S.N. Sodi, J.
1. This first appeal is directed against the judgment and decree of the District Judge, Jaipur District, dated 21st May, 1971, in a suit fox recovery of money.
2. On 13-12-67 the plaintiff-respondents Dwarka Prasad and Gyarsilal brought a suit against six sons of deceased Pannalal and the heirs of the predeceased seventh son Asaram for the recovery of Rs. 16,500/-. The suit was based on two promissory notes for Rupees 7,711/- and Rs. 6,283/- executed by deceased Pannalal on 16-12-64. One of the six sons, namely, Khub Chand, died during the pendency of the suit and since no legal representative was brought on the record within the prescribed time the suit against him abated. The learned District Judge decreed the suit against all the remaining; defendants.
3. The suit was contested by the appellants, who are the 4 sons of Pannalal. The principal ground, which was pleaded by them, was that except Banwarilal all other sons of Pannalal had separated from their father and, therefore, none of them was liable to pay the suit amount.
4. The learned District Judge held that it was not proved that there had been a partition of the joint family property and the sons of Pannalal had separated from their father. He further held that since the debt due to the plaintiffs was a pre-partition debt, all the sons were liable for the suit amount. Aggrieved by the said judgment and decree the four sons of Pannalal, namely, Hardwarilal, Ganga Dhar, Genda Lal and Bhagwati Sahai have preferred this appeal impleading the two plaintiffs and the remaining defendants as respondents.
5. It is contended on behalf of the appellants that a partition of the joint family property took place between Pannalal and his 3 sons Hardwari Lal, Asaram and Khub Chand in the year 1945 and 1947 and since the debt due to the plaintiffs was contracted by Pannalal after the partition. Hardwari Lal, Asaram and Khubchand cannot be held responsible for payment of the suit debt. As regards the liability of other 4 sons of Pannalal it is contended that though they separated from their father on 8th March, 1952, that is, after the debt due to the plaintiffs was incurred by Pannalal, they cannot be held liable, as an arrangement for payment of the suit debt was made at the time of partition.
6. On the other hand the learned counsel for the plaintiff-respondents has supported the judgment and decree of the learned District Judge.
7. The first important question that arises for consideration is whether a partition took place in the year 1945 and 1947 and whether at that partitionHardwari Lal, Asaram and Khub Chand separated from their father. In proof of the partition no document has been filed on behalf of Hardwari Lal, Khub Chand or the heirs of Asaram. The case entirely rests on oral evidence examined by the parties. P.W. 2 Gheesaram has stated that Asaram, Khub Chand and Hardwarilal had separated from their father Pannalal 20 years back. He has further deposed that Banwarilal alone lived with Pannalal and others had taken their shares in the joint property. P.W. 3 Mahadeo Prasad says that Asaram, Khub Chand and Hardwari Lal had left the home village Baneti some 20 years ago and settled at distant places. D.W. 1 Ganga Dhar, who is one of the sons of Pannalal, says that Banwarilal alone resided with Pannalal and that Asaram separated from Pannalal in the year 1945 and settled at Delhi. He further says that Khub Chand and Hardwari Lal separated after 2 or 3 years, that is, in the year 1947-48 and settled at Pathankot. D.W. 2 Genda Lal, who is also one of the sons of Pannalal, has deposed that Asaram separated in the year 1945 and Khub Chand and Hardwari Lal separated in the year 1947. He has also stated that Asaram, Hardwari Lal and Khub Chand on partition, were allotted two rooms each in the house. D.W. 3 Hardwari Lal, who is again a son of Pannalal, says that he separated from his father in the year 1947 along with Khub Chand. According to him Asaram separated earlier and settled at Delhi. He has also stated that at the time he separated from his father he was allotted two rooms in the house. D.W. 5 Prabhati Lal has deposed that Asaram, Khub Chand and Hardwari Lal separated before the execution of the partition deed dated 8-3-52. This witness is the son-in-law of Pannalal.
8. From the above evidence it is clear that Asaram, Khub Chand and Hardwari Lal took their share in the joint family property and separated from their father Pannalal in the year 1945 and 1947. Doubtless Pannalal had not contracted any debt from the plaintiffs till Asaram, Khub Chand and Hardwari Lal separated from him. Therefore, the plaintiff's claim relates to post-partition debt so far as Asaram, Hardwari Lal and Khub Chand are concerned.
9. It is well settled that so long as the family remains undivided the father is entitled to alienate for satisfying his own personal debts not tainted with immorality, the whole of the ancestral estate. The creditor is also entitled to proceed against the entire joint family property to recover debt taken by the father, The position is somewhat Altered when the family estate is divided between the father and the sons. A question then arises whether the sons are liable for the debt contracted by the father after the family estate is divided and can the creditor proceed against the shares that the sons have received on partition? It is well settled that the sons are not liable for the post-partition debts contracted by the father and the creditor cannot proceed to recover his debt from the shares allotted on partition to the sons. But the share which the father receives at the partition and which after his death comes to his sons would of course be available to the creditors of the father. (See Mayne on Hindu Law and Usage, p. 430 and Mulla's Hindu Law, 13th Edition, p. 324). In this view of the matter, the decree passed by the learned District Judge against Hardwari Lal and the legal representatives of Asaram deserves to be set aside. Khub Chand was also not liable for the suit debt as he separated in the year 1947, but his case need not be considered as suit against him abated in the lower court and no decree was passed against his legal representatives.
10. As regards the liability of the remaining four sons, namely, Gangadhar, Gendalal, Banwarilal and Bhagwati Sahai, the evidence is that they separated on 8-3-52. It is not in dispute that Pannalal had contracted the suit debt prior to 8-3-52. In Pannalal v. Naraini, AIR 1952 SC 170, their Lordships of the Supreme Court held that sons are liable to pay pre-partition debts unless there was an arrangement for payment of such debts at the time when the partition took place. Their Lordship have further considered what is meant by an arrangement for payment of debts. It would be useful to quote the following observations of their Lordships of the Supreme Court in this connection:--
'The question now comes as to what is meant by an arrangement for payment of debts. The expressions 'bona fide' and 'mala fide' partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not unoften lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defeat the creditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not bemala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property, the liability of the sons for payment of the pre-partition debts of the father will still remain.
We desire only to point out that an arrangement for payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case. We can conceive of cases where the property allotted to the father in his own legitimate share was considered more than enough for his own necessities and he undertook to pay of all his personal debts and release the sons from their obligation in respect thereof. That may also be considered to be a proper arrangement for payment of the creditors in the circumstances of a particular case.
After all, the primary liability to pay his debts is upon the father- himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose. If the arrangement made at the time of partition is reasonable and proper, an unsecured creditor cannot have any reason to complain.'
11. The question therefore arises whether the arrangement made in the present case for payment of the suit debt is proper and reasonable. The onus of proving this fact lay heavily on the sons who contended that the debt incurred by their father was not binding on the shares allotted to them at the time of partition. It has therefore to be seen whether this burden has been discharged. A perusal of the partition-deed dated 8-3-52 reveals that the joint family owned in common certain apartments in a house and movable property consisting of cattle, furniture, utensils and debts due to the family. The house was partitioned and members of the family were allowed to keep in their possession such apartments which they were occupying on the date of partition. All the movable property was allotted to the share of Banwari Lal. He was also authorised to realise all outstanding debts due to the family. In lieu thereof, he was saddled with the liability to discharge the debts due to the plaintiffs and one Kanhaiyalal. From the partition-deed, It further appears that on the date of the partition, deceased Pannalal was indebted to the plaintiffs and Kanhaiyalal to the extent of Rs. 13,000/-. The debts of the family which Banwarilal was authorised to realise from various persons whose names are mentioned in the schedule attached to the partition-deed amounted to R. 18,073/6/6. The account books of the family have not been produced in order to show that the debts specified in the schedule were in fact due to the family. There is also no evidence as to how much amount Banwarilal realised from the debtors specified in the schedule. There is further nothing to show that the debts specified in the schedule were such which could easily be recovered and were not bad debts. In fact there is no evidence whatsoever to suggest that the movable property earmarked to pay off the amount due to the plaintiffs and Kanhaiyalal was adequate and sufficient. As regards the immovable property which was partitioned between the sons and the father there is again no evidence as to its probable value. The partition-deed no doubt mentions that after the death of Pannalal the immovable property allotted to the share of Pannalal shall vest in Banwarilal. But here again there is no evidence as to the value of the immovable property allotted to Pannalal's share and inherited by Banwarilal on the death of Pannalal. It further appears that in spite of the fact that Banwarilal took the responsibility to pay off the amount due to the plaintiffs, the promissory notes even after partition were executed by Pannalal and not by Banwarilal. This conduct on the part of Pannalal and Banwarilal goes to show that probably the partition was not meant to be acted upon by the father and the sons, In absence of any cogent proof as to the sufficiency of the property earmarked for the payment of the debts due to the plaintiffs and Kanhaiyalal it cannot, be said that the sons discharged the burden to prove that the arrangement made at the partition was reasonable and proper. In absence of such proof, the plaintiffs are entitled to recover the decretal amount from the shares allotted to the sons at the time of partition on 8-3-52.
12. Lastly, it is contended by the learned counsel for the defendants that since Pannalal renewed the debt by executing fresh promissory notes in favour of the plaintiffs after 8-3-52, the old debt due to the plaintiffs was discharged and it no longer remained a pre-partition debt so as to be binding on Ganga Dhar, Gendalal, Bhagwati Sahai and Banwarilal. In support of his above contention, the learned counsel has relied on V. Hanumayya v. Venkata Narasimha, AIR 1965 Andh Pra 439. To mymind, the above contention is not well founded. It is true that in the present case the suit was instituted on the promissory notes dated 16-12-64 which the father had executed after the partition-But there is nothing to suggest that the renewed promissory notes dated 16-12-64 were in respect of the debt which had become barred by tune or had become otherwise unrealisable under any law. There is also nothing to suggest that the terms of the renewed promissory notes were more onerous than the previous ones. It appears that the father executed fresh promissory notes simply to keep the pre-partition debt alive. Such an act of the father even after partition cannot alter the character of the pre-partition debt into a post-partition debt. The case relied upon by the learned counsel for the defendants, in my opinion, does not support him. In that case, it was found as a fact that adequate and sufficient arrangement was made for the payment of the debt, on the date of partition. It was no doubt observed on the basis of certain decisions of the Madras High' Court that the father has no authority after partition to renew his debts so as to make it binding on the sons but the Judgment was not based on that ground alone. A Division Bench of the same High Court in Velivelli Sydulu v. Guntupalli Venkateshwarlu, AIR 1965 Andh Pra 318 held that if no provision was made for the payment of the debts due from the father, the sons would be liable for pre-partition debts even if the suit was based on the promissory note renewed by the father after the partition. The view taken in the latter case is in consonance with the principles laid down by their Lordships of the Supreme Court in Sidheshwar Mukheriee v. Bhubaneshwar Prasad Narain Singh, AIR 1953 SC 487, S. M. Jakati v. S. M. Borkar, AIR 1959 SC 282 and Virdhachalam Pillai v. Chaldean Syrian Bank Ltd, Trichur, AIR 1964 SC 1425.
13. For the reasons stated above, the appeal is allowed partly, the judgment and decree of the lower court are modified and the suit against Hardwarilal and the legal representatives of Asharam is dismissed. The decree against appellants Ganga Dhar, Gendalal and Bhagwati Sahai and respondent Banwarilal is maintained but their liability will extend only to the extent of their having received the joint family property. In view of the partial success, the parties are left to bear their own costs throughout.