1. Presumption of jointness between father and son under Hindu Law and the burden of proof for partition. 2. Pious obligation of son to pay father's debts and the enforceability of money decree against coparcenary property.

( 1 ) THIS appeal is directed against the Order dated 24-3-83 of IInd Addl. Judge to the Court of District Judge, Dhar, Passed in M. J. C. No. 1/82, whereby the objection of appellant against the attachment of the property has been rejected.

( 2 ) THE admitted facts of the case are that : respondent No. 1 obtained a money decree against the respondent No. 2. Respondent No. 2 and appellant-objector are father and son. Some agricultural land have been attached in execution of the money decree. The revenue records stands in the name of respondent No. 2 i. e. , father. After the attachment of certain agricultural property, which stood in the name of respondent No. 2, an objection was filed by the appellant under O. 21, R. 58, C. P. C. with the assertion that there has been a partition between the father and son i. e. , respondent No. 2 and objector and that the property attached is ancestral property and the same has befallen in the share of objector-appellant. As against it decree-holder respondent No. l contended that the objector-J. D. are living jointly and the property still stands in the name of the father J. D. There has been no partition between them.

( 3 ) LEARNED trial Judge has rejected the objection holding it that the objector and the respondent No. 2 are living jointly. There has been no partition and that the respondent No. 2 is the Bhumiswami of the land. Hence this appeal.

( 4 ) IN the memo of appeal and during the course of argument learned counsel for the appellant has submitted that Ex. D-1 (copy of the Ration Card) and Ex. D-2 (Certificate from panchayat) are not admissible in evidence and if these two documents are rejected the fact of partition would be deemed to have been proved.

( 5 ) ON a query made by the Court learned counsel for the appellant contended that it was for the decree-holder to have pleaded that the decree was for a Yyavaharik debt taken for moral purposes and in absence of that pleading by the decree-holder the objector (son) cannot be made liable to pay the amount of decree or allow the payment from the ancestral property. As against it learned counsel for the respondent has submitted that there is a presumption of jointness between father and son and burden lies on the person who (asserts) that there has been a partition to plead and prove that fact. Since objector and the respondent No. 2 are living jointly and the money has been borrowed by respondent No. 2 father and therefore the property in their hands is liable to be attached.

( 6 ) THIS fact is not controverted that the parties are Hindus and admittedly Law of Coparcenary applies to them. Under the Hindu Law there is always presumption of jointness unless proved otherwise. It is for the party who wants the fact of partition to be accepted by the Court, to plead and prove that fact and therefore in the absence of such pleading and proof it has rightly been held that the respondent No. 2, and the objector being the father and son are living jointly. In the opinion of this Court that finding of the Court below regarding jointness appears to be proper.

( 7 ) NOW so far as the answer to the query made by the Court is concerned, learned counsel for the appellant does not appear to be correct in making the statement of law that the fact of debt being Vyavaharik or for moral purpose is to be pleaded by the money lender or the decree-holder. The law is just the otherwise. It is for the party or the son who wants to take advantage of that to plead and prove that the debt was for Avyaharik purpose or for immoral purpose and therefore is not bound to pay the debt.

( 8 ) THEIR Lordships of the Supreme Court in a case reported in AIR 1967 SC 727, Faquir Chand v. Harnam Kaur, which has been reproduced in Note 294a of Mull's Hindu Law 16th Edition, at page 383, which reads as follows :- " (1) the son is under a pious obligation to pay all debts of the father, whether secured or unsecured. The second proposition applies not only to