KISHAN SARUP Vs. BRIJ RAJ SINGH

JUDGEMENT

(1.) I agree with the conclusions arrived at by my learned colleague. I am satisfied, for the reasons given by him, that the evidence fails to establish that the debts had been contracted for immoral purposes, as alleged by the plaintiffs- respondents. I am, however, not prepared to hold that the partition between the plaintiff-respondents and their father was effected in good faith. The circumstance that the suit for partition was brought by the minor sons, one aged seven years and the other aged nine months at that time, only four days after the appellant instituted the suit for recovery of money on foot of promissory notes, does not inspire confidence in the bona fides of the alleged partition. It is clear to my mind that the suit for partition was brought by the maternal grandfather of the plaintiff- respondents on their behalf in view of the money suit, instituted by the appellant, as it was apprehended that the family property would be proceeded against for satisfaction of the decree likely to be passed in his favour. Ordinarily a suit for partition at the instance of minors, especially against their father is not countenanced by Courts. Such a suit cannot be brought by, or on behalf of, a minor to enforce partition, unless on the ground of malversation or some other circumstances which make it for his interest that his share should be set aside and secured for him. Otherwise he might be thrust out of the family at the very time when he is least able to protect himself. In short, it is in the discretion of the Court to grant or refuse a decree for partition at the suit of a minor plaintiff, and the Court has to consider in such cases whether a decree for partition would be for the benefit of the minor. (Mayne's Hindu Law, 9 edn., p. 688).

(2.) In view of our finding that the debts in question were not contracted for immoral purposes, it cannot be maintained that the separation of the sons was to their interest, unless we assume that they would be enabled thereby to escape their liability to pay their father's debts. The father, who was the only party to the partition suit, did not raise any objection to a partition between him and his infant sons, and an ex parte decree defining their rights inter se was passed. The learned Subordinate Judge has assumed the total value of the family property left by the plaintiffs grandfather to be Rs. 70,000, and the liabilities of defendant 2 (plaintiffs father) to be (1) Rs. 12,500 due to the appellant and (2) What might have been due to one Sham Kunwar under a pro-note for Rs. 5,000 on which some interest must have accumulated. It is difficult to find exactly what the liabilities of the father were at the time of the partition. Assuming that there were no other liabilities, we find that the value of the entire family property brought into the hotchpot, as given in the plaint of the partition suit (p. 97), was Rs. 60,000. The liabilities of the father, referred to above, amount to nearly the value of the father's share in the entire family property, including lands, houses, household effects etc. No arrangement was made for payment of debts, and it could not have been honestly believed that the partition would not defeat or delay the father's creditors. The subsequent events clearly indicate that the so-called parti tion was the first maneuver towards the long drawn battle against the father's principal creditor. It is difficult to imagine that the father has been a silent spectator, and not a real litigant under cover of his infant sons. For these reasons, I am inclined to think that the partition was not made in good faith, and that it was prompted by a desire to defeat the claims of the creditors to whom the sons were under an obligation to pay so far as the extent of the family property would enable them to do so.

(3.) Cases in which partition has been held to be a bar to the creditors claim, for father's debts incurred before the partition, against the sons expressly lay down that the liability of the sons is not affected by a partition, if it was made to defeat or delay the creditors. Apart, therefore, from the question of law, on which there has been some difference of opinion the appellant is entitled to succeed on the ground that the partition not having been made in good faith can be ignored by him. I do not, however, desire to rest my decision on this ground alone and would proceed to consider the more important question whether, assuming the partition to have been made in good faith, the remedy of the creditors is, in any way, impaired thereby.