Harbans Singh, J. - (1.) On 28-9-1942, two pronotes and two receipts were executed by Kundan Lal father of the plaintiffs-respondents, in favour of Bhagat Ram for Rs. 1,900/ and 2,000/- respectively. Ram Lal and Shib Dass were the attesting witnesses to these documents. On 1-10-1945, Bhagat Ram filed a suit against Kundan Lal were that these two pronotes and the receipts were never executed by him and that these wee forgeries. The suit was dismissed by the trial Court on 8-4-1947, holding that the execution was not proved. The appeal filed by Bhagat Ram was accepted by the District Judge on 29-6-1948, and a decree for the entire amount claimed was passed. Kundan Lal's appeal in the High Court, Regular Second Appeal No. 771 of 1948, was dismissed on 7-5-1953. In execution of the decree passed by the District Judge, the property of the joint Hindu family, including the share of Kundan Lal's sons, was attached by the decree-holder and later sold.
(2.) On 23-8-1949, the suit, out of which the present appeal has arisen, was filed by Ajudhia Parkash, Brij Mohan and Yashpal minor sons of Kundan Lal, for a declaration that the properties in dispute are not liable to sale in execution of the decree aforesaid obtained by Bhagat Ram against Kundan Lal on the ground that the father constituted a joint Hindu family with the plaintiff's and the properties belonged to the joint family and that the debts on the basis of which the decree had been obtained never existed and were never incurred by Kundan Lal and that, in any case, they were raised by Kundan Lal for illegal and immoral purposes. The suit was resisted by defendant Bhagat Ram who denied the existence of the joint Hindu family or that the properties in dispute belonged to the coparcenary. He further pleaded that the factum of the debt could not be gone into and that consequently the plaintiff's were barred from challenging the existence of the debts. It was further stated that the debts were not incurred for immoral or illegal purposes and, inasmuch as during the pendency of the suit the property had already been put to sale, it was urged that a declaratory suit did not lie. As a result of these pleadings the following issues were settled: 1.Whether the plaintiff's are sons of defendant No. 2? 2.Whether the plaintiff's do not constitute joint Hindu family with defendant No. 2? 3.Whether the properties in dispute belong to the joint Hindu family of the plaintiff's and defendant No. 2? 4.What is the effect of sale of the suit properties during the pendency of the suit? 5.Whether defendant No. 2 owned any debts to defendant No. 1? 6.Whether in fact of the decree the plaintiffs cannot deny the factum of the debts? 7.Whether the allegations made in para 3 of the plaint exist in respect of the debts in dispute and are the debts, on that account, not binding on the plaintiffs? 8.Whether the plaintiffs are mere figureheads and whether defendant No. 2 is getting the suit going? If so, what is its effect? 9.Relief. Issues Nos. 1 to 3 and 8 were decided in favour of the plaintiffs and it was further held that the sale of the suit properties during the pendency of the suit did not affect plaintiffs' right and that the plaintiffs could challenge the existence of the debts which formed the basis of the decree. On merits it was found that no debt was, in fact, due from Kundan La to Bhagat Ram and that there was no proof of immorality or illegality. In view of these findings the trial Court granted, a decree to the plaintiff's as prayed. Being dissatisfied with the decree of the Court below Bhagat Ram has filed this regular first appeal.
(3.) We have carefully gone throughout the evidence with regard to the existence or otherwise of the debt. Out of the two attesting witnesses, Shiv Dass appeared as D.W. 6 and categorically stated that Kundan Lal did not raise any debt from Bhagat Ram in his presence, or execute any pronote or receipt and hand over the same to Bhagat Ram and that he attested these documents at the request of Bhagat Ram when he brought the same to him. Ram Lal, the other attesting witness, is said to be dead. A statement made by him in the previous case was sought to be brought on the record. This was rightly not allowed to be done. We were referred to no provision of the Indian Evidence Act under which such a previous statement would be admissible. This statement was made not in a suit inter prates and does not fall either under S. 32 or Section 33 of the Indian Evidence Act. We are, therefore, left with the statement of Bhagat Ram himself as D.W. 4. On his own admissions in cross-examination it is proved that he is not a reliable person and did actually make additions and alterations in other documents executed by Kundan Lal relating to the pronotes. This is what he sated: "I had secured an agreement from Kundan Lal regarding the giving of dasti notice in respect of pronotes. The agreement was got written in 1941. Copy thereof is marked Exhibit P. 1. The said pronotes had not been executed at that time. They were got executed in 1942. This argeement in respect of the pronotes was in favour of my son. I made an addition therein in my own hand with regard to the pronotes of 1942. But signatures of Kundan Lal were not secured on the said addition." Some facts were also brought out in cross-examination indicating that Bhagat Ram was probably not in a position in the year 1942 or thereabout to advance any substantial sum of money. He was in the Police Department and was dismissed from service. In this respect he stated as follows: "I was dismissed from service. I was not dismissed in a bribery case. I was in search of employment in Delhi during the days. I secured the pronotes from Kundan Lal. I did not own Rs. 5,000/ 6,000 to Faquir Chand in those days by way of debt. I do not remember whether I owned one before that or not. I had a partition case with my brothers in 1939. x x x x In 1939-40, I made a statement in that case that I owed Rs. 5,000/6,000 to Faqir Chand. That statement was correct. I do not remember when that amount was paid; probably it was paid in 1940." This shows that Bhagat Ram did not hesitate to deny the fact that he owed Rs. 5,000/- or Rs. 6,000/- to Faquir Chand at any time, although he had to admit this when he was specifically confronted with a statement made by him in a previous case. He made similar unsatisfactory statements about various other matters affecting his credit as a truthful witness and a man of character. For example he stated as follows: "During the days that I brought the suit against Kundan Lal no case was pending against me in respect of charging more price for jaggery. A case was certainly brought, but I do not know when. I was, of course, fined therein." This evidence of Bhagat Ram is highly unsatisfactory and the learned trial Court has rightly discredited the same. Both the parties examined handwriting experts. A. B. Bal was examined on behalf of the defendant and A. S. Kapur on behalf of the plaintiff's. These experts have given opinions in favour of the respective party calling them. The learned trial Judge found that a comparison of the writing on the pronotes with the sample writing of Kashmiri Lal showed that the opinion of the plaintiffs' expert that the writing on the pronotes is in the handwriting of Kashmiri Lal and not that of Kundan Lal, is correct. Even if the evidence of the handwriting expert is left out of consideration, the execution of the pronotes by Kundan Lal and not that of Kundan Lal, is correct. Even if the evidence of the handwriting expert is left out of consideration, the execution of the pronotes by Kundan Lal is not proved at all and the finding on issue No. 5 that Kundan Lal, in fact, owed no debt to Bhagat Ram must be confirmed.;