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Kishan Dass Talwar and anr. Vs. Adeshwar Lal Jainand ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 47 of 1969
Judge
Reported inILR1976Delhi364
ActsTransfer of Property Act, 1882 - Sections 5
AppellantKishan Dass Talwar and anr.
RespondentAdeshwar Lal Jainand ors.
Advocates: K.L. Sethi,; R.M. Lal and; Arun Mohan, Advs
Cases ReferredGutta Radhakrishnayya v. Gutta Sarasamma
Excerpt:
(i) hindu law--joint family--business standing in the name of the karta or other member of joint hindu family--whether not presumed to be family business, even where joint family property exists--whether karta can impose upon (a) minor members, (b) adult members risk and liability of new business started by him.; suit was for a declaration that the decree for partition effected in an earlier suit among defendants 1 to 5 herein is a nullity, so far as the plaintiffs and other creditors are concerned, the same having been obtained fraudulently and collusively, with intent to defeat and delay the claims of the creditors.; the court found ; (1) that the firm m/s. dhoomimal dharamdass was a joint hindu family concern till 1948;; (2) that, on partition in 1948, the firm came to an end was not.....s.s. chadha, j. (1) the plaintiffs in this suit claim that the decree for partition dated april 3, 1968 in suit no. 680 of 1967 (shri nagesh chand jain and others v. shri adeshwar lal jain) obtained from the high court of delhi is a nullity so far as the plaintiffs and other creditors are concerned and the same is not binding on them as it was obtained by fraud, by mis-representation of facts, by willful concealment of facts and due to direct collusion of defendants nos, 1 to 5. the said partition decree is alleged to have been obtained with an intent to defeat and delay the claims of the creditors and is sought to be avoided by claiming a decree for a declaration to the same effect. (2) it would be necessary to give a short narrative of the material facts leading to the filing of the.....
Judgment:

S.S. Chadha, J.

(1) The plaintiffs in this suit claim that the decree for partition dated April 3, 1968 in Suit No. 680 of 1967 (Shri Nagesh Chand Jain and Others v. Shri Adeshwar Lal Jain) obtained from the High Court of Delhi is a nullity so far as the plaintiffs and other creditors are concerned and the same is not binding on them as it was obtained by fraud, by mis-representation of facts, by willful concealment of facts and due to direct collusion of defendants Nos, 1 to 5. The said partition decree is alleged to have been obtained with an intent to defeat and delay the claims of the creditors and is sought to be avoided by claiming a decree for a declaration to the same effect.

(2) It would be necessary to give a short narrative of the material facts leading to the filing of the present suit. A firm M/s. Dhoomimal Dharamdass was started in or about the year 1886 by some ancestors of defendants 1 to 4. The ancestors of defendants 1 to 4 also acquired certain immovable properties. In the year 1948 the firm M/s. Dhoomimal Dharamdass was a joint Hindu family concern of the father of defendant No. 1 and his three brothers. The family also owned several properties. M/s. Dhoomimal Dharamdass continued to be the joint Hindu family business till 1948 when the joint Hindu family was disrupted and the movable and immovable properties were partitioned. There was an award given on February 20, 1948 (though different dates have been given in the pleadings of the parties). This award was duly registered on May 4, 1948 and related to the partition of the movable and immovable properties and the family firm M/s. Dhoomimal Dharamdass. It is the admitted case of the parties that according to the said award, house No. 3709-3711 DhoomiMal Street, Chooriwalan, Chawri Bazar, Delhi and the stock 'in trade etc. valued at Rs. 46,401/5/3 fell to the share of the branch of the family of Shri Darogha Mal who being insane was acting through his wife as his guardian and Shri Adeshwar Lal son of the said Shri Darogha Mal. Shri Adheshwar Lal, after the death of his father became karta of the family and on the relevant date of the partition decree the aforesaid immovable property was the joint Hindu family property of Shri Adeshwar Lal, defendant No. 1. his three sons, defendants 2 to 4 and Smt. Kapuri Devi widow of late Darogha Mal, defendant No. 5. According to the additional pleas in the written statement of defendants 2 to 5 on the disruption of the family in 1948 the business of M/s. Dhoomimal Dharamdass was carried on in partnership with four sets of partners, namely (i) Lala Jugal Kishore, (ii) Lala Ram Chand, (iii) Adeshwar Lal and Smt. Kapuri Devi and (iv) Smt. Chambeli Devi and her minor son Vishal Chand. According to the statement of Shri Kishan Dass Talwar plaintiff No. 1, as Public Witness -2. the four brothers, namely Jugal Kishore, Ram Chand, Vishal Chand through Smt. Chambeli and Daroga Mal carried on this firm M/s. Dhoomimal Dharamdass as a partnership firm and it went on as a partnership firm uptill 1958. According to the defendants there was a change in the constitution of the partnership firm in 1954 and the changed partnership carried on business up to 1958 when the firm M/s. Dhoomimal Dharamdass was dissolved. The case set up by the changed partnership carried on business up to 1958 when the firm Lal became the sole proprietor of the business under the name and style of M/s. Dhoomimal Dharamdass and he carried on this business. The case of the plaintiffs on the other hand is that in 1958 by mutual consent this firm M/s. Dhoomimal Dharamdass was transferred to Shri Adeshwar Lal as karta of the joint Hindu family and he carried on this business as such.

(3) On April 14, 1967 a petition under section 9 of the Provincial Insolvency Act, 1920 was filed by one creditor Shri Chander Bal Kakkar for adjudging Shri Adeshwar Lal and the firm M/s. Dhoomimal Dharamdass as insolvents. This petition was admitted by the Insolvency Judge, Delhi on April 15, 1967. On June 6, 1967 another petition was filed by Shri Kishan Dass Talwar, plaintiff No. 1 herein, against M/s Dhoomimal Dharamdass and Shri Adeshwar Lal, sole proprietor of M/s Dhoomimal Dharamdass. It was prayed that the respondents in that petition be adjudged insolvents and a receiver be appointed and he directed to take possession of the entire assets and property of the respondents therein, including their stock in trade lying in their shop and in their godown and other assets immovable and movable at Delhi lying in 4080, Nai Sarak. Delhi and 3709-10-11 Dhoomi Mal Street, Delhi and all other fixtures and furnitures in the house, shop and godown and the machines. When this petition came up for hearing before the Insolvency Judge, Delhi on June 7, 1967, certain interim arrangements for payment to the two creditors were agreed upon between those parties and it was ordered that in case of default in payment a.s specified the interim receiver as prayed for shall be deemed as appointed. It was further ordered that respondents therein are restrained from transferring in any manner their properties in the meanwhile. This petition of Shri Kishan Dass Talwar and the other petition of Shri Chander Bal Kakkar was determined by the Insolvency Judge on January 16, 1969, when it was found that the respondents therein were liable to be adjudged insolvents and so they were adjudged insolvents accordingly. The property of the insolvents was directed to vest in the Official Receiver as the same stood on the date of admission of the prior petition (i.e. 15-4-1967).

(4) On August 14, 1967 while insolvency petitions were pending before the Insolvency Judge, defendants 2, 3 and 4 who were minors at that time and defendant No. 5 instituted a suit against defendant No. 1 for partition of joint Hindu family properly, namely. House No. 3709 to 3711, Dhumi Mal Steet. Churiwalan, Chawri Bazar, Delhi. That suit was originally filed in the court of the Senior Subordinate Judge, Delhi but was later represented to the High Court of Delhi as the jurisdictional value was Rs. 60,000. That suit was registered as Suit No. 680 of 1967. On November 9, 1967 defendant No. 1 herein filed a written statement admitting the claim in that suit. When that suit came up for hearing before the Court on December 6, 1967. Shri Adeshwar Lal made a statement that the property in the suit belongs to the joint Hindu family constituted by the plaintiffs in that suit and himself, that each of the plaintiffs therein and he have got l/5th share in the property in the suit and that he admitted the claim of the plaintiffs. On the same date, Om Prakash J granted a preliminary decree for possession by partition of the property in suit and directed that the parties shall divide the property in suit by metes and bounds amongst themselves. On receiving the report of Shri Prem Singh Panwar, Advocate, Commissioner appointed for partition of the property in suit by metes and bounds, the Court passed a final decree on April 3, 1968 for possession by partition of the property in suit in terms of the report and the plans filed by the Commissioner.

(5) This partition decree is being challenged by the plaintiffs in this suit as a nullity so far as the plaintiffs and other creditors are concerned. The alleged transfer by way of partition is sought to be avoided, on the ground that the same has been fraudulently and collusively obtained with an intent to defeat and delay the claims of the creditors. In para 7 of the plaint the plaintiffs had stated that there are several creditors of defendant No. 1 which creditors are also entitled to recover the amounts from all the defendants and from the entire undivided estate of the family of the defendants and that the suit is being filed in a representative capacity. The plaintiffs obtained leave of this Court under Order 1 Rule 8 of the Code of Civil Procedure and the suit has proceeded in a representative capacity on behalf of or for the benefit of all the creditors. The suit is being contested on behalf of defendant No. 1 as well as by defendants 2 to 5 who have filed a joint written statement. Defendant No. 6 is the Official Receiver of the insolvent's estate and has not chosen to either support the plaintiffs' suit or contest the same. The respective pleas form the subject matter of the issues and need not be stated here.

(6) On October 30, 1969, five preliminary issues were framed by the Court. On July 28. 1971 these five issues were disposed of by B. C. Misra J. and it was held that in substance the suit has been instituted under section 53 of the Transfer of Property Act, 1882 and it satisfied its requirements with regard to the locus standi of the plaintiffs to file the suit, that the suit under section 53 of the Transfer of Property Act is not a suit in respect of the property of the insolvent, but is a suit in respect of the property which had been the property of the insolvent and which he had transferred in fraud of his creditors and as such it does not fall within the prohibition of section 28 of the Provincial Insolvency Act and that there is no further relief which the plaintiffs can in law be required to claim in the suit and as such the proviso to section 34 of the Specific Relief Act docs not bar the suit.

(7) The following issues were then settled on August 27, 1971 on merits:

1. Whether the firm Dhoomimal Dharamdass was ever a joiint Hindu family concern and on partition between defendant No, 2 and his father and/or brothers came to his share

2.If issue No. 1 is proved in the affirmative, whether the business which came into the hands of defendant No. 1 continued to be a joint Hindu family business of defendants 1 to 5

3.Whether defendant No, I or M/s. Dhoomimal Dharamdass contracted any debts If so, in what capacity

4.Whether defendants 2 to 5 are liable for any debts of defendant No. 1 and/or M/s. Dhoomimal Dharamdass

5.Whether the partition of the property by virtue of decree in Suit No. 680 of 1967 amounts to a transfer?

6.If the partition amounts to a transfer whether the partition decree was obtained by fraud as alleged and is liable to be set aside

7.Whether the decree dated 3rd April, 1968 in Suit No. 680 of 1967 was a collusive decree, and if so. with what effect

8.Relief.

(8) Issue No. 1.--Whether the firm Dhoomimal Dharamdass was ever a joint Hindu family concern and on partition between defendant No. 2 and his father and/or brothers came to his share Issue No. 2. -If issue No. 1 is proved in the affirmative whether the business which came into the hands of defendant No. 1 continued to be a joint Hindu family business of defendants I to 5 There appears to be a typographical error in issue No. 1 when defendant No. 2 has been mentioned in place of defendant No. 1. In para 6 of the plaint of the suit the plaintiffs have stated that the firm Dhoomimal Dharamdass was originally a joint Hindu family concern of the father of defendant No. 1 and his 3 brothers, that there was a regular partition between father and the uncles of defendant No. 1 by the partition deed dated 20-2-1948 (erroneously mentioned as 1958) registered on 4-5-1948 (erroneously mentioned as 1958), that all the property movable and immovable and the business assets were divided between the four brothers, that defendant No. 1 and his father became exclusive owners of M/s. Dhoomimal Dharamdass after the said partition and this family business was carried on till now, that the father of defendant No. 1 has since died, that thus defendant No. 1 became Karta of the joint Hindu family consisting of its minor sons and his mother and that defendant No. 1 as Karta of the joint Hindu family was running the said business of Dhoomimal Dharamdass and all the debts were incurred for this business. In the additional pleas of the written statement of defendants 2 to 5 it is admitted that the firm M/s. Dhoomimal Dharamdass was started in or about the year 1886 by some ancestor of defendants I to 4. that the firm M/s. Dhoomimal Dharamdass continued to be joint till 1943 when the family disrupted and the property in suit was allotted to the share of Shri Darogha Mal father of defendant No. 1 and grandfather of defendants 2 to 4. that this was done by an award partitioning the property, that the said award was acted upon and the parties took separate possession of the shares allotted to them and that on disruption of the said joint Hindu family the business of M/s. Dhoomimal Dharamdass was carried on in partnership. It is thus the admitted case of the parties that the firm M/s. Dhoomimal Dharamdass was a joint Hindu family concern till 1948, and I hold accordingly.

(9) However, there is no evidence on the record to show as to who became the owner of the firm M/s. Dhoomimal Dharamdass on partition or in whose share it came. The best evidence was the award itself. It is unfortunate that the copy of the partition award dated 20-2-1948 has not been proved on the record. Plaintiff No. 1 who appeared in the witness box as Public Witness -2, has admitted in the cross-examination that in 1948 there was a partition of the immovable properties of the firm owned by Dhoomimal Dharamdass. that since 1948, 4 brothers in partnership, namely Jugal Kishore, Ram Chand, Vishal Chand through Smt. Chameli Devi and Darogha Mal carried on this firm as a partnership firm; and that it went on as a partnership firm until 1958. The case set up by the defendants is also that on disruption of the joint Hindu family in 1948 the business of M/s.. Dhoomimal Dharamdass was carried on in partnership. It is thus reasonable to hold that on partition in 1948 the firm M/s. Dhoomimal Dharamdass came to an end and was not allotted to any branch' of the family. Second part of issue No. 1 is thus held against the plaintiffs. In view of my findings on issue No. 1, issue No. 2 does not arise. However, I will revert to this aspect again under Issue No. 3.

(10) Issue No. 3.-Whether defendant No. 1 or M/s. Dhoomimal Dharamdass contracted any debts If so, in what capacity Defendants 2 to 5 have admitted in Ext. P-10, copy of the plaint of the partition suit, that Shri Adeshwar Lal borrowed large sums of money in the market. Defendant No. 1 has admitted in Ext. P-11, copy of the written statement in the partition suit that he raised loans in the market to further expand his business. In para 7 of the plaint of the suit the plaintiffs have given the particulars of the debts due to them as also the names and debts of the other creditors. Defendant No. 1 has admitted the allegation that plaintiff No. 1 has four hundis and plaintiff No. 2 is a creditor to the tune of Rs. 15,000. Copies of the four hundis are Exts. P-3 to P-6 on the Court record. Copies of the pronote and receipt for Rs. 15,000 are Exts. P-1 and P-2. Exts. P-1 to P-6 coupled with the oral evidence of Public Witness -1 and Public Witness -2 clearly establish that these debts were contracted. In fact at the time of disposal of the preliminary issues, the defendants did not dispute that the plaintiffs are creditors. So far as the debts of the other creditors are concerned, the plaintiffs have given a list of the creditors of the defendants in paragraph 7 of the plaint. Defendants 2 to 5 have denied the debts and branded them as false and fictitious, but they have no personal knowledge. Defendant No. 1 in his written statement has not specifically denied the debts. very allegation of facts in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, will be deemed to be admitted. This relieves the plaintiffs from the obligation of proving all the debts. The extents of the debts have also not to be established but only the factum, and the capacity in which they were incurred. First part of the issue is held in favor of the plaintiffs.

(11) The vexed question is whether the debts were incurred by Shri Adeshwar Lal as sole proprietor of M/s. Dhoomimal Dharamdass or as Manager or Karta of the joint Hindu family firm M/s. Dhoomimal Dharamdass. Plaintiff No. 1 has made a statement on oath that in 1958 by mutual consent the firm Dhoomimal Dharamdass was transferred to Shri Adeshwar Lal as Karta of the joint Hindu family comprising of himself, Smt. Kapuri Devi and minor son of Shri Adeshwar Lal. In the insolvency petition, copy Ext. P-8, filed by Shri Kishan Dass Talwar, Shri Adeshwar Lal is alleged to have been carrying on his business in the name and style of M/s, Dhoomimal Dharamdass as its sole proprietor. The four hundis, copies Exts. P-3 to P-6, executed in favor of Shri Kishan Dass Talwar also show that Shri Adeshwar Lal signed them as 'for Dhoomimal Dharamdass' as 'sole proprietor'. The pronote and the receipt, copies Exts. P-l and P-2, executed in favor of Shri Ferozi Lal also show that Shri Adeshwar Lal signed it 'for Dhoomimal Dharamdass' as 'sole proprietor'. Oral evidence has been led to the contrary in the statement of Public Witness -3 Shri A. L. Sethi that first the firm of the four brothers was formed and then in 1958 the entire firm was made over to defendant No. 1 by the other partners as joint Hindu family firm, that after 1958 the firm continued to be a joint Hindu family firm and not a personal firm of defendant No. 1, that from 1964 to 1966 he got various loans advanced to this firm and that he was told that the members of the firm were his mother and three minor sons and he himself was the Karta. Shri Jagat Singh, Public Witness -4 is another creditor who has made the statement on oath that the firm Dhoomimal Dhaiamdass is a joint Hindu firm and Shri Adeshwar Lal was the Karta. There is a direct conflict in the evidence of the plaintiffs as contained in the documents Exts. P-1 to P-6 and Ext. P-8, copy of the insolvency petition filed by plaintiff No. 1, with the oral evidence of the plaintiffs led in this Court. The documentary evidence points out that the debts were contracted by defendant No. 1 as sole proprietor of M/s Dhoomimal Dharamdass and that is the position which emerges out of the defendants' evidence,

(12) The plaint of the impugned partition suit is relied upon by the learned counsel for the plaintiffs as an admission of defendants 2 to 5 to the existence of the joint Hindu family firm and the business and the contracting of the debt.'' by it. In the plaint of that suit it is stated that plaintiffs Nos. 1 to 3 (in that suit) claim partition to safeguard their future interests in the ancestral properly as the defendant (in that suit) has grossly mis-managed his affairs, that the business of the family has all but been ruined, that the defendant (in that suit) borrowed large sums of money in the market to start in partnership a business which was competitive with the family business and as a result of the said competitive business the joint family firm suffered at his hands irreparable loss from which it may not even recover, that the plaintiffs (in that suit) do not claim anything out of the stock in trade of the joint family business at present under the defendant (in that suit) as Manager which he may keep for doing business or for meeting his current liabilities of the market, that the plaintiffs (in that suit) also do not claim the goodwill of the firm 'Dhoomimal Dharamdass' and this property in the goodwill may also be retained in his own and exclusive name by the defendant (in that suit) and that as the time of the family partition of the joint family of the defendant (in that suit) the goodwill was valued at Rs. 25,000 and this property. the defendant (in that suit) can put to any use he thinks best. However, in the written statements of the defendants before me as well as in their oral evidence, it is stated that defendant No. 1 was the sole proprietor of M/s. Dhoomimal Dharamdass and other defendants had no concern with it. In my opinion, there is no admission of the defendants in the plain Ext. P-10 or Written Statement Ext. P-11, of the impugned partition suit that the debts were contracted by defendant No. 1 as Karta or Manager of the joint Hindu family business. The only admission is that defendant No. 1 borrowed large sums of money in the market to start in partnership a business which was competitive with the family business. It appears that defendant No. 1 had started in 1958 or later similar business which was carried on earlier by the joint Hindu family 'M/s. Dhoomimal Dharamdass' before 1948. This is evident from the plaint of the impugned partition suit, copy Ext. P-10. Once it is admitted by the plaintiffs that the firm Dhoomimal Dharamdass became a partnership concern in 1948 and carried on as such till 1958. it could not convert into joint Hindu family firm on the facts of this case. There is no presumption under Hindu Law that a business standing in the name of any member of the joint Hindu family is a family business even if that member happens to be the Manager or Karta of the joint family. It has to be established that the business of M/s. Dhoomimal Dharamdass in the hands of defendant No. 1 grew up with the assistance of the joint family property or joint family funds. Mere existence of the joint Hindu family property does not give rise to any presumption that the business started by defendant No. 1 in 1958 was established out of the rental income or other income derived from the family property. There is no evidence on the record that any part of the joint Hindu family property was converted into cash to establish the business or any loan was raised on the security of the family property. The only evidence on the record is in the statement of plaintiffs and their witnesses to the effect that the firm of M/s. Dhoomimal Dharamdass is of the joint Hindu family of the defendants and nothing beyond. Thus there is no evidence on the record that the family property was utilised for starting or carrying on the business. The business started by defendant No. 1 in 1958 under the name and style of M/s. Dhoomimal Dharamdass otherwise could not become the joint Hindu family business of the defendants. A Karta of a joint Hindu family cannot impose upon the minor members of the family the risk and liability of a new business started by himself. It is the admitted case of the plaintiffs that defendants 2 to 4 were minors at the time of the institution of the suit. In 1958 only defendant No. 2 was born. The Karta cannot impose even upon the adult members the risk and liability of a new business started by him unless the business is started or carried on with their consent. The minors are not capable of giving consent and as such the business started in 1958 or thereafter cannot be held as joint Hindu family business. 1, thereforee, hold that the debts were contracted by defendant No. 1 in his personal capacity.

(13) Issue No. 4.-Whether defendants 2 to 5 are liable for any debts of defendant No. 1 and/or M/s. Dhoomimal Dharamdass Whether defendant No. 1 was the sole proprietor of the firm M/s. Dhoomimal Dharamdass or the firm M/s. Dhoomimal Dharamdass was a joint Hindu family firm of the defendants at the time when the various debts were contracted by it is not going to make any difference about the liabilities of defendants 2 to 4 for the view I am taking about the absence of any illegal or immoral purpose in contracting the debts by defendant No. 1. The manager of a joint Hindu family business is liable not only to the extent of his share in the joint Hindu family property, but being a party to the contract, he is liable personally also. As regards the other coparceners, they are liable only to the extent of their interest in the family property. Defendants 2 to 4 being minors at the relevant time of contracting the loans could not have ratified the contracts of defendant No. 1. Thus the minor coparceners are only liable to the extent of their interest in the family property. Their separate property is not at all liable for the payments of debts contracted by the manager. The alleged manager in the case before me is the father of defendants 3 to 4. The father can so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral. The partition of the joint Hindu family property does not affect such obligation as the sons are still liable to the extent of the estate in their hands. Thus whether defendant No. 1 was the manager of the joint Hindu family firm M/s. Dhoomimal Dharamdass or sole proprietor of M/s. Dhoomimal Dharamdass is not going to affect the liability of defendants 2 to 4 in the absence of any illegal or immoral purpose in contracting the loans by defendant No. 1. The case set up by the plaintiffs is that the creditors are entitled to recover their amounts from all the defendants from the entire un-divided estate of the family of the defendants, which joint Hindu family property has been partitioned fraudulently under the impugned partition decree. It is the admitted case of the parties that when the debts were contracted by defendant No. 1 (either as sole proprietor of M/s. Dhoomimal Dharamdass or on behalf of the joint Hindu family firm M/s. Dhoomimal Dharamdass), defendants 1 to 5 constituted a joint Hindu family owning property No. 3709 to 3711 Dhoomimal Street, Chooriwalan, Delhi. The father can so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral. The power of the father for the discharge of his such antecedent personal debts is co-extensive with the right of the creditors to obtain satisfaction out of the family property including the share of the sons in such property. The partition of the joint Hindu family property does not affect such obligation as the sons are still liable to the extent of the estate derived by them in partition in their hands. The liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligations of the son? which continues to exist during the life time and after the death of the father and which does not come to an end as a result of the partition of the joint Hindu family property. Thus the sons are liable even after the partition for the pre-partition debts of their father which are not immoral or illegal and for the payment of which no arrangements were made at the time of partition (sec: Panna Lal and Another v. Mst. Naraini and Others (1952) S.C.R. 545

In S. M. Jakati and Another v. S. M. Borkar and Others : [1959]1SCR1384 , it was held :

'THEliability of the sons is thus unaffected by partition be cause the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, continues till the debt is paid off and the pious obligation incumbent on the sons to see that their father's debts are paid, prevents the sons from asserting that the family estate so far as their interest is concerned is not liable to purge that debt. thereforee even though the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition the right of the judgment creditor to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons. There docs not seem to be any divergence of judicial opinion in regard to the Hindu son's liability to pay the debts of his father after partition, and by the mere device of entering into partition with their father, the sons cannot get rid of this pious obligation.'

INVirdachalam Pillai v. Chaldean Syrian Bank Ltd. Trichur and Another, : [1964]5SCR647 it was further held:

'THEauthorities to which it is wholly unnecessary to refer, have firmly established the following and the position is not in doubt:

(1)Afather can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interest of his sons open to be taken in execution proceedings upon a decree for the payment of that debt.

(2)The father can, so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral.

INother words, the power , the father to alienate for satisfying his debts, is co-extensive with the right of the creditors to obtain satisfaction out of the family property including the share of the sons in such property.'

(14) The only question which calls for consideration is whether the debts incurred by defendant No. 1 were tainted with immorality or illegality. The sons are not under any obligation to pay, inter-alia, a debt of their father that is not vyavaharika, that is a debt for a cause repugnant to good morals. The sons would be absolved from their obligation to discharge the debts only if they establish them being a vyavaharika or immoral debts. In the plaint of the impugned partition suit it is admitted by defendants 2 to 5 that defendant No. 1 borrowed large sums of money in the market to start in partnership a business which was competitive with the family business and as a result of the said competitive business the joint family firm suffered at his hands irreparable loss. It was nowhere alleged in the plaint of that suit that defendant No. 1 ever incurred any debts for any immoral or illegal purpose. This fact was specifically stated by the plaintiffs in para 6 of the plaint of this suit and the defendants were made aware of the fact that it is the case of the plaintiffs that the debts incurred by defendant No. 1 were not for any immoral or illegal purpose. Neither defendant No. 1 in his written statement nor defendants 2 to 5 in their joint written statement alleged that the debts incurred by defendant No. 1 were for any illegal or immoral purpose. Defendants 2 to 5 merely rest content with saying that para 6 of the plaint is incorrect and is denied and reference was invited to the additional pleas. The additional pleas are devoid of any such averment that the debts were incurred by defendant No. 1 for any illegal or immoral purpose. Defendants 2 to 5 however, led oral evidence that defendant No. 1 was in the habit of drinking heavily, visiting women of easy virtue and gambling. I refuse to look at the oral evidence led by defendants 2 to 5 as such a plea was never put forward in the defense. No amount of evidence can be looked upon a plea which is never pleaded as the Courts have to decide the case as set up. It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and that it is the case pleaded that has to be found (see Trojan & Co. Ltd. v. R. M. N. N. Nagappa Chettiar : [1953]4SCR789 . Where a claim has never been raised in defense, no amount of evidence can be looked upon a plea which was never put forward (see Siddik Mahomed Shah v. Mt. Saran and Others . As the debts were not incurred by defendant No. 1 for any immoral or illegal purpose, defendants 2 to 4 are liable for the debts irrespective of the fact whether they were incurred by defendant No. 1 personally as sole proprietor of M/s. Dhoomimal Dharamdass or were incurred by him as manager or Karta of the Joint Hindu Family firm. The doctrine of pious obligation of the sons, however, cannot be extended to the widowed mother who has received share on partition in lieu of her maintenance. Defendant No. 5 has been allotted a share out of the property available for partition and has taken possession when the property was divided by metes and bounds. Defendant No. 5, thereforee, cannot be made liable to the creditors. I hold issue No. 4 in favor of the plaintiff for the liability of defendants 2 to 4 to discharge the debts.

(15) Issue No. 5.-Whether the partition of the property by virtue of decree in suit No. 680 of 1967 amounts to transfer? The question raised in this issue raises an interesting point of law. The copy of the plaint of the partition suit, Ext. P-10, shows that house Nos. 3709 to 3711 Dhoomi Mal Street, Churiwalan, Chawri Bazar, Delhi valued at Rs. 60,000 was the joint Hindu family property of defendants 1 to 5 herein and in their joint possession. Defendant No. 1 is the father, defendants 2 to 4 are the sons and defendant No. 5 is the mother of defendant No. 1. It was stated that defendant No. 5 claimed her share of the property in dispute in lieu of her maintenance. Defendants 2 to 4 claimed partition to safeguard their future interest in the ancestral property. It was pleaded that each of the defendants I to 5 have l/5th share in the property in dispute. Ext. D-12 is the copy of the statement of Shri Adeshwar Lal, defendant No. 1, admitting that the property in suit belongs to joint Hindu family constituted by the plaintiffs there and himself, that each of the plaintiffs there and he had l/5th share in the property in suit and that he admitted the claim of the plaintiffs there. Ext. P-13 is the copy of the preliminary decree dated 6th of December, 1967 declaring the share of each of the plaintiff and defendants there to be l/5th in the property in dispute and directing that the parties shall divide the property in suit by metes and bounds among themselves. Ext. P-14 is the certified copy of the final decree dated April 3, 1968 passing a final decree for possession by partition of the property in suit in terms of the report dated March 27, 1968 along with the plans filed by the Commissioner. The plaintiffs in suit No. 680 of 1967 claimed their respective shares in the joint Hindu family property being separated by partition. The object of this partition decree is thus to give each co-parcener his rightful share in the joint Hindu family property. The division of the property was effected by metes and bounds and each of the defendants were put in possession of the respective portions allotted to them. Defendants 2 to 5 made it clear in the plaint of the impugned partition suit (Ext. P-10) that they are claiming partition to safeguard their future interests in the ancestral property. Defendants 2 to 5, thereforee, intended to secure their share out of the reach of defendant No. 1's future creditors as also to end the authority of defendant No. 1 to discharge his antecedent personal debts out of the family property. The question is whether this partition amounts to transfer for the purpose of section 53 of the Transfer of Property Act, 1882 (hereinafter to be referred to as the Act).

(16) Under section 53 of the Act every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. The decision on the question as to whether a partition under Hindu Law is a transfer within the meaning of section 53 of the Act, would depend upon the definition of the word 'transfer' prescribed by section 5 of the Act- Section 5 provides as follows :

'INthe following sections 'transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons and 'to transfer property' is to perform such act.......'

Section 53 of the Act deals with fraudulent transfers of property and would not come into operation unless and until there was a transfer of property and the term 'transfer of property' has been defined for the purposes of the sections including section 53 by S. 5 in terms set out herein above. Unless and until there was a transfer of property within the meaning of that definition contained in S. 5, there would be no occasion of considering whether it was a fraudulent transfer of property within the meaning of Section 53 of the Act. There is a sharp cleavage of judicial opinion on the question whether partition is a transfer for the purpose of Section 53 of the Act. Some. High Courts have held that partition amounts to a transfer within the meaning of Section 53 of the Act and my attention was invited by the learned counsel for the plaintiffs to Waman Ramkrishna Chotge v. Ganpat Mahadeo Nevagi, A.I.R. 1936 Bom 10, Soniram Raghushet and Others v. Dwarkabai Shridharshet and Another : AIR1951Bom94 (7), Sadhu Ram v. Pirthi Singh and Company, A.I.R. 1936 Lah 220 Sm. Rattan Devi v. Jagadhar Mal and Others and Banarsilal v. Shri Bhagwan, A.I.R. 1955 Raj 167. On the other hand, a contrary view has been expressed by various other High Courts in the cases cited at the bar by the learned counsel for the defendants, namely Narasimbulu v. Someswararao, A.I.R. 1948 Mad 505, Radhakrishtanayya v. Sarasamma, : AIR1951Mad213 and Thattallyath Panehali v. Cherubari Panniyoden Manni : AIR1963Ker66 . This High Court, has not, however, expressed any view so far as none has been brought to my notice. I shall, thereforee, consider the reasoning of the learned judges in those cases to help me to arrive at my conclusion.

(17) In Waman v. Ganpat (supra) the Division Bench consisting of Barlee and Sen Jj, held that a partition of joint family immovable property between coparceners of the family operates as a transfer within the meaning of the term as defined in section 5 of the Transfer of Property Act, 1882 and if fraudulent, falls within section 53 of the Act. The learned Judges In that case discussed the question whether a partition in a Hindu family by which the joint family property was divided by metes and bounds can operate as a Transfer

WITHINthe meaning of S. 53, T.P. Act. They referred to the definition of 'transfer of property' contained in S. 5 of the Act. They observed that there was no ruling of that Court specifically on this point. They considered the observations of Mookerjee, J. in Atrabannessa Bibi v SafatullahMia, 43 Cal 504 A.I.R. 1916 Cal. 645 viz., the object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners, or, as has sometimes been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer.

ITwas thereafter held : 'ITseems to us that the line of reasoning on which the view of the Calcutta High Court is based is sound, and that for purposes of S. 53, T. P. Act, 'partition', where the immovable property has been partitioned among co-owners by metes and bounds, must be held to be transfer'. This does not appear to be an unreasonable or far-fetched interpretation, Partition can in fact be adequately described as a mixture of the surrender and the conveyance of rights in property. There can be no doubt that a partition can be effected with as fraudulent an intent as a transfer in the ordinary sense, and we have no sufficient reason to suppose that the mischief sought to be remedied by this section does not include the fraudulent conveyance of rights involved in a fraudulent partition.'

(18) The same view was taken in a latter decision of the same High Court in Soniram Raghushet & Others v. Dwarkabai Shridharshet and Another (supra), wherein it was held :

'THESEobservations do really show that even though there may be no acquisition of property as such by reason of a partition, the property having devolved upon the co-owners or the co-sharers by inheritance or having been held as joint family property by them by processes known to Hindu Law, the effect of partition .is that the property which was hitherto enjoyed by all the members of the joint family as co-owners or co-sharers is after the partition, so far as the shares allotted to the respective members of the joint family are concerned enjoyed by them for their sole use and as their sole property. The co-ownership and the joint enjoyment no doubt come to an end and in its place and stead is substituted the sole enjoyment and the sole ownership of the property which falls to the share of each member of the joint family. But as a necessary corollary of this, there is an extinction of the right which the ther co-owners or co-sharers of the property had of enjoying that property in common with the co-owner or co-sharer to whose share that particular property is allowed as a result of the partition. That extinction of the right is brought about by what may be described as the process of the exchange of similar rights between the various coowners and co-sharers of the joint family property or by a renunciation of the right by the other co-owners or co-sharers in favor of the co-owner or co-sharer to whom the property is allotted as a result of the partition, or by a conveyance of these rights of enjoyment of the property in common by the other co-owners and co-sharers in favor of the co-owner or co-sharer to whom that property is allotted as a result of the partition. Whatever be the process which may he said to bring about this result of the co-owner or co-sharer to whom the property is allotted by the partition getting the property for his sole use, the result is that the person who gets the property on partition is constituted the sole owner of that property and he acquires in that particular property not only his own share, right, title and interest therein which he erstwhile enjoyed but also the shares, right, title and interest of the other co-owners or co-sharers of his in that property. This certainly would be a transfer of property within the meaning of S. 5, T. P' Act.'

(19) In Sadhu Ram v. Pirthi Singh and Co. (supra), which is a single Bench decision) Backet J merely relied on the two earlier decisions of the Madras High Court in Rasa Goundan v. Arunachella Gounden, A.I.R. 1923 Mad 577 and in Ramaswari Chettiar v. Kathamuthu Thevar, 97 IC 70 and observed:

'ITseems now to be generally accepted that a partition is a transfer as defined in the Transfer of Property Act.'

THISdecision is of no assistance as it gives no reasoning of its own and as the Madras High Court has now taken a contrary view.

(20) IN. Banarsilal v. Shri Bhagwan (supra), the learned single Judge of the Rajasthan High Court held that the term 'transfer of property' is wide enough to include a partition and the provisions of Section 109 of the Transfer of Property Act can be applied to a person who receives the property leased in his share by partition. Reliance is merely placed on the view taken by Calcutta and Lahore High Courts and 'here is no further reasoning. In Smt. Rattan Devi v. Jagadhar Mal and Others, (supra), the learned single Judge of the Punjab High Court was considering the question of partition between husband and wife at a time when the husband was heavily indebted and under which all the tangible property is given to the wife and the property of a very flimsy character is taken by the husband and it was held that the partition can be said to be intended to defeat and delay the creditors. The judgment merely proceeded on the assumption that the partition is a transfer within the meaning of Section 53 of the Act.

(21) The view expressed by the Calcutta High Court proceeds on the basis that partition signifies surrender of a portion of joint right in exchange for a similar right from the co-sharer. The Bombay High Court brings in an element of conveyance of the right which the other co-sharer or co-sharers of the property had of enjoying that property in common with the co-owner or co-sharer to whose share that particular property is allotted as a result of partition. With great respect to the learned Judges, I hold a different view. On the facts of the case before me the partition is fair and is in accordance with the proper share of the defendants, i.e. l/5th each. All the coparceners of a joint Hindu family are the joint owners of the property of the family. No individual coparcener can predicate that he has a certain defined share in the properties of the family. The shares get determined only when there is a disruption of that status resulting in the partition of the properties. A partition under the Hindu Law thus consists in numerical division of the property, in other words, it consists in defining the shares of the coparceners in the joint Hindu family pro- perties. The properties may or may not be divided by metes and bounds, but only the enjoyment transforms into an enjoyment in severally. Each coparcener has an antecedent title to the joint Hindu family property though its extent is determined only on partition. Partition at best can be called an adjustment of the ownership of the coparceners in the joint Hindu family. It cannot be called an alienation, assignment or transfer in the strict sense of the words of the joint family property. There is no conveyance involved in the process as each one of the shareholders had an antecedent title to the joint Hindu family properties. If the antecedent title is already in the said property, then where is the question of passing of any further title to it? Transfer of property under section 5 of the Act is an act by which a living person conveys property and to transfer property is to perform such act. Such transfers take place between living persons by virtue of their own voluntary acts.

INpartition under Hindu Law no act is performed by a living person. Parceners come into possession of the respective portions of the property as a consequence of the operation of law by disruption of joint Hindu family status resulting in the partition of the properties either by mates and bounds or enjoyment in severally. There is no voluntary act which passes real rights in the property from one parcener to another parcener. The voluntary act is only in claiming the partition and not in the process of partition.

(22) In V. N. Sarin v. Ajit Kumar Popali a,nd Another, : [1966]1SCR349 , the question arose whether partition of coparcenery property's a transfer within the meaning of Section 14(6) of the Delhi Rent Control Act, 1958. In that case it was brought to the notice of the Supreme Court that in a number of cases, the High Courts in India have held that partition amounts to a transfer within the meaning of Section 53 vide Soni Ram Raghushet and Others v. Dwarkabai Shridharshet and Another (supra) and the cases cited therein : on the other hand, there are some decisions which have taken a contrary View vide Venkatappala Narasimhalu v, Someswara Rao, A.I.R. 1948 Mad 505 (supra) and Radhakrishtaayya v. Sarasamma : AIR1951Mad213 (supra). In dealing with the case before the Supreme Court, the Supreme Court confined the decision to the narrow question before. it and that related to the construction of Section 14(6) of the Delhi Rent Control Act. The Supreme Court, however, observed about the ' nature of the transaction in case of partition of joint Hindu family property:

'HAVINGregard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr. Purshottam that partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners.'

(23) In Naramsetti Venkatappala Narasimhalu and Another v. Naramsetti Someswara Rao and Another, A.I.R. 1948 Mad 505 (supra) the question was whether the allotment on a partition of Jyesthabagam to eldest brother involved a gift by the younger brother or brothers. After considering the case law on the subject, the learned Judges stated as follows :

'The argument proceeds, in our opinion, on a misconception of the true nature of a partition arrangement under which each co-owner gets a specific property in lieu of his right in all the joint properties, that is to say, each co-sharer renounces ' his rights in the other common properties in consideration of his getting exclusive right to and possession of specific properties in which the other co-owners renounce their rights. It is thus a renunciation of mutual rights and does not involve any transfer by one co-sharer of his interest in the properties to the others. That is why it has been held that a partition can be effected orally and without any registered instrument though it may affect immovable properties of the value of one hundred rupees or more.'

AGAINin Gutta Radhakrishnayya minor by mother and guardian Nagarattamma v. Gutta Sarasamma, : AIR1951Mad213 (Supra). it was held :

INFreeman, on Co-tenancy and Partition, the following passage from Alinatt, extracted at page 396, may usefully be reproduced here :

PARTITIONbetween coparceners neither amounts to nor requires, an actual conveyance. It is less than a grant. Its operation is not to pass the land by a fresh investure of the seisin, for parceners are Supposed to be already in possession of the whole lands. Partition thereforee, makes no degree. It only adjusts the different rights of the parties to the possession; each does not take his allotment by purchase, but it is seized of it by descent from the common ancestor as he was of his undivided share before partition.'

Partition, is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and thereforee no conveyance is involved in the process as a conferment of a new title is not necessary.

(24) In Muthuveeran Chetty v. Govindan Chetty : AIR1961Mad518 , the question was whether a member of a joint family to whom a promissory note is allotted at an oral partition among the members of that family can maintain an action on the promissory note as distinct from the debt, in the absence of an endorsement of transfer made on the promissory note or of a deed of assignment executed in respect of that note, and it was held:

'ITshould thus follow that where a division in status is brought into existence at a partition such division though it may be initiated by the unilateral volition of a member of the joint family, nevertheless alters the character of the possession of the family properties by members thereof, a result of which is undoubtedly a consequence of the operation of the rules governing the coparcenary under, the Mitakshara school of law. No transfer of property is involved thereby. The conclusion seems to us to be irresistible, that where a change in the character of possession brought about by such means, whether or not it is followed up by an actual division of the properties in metes and bounds, such a change is the result of an operation of law, and the interest acquired by the members of the family as a result of such a partition is brought about by operation of law and not otherwise.'

In Thattaliyath Ranchali and others v. Cheruvari Pannivodan Manni and others, : AIR1963Ker66 , the Full Bench of the Kerala High Court adopted the view taken by the Madras High Court that partition of family property is not a transfer of property within the meaning of Section 53 of the Transfer of Property Act. It was, however, observed that a partition is not a transfer, and, thereforee, not strictly within that section ; but that the principles of the section will apply to a fraudulent partition the object of which is not merely to give a sharer his rightful share in the family property but to effect the partition in such a way that such sharer would be able to defeat the creditors.

(25) In the Commissioner of Income-tax, Gujarat v. Keshavlal Lallbubhai Patel, : [1965]55ITR637(SC) , the view taken by the

Madras High Court was quoted with approval : '........ .But, is a partition of joint Hindu family property a transfer in the strict sense We are of the opinion that it is not. This was so held in Gutta Radhakrishnayya v. Gutta Sarasamma : AIR1951Mad213 Subba Rao, J then a Judge of the Madras High Court, after examining several authorities came to the conclusion that 'partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severally. Each one of the sharers had an antecedent title and thereforee no conveyance is involved in the process as a conferment of a new title is not necessary'.'

(26) With great respect I am more influenced by the reasoning of the Madras High Court and would prefer the view that partition of the property by virtue of decree in suit No. 680 of 1967 docs not amount to a transfer within the meaning of section 53 of the Act. I, thereforee, hold issue No. 5 against the plaintiff.

(27) Issue No. 6.-If the partition amounts to a transfer whether the partition decree was obtained by fraud as alleged and is liable to be set aside

ISSUENo. 7.-Whether the decree dated 3rd of April 1968 in suit No. 680 of 1967 was a collusive decree If so, what is its effect These issues may conveniently be taken together. I have already expressed the view that partition of the property by virtue of decree in suit No. 680 of 1967 does not amount to a transfer within the meaning of Section 53 of the Act. Issues Nos. 6 and 7, thereforee, do not arise. Assuming that it amounts to a transfer, even then I am not persuaded to accept the arguments of the learned counsel for the plaintiff that it was collusive. My attention was invited to the copy of the plaint of impugned partition suit, Ext. P-10, copy of the written statement, Ext. P-11, copy of the statement made by defendant No. 1 in the Court, Ext. P-12, copy of the preliminary decree dated December 6, 1967,/Ext. P-13 and copy of the final decree dated April 3, 1968, Ext. P-14. The impugned decree is not a colourable or sham transaction between the parties but was really intended to be acted upon. Defendants 2 to 4 claimed partition in Ext. P-10 to safeguard their future interest in the ancestral property. It may be that the object of defendants 2 to 5 was to prevent their share being transferred or alienated by defendant No. 1 or for being made out of the reach of alienation by defendant No. 1 for the discharge of his antecedents personal debts. It may be that defendants 2 to 5 did not desire defendant No. 1 to incur any further debts on the strength of the joint Hindu family property. But it was certainly a partition meant to operate between the parties and could not be considered as collusive but may at best be termed as mala fide. The impugned partition decree defines and fixes the shares of defendants 2 to 4 and also gives an equal share to defendant No. 5 in lieu of her maintenance. Each of the defendants is entitled to l/5th share in the joint Hindu family property in accordance with their rights under the Hindu Law. There has been no attempt to give a smaller share to defendant No. 1 than would be his due. The defendants divided the property by metes and bounds and took possession of the respective portions of the property. It cannot, thereforee, be held that the decree in the impugned partition suit is collusive.

(28) The allegations of fraud contained in the plaint of the suit is that defendant No. 1 in order to avoid his creditors and with a view to defeat and delay their payments in a deceitful manner and with a view to transfer property by passing the injunction order conspired with his wife and mother and got a collusive suit filed against him through his minor sons acting through his wife as next friend and his mother for partition of the immovable property. Under section 53 of the Act every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. As already pointed out the father can so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral. The power of the father for the discharge of such antecedent personal debts, is co-extensive with the right of the creditors to obtain satisfaction out of the family property including the share of the sons in such property. The liability of the sons is unaffected by partition because of the pious duty of the sons to pay the debts of the father unless they are for an illegal or immoral purpose. The sons cannot get rid of their pious obligation to pay the debts of the father even after partition. As- such there cannot be any justifiable basis to argue that the impugned partition decree was with any intent to defeat the claim of the creditors. The partition decree suffered by defendant No. 1 could not be intended to defeat the claim of the creditors.

(29) The mere fact that the partition decree has the effect of delaying the creditors of defendant No. 1 is not by itself sufficient to render the partition decree as fraudulent. The question to be seen is what is the dominant motive. If it is a mala fide partition with the sole object of delaying or defeating the creditors who have claims against the family property, then it may amount to fraudulent transfer. I may recall that the object of the impugned partition decree is to give each co-sharer his rightful share in the joint Hindu family property. The division of the property was effected by metes and bounds and each of the defendants were put in possession of the respective portions. Ext. P-10, the plaint of the partition suit makes no secret that defendants 2 to 5 were claiming partition to Safeguard their future interests in the ancestral property. Defendants 2 to 5 intended to secure their share out of the reach of defendant No. 1's future creditors as also to end the authority of defendant No. 1 to discharge his antecedent personal debts out of the family property. Defendants 2 to 5 further stated in the plaint of the impugned partition suit that it is not the intention to defeat or delay the existing creditors who have provable debts, that defendant No. 1 is already paying off most of his creditors and it is anticipated that with the arrangement arrived at by him with his creditors all of them shall be paid, that it cannot be anticipated if defendant No. 1 may again in future involve himself in similar and other liabilities which would be for no fault of theirs prejudicial to the interest of the minors defendants 2 to 4 and defendant No. 5, that the stock-in-trade with the defendant No. 1 would be worth Rs. 50/60 thousand and that 1/5 share in the property is that of defendant No. 1. The joint Hindu family property was valued at Rs. 60,000.00 by defendants 2 to 5. The plaint of the present suit gives the particulars of the creditors of defendant No. 1 as also their debts totalling to Rs. 66.500.00 . The market value of the property is stated by the plaintiff more than Rs. 2 lacs. If the stock-in-trade of the firm M/s. Dhoomimal Dharamdass which is in the possession and control of defendant No. 1 and the 1/5 share in the property in dispute is taken into account, then in my opinion, it can be considered to be a proper arrangement for the payment of the creditors. If the creditors cannot get full satisfaction of their debts, the pious obligation of the sons for payment of the pre-partition debts of the father still remains. Thus the dominant motive in the case before me cannot be to defeat or delay the creditors to make the impugned partition decree as fraudulent. I hold issues Nos. 6 and 7 against the plaintiffs.

ISSUENo. 8.-Relief.

(30) In view of my findings on the above issues, the suit of the plaintiffs fails and is dismissed. On the facts and circumstances of the case and as the interpretation of section 53 of the Act is being made by this Court for the first time, I would leave the parties to bear their own costs.


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