MODI, 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 for 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 pre-deceased seventh son Asaram for the recovery of Rs. 16,503/ -. The suit was based on two promissory notes for Rs. 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. The suit was contested by the appellants, who are the four 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. 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, Gainda Lal and Bhagwati Sahai have preferred this appeal impleading the two plaintiffs and the remaining defendants as reaspondents. It is contended on behalf of the appellants that a partition of the joint family property took place between Pannalal and his three sons Hardwari Lal, Assaram and Khub Chand in the year 1945 and 1947 and since the debt due the plaintiffs was contracted by Pannalal after the partition, Hardwarilal, Assaram and Khubchand cannot be held responsible for payment of the suit debt. As regards the liability of other four 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. On the other hand the learned counsel for the plaintiff-respondents has supported the judgment and decree of the learned District Judge. The first important question that arises for consideration is whether a partition took place in the year 1945 and 1947 and whether at that partition Hardwari Lal, Assaram 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 Assaram. The case entirely rests on oral evidence examined by the parties. P. W. 2 Gheesaram has stated that Assaram, 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 Assaram, Khub Chand and Hardwari Lal had left the home village Beneti some 20 years ago and settled at distance places. D. W. 1 Ganga Dhar, who is one of the sons of Pannalal, says that Banwarilal alone resided with Pannalal and that Assaram 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 Pathan Kot. D. W. 2 Genda Lal, who is also one of the sons of Pannalal, has deposed that Assaram separated in the year 1945 and Khub Chand and Hardwari Lal separated in the year 1947. He has also stated that Assaram, 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 Assaram 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 Assaram, 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. From the above evidence it is clear that Assaram, Khub Chand and Hardwari Lal took their shares 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 Assaram, Khub Chand and Hardwari Lal separated from him. Therefore, the plaintiffs claims relate to post-partition debt so far as Assaram, Hardwari Lal and Khub Chand are concerned. 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 after 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 Assaram deserves to be set aside. Khubchand 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.
(3.) 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 vs. Naraini (l), 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 lordships have further considered what is meant by an arrangement for payment of debts. It would be useful to quote the following observation 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 un often lead to error and confusion. If by mala fide 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 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 be mala 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 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, 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 off 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 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. 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 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 Rs. 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 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 ear-marked 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 ear-marked 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 8-3-53. ;