DARBESHWARI SINGH Vs. RAGHUNATH PDSINGH

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff alleged that Tejan Tewari as the nearest agnate has succeeded to the properties of one Bishundayal Tiwari; that on 11 December 1924 Tejan Tewari sold, the properties to defendant 1, who obtained possession thereof, Several years after, that is on 1st June 1933 Sarjug Prasad, the father of the plaintiff, obtained a fraudulent and collusive sale deed from Bamphal Dubey who claimed to be the daughter's son of Bishundeyal. Sarjug having failed to obtain possession brought a title suit against defendant 1 for recovery of possession of the lands alleged to have been purchased. The Munsif granted a decree, but on appeal the District Judge set aside the decree. The High Court dismissed the second appeal and awarded costs amounting to Rs. 795, to defendant 1. In execution of the decree the entire joint family property was sold by the executing Court for a sum of Rs. 325 and purchased by defendant 1. Defendant 2 filed an objection under Order 21, Rule 90, Civil P.C., for setting aside the sale. The petition was dismissed, the sale was confirmed and defendant 1 was granted dahhaldehani. The plaintiff brought the present suit alleging that the decree for costs was an immoral debt and the share of the plaintiff in the joint family property was not liable to be sold for payment thereof. The plaintiff prayed for a declaration that the auction sale was illegal and sought recovery of possession of his share. In reply to the plaintiff's claim, defendant 1 contended that the plaintiff was under a pious obligation to pay the decree for costs made against his father, and the entire joint family property was liable for the payment thereof. On these rival contentions, the Subordinate Judge held that Sarjug Prasad had based the previous suit on a deliberately false claim that the decree for costs was an avyavaharika debt and the plaintiff's share in the joint family property was not liable to be sold in execution of the decree. The Subordinate Judge accordingly granted a decree to the plaintiff declaring his title to half share in the family estate and for recovery of possession thereof.

(2.) Against this decree defendant 1 has instituted this appeal.

(3.) On behalf of the appellant, Mr. G.P. Das concentrated his argument on the ground that Sarjug Prasad had bona fide prosecuted the previous title suit and that the decree for Costs was not avyavaharika and the son's share in the family estate was validly sold in execution thereof.