C.B.BHARGAVA, J. - (1.) THIS is an appeal from the judgment of the Senior Civil Judge No. 1 Jodhpur, dismissing the plaintiffs suit for partition and recovery of arrears of rent.
(2.) FOR the proper appreciation of the facts, the following pedigree showing the relationship of the parties is set out below: Udaichand | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | | Dharam Chand Kewal Chand *Zorawar Mal | | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | | Umrao Chand @Dhanpat Chand 'Inder Chand (Plaintiff) (died in Smt. (Deft. 1 along with 2009 Migsar V. 2= his sons and grand -sons 3 -11 -1952 (defts. 2 to 5) *Zorawar Mal | - - - - - - - - - - - - - - - - - - - - - - - - - - - | | Himmat Mal (D.W.12) Chanda Mal | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | Mohan Mal Sumat Mal (D.W. 8) @Dhanpat Chand | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | | | | | Ugam Chand Manohar Paras Prakash Prem Chand Pratap Chand (Deft. 6) Chand Chand Chanda (D. 10) (D. 11) | (Deft. 7) (Deft. 8) (Deft. 9) | | | Raja (Deft. 16) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | | | Shanti Mahavir Rikhab Munnichand Chand Chand Chand (D. 15) (D. 12) (D. 13) (D. 14) Inder Chand (Deft. 1) | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | | | Bhopal Chand Bhag Chand Sumer Chand Shbos Chand (Deft. 2) (Deft. 3) (Deft. 4) (Deft. 5) In this suit, Umraochand, his sons and grandsons have claimed partition of house mentioned in Schedule A alleging that they have half share in it and the remaining half belongs to defendants Nos. 6 to 16. They have also claimed arreats of rent to the extent of their half share from defendant Nos. 1 to 5 on the basis of a rent -note dated 18 -2 -40 executed by defendant No. 1 in favour of plaintiff No. 1 and Dhanpatchand, father of defendants Nos. 6 to 11 in regard to some apartments of the same house. Plaintiff's case is that until Sawn Vadi 6, Smt. 1951 corresponding to 31st July, 1934, the three brothers namely Umrao Chand, Dhanpatchand and Inderchand constituted a Join Hindu family and jointly owned movable and immovable properties. However, on the aforesaid date, there was a separation amongst the brothers and they divided their ornaments, utensils and other houshold goods in three equal shares. They also separated in mess and residence from the same date. But the properties described in Schedule A (house) and in Schedule B (outstandings of the joint family) were not divided at that time and remained joint till 16td February, 1940, when the said properties were also divided and the house described in Schedule A was all to the joint share of plaintiff No. 1 and Dhanpatchand deceased. No share was alloted to Inderachand in the house and in lieu thereof, all the outstandings due to the joint family were allotted to his share. A partition deed to the above effect was reduced into writing and was allowed to retain possession of some of the apartments in the house as a tenant of Umraochand and Dhanpatchand at a monthly rent of Rs. 5/ - and a rent -note was executed by him in that behalf.
(3.) THIS state of affairs continued upto June, 1954, when plaintiff No. 1 served a notice Ex.P -3 dated 11.6.54 on defendant No. 1 claiming rent and ejectment. In reply to this notice, defendont No. 1 asserted that the partition -deed of 16.2.40 and the rent -note of 11.2.40 were sham and collusive documents which were brought into being to defeat his creditor Lalchand and to save his property from being sold in that debt. It was also asserted that the house mentioned in sehedule A was also divided amongst the brothers at the time of the earlier partition of 31st July, 1934, and separate memoranda were written in the Bahis of each of them. On receiving this reply, plaintiff Umraochand asked the sons of Dhanpatchand to join with him in instituting a suit against Inderchand but they declined and fell in line with Inder Chand taking up the same plea. Umraochand and his sons, therefore, instituted the present suit on the above allegations.;