Patna High Court
Raghunath Prashad Singh vs Basdeo Parsad Singh on 2 March, 1925
Equivalent citations: 88IND. CAS.1012, AIR 1925 PATNA 823
JUDGMENT B.K. Mullick, J.
1. The question in this appeal is whether the share of the appellants Raghunath Prasad Singh, Jagannath Prasad Singh and Gorakh Prasad Singh in the ancestral family property is liable to be sold in execution of a decree against their father Sham Narain Singh. The decree was made in a partition suit brought by the respondent Basdeo Parsad Singh. The Subordinate Judge ordered a partition of Basdeo's 8-annas share. Apparently a money lending business was part of the joint family property of which Sham Narain was the karta. As Sham Narain refused to produce any accounts, the Subordinate Judge valued Basdeo's share at Rs. 6,000 and gave a personal decree against Sham Narain for this sum. When the immoveable property assigned to Sham Narain and the three appellant jointly was attached in execution of the decree for this debt, the appellants objected, firstly, on the ground that they were not joint with their father, and secondly, on the ground that the debt was immoral.
2. With regard to the first of these points, it now appears to be settled Brij Narain v. Mangla Prasad Rai 77 Ind. Cas. 689 : 46 A. 95 : 21 A.L.J. 934 : 46 M.L.J. 23 : 5 P..L.T. 1 : 28 C.W.N. 253 : (1924) M.W.N. 68 : 19 L.W. 72 : 2 Pat. L.R. 41 : 10 O. A.L.R. 82 : (1921) A.I.R. (P.C.) 59 : 33 M.L.T. 457 : 26 Bom. L.R. 500 : 11 O.L.J. 107 : 51 I.A. 129 : 1 O.W.N. 48 : 44 C.L.J. 232 (P.C.) that the sons are under a pious obligation to pay their father's debt even in his lifetime. But it is contended that a partition of the joint family property having taken place, there is no longer any presumption that the branch to which Sham Narain and his three sons belong has continued to remain joint. That is perfectly true. There is no presumption of jointness and it is a question of fact whether Sham Narain and his three sons have remained joint. The burden of proof is on those who allege jointness and the Subordinate Judge has found that the respondent has discharged it. The appellant Raghunath Prasad gave evidence before the Subordinate Judge that he was joint with his father. He has been believed and there is no satisfactory evidence to the contrary. It has not been proved that Sham Narain was joint in. food only and not in property with his sons.
3. With regard to the other point, it is contended that the Subordinate Judge would not have given a personal decree against Sham Narain unless he had been satisfied that it was an immoral debt not binding upon the joint family. The answer to this is that the Subordinate Judge did not find that the debt was immoral and it is conceivable that his opinion was that in this case the karta, though not guilty of criminal misappropriation, had otherwise incurred a liability not binding upon his co-parceners. I do not think that the passing of a personal decree alone is sufficient to prove immorality. Evidence was given that Sham Narain had wasted money on a dancing girl, but neither of the two witnesses has been believed upon this point by the Subordinate Judge. In any event the evidence is of such a vague kind that the learned Subordinate Judge was right in refusing to infer that the Rs. 6,000 in question was spent on this woman.
4. The appeal is dismissed with costs.
Ross, J.
5. I agree.