S. Thirumalamuthu Adaviar vs Subramania Adaviar by Court guardian S. Rajarama Aiyar, Advocate, High Court and Others

Varadachariar, J.—This second appeal arises out of a suit brought by two minors for a declaration that the properties which according to

them fell to their shares at the partition evidenced by Ex. A are not liable to be seized in execution of the decree obtained against their father in

S.C.S. No. 831 of 1928 on the file of the Sub-Court of Tinnevelly. The lower appellate court granted the declaration; hence this appeal by the

decree-holder. The partition under Ex. A was effected soon after the passing of the decree in the small cause suit and in such suspicious

circumstances that both the lower courts have taken the view that it must have been brought about for the very purpose of preventing the decree-

holder in the small cause suit from executing his decree against the properties that might be allotted to the shares of the minor sons. In that sense,

the partition may be said to be fraudulent or mala fide, and I see no reason to differ from that conclusion, though I must point out that that

conclusion can be based only upon inferences from the proximity of dates and the fact that the plaintiffs being minors, there was no other reason for

partition at that particular juncture. No oral evidence has been adduced in this case. The point for determination in the second appeal is, taking the

partition to be fraudulent in that sense, has it the effect of precluding the decree-holder from executing his decree against the properties allotted to

the shares of the sons in that partition?

So far as the decisions in this Court go, there can be little doubt that but for the fraudulent purpose of the partition the decree-holder cannot

reach the son''s shares in execution of the decree obtained against the father alone. Mr. Appuswami Aiyar has invited my attention to the decisions

in the other High Courts which reveal considerable conflict of judicial opinion on the question of the executability of a decree obtained against the

father alone as against the shares allotted to his sons at a partition. Some of them proceed on the footing that there is no justification for drawing a

distinction between liability in a separate suit against the sons and the liability of the shares to be proceeded against in execution of the decree

obtained against the father. In some, the decision of a Full Bench of this Court in Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 :

ILR 51 Mad. 361 is regarded as warranting the above view, though, with all respect, I would observe that this does not appeal to me to be

correct. In some cases again a distinction is drawn between a partition which takes place after the money decree has been obtained against the

father and a partition which takes place before the money decree. This distinction is based on the ground that, where the decree is obtained before

partition, though execution proceedings may be started after partition, the father might well be deemed to have been sued in a representative

character and that therefore the decree, though in name only against the father might well be treated as a decree against the sons as well. It is

sufficient for my present purpose to say that it will be difficult to apply this theory of representation when a suit is brought against the father on a

promissory note executed by himself. It has often been pointed out that in a suit of that kind, the cause of action against the father is on the note

and the cause of action as against the sons is on their Hindu Law liability, and it is difficult to speak. of the father as ""representing"" the sons in a suit

on a promissory note when it will not be open to him to raise defences which will undoubtedly be open to the sons if they had been impleaded in

the suit. Another line of authority draws a distinction between cases of bona fide partition and of fraudulent partition, and founding themselves upon

the observations in Krishnaswamy Konan v. Ramaswamy Aiyar (1899) 9 M.L.J. 127 : ILR 22 Mad. 519 they hold that where the partition is

fraudulent the decree obtained against the father may even be executed against the properties allotted to the sons at such partition. Even if this view

could be held to be right, there is considerable difference of opinion in the authorities as to what is exactly meant by the expression ''fraudulent

partition''. If as was held in Indar Pal v. The Imperial Bank ILR (1915) 37 All. 214 the partition is found to be colourable there should be no

difficulty in ignoring it. If, on the other hand, it is merely what must be described as a fraud upon creditors, I do not see any justification for holding

that for purposes of execution, such partition can be ignored.

That the expressions ''bona fide partition'' and ''mala fide partition'' have been differently understood by different judges and on different

occasions can be gathered from the observations in Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, , Kishan Sarup v.

Brijraj Singh I.L.R.(1929) 51 All. 932 , Gaya Prasad v. Murlidhar I.L.R.(1927) 50 All. 137 and Atul Krishna Roy v. Lala Nandanji I.L.R.(1935)

14 Pat. 732 . I must also point out that when one speaks of a fraudulent partition brought about by a father with a view to defeat his creditors, two

questions may be intended to be comprised in the consequences sought to be deduced therefrom. One is with reference to the possibility of the

father allotting to himself a much smaller share than he would be otherwise entitled to. An objection on this score would presumably be one to be

dealt with u/s 53 of the Transfer of Property Act. Cf. Veerappa Chettiar v. Annamalai Chettiar (1934) 68 M.L.J. 157. The other consequence

sought to be implied is that the partition should be ignored and the sons treated as if they still continued to be joint with their father. No doubt the

observation in Krishnaswamy Konan v. Ramaswamy Aiyar (1899) 9 M.L.J. 127 : ILR 22 Mad. 519 would seem to support such a contention.

But the observation was only made as a reservation in that case and could scarcely be treated as a decision by itself.

Dealing with the matter on principle, it is difficult to see how the mere fact that members of a family who are in law entitled to enter into a

partition at anytime they choose, happen to enter into a partition at a time more inconvenient to a creditor can make it fraudulent in the sense that

the creditor can ignore it. The law provides ways, in which the creditor can avoid any injurious consequences arising therefrom, namely, by

impleading the sons in the action that he may bring against the father, because it is now well established by the preponderance of authority in nearly

all the Courts that a partition will not defeat the rights of the creditor, though it may have some bearing on the procedure to be followed by him for

the realisation of his debt.

Having regard to the above considerations, I do not think I need do more than refer to the cases cited by Mr. Appuswami Aiyar on behalf of

the appellant, namely, Kishan Sarup v. Brijraj Singh I.L.R.(1929) 51 All. 932, Jawahar Singh v. Parduman Singh I.L.R.(1932) 14 Lah. 399, Atul

Krishna Roy v. Lala Nandanji I.L.R.(1935) 14 Pat. 732 and Raghunandan Pershad v. Moti Ram ILR (1929) 6 Luck. 497 . Annabhat

Shankarbhat v. Shivappa Dundappa I.L.R.(1928) 52 Bom. 376 and Yadavalli Suryanarayana Vs. Challa Viswanatham and Another, do not help

the appellant, because in those cases the person who wanted to get his property exempted from the attachment was a party to the money decree

or the question of his liability was raised in the course of the money suit itself. Doraiswami Nadan and Others Vs. Nagasami Naicken and Another,

may no doubt appear to be in favour of the appellant''s contention. But, rightly or wrongly, the learned Judges based their decision on the ground

that in that case the objecting sons had been impleaded as parties to the suit against the father, though in that suit they were exonerated. It is not for

me to canvass the correctness of that decision, but the learned Judges expressly make this circumstance the distinguishing factor when they refer to

the observations of Ananthakrishna Aiyar, J., in Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : ILR 51 Mad. 361 .The view taken

in Kameswaramma v. Venkata Subba Rao (1915) 27 M.L.J. 112 : ILR 38 Mad. 1120 has been consistently followed in this Court to the extent

of recognising the distinction between the right of the creditor to proceed by a separate suit against the sons even after partition and his right to

attach the sons'' shares in execution of the decree obtained against the father. Cf. Bapiraju v. Sreeramulu (1934) 40 L.W. 588. See also Veerappa

Chettiar v. Annamalai Chettiar (1934) 68 M.L.J. 157 and Appeal No. 25 of 1932. If, as recognised in Krishnaswamy Konan v. Ramaswamy

Aiyar (1899) 9 M.L.J. 127 : ILR 22 Mad. 519 and Kameswaramma v. Venkata Subba Rao (1915) 27 M.L.J. 112 : ILR 38 Mad. 1120, the

attach-ability of the sons'' shares depends upon the power of the father to alienate it at the time the creditor seeks to attack the same, it is difficult

to see how the fact of the partition being one intended to defraud creditors can make any difference. If it was intended to be operative and is in law

operative, to bring about a division in status between the father and the sons, the father''s power of alienating the shares allotted to the sons at such

partition must have come to an end and with it the right of the creditor to attach such shares.

The question of the bona fides or mala fides of the partition has been referred to in some of the decisions for another reason, namely, the

suggestion sometimes made that if the partition was bona fide, in the sense that sufficient provision has been made therein even for the discharge of

the debts of the father, the shares allotted to the sons at such partition ought not to be held liable at all in any kind of proceeding for the pre-

partition debts of the father. Whether that proposition is well founded or not, that appears to have been the reason for drawing the distinction in

some of the cases between bona fide partitions and fraudulent partitions. Except in cases where the mala fide character of the partition is such as to

lead the Court to come to the conclusion that the partition was not intended to be operative at all, I am unable to see how the mala fide character

bears on the question of the creditor''s rights to attach the sons'' share in execution of a decree obtained against the father alone. I am therefore of

opinion that the conclusion of the lower appellate Court is right. The second appeal fails and is dismissed with costs.

Leave granted.