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Phulchand and ors. Vs. Kandhya Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All247; 65Ind.Cas.295
AppellantPhulchand and ors.
RespondentKandhya Lal
Excerpt:
res judicata - execution proceedings--civil procedure code (act 7 of 1908), section 11, order xxi, rule 50(2), applicability of. - - unfortunately my brother and i do not agree in the view we take of the questions raised by the appeal, and according to the ordinary practice my judgment, when delivered, will be withdrawn and the appeal will have to be dismissed, as the appellants have failed to satisfy both members of the bench. the detailed facts of the proceedings which led up to this application are fully and clearly set out in my brother's judgment, which i have had the advantage of reading, and it is, therefore, unnecessary for me to repeat them. it may be that this is a hard case, but there are instances in which hard cases, if admitted, make bad law, and in my judgment this is.....walsh, j.1. this is an appeal from an order passed by the execution court under order xxi, rule 50, attaching the property of two young alleged partners, one of whom, phul chand is dead, so that the order has been made against his heirs, and the other of whom suraj karan is still a minor, by reason of their being, as i understand the judgment, members of a joint hindu family and, therefore, members of the firm which undoubtedly had been carried on by their father mahadeo, prasad and was afterwards undoubtedly actively carried on by his elder son mangli prasad on behalf of them as members of a joint family, if they continued joint, and on behalf of himself and any other person who was interested if they were separate. the case seems to me an important one and by no meant a simple one,.....
Judgment:

Walsh, J.

1. This is an appeal from an order passed by the Execution Court under Order XXI, Rule 50, attaching the property of two young alleged partners, one of whom, Phul Chand is dead, so that the order has been made against his heirs, and the other of Whom Suraj Karan is still a minor, by reason of their being, as I understand the judgment, members of a joint Hindu family and, therefore, members of the firm which undoubtedly had been carried on by their father Mahadeo, Prasad and was afterwards undoubtedly actively carried on by his elder son Mangli Prasad on behalf of them as members of a joint family, if they continued joint, and on behalf of himself and any other person who was interested if they were separate. The case seems to me an important one and by no meant a simple one, although I take a very clear view of what our order ought to be. Unfortunately my brother and I do not agree in the view we take of the questions raised by the appeal, and according to the ordinary practice my judgment, when delivered, will be withdrawn and the appeal will have to be dismissed, as the appellants have failed to satisfy both members of the Bench. The detailed facts of the proceedings which led up to this application are fully and clearly set out in my brother's judgment, which I have had the advantage of reading, and it is, therefore, unnecessary for me to repeat them. I gather that the broad view on which he thinks this order ought to be supported is that grave injustice may be done to the decree-holder if he be precluded, as he would be precluded, if we allow the appeal, from proving that the appellants were partners. It seems to me that one answer to this is that, if injustice there be, it has been brought upon, the decree-bolder by the procedure which he has followed in his endeavour to execute the decree, not in my view by misfortune or by miscalculation, but by a deliberate effort in my view to overreach himself and get an order against the present appellants without running the risk of a decision against him under Order XXI, Rule 50, which was the appropriate procedure. In other words, he assumed everything in his own favour and applied for execution of the decree by an injunction and by obtaining an attachment of the appellants property without waiting for a decision that the appellants were partners in the firm, whether as members of a joint family or otherwise.

2. There is another answer. It may be that this is a hard case, but there are instances in which hard cases, if admitted, make bad law, and in my judgment this is one. We have to consider the effect of our decision upon the general law and the sort of future experiments which a decree-holder with a decree against a firm may make if we uphold this order.

3. By the attachment of the 18th August 1917 which was made by the decree-holder, the present appellants were forced in self-defense, if they ever wanted to save their property, to object. Their objection was that the property belonged to them and not to the firm. The order of the 6th of September 1918, which to my mind is the main difficulty in the way of the decree-holder in these present applications, exempted the share upon the present appellants' objection and exempted it as though they were separated Hindus entitled each to one third of the property which had been attached, and held that the attached property had not been proved to be the property of the firm. I pause here for one moment to examine the converse case. If it had been found by the Court in that proceeding that the property was the property of the firm end that it was attachable in the hands of the then objectors as being members of the firm, what possible remedy bad the appellants, or what possible meats was there of, escaping from that order and from submitting to their property being sold unless they successfully appealed against the order?

4. Order XXI, Rule 50, is a provision in favour of the decree-holder and in my judgment it ought to be interpreted in that light. It is framed upon the English model, and it provides a scheme for enabling a decree-holder to obtain execution against an alleged partner, in the first place, who has appeared and has either admitted or been adjudged to be a partner, or alternatively, against a person who has been served in the suit as a partner and has failed to appear, Sub-rule (2) provides an additional procedure for meeting the difficulty which is just the difficulty in this case, which is a frequent difficulty in the case of business firms, who in fact trade under other descriptions than their right names, and are allowed by the law to sue and be sued in their trade names. It often happens in such cases that there are persons who are members, and who have provided capital, and are enjoying the profits, whose identity is concealed beneath the trade title which has been adopted, and Sub-rule 2 provides that where in such cases a decree-holder desires to enforce his decree against any other person than the persons referred to, whom I have mentioned already, as being members of the firm, he may apply to the Court for leave. If the liability is not disputed, he obtains the leave as a matter of course and the property is liable to execution. If the liability is disputed, then the matter is to be tried in any manner in which an issue may be tried and determined, Nobody can deny that that issue was in fact, however well or however badly, determined by the order of the 6th of September 1918. If this order now appealed from is upheld it necessarily follows that a decree-holder can enjoy a preliminary attempt to execute a decree by attachment or other ordinary proceeding in execution. If he fails, after resistance by the person whose property is sought to be attached, he is then to be allowed to fall back upon Order XXI, Rule 50, and have, as in colloquial language, a second shot. If he succeeds, the order is undoubtedly binding up in the person who objects to the attachment. How can it be said in such a proceeding that a judgment' debtor is bound and a decree- holder is not? It is my difficulty upon this point which makes me differ from the view taken by my learned brother.

5. It seems to me that the argument becomes a fortiori when the order of the 3rd of May 1919 is looked at. That was an application by the decree-holder for review. No doubt it was misconceived, but it was made and it still stands as a binding decision upon the parties in this execution proceeding, and the decision of the Court there was that the previous decision bad been that the present appellants were not parties to the decree (which by the way was a bad reason because it bagged the whole question) and, secondly, that the property sought to be attached was not the property of the firm. Mr. Lalit Mohan Banerji, seeking to justify the position of his clients, adopted an argument which I can only describe as a counsel of despair, by taking the line throughout his argument that these proceedings of the decree-holder were ultra vires. I do not know what this means, He applied for attachment in the ordinary way to the proper Court, and the Court which entertained the application entertained it within the scope of its jurisdiction under Section 47. I fail to See how these proceedings can be considered ultra vires. But assuming that it is a correct description of them, I further fail to see how a decree holder can improve his position by getting an order against himself in a proceeding which he wishes to ignore and then treating it, although he himself brought it for his own advantage, as a proceeding which should have been treated as ultra vires.

6. I think the decision appealed from is contrary to principle and the direction as given to the Courts in India by the Privy Council. I refer particularly to the decision in Ram Kirpal v. Rup Kuari 6 A. 269;11 I.A. 37 : 4 Sar. P.C.J. 489 : 3 Ind. Dec. (N.S.) 718, the well-known case in which it was sought to get behind an order with regard to mesne profits which had been passed in the interlocutory stages of a case between the same parties by the District Judge; the matter afterwards went up to the High Court, and in the final decree the High Court held that inasmuch as there had been no final' disposal of the point, it was open to the parties in the final proceeding to re-open the question which had been decided by Mr. Probyn in the interlocutory proceedings. An appeal was brought to the Privy Council, and they held that the order construing the decree having been made in the same suit in which the application was made, the question whether the law of res judicata applied was not relevant. The decision had become final between the parties upon general principles of law, and Sir Barnes Peacock Used this language:

The question, if the term res judicata was intended, as it doubtless was, and was understood by the Full Bench, to refer to a matter decided by a Court of competent jurisdiction in a former suit, was irrelevant and inapplicable to the case. The matter decided by Mr. Probyn was not decided in a former suit, but in a proceeding of which the application, in which the orders reversed by the High Court were made, was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13 (now Section 11) but upon general principles of law. If it were not binding, there would be no end to litigation.

7. In my judgment every word of this passage applied to the present appeal. On page 275 Sir Barnes Peacock used the following language:

Mr. Probyn's judgment and the order passed thereon was never reversed or set aside. It was said that a special appeal from that judgment did not lie to the High Court. If so, the judgment was final; if an appeal did lie and none was preferred, the judgment was equally final and binding upon the parties and those claiming Under them, It would be a reproach upon the administration of justice if, after endeavouring for 11 years to obtain execution for mesne profits in accordance with a judgment of a Court of competent jurisdiction against which no appeal was preferred, the parties could now be told that that judgment was erroneous, and that they were not entitled to mesne profits.

8. That case was referred to--I do not say explained--because it seems to me to require no explanation, and acted upon by a judgment of this Court in Kishan Sahai v. Aladad Khan 14 A. 64 : A.W.N. (1891) 221, 7 Ind. Dec. (N.S.) 113. In that case the judgment-debtor sought to raise, in objection to execution, a point which he had refrained from pleading in the suit and there was a binding order upon him in the same suit between the same parties. The (sic) Chief Justice, Sir John Edge, used this language:

Although Section 13' (now Section 11) may not in terms apply by reason of the matter not having been decided in another suit, still the Privy Council in an analogous case has told the Courts in India that the principle of law underlying Section 13 is to be applied to proceedings in the, execution of decrees, The case to which we refer is Ram Kirpal v. Rup Kuari 6 A. 269;11 I.A. 37 : 4 Sar. P.C.J. 489 : 3 Ind. Dec. (N.S.) 718.

9. Those two cases both apply against a judgment-debtor. It seems to me that the came principle must be applied against a decree-holder who has the misfortune to obtain an order in the proceeding against himself which he does not set asides. To my mind difficulty is created by attempting to apply the provisions of Section 11 to a general principle of law. In fact the principle which the Privy Council has set is not governed by Section 11 at all. It only confuses the issue to examine the explanation to Section 11 in a matter to which Section 11 does not apply. It further confuses the issue to talk about res judicata, when the principle of res judicata is not involved. That is the respectful comment which I make upon the decision of Mr. Justice Chamier which was affirmed in Letters Patent Appeal by this Court in Kalyan Singh v. Jagan prasad 30 Ind. Cas. 523 : 37 A. 589 : 13 A.L.J. 828. It seems to me that somewhat unsuccessful effort is made to distinguish that case from the decision in the Privy Council. The Privy Council expressly decided that the principle of res judicata did not apply and, therefore, it does not help matters to hold that the judgment debtor is not prevented by certain proceedings by the principle of res judicata and to examine the explanation contained in Section 11. In that case, if I may respectfully say so, the decision was clearly right, but the point was somewhat different. It certainly has no application to the present appeal in my view. The point was, what was the balance due from the judgment debtor to the decree holder when the final decision in the execution proceeding was reached? There had been previous execution proceedings, but the question of the balance due was not then relevant. Intermediate matters bad to be got out of the way. Property which had been attached and seized by the decree-holder had to be realised before the pecuniary extent of the judgment debtor's remaining liability could be put into precise figures. When at the last stage in winding up the final account it was necessary to see how much remained due from the judgment-debtor, it was discovered that the decree-holder was charging interest upon costs beyond what he was entitled to receive. The correct answer, in my humble judgment, if it was a correct answer, was that that point had never been decided. In my view the issue is confused by introducing a discussion of Explanation IV to Section 11 in matters in, which the Privy Council has distinctly said that Section 11 has no application. In my view the orders of the 6th, of September 1918 and 3rd of May 1919 are final and binding upon the decree-holder and on that ground that appeal ought to be allowed.

10. In that event it would be unnecessary to consider the evidence on the merits. I do not propose to dwell, at the length I otherwise might do, upon the evidence taken in the Court below upon the merits, inasmuch as, if this order stands to-day, the question will never arise, and if an appeal is brought from this decision, the appellant will be able to go into that question before the Appellate Court. I will content myself with saying that, ignoring the positive evidence which was given in the previous proceeding in 1918 in favour of the appellants and the somewhat attenuated answer which the decree holder at that stage made (I am doubtful whether we, sitting as an Appellate Court, are entitled to look at the evidence given in the previous proceeding in 1918 which might have been brought on the record in this case and was not), I am bound to say that the judgment of the learned Judge in this case does not strike me as founded upon a really careful examination of the balance of the evidence. He apparently accepts the evidence of three witnesses who acted no me time or another as mukhtar am for Mangli Prasad. Still on the other hand he assigns that as a reason for rejecting the evidence of a person who was acting in a similar capacity for the other side at the time of the hearing. The case for the appellants is that being originally members of a joint family, the elder brother retired from this province and went to Jaipur, and that in this application they did not trouble to all much evidence on the question as they had done so once already, It was on the record in the execution proceeding of the very Court which was hearing the case and they had an order in their favour with reference to this actual property. But it is to be observed that the present respondents on the merits, although they had had the benefit of a dress rehearsal, or preliminary hearing upon the merits, did not attempt to call any evidence from Jaipur where the partition had been said, and, in my opinion had been found, to have taken place, and all the witnesses they put forward carefully refrained from professing any knowledge as to what happened after the brothers went to Jaipur. The only question with regard to Jaipur which they relied upon at all was the date when the removal took place. They contended that the date was after the liability was incurred and even after, the commencement of the suit; whereas every witness was judiciously vague and hopelessly contradictory with the other, and it is impossible to come to a definite conclusion on that point. It seems to me that this is one of the salient points in controversy and the learned Judge has altogether missed it. He throws no light upon it, but merely finds as a fact that the appellants are members of a joint family. On these questions I am strongly in favour of upholding the finding of fact of the Court below, but I am not at all satisfied that the decision in this case was according to the weight of evidence.

11. But the point that strikes me about the investigation of the evidence, particularly the evidence which was given at the hearing in 1916--and because that order is in question, I think we were bound to look into that evidence--is that there was a mass of evidence on both sides with regard to the partition, with regard to the date, with regard to the membership of the appellants' joint family and their membership of the firm, and whether the Court in the order which it passed on that occasion expressed itself well or badly, or disposed of the case in a satisfactory way, there is no doubt that the parties were under no misapprehension as to the issue in dispute. The issue in dispute on the evidence was clearly whether or not they were members of the joint family and, in my view, the learned Judge could not by law Have some to the conclusion he did, and passed the order exempting the property as he did, without deciding that question as a question of fact For these reasons I think the appellant is right.

Wallach, J.

12. This appeal arises out of an application, dated the 5th of May 1919, under Order XXI, Rule 50, Clause 2. It appears that on the 9th April 1915 the firm Bhairon Prasad Mahadeo executed a hundi for Rs. 2,500 in favour of Gajadhar Prasad payable 131 days after date. On the 10th April 1915 the same firm executed a hundi for Rs. 2,500 in favour of Bhagwan Das and Babu Damodar Das payable 181 days after date. The rights, of the payees of both these hundis were bought by Lala Kandhya Lal, the respondent in this appeal. On the 10th August 1916 he brought a suit for Rs. 5,377-8.0, being the principal and interest due on the two hundis aforementioned. He impleaded as defendants (1) the firm of Bhairon Prasad Mahadeo, (2) Bhagwan Das, (3) Babu Damodar Das and (4) Gajadhar Prasad. A compromise decree was passed on the 28th November 1919, in which Mangli Prasad on behalf of the defendant firm undertook to pay Rs. 6,129 in five instalments. Four houses and certain Zamindari property were mortgaged as security for the due payment of the instalments due under the decree. The decree provided that on the failure to pay one instalment or if interest payable fell into arrears for six months, the whole decree could be executed and that the decretal amount could be realised from the mort gaged property and the person or other property of Mangli Prasad, Phul Chand and Suraj Karan, members of the firm Bhairon Prasad Mahadeo. The decree was only against the defendant No. 1, defendants Nos. 2, 3 and 4 having been exempted by the plaintiff's Vakil. There having been a breach of a condition of the compromise decree, the decree holder applied on the 30th July 1917 for execution and asked that the property charged in the decree be attached and sold, On the 8th August the plaintiff applied for an injunction restraining Mangli Prated, Phul Chand and Suraj Karan from dealing with the property which had been mortgaged. The property was actually attached on the 18th August 1917. On the 12th September Phul Chand on behalf of himself and on behalf of his minor brother Suraj Karan applied to have the property exempted from attachment. This application sets out that the attached property belongs to the objectors and not to the judgment-debtor and that the decree in execution of which the property had been attached did not contain the names of the objectors as judgment-debtors. The objection further stated that the objectors had filed an application to set aside the ex parte, decree. In fact an application by Phul Chand on behalf of himself and his minor brother was filed on the 8th September 1917 to set aside the ex parte decree. Orders in both these cases were passed on the 6th September 1918. The order in the case objecting to the attachment of the house and Zemindari property is as follows:

13. The decree holder has obtained a simple money decree against defendant No. 1, i.e. firm Bhairon Prasad and Mahadeo. The present objectors were not parties to the decree, Mangli Prasad appeared for the firm. These objectors are brothers of Mangli Prasad. They were never disclosed in the plaint as partners. The property attached has not been proved to be the property of the firm. Under the circumstances attached property must be the property of the objectors as well as that of the judgment-debtor Mangli Prasad presenting the firm.

Ordered

14. 2/3rd share in the property attached be released; parties to bear their own costs.'

15. The order dismissing the application to set aside the ex parte decree was that the applicants were not parties to the decree and that the Court did not see how they could apply to have the decree set aside in the execution department. The decree-holder filed on the 14th September 1918 an application for review of the order of 6th September 1918 releasing 2/3rds of the mortgaged property from attachment. This application was dismissed on the 3rd May 1919. The Court in dismissing the application for review explained that the order of 6th September 1918 was based on two points, namely:

(1) That the objectors were not parties to the decree, and

(2) The attached property was not proved to be the property of the firm

16. The learned Subordinate Judge (who has succeeded the Subordinate Judge who passed the orders of 6th September 1918 and 3rd May 1S19) delivered on the 23rd June 1920 the order now under appeal. He held that the previous orders were no bar to the application under Order XXI, Rule 50, Clause 2. On the merits be held that Phul Chand and Suraj Karan were members of the firm Bhairon Prasad Mahadeo at the time when the hundis of the 9th and 10th April 1915 were executed and that they were as much liable to pay the decretal debt as Mangli Prasad was, It has been strenuously contended in appeal before us that the learned Subordinate Judge was wrong in allowing the parties to go into the merits of the case and that he should have held that the order of the 6th September 1918 was final and conclusive between the parties, On behalf of the respondent it is urged that the application for attachment of the mortgaged property was unnecessary and that the filing of this application in no way prevented the decree-holder from seeking an adjudication under Order XXI, Rule 50, Clause 2, The present application is as to who the members of the firm Bhairon Prasad Mahadeo were. I do not think that the decree holder can escape being bound by the decision of the 6th September 1918 merely because his application was unnecessary. This application gave rise to Phul Chand and Suraj Karan's application of the 28th September to have the attachment removed. If in these applications the issue now before the Court has been heard and finally decided, then on the analogy of Section 11 of the Code of Civil Procedure the decree-holder would be barred from re opening the issue. Explanation III to Section 11 reads as follows: 'The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.'

17. Explanation IV lays down: 'Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit' Explanation IV, therefore, extends the principle of res judicata not only to questions which have been heard and finally decided by the Court, but also to matters which might and ought to have been made ground of defence or attack. There is no doubt that in the proceedings anterior to the application under. Order XXI, Rule 50, Clause 2, the question which has been decided on the merits by the learned Subordinate Judge in favour of the decree holder might have been raised. In considering whether the doctrine set down in Section 11 of the Code of Civil Procedure is to be applied by analogy Civil convenient to refer to the decision of Chamier, J., in Kalian Singh v. Jagan Prasad 27 Ind. Cas. 950 : 13 A.L.J. 162, which decision was subsequently upheld in appeal under Section 10 of the Letters Patent by Richards, C.J. and Rafique.J in Kalyan Singh v. Jagan Prasad 30 Ind. Cas. 523 : 37 A. 589 : 13 A.L.J. 828 The report shows that previous rulings on this point were brought to the notice of Chamier, J. Chamier, J., on page 165 Page of 13 A.L.J.-[ED.] of the report says. 'It has been held in several cases that a matter once decided by a Court executing a decree cannot be re opened at a subsequent stage of the proceedings but I am not aware that it has been held that a judgment debtor who puts forward objections in the execution department must put forward all possible objections once and for all and that if he does not do so, matters which he has omitted must be treated as res judicata against him even if he was not aware of them In the present case there has certainly been no decision on the question now raised, and in the absence of authority I am not prepared to hold that the matter is res judicata against the judgment debtor because he had a previous opportunity of raising the question but did not do so.' On page 590 Page of 37 A.-[ED.] their Lordships in upholding the decision of Chamier, J., say:' It seems quite clear that the provisions of the Code to res judicata are not expressly made applicable to execution proceedings. It is said however, that there are numerous authorities in which the principle of res judicata has been applied to execution proceedings. No authority has been shown to us where it has been decided that if a judgment-debtor does not take exception to the amount set forth as being due in an application for execution, he is prevented of the rule of res judicata from ever afterwards raising the question. To hold that he was would not only be applying the rule of res judicata in a way not provided for by the Code, but would be also seriously extending the authorities sited. In the present case the question as to how far the decree remained unsatisfied was never raised or decided. It is only by calling to his aid Explanation IV that the decree holder can contend that the question has already been decided... If it is considered expedient (we do not say it is) to make all the provisions of Section 11 of the Code applicable to execution proceedings, it should be done by Legislature and not by the Judges.'

18. In the application for attachment the decree-holder did not ask for an adjudication as to whether Phul Chand and Suraj Karan were members of the firm Bhairon Prasad Mahadeo, but took for granted that they were members of that firm and without asking for an adjudication on this point, claimed attachment of the property mortgaged as well as of their own property, if the mortgaged property was not sufficient to satisfy the decree. In the application to release the property from attachment, which may be taken as the answer to the decree- holder's application of the 30th July, the present appellants did not specifically raise the plea that they were not members of the firm and that, therefore, their property could not be attached in execution' of the decree. What they did say was that the attached property was their sole property and did not belong to any judgment-debtor, that Mangli Prasad, the brother of the objectors, having become ruined had emigrated to Jaipur and that the decree in execution of which the property had been attached did not contain the names of the objectors as judgment-debtors and was also invalid according to law. The evidence of the two witnesses who were examined by the Court in the proceedings for setting aside the ex parte decree was read to us. That evidence was to the effect that Mangli Prasad had emigrated to Jaipur and that no separation between the objectors and Mangli Prasad had taken place in the presence of the witnesses. We were told that there was other evidence which had been taken on commission and which want to show that a separation had actually taken place between the brothers. The Judge evidently did not take the view that the brothers were separate, because he released a 2/3rd share of the attached property and directed the parties to bear their own costs. The order of the Judge has already been quoted. Had the Sub-Judge accepted the objectors' contention, he would have released the whole of the attached property. The reason for his decision appears to be that the objectors were not parties to the decree, that their names were not disclosed in the plaint as partners and that it had not been proved that the attached property belonged to the firm. It seems that the learned Judge did not have before him, and did not intend to decide, the issue which was adjudicated upon in the order which is now under appeal. This is the issue as to whether or not Phul Chand and Suraj Karan were members of the firm of Bhairon Prasad Mahadeo at the time when the hundis of 9th and 10th April 1915 respectively were executed. It seems to me that a grave injustice might be done to the decree-holder if in the circumstances he were precluded from proving in these proceedings that the appellants were partners of the firm in question. In my opinion, therefore, the appeal must now proceed on the merits.

19. We have now been addressed on the merits of the case. Mr. Dube on behalf of the appellants has read not only the evidence of the two witnesses who were examined in Court in the proceedings in 1918, and to which I have already referred above, but has also read the evidence which was taken on commission in that proceeding in Jaipur. In my opinion that evidence is not admissible in these proceedings, not having been legally brought on the record. But as the evidence has been read, I should like to say that in my opinion it does not carry the case of the appellants very far. Five witnesses were examined on commission in Jaipur on the 3rd of March 1918. They all profess to have taken part in the division of the property between Mangli Prasad and his two minor brothers. They do not say when the partition took place, except that it happened 2 or 2 1/2 years before they gave evidence. They say that a partition deed had been executed. It is not said whether the deed of partition was registered or not, The partition deed was never produced in evidence. It does not appear who acted on behalf of the minors in those proceedings. Having heard the evidence read, I hold that it does not prove a partition of the family. Certain documentary evidence, which was produced in that case, was also referred to by Mr. Dube, but, in my opinion, it does not carry his case any further. The documentary evidence produced on behalf of his clients consisted of the plaint and written statement in a suit brought by the firm Baijnath Juggi Lal against the firm Bhairon Prasad Mahadeo through Mata Din. In paragraph 3 of the written statement Mangli Prasad alleged that he and his two minor brothers were members of the firm. Two documents had also been produced on behalf of the respondents in the proceedings of 1918. One was the plaint in Suit No. 55 of 1915 in the Munsif's Court at Banda, in which Mangli Prasad and his two brothers, Phul Chand and Suraj Karan, jointly sued a person for a debt which had been contracted in favour of their deceased father. The second document was the plaint in Suit No. 451 of 1915 in the same Court, in which the three brothers and Mata Din sued, as members of the firm of Bhairon Prasad Mahadeo, two persons for a debt contracted in the lifetime of their father. That evidence is certainly not in favour of the appellants. In 1919 in the proceedings out of which this appeal has arisen a certain number of witnesses were produced on behalf of the respondent. Of these one Mahadeo Prasad, a Vakil practising at Karwi, giving evidence in 1919, said that the three brothers were members of a joint Hindu family 2 or 2 1/2 years before he gave evidence. That would take us back to the year 1917, about a year after the decree which is sought to be executed, was passed, and a considerable time after the hundis, which were the basis of the suit, were executed. Sarju Din, who lives in Karwi lose to the house of the firm, also testifies that Mahadeo Prasad was the owner of the firm and that after his death his three sons were members of the joint Hindu family and remained members of the firm, and that after the decree was passed the three sons went away to Jaipur. It is unnecessary to refer to the other evidence which was produced On behalf of the appellants. I agree with the Subordinate Judge that that evidence is credible and substantiates the respondent's case.

20. On behalf of the respondent we were referred to the evidence of Kammu Beg. He admits in cross-examination that at the time the suit on the hundis was instituted, he was the munim of Mangli Prasad, and as such, he professes to have signed the vakalatnama in favour of the Vakil on behalf of Mangli Prasad and his two minor brothers. The only other witness who was referred to was Sheo Balak. He says that after the death of Mahadeo Prasad, Mangli Prasad remained malik of the shop, but does not know if Phul Chand and Suraj Karan had any concern with the shop or not. He adds they were minors. This evidence does not establish the case set up by the appellants. In my opinion the appeal must be dismissed on the merits as well as upon the point of law that has been raised.

21. The order of the Court is that the appeal is dismissed with costs, including feed on the higher scale.


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