Judgement

Appeal from a judgment and decree of the High Court (April 10, 1913) reversing a decree of the Subordinate Judge of Saharanpur.

The suit was instituted in 1910 by the appellants to enforce a mortgage dated August 28, 1890, executed by the respondent Prabhu Lai. The defendants pleaded that Prabhu Lal was a member of a Mitakshara joint family and incompetent to mortgage his share in the family property. The appellants case was that Prabhu Lal was separate.

On April 6, 1889, Prabhu Lal had instituted a suit against the members of the joint family claiming partition. By his plaint in that suit he alleged that his father had failed to give him money for his daily expenses and had not supplied him with food. The Subordinate Judge on July 19, 1890, dismissed that suit. He found that the facts alleged by Prabhu Lal had not been proved, and held that, although Prabhu Lal was entitled to partition under Hindu law, the facts alleged not being proved, no cause of action had accrued. There was no appeal from that decision, a settlement being arrived at by which the share to which Prabhu Lal was entitled upon partition was assigned to him, but remained in his fathers name in the Revenu