation deed was executed on 30 September 1928 and was for a sum of Rs. 16,000. Some years after this the sons of Bladev Das filed a suit for partition against their father. A preliminary decree for partition and then a final decree was passed on 20 July 1928. The joint family property was separated by metes and bounds and separate possession was taken by the father and the sons.

(3.) On 5 October 1934, that is, more than six years after the final decree in the partition suit Mt. Naraini instituted a suit against Baldev Das for the recovery of the money due on the hypothecation deed. The sons of Baldev Das, who are the present appellants before us, applied to be impleaded in the case on the ground that the hypothecated property had fallen to their share on partition. The plaintiff resisted this application and declined to implead the sons. The sons application was eventually dismissed and the suit continued against Baldev Das alone. Counsel for the plaintiff in that case made a statement that ha wanted a personal decree against Baldev Das only and gave up his claim against the hypothecated property. While the suit was still pending, that is, on 17 April 1935, Baldev Das died and his sons and widow were brought on record as his legal representatives on the application of the plaintiff. On 20 November 1935 the parties compromised the case and a decree in terms of the compromise followed. This decree was for the entire amount claimed by the plaintiff plus half the costs of the suit. The money was to be realized out of the property of Baldev Das in the hands of his sons.