Km. Kr. Km. Kuppan Chettiar and Others vs Masa Goundan and Others

Varadachariar, J.—This second appeal arises out of a suit instituted by the legal representatives of a decree-holder to get a claim order set

aside.

The father of the plaintiffs obtained a money decree against the first defendant on 17th September, 1926 on three promissory notes executed by

the first defendant, Exs. D, D-1 and D-2. Between the dates of Exs. D and D-1 a partition arrangement was entered into between the first

defendant and his sons, defendants 2 to 5. {Vide Ex. V, dated 13th October, 1925.) It is alleged that the plaintiff''s father was not aware of this

partition and so happened to make further advances to the first defendant under Exs. D-1 and D-2 in the course of November and December

1925. The suit, O.S. No. 1400 of 1926, was instituted for the recovery of money due under these three promissory notes but the first defendant

alone was impleaded as defendant thereto and a decree was obtained in due course. When the plaintiffs proceeded to attach certain properties in

execution of this money decree the defendants 2 to 5 came forward with a claim petition and prayed that the properties which had fallen to their

shares under Ex. V should be released from attachment. As the properties were accordingly released, the plaintiffs filed this suit to obtain a

declaration that they are entitled to attach the properties which the defendants 2 to 5 claimed to have fallen to them in the partition.

The question for determination is whether, in spite of the partition evidenced by Ex. V, the shares taken by defendants 2 to 5 are liable to be

proceeded against in execution of the money decree obtained against the father alone. I have dealt with this question at some length in a judgment

recently delivered by me in S. Thirumalamuthu Adaviar Vs. Subramania Adaviar by Court guardian S. Rajarama Aiyar, Advocate, High Court and

Others, and I do not propose to repeat what has been said there. I shall only add that the case for the decree-holder was much stronger in that

case than in the present instance because in that case I proceeded on the footing that the partition was entered into with a view to defeat the

creditor.

Whatever may be the rights under the Hindu Law of a father''s creditor to secure satisfaction of the debts due by the father from the son''s

shares in the joint family, the question arising for determination in this second appeal has to be decided with reference to the language of Section 60

of the Civil Procedure Code. In order that properties may be liable to attachment in execution, it must be shown that they either belong to the

judgment-debtor or that the judgment-debtor has a disposing power over the properties or their profits, which power he may exercise for his own

benefit.

It is well settled and the proposition has now been placed beyond doubt by the observations of their Lordships of the Judicial Committee in Sat

Narain v. Rai Bahadur Sri Kishen Das (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : ILR 17 Lah. 644 that the father''s power of sale for his debts

exists only so long as the joint family remains undivided. Their reference with approval to the decision of this Court in Baluswami Aiyar, In re

(1928) 55 M.L.J. 726 : L.R. 51 Mad. 417 , shows that even a division in status will suffice to put an end to this power. It would therefore follow

that after a division in status the father''s creditor cannot, any more than the Official Assignee, claim that the property is saleable by the father and

therefore attachable by himself. That the position is different as regards the creditor''s remedy by independent suit against the sons has been

recognised by the judgment of a Full Bench of this Court in Subramania Aiyar v. Sabapathy Ayyar (1927) 54 M.L.J. 726 : ILR 51 Mad. 361 .

Having regard to this well-understood distinction between the creditor''s remedy in execution and the creditor''s remedy by a separate suit, we are

with due respect unable to follow the observations which were cited to us from certain decisions of the other High Courts which either ignore this

distinction or proceed on a basis different from the Full Bench decision in Subramania Aiyar v. Sabapathy Ayyar (1927) 54 M.L.J. 726

In the above view, it seems to me unnecessary to consider how far the contention on the one side or the other as to whether the partition in this

case can be described as bona fide within the meaning of the authorities is tenable. In my judgment in S. Thirumalamuthu Adaviar Vs. Subramania

Adaviar by Court guardian S. Rajarama Aiyar, Advocate, High Court and Others, , I have endeavoured to show that the expression ""bona fide

partition"" has been used by different learned Judges in different senses. If, as recognised by their Lordships of the Judicial Committee in the recent

case, the father''s power to sell is at an end once there is a genuine partition, it does not seem to me material for the purpose of execution

proceedings to consider whether the partition is bona fide or not, in the sense that it has made sufficient provision for the discharge of the father''s

debts. Their Lordships, no doubt, recognise that in a suit for partition it is proper that the Court should make provision for the discharge of the

father''s debts and that the remaining property alone should form the subject-matter of division between the coparceners. But it nevertheless seems

to me too much to say that, except in cases where the father''s debts are specifically referred to and provided for in a partition deed, the partition

deed cannot be regarded as a bona fide partition arrangement. In the present case the finding of the lower appellate Court is not merely that the

partition was not nominal but that the plaintiffs had not shown that the share allotted to the first defendant was not enough for the discharge of his

debts subsisting at the time of the partition and for his maintenance. There are, no doubt, dicta in some of the cases which go so far as to lay down

that, unless the partition not merely makes provision for the discharge of the existing debts but allots in addition a share to the father equal to the

shares allotted to the sons, it should not be regarded as a bona fide partition. As at present advised, I am unable to concur in that view. But, having

regard to the limited scope of the question to be determined in this second appeal, it seems to me unnecessary to express any final opinion on that

question.

Some of the cases in the other High Courts draw a distinction between a partition which takes place after the money decree had been obtained

against the father and a partition which takes place before the money decree. In that connection I may point out that in the present case the

partition took place nearly a year before the passing of the decree in the money suit and that the suit comprised claims under two promissory notes

in respect of which moneys were advanced only after the partition. It is only the claim under Ex. D, a promissory note for Rs. 500 that had accrued

due before the partition. It does not seem to be material whether the plaintiffs'' father was or was not aware of the partition. Both the Courts have

found that there was no particular attempt to keep the partition concealed from the creditors and we find that the partition deed was presented for

registration the very next day after execution.

I am not sure if it is possible to split up a decree like the one obtained by the plaintiffs'' father in this case and give the decree-holder a right of

execution against the sons'' shares in respect of so much of it as may represent the claim under Ex. D which alone was a pre-partition debt. But

that question also is immaterial in the view I have taken. The Lower Appellate Court was, in my opinion, right in dismissing the plaintiffs'' suit.

A further point was raised before us that at least in respect of the properties comprised in the D schedule to the partition deed, the plaintiffs must

be entitled to execute the decree obtained by their father. I am unable to accede to this contention. It has, no doubt, been held that the claim which

a wife has under the Hindu Law for maintenance against her husband cannot take precedence over the claims of his creditors, and the same

principle has been applied to a widow''s claim for maintenance against her husband''s estate. But that is not exactly the position here. I am not

satisfied that the earned Counsel for the appellant was correct in the contention that, even when a partition takes place in a joint Hindu family, the

Hindu Law does not permit of a provision being made by allotment of property for the maintenance of the wife and for the marriage of the

daughters as long as the father is alive. The wife has, no doubt, a personal claim for maintenance against her husband independently of the

possession of any property, but that does not exclude the liability of the coparcenary property to provide for her maintenance, at any rate when the

whole family property is made the subject of a partition between the father and the sons. In the present case the allotment has been made not

merely for the benefit of the wife and the daughters but also with a further provision that the properties so allotted to them should be divided after

their lifetime by the sons. Applying the test involved in the language of Section 60 of the Civil Procedure Code, it is impossible to hold that the

father any longer continued to have the power of disposing of the property that was allotted to his wife and daughters with remainder over to his

sons.

Mr. Gopalaswami Aiyangar finally asks that the suit may at least be permitted to be treated as a suit to recover money from the sons in respect

of the claim due under the promissory note, Ex. D. We regret we are unable to accede even to this prayer. It will be wholly changing the nature of

the suit, and prima facie the suit has been instituted more than three years after the date of Ex. D. We do not feel that we are justified in allowing

the change of the basis of the claim without further information clearly available from the record that the money claim would not be barred by

limitation.

The result is that the second appeal fails and is dismissed with costs.

Burn, J.

I agree that the second appeal must be dismissed with costs, and I have very little to add. The finding is clear in this case that the partition was

a genuine partition, a real transaction and not a mere sham. And that being so, it is clear that it put an end to the joint family in which the first

defendant was the father. The motive which was behind this partition is, I think, irrelevant. It follows from the decision in the case Baluswami

Ayyar, In Re: A.N.B. Baluswamy Iyer and A.N.B. Narasimha Iyer, (in which it was clear that the partition suit was filed on behalf of the minor

sons in order to defeat the claim of the Official Assignee who wished to exercise the father''s power of disposal of his minor sons'' shares) that,

even if a partition is entered upon in order to defeat the claims of creditors nevertheless, provided that it is a genuine partition, division of status

takes place, and the power of the father to sell the shares of the sons is brought to an end. If that be so, there can be no possibility of the decree-

holder pursuing the shares of the sons in execution of the decree obtained against the father alone.